To what degree do criminal proceedings rely on precedent?
January 6, 2021 1:05 PM   Subscribe

In a conversation recently the role of precedent came up in criminal proceedings. To what degree is precedent a factor in criminal proceedings?

Can a single important criminal case set precedent? I was under the impression it can and does, but after reading Wikipedia for an hour I can't find a single-paragraph stare decisis etc treatment which explains whether precedent is largely only a factor of civil proceedings, or whether it also applies to criminal proceedings more or less equally.

(I am not currently involved in any cases or proceedings and this is purely an academic question.)
posted by Phyltre to Law & Government (9 answers total) 1 user marked this as a favorite
IANAL but from reading about cases 99% certain the answer is "sure." Precedent is especially important for the rules around criminal proceedings. Appeals that led to things like Miranda rights or permissible reasons for exclusion of jurors established precedents. Rules for admissibility of forensic evidence and expert testimony. And so on.

On the flip side, the idea that "you can't indict a sitting president" has (as is often noted) no precedent established so is actually an open question.
posted by mark k at 1:16 PM on January 6 [1 favorite]

In short, yes.

An American example would be Miranda v Arizona. This is the case where the Supreme Court made it clear that the fifth amendment "prevents prosecutors from using a person's statements made in response to interrogation in police custody as evidence at their trial unless they can show that the person was informed of the right to consult with an attorney before and during questioning, and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights, but voluntarily waived them." Lawyers use this case to attempt to object to statements being introduced into evidence in criminal trials.

There are many many decisions like this: decisions that set out what kind of evidence can be admitted, when, and for what purpose. There are cases that set out what the acceptable defences to allegations of sexual assault are. There are also cases about sentencing minimums and maximums.

It is true that civil precedents are not particularly useful to criminal cases, except in areas where there are specific overlap (i.e. civil sexual assault cases, etc) and even then the precedents are sometimes different enough as to be useless.
posted by hepta at 2:20 PM on January 6 [3 favorites]

Yes. This is why law school consists almost exclusively of reading case law.
posted by kevinbelt at 2:41 PM on January 6 [1 favorite]

Hello, I'm a Canadian cop and this type of question is why I made this sockpuppet account.

Both the United States and Canada (except for Quebec, it's a long story) use the legal system known as "Common Law", which relies on the concept of precedent to set rules for courts regarding how to treat cases with similar circumstances.

Everything you read at the Wikipedia article linked above applies equally to civil and criminal cases in Common Law jurisdictions.

Note, part of your confusion may be in seeing refences to "Civil Law" vs "civil law".

The distinction between civil law (civil proceedings such a lawsuits) and criminal law (proceedings by the government against a person) is completely different from the distinction between Common Law (the British system of laws) and Civil Law (the European (or in Canada the Quebec) system of laws).

As a police officer I routinely review new case law [published decisions of criminal cases] from superior courts in my jurisdiction because I need to stay up to date with how the law evolves. In Canada and the US I'd say about 20% of criminal law knowledge is based on actual updates to the law, and about 80% is based on Common law precedents being set by criminal courts. As kevinbelt said, a lot of being a lawyer or even a cop is just reading case law. The Justice Institute of BC publishes a newsletter called 10-8 which features news of interest to police, and dedicates a significant portion of its pages to discussing new case law and how it could be applied in day to day policing. 10-8 Newsletter, Vol 20 Issue 2, from April 2020 [PDF link!]

For example, in Canadian written law there is no reference to your rights when speaking to police (similar to how there's no legislation that spells out Miranda rights in the US). In Canada if I want to get someone to "confess" to me I need to follow the case law set out by the Supreme Court of Canada in Crown (which we call "R") vs Oickle, which sets out what the court then called "the confession rule".

R. v. Oickle, 2000 SCC 38 (CanLII), [2000] 2 SCR 3,

Another example, search warrant rules in legislation haven't changed much in my time as a cop, but technology has. So the Supreme Court took a couple cases where people had phones and computers searched, and tweaked the rules by setting out precedent regarding when a warrant is required for a phone or computer search, particularly in R vs Vu.

R. v. Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657,
Or in plain(er) english: Supreme Court [of Canada] Requires Warrant to Search Computer Content

So to answer your question, precedent from criminal cases decided at appeals court levels or higher is VERY important in criminal cases.

On a related note, I will say that in terms of policing, no one wants to be the first one to set precedent, especially when some new law comes into effect. Even if the precedent is decided the way you want it to be, having to deal with having a case appealed and argued over and over is a big hassle. So there is often a hesitation by police to apply new powers or do things in new ways when there is no precedent that says you're allowed to do it. When new breathalyzer rules came into effect a few years ago saying we could make anyone driving a car provide a breath sample at the roadside, orders came down in my organization to keep to the old rules and only test people where you had "reasonable grounds to suspect" they were impaired, because that was the old (safe) standard. Only after the law has been around a couple years and tested by appeals courts is everyone satisficed they can use the full authority without risking losing a case down the road.

On the other hand, sometimes you have to use the precedent that you have, which is why when you read R v Vu you'll see cops did stuff in that case that would no longer be allowed, but the evidence was still admitted in that case because even though the Supreme Court was changing the rules they still had to honour the fact the cops followed the existing rules as they reasonable understood them at the time.
posted by BlueSock at 3:01 PM on January 6 [6 favorites]

Needless to say, there is some really bad precedent out there, such as the one you have in the US that says cops have "qualified immunity", an invention of the US Supreme Court basically means (as far as I understand, keep in mind I'm in Canada) that cops can only be charged for something that another cop has already been charged with. Come up with a new bad thing and you get away with it.

Reuters: For cops who kill, special Supreme Court protection.

Atlantic: Blame the Supreme Court For Police Violence.
posted by BlueSock at 3:20 PM on January 6 [1 favorite]

I believe -- though I am not an expert -- that qualified immunity is a civil doctrine. It comes into play when an injured party (or his estate) tries to hold a cop liable for a civil wrong (at this point, we may assume that the cop was not charged criminally for whatever he did, because U.S.A.)

So in a civil suit for damages, a cop cannot be held personally liable for inflicting an injury unless some other cop was held liable for inflicting the exact same injury, in the exact same way. The theory is, the second cop could not have known that stabbing a civilian in the eye with a ballpoint pen was actionable, when in the past, cops had only been held liable for stabbing a civilian in the eye with a pencil, a screwdriver, a lollipop stick, their finger, a popsicle stick, a tree twig, or one of those spoon-straws from Starbucks.

But fear not: once the second cop gets away with stabbing someone in the eye with a ballpoint pen, the third cop who does it will be held liable, unless he stabs his victim in the other eye. Or during the daytime. Or at night. Or if some other feature of the injury can somehow be distinguished from the previous incidents.
posted by spacewrench at 10:20 PM on January 6 [1 favorite]

I'm a lawyer in Canada and I used to practice criminal defence. (Hello BlueSock - glad to see you back here.)

Criminal proceedings rely heavily on precedent, moreso than many other areas of law. But that precedential importance comes up in setting out tests and processes - not outcomes. That's predominately because every criminal proceeding is based on a million different little factors that can all be important, and that are rarely repeated. Take a common and boring example of a criminal trial: a person charged with assault after a fight outside a bar. Was the accused impaired? How impaired were they? What about the victim? Were the two friends or strangers? Had either done anything to instigate the confrontation? You'll never have exactly the same situation twice.

That fundamental uniqueness is what flies in the face of stare decisis: you can't guarantee the same outcome twice, because you never have the same facts twice. So a single criminal decision can be hugely important, but its importance is because it sets the test for e.g. the defence of provocation. But setting out the test is where the case's precedential power ends - it then falls to all the trial lawyers and judges to figure out how they should apply the test to the facts of their unique situation.
posted by ZaphodB at 2:53 PM on January 7

In the US, precedent can really only be set by appellate courts, and then it only applies to courts lower than them. So, the Supreme Court can hear an appeal, and whatever they rule in that case, that ruling then applies to other, similar cases anywhere in the US. If the First Circuit Court of Appeals makes a ruling, that ruling only applies in other, similar cases in any court in the First Circuit. If the Alabama Supreme Court makes a ruling, the law only applies to state court cases in Alabama. (It can get a little more complicated when there are mixed questions of state and federal law, but that's the gist of it.) But a criminal case can also be appealed, either by an accused person who was convicted, or occasionally by the government if they think that some ruling by the trial court was incorrect and would have swung the verdict.

So appeals from criminal cases set the law that, for example, tells courts how to interpret what a "reasonable search and seizure is" to determine whether a cop was allowed to detain someone and go through their pockets. Precedent tells courts what level of "assistance of counsel" is required to show that someone's trial lawyer was bad enough that they deserve a new trial. Precedent is what we rely on to argue to courts about what evidence has to be excluded from use at a criminal trial under the constitutional provision providing an accused person the right "to be confronted with the witnesses against him." Criminal statutes and constitutional provisions and court rules are all interpreted by appellate courts, whose opinions can be precedential within the relevant jurisdiction.
posted by decathecting at 1:29 PM on January 15

And yes, qualified immunity is civil, not criminal. It's a (IMHO, very wrong and unsupported by any text or law) precedent purporting to interpret who should be subject to civil suits for violations of a person's civil rights under 42 U.S.C. ยง 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971).
posted by decathecting at 1:32 PM on January 15

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