There is a joke about why lawyers use complicated language, sometimes called legalese:
So they can charge higher fees.

There may be a little bit of truth in that, but the full answer is, well, more complicated.

One of the reasons the law is often written in complicated or hard-to-understand language is because of the way law develops.  In the United States, we use something called stare decisis.  (That's pronounced starry de-sigh-sis.)  Stare decisis means that we look at past cases to help us interpret the law today.  

This helps maintain consistency throughout time and helps lawyers and litigants predict the outcome of their own case.  Those are good goals.  But one of the downfalls of stare decisis is that words and phrases from hundreds of years ago - like stare decisis - stay with us.  

Another reason the law is so complicated is that sometimes lawyers will disagree about what a word or phrase means.  If a word or phrase or phrase can be interpreted in more than one way, more words will need to be added to make sure it is interpreted as intended.  A misinterpreted word can lead to huge unintended consequences.

A good lawyer who is writing a law or other legal document will try to think of every possible way the document could be misinterpreted in the future.  The lawyer then has to write more into the law or document to guard against these possible future misinterpretations.  As words and phrases are misinterpreted in laws and documents, over time, lawyers will include all the possible guards against all the possible misinterpretations that exist or might exist in the future.  This is how a short sentence can turn into a page-long paragraph.

A third reason the law sounds so complicated is because terms of art have developed over time.  A particular word or phrase might have a specific meaning in the law that is completely different than what it means outside the law.  

An example of this is the word "continue."  In everyday, to continue something means to keep going.  But in court, to continue something means to put it off for another day or time.  For example, a lawyer might ask to continue a hearing until the afternoon because she has a more pressing appearance scheduled in another courtroom that morning.

Or a word might not be used in everyday life, but it might have a well-known and easily understood meaning in the law.  These words and phrases are often in Latin (see "stare decisis" above).  These uses of words often provide shortcuts for lawyers, but they can make the law sound confusing and complicated to a nonlawyer.

Legal movies and television can use these words to great affect.  A memorable scene from "Legally Blonde" is a great example of this.  Elle (Reese Witherspoon) squares off against her rival in a discussion of the differences between the terms malum prohibitum (a regulatory crime) and malum in se (a dangerous crime).

Finally, another reason the law is so complicated, especially in criminal law, is because of a little thing called the Constitution.  The Due Process Clause of the Constitution requires fundamental fairness.  This means that a criminal defendant must be put on notice of possible crimes he may commit.  This, in turn, means that criminal laws cannot be vague or overbroad or they will be held unconstitutional.  Law are often written in a complicated way to try to prevent that from happening.

The Due Process requirement of fundamental fairness also means that any ambiguity in a criminal law will be interpreted in the defendant's favor.  That is called the rule of lenity (another phrase from centuries ago).

An example of the rule of lenity is found in United States v. Santos, 553 U.S. 507 (2008).  The U.S. Supreme Court discussed the possible definitions of “proceeds” in the federal money laundering statute, 18 U.S.C. § 1956.  Specifically, the Court discussed whether "proceeds" covers criminal receipts or profits.  The Court stated:

So, if Congress wanted to include both receipts and profits in its definition of proceeds, it would have to amend the law to include those specific terms.  And the law just got more complicated.

The next time you hear someone ask why the law is so complicated, you can give a lawyer's favorite answer to any legal question:  It depends.

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The movie thriller, "Double Jeopardy" gets the concept of double jeopardy completely wrong.  Here, I'll explain the basics of double jeopardy under the law and how the movie got it wrong.

The legal concept of double jeopardy comes from the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution, which states:

The Double Jeopardy Clause prevents a criminal defendant from being tried more than once by the same sovereign for the same offense.

First, double jeopardy only applies if the defendant was either convicted (found guilty) or acquitted (found not guilty) after the first trial.

Second, it must be the same sovereign that is trying the defendant both times.  Each government entity is a separate sovereign.  The federal government is separate from the states, and each state is a separate sovereign from the others.  Also a Native American tribal government is separate from the federal government and states.

A true crime example of this was shown during the trials of the LAPD Officers who were accused of beating Rodney King.  The four officers were initially charged by the state of California (through the Los Angeles County District Attorney's Office).  They were acquitted of the charges in state court.  The acquittals sparked the L.A. Riots.  The federal government then charged the four officers with civil rights violations based on the same incident.  This was not precluded by the Double Jeopardy Clause because the California and the federal government are two separate sovereigns.

The third requirement of double jeopardy is that the crimes charged in the first and second trials must be for the same offenses.  This is determined by the same elements test.  The elements of the crimes charged in the first and second cases are compared.  If there is an element that must be proven in each crime that is different from the other, than the crimes are not considered the same, and double jeopardy does not apply.

*SPOILER ALERT
In the movie "Double Jeopardy," a married couple spend a weekend sailing.  The wife, Libby (Ashley Judd), wakes up to find blood all over herself and the boat.  Her husband, Nick, is missing.  She arrested when the coast guard spots her holding a bloody knife, which she found on the deck.

Libby is convicted of Nick's murder.  Her best friend agrees to care for her four-year-old son while Libby is in prison.  While on the phone with her son, Libby hears a door open in the background, and her son yells, "Daddy."  The phone disconnects.

Libby suspects Nick faked his death and framed her for murder.  Another inmate advises Libby that when she was paroled, she could kill Nick with impunity because she had already been convicted of his murder, and the Double Jeopardy Clause would prevent her from being charged again.  Libby does just that.  (Tommy Lee Jones plays Libby's parole officer who at first investigates her violations of parole, then helps her once he realizes her story may be true.)

Lesson number one:  Never take legal advice from a fellow prison inmate - or a movie - without first checking with a lawyer.

Libby's fellow inmate, and this movie, get the concept of double jeopardy wrong.  If someone is wrongly convicted of murder, they do not then have free license to kill that person if the person is found alive.  

Although both charged crimes are for the murder of Nick, they are two separate incidents.  The dates, facts, and evidence supporting each charge would be completely different.  Therefore, the charges are not for the same offense.  

Also, in the movie, the first framed murder occurred in Washington state.  The second murder occurred in Louisiana.  Therefore, double jeopardy would not bar the second prosecution because the two states are not the same sovereign. 

Because she was falsely convicted the first time, she could probably sue and recover some money to compensate her for her time in prison, but she would not be able to use that first conviction as a defense for her the second (valid) charges.

Check out the movie by clicking below:

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OJ Simpson has claimed that his attorney for his Las Vegas robbery trial was ineffective. He has asserted two bases for his claim: 1) conflict of interest, and 2) failure to tell him about a plea offer.  This raises the question of what a criminal defendant must show for a claim of ineffective assistance of counsel.

What Is Ineffective Assistance of Counsel?

The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to the effective assistance of counsel. 

That doesn't mean a defendant has the right to a perfect attorney or even a really good attorney.  It simply means a defendant has the right to an attorney who doesn't mess up in a way that is considered outside the professional norm.  Even then, the mess-up has to be so bad that it changes the outcome of the case.

Unlike a trial where the prosecution has the burden of proof to show a defendant is guilty, here it is the defendant's burden to prove that his attorney was ineffective. This is usually done through a petition for writ of habeas corpus. The defendant has to prove two things.

First, he must prove that his attorney acted outside the bounds of what is acceptable for a criminal defense attorney. This must be something more than a disagreement about tactics. It has to be something big. There are cases where even a drunk or sleeping attorney has not been held constitutionally ineffective.

Second, the defendant must prove that the attorney's mistake changed the outcome of the case. "If it wasn't for the mistake, I would have been acquitted." This is called prejudice.

Was OJ Denied the Right to the Effective Assistance of Counsel?

In OJ Simpson's case, he claims his attorney had a conflict of interest because he advised OJ that taking his memorabilia back was legal. A conflict of interest usually exists when an attorney has divided loyalties. Even if OJ's claim is true, it is unclear how that would have divided the attorney's loyalties. It is also unclear how that would have changed the outcome of the case. OJ would have to show his attorney's conflict caused him to be convicted when he would not have otherwise.

OJ's other claim is that his attorney did not tell him about a plea offer. a criminal defense attorney has a duty to communicate any plea offers to his client. The problem with this claim is that OJ would have to prove that he would have accepted the plea offer if he had known about it. Without that showing, there is no prejudice. No harm, no foul.  This is highly unlikely here. I suspect there is nothing that would have gotten OJ to plead guilty in this case.

It is generally very difficult for a criminal defendant to show that her attorney has been constitutionally ineffective. It does not appear that OJ will be able to make that showing.

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When someone is in police custody, and the police want to question that person, the suspect must first be read their Miranda rights.  The suspect must then waive those rights before police may question him or her.

The Miranda rights are based on a United States Supreme Court case called Miranda v. Arizona, 384 U.S. 436 (1966).  That case basically held that a suspect or criminal defendant must be informed that they have certain rights, and must give up those rights before the police may question them.  This was done to counter police abuse and misconduct, which was often done to get someone to confess.

In movies and on TV, the Miranda rights are usually read as soon as someone is arrested.  This is unnecessary unless the person is going to be immediately questioned.  The rights need not be read to someone until he or she is going to be interrogated by law enforcement.

So, what exactly do the police need to say?  Here is a safe way for police to read someone their Miranda rights and get a valid waiver, so that whatever the person says can later be used against him in court:

1.  You have the right to remain silent.  Do you understand?

2.  Anything you say may be used against you in court.  Do you understand?

3.  You have the right to the presence of an attorney before and during any questioning.  Do you understand?

4.  If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want.  Do you understand?

5.  Do you wish to waive these rights?

The police should try to get a "Yes" answer to each question to ensure the person understood and voluntarily waived each of his rights. 

Sign up here to get a free printable and portable Miranda Card that has this information in a convenient and easy to use format:

The Miranda Card lists the rights as statements that a police officer would say them to a suspect.  The card is small enough to cut out and carry in your pocket.  Many police officers carry a card like this and use it to ensure they properly advise a suspect of his or her Miranda rights, and get a valid waiver. 

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