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Why Do Lawyers Use Such Complicated Language (Legalese)?

3/12/2014

7 Comments

 
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).
Legally Blonde
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:
From the face of the statute, there is no more reason to think that ‘proceeds’ means ‘receipts’ than there is to think that ‘proceeds’ means ‘profits.’  Under a long line of our decisions, the tie must go to the defendant.  The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. . . .  Because the ‘profits’ definition of ‘proceeds’ is always more defendant-friendly than the ‘receipts’ definition, the rule of lenity dictates that it should be adopted.
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.

If you are a writer, request the free ebook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.  If you want a first free consultation on your project, contact me.
7 Comments

What Exactly Is the Text of the Miranda Rights Statement Police Read to Suspects?

9/5/2012

13 Comments

 
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:

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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. 

Also, sign up to receive a free eBook revealing the Top 7 Mistakes Made by Writers of Crime, Mytery and Legal Drama.
13 Comments

Victory in the California Supreme Court!

11/30/2011

3 Comments

 
A couple months ago I argued a case in the California Supreme Court.  The Court recently issued their opinion in teh case, and they unanimously affirmed the lower court decision, which means I won.  I can't talk about the specifics of the case here, but just wanted to share the good news!
3 Comments

Will Facebook Destroy the Fourth Amendment?

11/4/2011

11 Comments

 
The Fourth Amendment states, in part, "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated."

The test for whether the Fourth Amendment applies to protect a particular place or circumstance depends on whether a person has a "reasonable expectation of privacy" in that place or circumstance.  For example, the Supreme Court has determined that a person has no reasonable expectation of privacy in one's trash once it has been placed on the curb.  That means the police can rummage through your garbage on trash day without a warrant and without probable cause.

Facebook, Myspace, Twitter and other social networking sites encourage their users to share information through their services.  Users can "check in" to where they are physically located at any moment.  They can post about what they are doing and who they are with.  They can upload photos and videos to document their activities.

These sites have created a culture, particularly in younger generations, that anything and everything is worth sharing.  It has also prompted people to become "friends" with people they barely know, sharing all their information along the way.  One can debate the merits of this culture shift, but my concern is its impact on our constitutional rights.  If people are willing to share this information online, how can one claim an expectation of privacy in it?

Although users can control their privacy settings to some degree, information posted online is never truly private.  The information posted on social networking sites is recorded, gathered for marketing purposes, and sold to advertisers.  The more people use these sites, and the more intimate and widespread their posts become, the less "expectation of privacy" anyone can truly claim, no matter what the circumstance.
11 Comments

Supreme Court to Decide Case About Eyewitness Identifications

11/3/2011

1 Comment

 
Yesterday, the United States Supreme Court heard oral arguments in a case where the question is whether an eyewitness identification of the defendant should have been allowed in court. 

Eyewitness identifications are often believed to be among the strongest evidence possible.  If someone says they saw the defendant commit the crime, chances are most people will believe the defendant is guilty. 

Eyewitness identifications are also a common point of drama in crime stories.  A witness looks the defendant in the eye, points from the witness stand, and says, "He's the one.  I'm sure of it."

However, many studies have found that eyewitness testimony is notoriously untrustworthy.  Of 250 exonerations based on DNA evidence, 190 prisoners had been convicted based on mistaken eyewitness identifications. 

That said, identifications are generally only kept out of court when the police used unduly suggestive tactics to get the witness to identify a particular person.  Otherwise, traditional trial protections, such as cross-examination, expert testimony, and jury instructions, are relied on to protect against a jury wrongfully convicting someone based on a faulty eyewitness identification. 

Whether that will continue to be the case will be decided soon by the U.S. Supreme Court in Perry v. New Hampshire. 
1 Comment
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    Author

    Blythe Leszkay is a successful and experienced criminal attorney, criminal law professor, and consultant to writers and filmmakers.  See About Me.  This blog is intended to answer common criminal law questions, dispel misconceptions, and explain misunderstood criminal law concepts.  It is also a place to discuss any crime or law related topics of interest.  Contact me for a free initial consultation on your film or writing project.

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