Thursday, September 11, 2014
Greg Sisk's post about a brief on behalf of eighteen criminal law professors in Yates v. United States brought me back a few weeks to our law school orientation at Richmond, during which a colleague and I argued the case before a panel of faculty judges for the benefit of our incoming students. When the case was originally chosen for this exercise, I asked to be on the side of liberty. But as circumstance would have it, I ended up on the side of text. And that is where I think the Supreme Court will end up as well.
The policy problems identified in the criminal law professors' brief are real problems. But the professors' legal arguments for the petitioner in Yates will not suffice, I expect. Perhaps most importantly, the intent element confines the scope of this statute to cover conduct that is not simply malum prohibitum (in the words of the brief). Petitioner deliberately destroyed the best evidence of his civil infraction. The statutory language prohibiting this conduct was modeled on statutory language prohibiting the destruction of physical evidence in other jurisdictions and other contexts.
I predict that petitioner loses unanimously.