Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.
Argument: In this case, the Eleventh Circuit, applying plain error review, reaffirmed Petitioner’s conviction. This followed an intervening change in law, which required the government prove beyond a reasonable doubt an additional element of the crime. Although the government had not introduced evidence of this element at trial, the Eleventh Circuit nonetheless affirmed Petitioner’s conviction—which it did only by going beyond the trial evidence. This is contrary to the purpose of plain error review, which is only to correct manifest injustices, and raises fairness concerns, as numerous criminal defendants have been foreclosed from introducing evidence on plain error review. The decision below further raises Constitutional concerns under both the Fifth and Sixth Amendments. It violates the defendant’s due process rights by allowing judges to make a decision of guilt on an element of the crime—a decision reserved for the jury alone.
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).
Argument: Two additional arguments underscore the importance of the questions presented. First, the natural corollary to the well-recognized rule that a defendant's choice to remain silent may not be used against him is that a refusal to submit to a polygraph examination should not be used as incriminating evidence. This corollary is all the stronger given that the defendant's refusal is not just a refusal to submit to questioning by authorities, it is a refusal to submit to unreliable scientific testing. Second, the Seventh Circuit's plain error review mistakenly rests upon an analysis akin to the "clearly established law" doctrine. Further it relies on an ex post facto determination as to the strength of the prosecution's case. If a constitutional right can be set aside because the circuit believed the prosecution's case was "overwhelming," then the constitutional right has little meaning.