Wassup?

And I think we all know what that means.

Or do we? Maryland's Court of Special Appeals recently had to consider the question of whether the term "What's up?" -- when uttered by a policeman -- constitutes a greeting, or an interrogation. The issue arose in the criminal trial of one Maurice Prioleau. Shortly after Mr. Prioleau was arrested for drug possession, a Baltimore cop addressed him by saying "What's up, Maurice?" -- to which Mr. Prioleau gave an incriminating response.

Prioleau's lawyers argued that "what's up?" amounts to a police interrogation and, therefore, that Maurice should have been given a Miranda warning before he answered. Granted, the question mark sure makes it look interrogatory, but the court sided with police, stating:

"The phrase 'what's up?' is commonly used as a greeting, especially, as the State
points out, among young people."

A Salt and Battery?

The AP reports that a McDonald's employee in Georgia spent a night in jail and faces misdemeanor charges for serving an over-salted hamburger. Allegedly Ms. Kendra Bull spilled salt on some hamburger meat and went ahead and cooked it anyhow. Unfortunately, one of the salty burgers was served to a member of the local constabulary.

Perhaps the most interesting linguistic feature of the case -- apart from the dilution of words like "reckless" -- is Bull's statement that, after she spilled the salt, a co-worker "tried to thump the salt off." Thumped?

Word of the Week

Mayhem

“Mayhem” is the act of dismembering or disfiguring another person so as to weaken his ability to defend himself. It is a medieval term (surprise!) coming from the Anglo-Norman maihem or injury. It was originally both a noun and a verb. Prosecutors would bring a charge of mayhem by stating that the defendant “feloniously did mayhem” the victim. By the latter part of the 19th Century, the verb form gave way to the closely-related maim.

One is tempted to ask: wouldn’t any dismemberment weaken one’s defenses? Well, that’s not the way the law sees it. Traditionally, it was mayhem to chop off a limb, but not an ear or a nose because, as Blackstone blandly put it, “they can be of no use in fighting.” Needless to say, lawsuits over repetitive stress injuries didn’t get very far in the Middle Ages.

Rape - without all the icky words

While presiding over a rape case, Nebraska Judge Jeffre Cheuvront had the bright idea of barring attorneys and witnesses from using words including “rape,” “victim,” “assailant” and “sexual-assault kit,” and ordered witnesses to sign papers saying they wouldn’t use the words. Words such as “sex” and “intercourse” were allowed. State law allows judges to bar words or phrases that could prejudice or mislead a jury. (Story from AP).

The idea - apparently - was to prevent the use of words that would unduly prejudice the jury against the defendant. The judge's move certainly didn't do the defendant any harm -- the publicity over the restricted vocab led the judge to declare a mistrial.

Did the judge have a point? Isn't language the way to protect the defendant's rights -- is the defendant covered by things like Miranda and evidentiary rules?

Update - a Pennsylvania court recently rejected a similar attempt to banish "prejudicial" words from the courtroom. See More Icky Words!

Word of the Week

Habeas Corpus

Habeas corpus is a writ (that is, a procedure) for challenging the legality of a prisoner’s detention. In contemporary American law, it refers to a procedure by which the constitutionality of a state conviction and imprisonment can be tested in federal court. The words literally mean “you have the body”; however, the original name for the writ was habeas corpus ad subjiciendum et recipiendum which (very) roughly translated, means, “you have the body, so bring him to court and we’ll decide whether he ought to be detained.” In old common law procedure, there were a number of “habeas corpus” writs, such as habeas corpus ad testificandum, which directed that a prisoner be deliver to a court to give evidence. The writ that we all know and love was sometimes called the Great Writ or the Writ of Liberty to distinguish it from all the others.

Like all writs, it's better with cheese on top.

Column: All About Eaves

At the risk of stirring up controversy, the time has come for Legal Lingo to dip a toe into the troubled waters of warrantless searches.

In case you’ve been living in a cave somewhere, the country appears to be divided into two camps on the question of whether the Bush Administration can engage in electronic eavesdropping on U.S. citizens without a court order.

Personally, I haven’t a clue who’s right, but the whole thing does highlight what a curious word eavesdropping is. It is, of course, related to eave, the edge of a roof, which comes directly from an Old English word efes (also yfes). But how do you get from a roof edge to electronic surveillance?

It all begins with rain, which tends to fall on one’s roof and slide off the eaves. Yfesdrype (eavesdrip) is recorded as early as 1487 as a term defining the area around a house onto which water from the roof will fall. Because water from one man’s roof might fall on another’s property, Anglo-Saxon law recognized an easement of “eavesdrip.” In fact, ancient Roman law had the same doctrine, known as the right of stillicidium, presumably for the same reason – to stop busybodies from litigating over a little runoff from their neighbor’s roof.

But if busybodies can’t sue, they’ll snoop, so the Anglo-Saxons also tried to stop people from standing just outside a house (within the “eavesdrip”) and listening to their neighbors’ conversations. This became the common law misdemeanor of eavesdropping. Traditionally the crime involved not only listening, but also repeating in a mischievous way what one heard.

Tennessee officially abolished the common law crime of eavesdropping during the 19th Century. Other states appear to have let it die a natural death. Eavesdropping remains a technical legal term; its contemporary meaning is, roughly, “to listen, or attempt to listen, to private conversations without lawful authority.”

If the nosy neighbor looks as well as listens, then it’s even worse: he might be a Peeping Tom. A number of states have enacted Peeping Tom Statutes, which make it a crime to spy through another person’s window. The term Peeping Tom comes from the legend of Lady Godiva. As you will remember, Lady Godiva rode naked through the streets of Coventry, England to protest high taxes. She asked the townspeople not to look at her in the nude but one man – there’s always one – a tailor named Tom, just couldn’t keep his eyes shut. The tailor, who became known as Peeping Tom, was struck blind, or dead depending on the version, the moment he saw her.

Whether or not a warrant is required for all eavesdropping, the word warrant is one of the most ubiquitous terms in legal language. You might not think of it as a household word, and yet it’s used as a noun, a verb, and a term of art for public officials, military officers, and private corporations. The word seems always to be lurking around the corner – sort of like that guy under the eaves.

Warrant evolved from an Old French word (warant) meaning “protector or defender.” Around the 13th Century, the word began to develop its sense as “permission from an authority that protects one from blame.” Thus, a sheriff, armed with a search warrant could enter a home without fearing a lawsuit from the aggrieved homeowner.

The notion of a warrant as a grant of authority gives us such useful terms as arrest warrant, death warrant, warrant of commitment (that is, committing a person to custody), and even the relatively obscure interest warrant – a written order from a company to its bank directing the payment of interest to a bondholder. In the 17th Century, a confession of judgment was known as a “warrant of atturney.” Military lingo creates the warrant officer, who holds his rank by virtue of a written warrant rather than a commission. In Britain, companies that are exclusive suppliers to the royal family are granted the Royal Warrant.

Because they are such powerful tools, search warrants (and arrest warrants, for that matter) have been matters of debate for centuries. Until the middle of the 18th Century, English procedure allowed for General Warrants which gave law enforcement officials open-ended authority to search a citizen’s home in the mere hope of finding any incriminating evidence.

In the American colonies, British officials used a type of general warrant known as a Writ of Assistance to search for smuggled goods. The writs of assistance caused a firestorm in the colonies; indeed they are credited with being the first cause around which the founding fathers rallied.

The most succinct argument against writs of assistance, as voiced by the Massachusetts lawyer James Otis, was that a man’s house is his castle. This well-worn phrase, dating from 1567, first entered the law in 1644 when used by the English Attorney General Sir Edward Coke. By the 1760’s, the castle defense also called the castle doctrine was being referred to as a legal “privilege.” At common law, the doctrine is most often used to justify the use of force – even deadly force – against intruders.

When it came time to draft the Bill of Rights, the former colonists wanted no ambiguity on the matter of warrants. The Fourth Amendment stipulates that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Search warrants are issued ex parte and often in camera; or, if you’re not actually trying to impress your high school Latin teacher, without notice to the person to be searched and in private session with the judge. A valid warrant can authorize police to search for evidence of the commission of a crime as well as any loot allegedly taken in the crime; the latter is known as the fruits of the crime.

If, however, it turns out that the police search was not authorized by a valid warrant, then – in what appears to be a phrase designed to confound law students – everything seized by the police becomes the fruit of the poisonous tree. This doctrine, first used by Justice Felix Frankfurter in Nardone v. United States (1939), holds that any evidence that can be traced to an illegal search must be excluded from trial. It is not clear just how often the fruits of the crime have become the fruit of the poisonous tree but it is, at least, food for thought.

The humble warrant is also related to the foreboding quo warranto, which is the Latin name for a common law action used to challenge the authority of a government official or corporate board. The word warranto is not a genuine Latin word. English lawyers just made it up by adding the “o” to the end. This kind of reverse etymology – words usually go from Latin to English and not the other way – is known as “back formation” and it is really no better than the tendency of some people to add an “o” to the end of words to make them sound Italian or Spanish (“Rudolfo, please turn on the computer-o, I want to surf the web-o”).

The same French root of warrant also gave rise to the use of warrant in the sense of “to vouch for the quality” of something. Thus we have the noun warranty, which is basically a guaranty – not a surprise since warranty and guaranty are actually the same word. The Norman French dialect had the verb warantir (to warrant) whereas Parisian French, which avoided the letter “w,” used guarantir. Both words made their way into English along separate paths, spinning off such related pairs of words as ward/guard and warden/guardian.

In light of all that history, it comes as something of a disappointment that there is no such thing as a search guarrant. Perhaps there should be.

(This column first appeared in the May 2006 issue of New York Law Journal Magazine).

Column: Ham on Wry

When a Brooklyn grand jury recently handed down an indictment against his client, defense attorney Ron Aiello didn’t flinch.

“A grand jury will indict a ham sandwich,” scoffed Aiello, whose client, Jeffrey Feldman, has been accused of committing various acts of political corruption, along with his boss, Brooklyn Democratic Party leader Clarence Norman.

His point, of course, was that a grand jury will indict – that is, bring formal charges against – anybody, even certain foodstuffs.

Aiello did not come up with this zinger himself. In fact, the phrase has been bandied about so much in recent years that most people are probably a little afraid to order a ham sandwich, lest they be indicted as accomplices.

The exact origin of the indictable ham sandwich – like so much else in law – is shrouded in mystery. Some sources attribute the phrase to defense lawyer Barry Slotnick in connection with the “Mayflower Madam” prostitution case of the mid-1980s.

Hilary Clinton cites a different source. In her memoir Living History, the former First Lady turned Senator refers to the “the immortal words of Edward Bennett Williams, ‘a prosecutor can indict a ham sandwich if he chooses.’” Williams, now deceased, was a giant of the Washington, D.C. bar, and founder of the firm of Williams & Connolly. Although such a quip would not have been out of character for the legendary Williams, I can find no further evidence to support his authorship.

The most commonly-cited source of the “ham sandwich” critique is a 1985 interview with then-Chief Judge Sol Wachtler of the New York Court of Appeals. It is possible, however, that Wachtler was repeating something he had heard elsewhere. Either way, Wachtler’s use of the phrase served to popularize it and it has since become a courthouse staple.

Life Imitates Art

In what might safely be called an ironic twist, Wachtler himself was indicted seven years later for sexual harassment. Trapped within his own piquant metaphor, Wachtler had now become the equivalent of a ham sandwich.

Wachtler was convicted and sentenced to serve time. Because he was diagnosed with a severe mental illness, he was ultimately referred for psychiatric treatment at Rochester Prison, a federal facility associated with the Mayo Clinic. The moral of the story, I suppose, is that even if a ham sandwich is indicted, it still needs Mayo.

The Sandwich in History

Indict is itself a curious word – many people wonder where that silent “c” came from. The word began its life in early Renaissance England with the admirably phonetic spelling indite, meaning “to write down.” In the 17th Century, when the word took on its narrower meaning of “to write down legal charges,” some scholar added the “c” to make the word more faithful to its Latin ancestor, indictare. The innovation, evidently, caught on.

And while we’re on the subject, what is so grand about a grand jury? The adjective simply comes from French word for “big.” In Medieval England, an accusatory jury consisted of 23 persons, and was referred to as le graunde inquest or grand jury, using the Law French that dominated British proceedings at the time.

The jury that would ultimately decide the guilt or innocence of the suspect had only 12 men, and thus became known in similarly gallic terms as the petit jury. For some reason, modern English has preserved the “grand” but dropped the “petit,” although the latter word survives in the criminal context in phrases such as petty theft.

Like all clichés, the ham sandwich remark has some basis in fact. A number of studies have criticized the traditional procedures before grand juries – like, defense counsel cannot appear and the prosecutor is under no obligation to present exculpatory evidence – as making it too easy for prosecutors to obtain indictments. The institution was abolished in its native Britain in 1948. But in the U.S., the grand jury is more difficult to get rid of, at least at the federal level, because it is enshrined in the Constitution.

Research fails to disclose any instance of a ham sandwich actually being indicted – nor is there any evidence that a ham sandwich has ever committed a crime. The closest I can find is the infamous ham sandwich that was rumored to have caused the choking death of Mama Cass, the beloved lead singer of the 1960s pop group, the Mamas and the Papas. However, an autopsy on Ms. Cass confirmed that she did not choke on a sandwich, ham or otherwise.

Historically, the law appears to be lenient even on people named “Sandwich.” I refer, of course, to John Montagu, the Fourth Earl of Sandwich, for whom the sandwich is named (he ordered his servants to bring him meat between two slices of bread so that he would not have to interrupt his card game). He was a politician of legendary corruption, even by the standards of 18th Century Britain. Despite his plundering of the Royal Treasury, Lord Sandwich was never indicted.

Throwing the Book

Crime and criminal law has long been a rich source of slang. A stooge, for example, is an informant, a suit is a lawyer. Oddly enough, since the late 1960’s, counter-culture types have referred to the police as pigs, which would put them in an awkward position if they ever did have to prosecute a ham sandwich.

And let’s say a ham sandwich were to be indicted. What would happen then? The sandwich would have to stand trial and decide whether to testify, or just sit there wearing a honey-glazed expression. It would be an ordeal, even for one with such an admirable mixture of protein and carbs.

If the sandwich were found guilty, the judge might throw the book at it. Here we see up close what a dangerous business it is to mix metaphors. If a judge were to throw the book at a ham sandwich, or indeed any sandwich, the result would be an awful mess – cold cuts, tomato, and mustard splattered all over the courtroom.

“To throw the book” at someone was originally an underworld phrase, probably from the 1930s. The basic image, which still survives, is that of a judge convicting a criminal with every crime in “the book,” an imaginary book of penal laws.

The fact that this metaphor exists at all just shows you how much criminal law has changed over the last century or so. Throughout most of the 19th Century, the phrase would have made little sense, since criminal law was still largely a matter of common law, and therefore not compiled in a single book. A harsh judge would have to “throw the precedents” at a criminal – which doesn’t have quite the same menacing ring to it.

It was only after 1900 that most states got down to the business of enacting all-inclusive penal codes. But the codification of the law penetrated the popular mind sufficiently quickly so that by the 1930’s, criminals knew that the law was written down in “the book.”

Book ‘em!

Before a suspect can be convicted, or even indicted, the police must arrest him – or “book him,” as the saying goes. It is not at all clear where the phrase comes from – or whether the book of “book him” is the same book that judges like to throw. What is clear is that the phrase became universally known through Hawaii Five-O (which ran from 1968 to 1980). In the show, Detective McGarrett, memorably played by Jack Lord, would typically end each episode by calling out to his second-in-command: “Book ‘em, Danno!”

But not even McGarrett would try to book a ham sandwich. Unless it came with a slice of pineapple.

(This column originally appeared in the February 2004 issue of New York Law Journal).