Jeffrey Lewis
Welcome everyone, I am Jeff Lewis.

Tim Kowal
And I'm Tim Kowal. Jeff and I are certified appellate specialists and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. If you find this podcast useful, please recommend it to a colleague.

Jeffrey Lewis
And if you find it unhelpful, well, it's all just a joke. It's April Fools.

Tim Kowal
Well, effective today, California has rolled out the AI Appellate Resolution System or AARS. You upload your notice of appeal, and AARS issues a fully reasoned opinion in 12 seconds, with optional concurrences available as in-app purchases.

Jeffrey Lewis
Right, under the AARS, briefs are now limited to 280 characters. Anything longer must be summarized by ChatGPT, which is deemed the operative argument for appealability and forfeiture purposes.

Tim Kowal
Citing a real case without having AI hallucinate at least one fake citation is now sanctionable for failing to use technology competently. Okay, so we failed to do that with a straight face, Jeff. But you do correctly point out that it is April Fool's Day, and we do have an April Fool's–themed episode today, but our audience are no fools. So we gathered an assemblage of tropes, myths, and operating fictions in the law so that the next time someone mentions one of these myths, tropes, and operating fictions to you, you can show that you're no fool by correcting them imperiously and with a superior attitude. Of course, you won't do that. That's reserved for…that's Jeff's MO.

But let's get right off. I got this separated, Jeff, into three segments, kind of rapid fire: myths with real popular currency and a few deep dives. Okay, so we'll kind of start moving briskly, and then we'll slowly descend into a slog and go into some doctrinal issues that are nonetheless interesting.

For the rapid-fire bangers, the first myth, Jeff: when you get arrested, and you get booked, you only get one phone call. Just one. That's it. That's the law. I don't make up the rules. That turns out to be a myth.

Jeffrey Lewis
Yeah. Okay. Where does the myth come from? And what did you unearth in your crack research?

Tim Kowal
And my crack research assisted by AI. I did check the statute, though, but it appears to be pure Hollywood. There's never been a federal constitutional provision or statute that says one phone call. There's no federal statute guaranteeing it. The Sixth Amendment gives you the right to counsel, which means you have to be able to contact a lawyer. But the “one phone call” framing appears to be a screenwriter's invention. It's a great dramatic device.

But in California, the reality is actually more generous than the myth. Look up Penal Code section 851.5. It gives the arrested person at least three completed phone calls within three hours of booking. “Completed” seems to be the keyword. If you call someone and they don't pick up, that doesn't count as one of your phone calls. And if you're a custodial parent, you get additional calls to arrange care for your children. So it's not as dramatic as Hollywood portrays it, Jeff.

Jeffrey Lewis
Well, all right, and does that Penal Code section mention that the popo can listen in and record any of your outgoing phone calls?

Tim Kowal
That's beyond my ken, Jeff. They probably can't, but do they anyway? Probably.

Jeffrey Lewis
Ha ha ha. Yeah. No, I think the reverse is true. I think they can, but they probably don't bother. Go ahead.

Tim Kowal
Okay. Next one: hearsay is inadmissible. Okay, how do we rate this one, Jeff?

Jeffrey Lewis
Yeah, well, most competent lawyers and recent law school graduates can recite a dozen examples of exceptions to the hearsay rule. So yeah, hearsay is inadmissible, but when it comes to what constitutes hearsay, the exceptions swallow up the rule.

Tim Kowal
Yeah, so it's nominally true, it's facially true, but you're right. There are so many exceptions that when you're dealing with hearsay, you ought to be able to come up with half a dozen exceptions, and there ought to be some way to get it in.

Okay, all right. Let's move on to another evidence-related myth, and that is that circumstantial evidence is weak evidence. This is pretty much a flat-out myth. Defense lawyers on TV will say things like, “Well, that's merely circumstantial,” like it's some sort of devastating critique of the evidence. But in fact, most evidence is circumstantial. DNA evidence is circumstantial; fingerprints at the crime scene are circumstantial.

Under California law, both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge. That's something that juries are instructed on in probably every single criminal trial in the state. Circumstantial evidence does not take a second seat or a back seat to direct evidence.

Jeffrey Lewis
Yeah, in the world I live in, lots of First Amendment and anti-SLAPP issues turn on the issue of actual malice—what was between the two ears of the person who spoke. Oftentimes, you don't have direct evidence of whether or not somebody knew something was false or had reckless disregard as to whether something was false. So how do you prove it? With circumstantial evidence.

And in addition, you and I, when we're doing appeals and dealing with sufficiency of the evidence, sometimes even the barest circumstantial evidence can suffice under substantial-evidence review. So you and I grapple with those circumstantial-evidence issues all the time.

Tim Kowal
That's right. As an appellate lawyer, I kind of train myself not to tell the difference between circumstantial and direct because it just doesn't matter. It still can be substantial evidence.

Okay, let's stay on the theme of criminal law. Here's the next myth, trope, or operating fiction: entrapment means that a cop has to tell you they're a cop. And here's another flat-out myth.

The number of people who believe that undercover officers must identify themselves if asked is staggering, and that is, I guess, a credit to Hollywood's persuasive power. Entrapment is a real defense, but it has nothing to do with identity disclosure. Entrapment requires government inducement of someone who was not predisposed to commit the crime.

So the question is whether the government planted the criminal intent, not whether the officer admitted to being a cop. I mean, that's the whole point of being undercover. They can lie about being a cop all day long. That doesn't create entrapment.

Jeffrey Lewis
Right, yeah.

Tim Kowal
Okay, another criminal-law trope: the rule against double jeopardy means you can't be tried twice for the same crime. But that turns out only to be half true. The Fifth Amendment says that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” Most people think that means you can never be tried twice for the same thing, but the separate-sovereigns doctrine means state and federal governments can each prosecute you for the same misconduct.

The Supreme Court reaffirmed this in Gamble v. United States in 2019.

Jeffrey Lewis
Yeah, and in the context of high-profile federal civil-rights trials, we see this all the time. When there's an acquittal in state courts, the feds jump in and prosecute again on the same conduct, but a different set of federal crimes in a different courtroom. And what a shock for a criminal defendant who survived one high-profile trial to be thrown immediately into a second.

Tim Kowal
Okay, now let's get into a couple of deeper dives. This one will still be on the subject of criminal law, on the Miranda doctrine. The myth would be that Miranda is required by the Constitution. But that is a little bit of an operating fiction.

If you read someone their Miranda rights and then ask them which amendment those rights are from, what would you say? The provisions of a Miranda warning do not directly appear in any one of the amendments. Most people would say that they derive from the Fifth Amendment, and that's sort of right, but the specific warnings aren't really there. “You have the right to remain silent”—the Fifth Amendment says that no person shall be compelled to be a witness against himself, but that's about compelled testimonial self-incrimination.

You can be compelled to provide, for example, DNA or fingerprints or blood draws or stand in lineups, and none of that is covered. And the Constitution does not say that the police cannot use your statements against you if you are not provided with Miranda warnings. That is just a safety measure that the Court more or less invented.

Jeffrey Lewis
Yeah, and I would say maybe it's just one sixth-justice conservative majority away from being disposed of if it doesn't exist in the Constitution, right?

Tim Kowal
Well, certainly always could be. I think this one is quite ingrained, but I guess that hasn't stopped things before. The Miranda Court created a prophylactic rule. It's a judicially constructed set of procedures to protect an underlying constitutional right.

Jeffrey Lewis
Deeply ingrained. Yeah. Super precedent. Yeah.

Tim Kowal
The Court itself described the warnings as not themselves rights protected by the Constitution, although in Dickerson v. United States in 2000, the Court held that Miranda announced a constitutional rule that Congress could not override by statute. That kind of creates an interesting tension: they are not textually constitutional. They are derived from the Constitution. It's a prophylactic rule to protect the Constitution, and yet it has been afforded an elevated status on par with any other textually derived constitutional rule.

Jeffrey Lewis
Yeah, with good reason, I think. But I could see, in these times when constitutional protections like this and the actual malice standard in New York Times v. Sullivan are being talked about for revisiting, that one may not be here forever.

Tim Kowal
Speaking of judicial review, let's go right back to Marbury v. Madison with the half-true slogan that Marbury v. Madison established that the Supreme Court is the final arbiter of the Constitution. I think if you stated it just like that—that Marbury established the Supreme Court as the final arbiter of the Constitution—most lawyers would nod their heads in agreement.

But I'm going to propose that that's not quite correct. Marbury did establish judicial review—the power of a court to decline to enforce an unconstitutional statute in a case before it. That is significant, but it did not establish that the Supreme Court's interpretation of the Constitution necessarily binds the other branches of government. Marbury is about judicial review, not about judicial supremacy, which is a different animal entirely.

That was a view taken by Abraham Lincoln, Thomas Jefferson, and also Andrew Jackson. Jefferson called judicial supremacy a very dangerous doctrine. Lincoln expressly rejected it after Dred Scott. Jackson more infamously said after Worcester v. Georgia, “The Court has made its decision; now let them enforce it.”

This departmentalism view—that each branch interprets the Constitution independently within its own sphere—was a mainstream constitutional position for most of American history. I wrote this up years ago in a blog post that was inspired by constitutional scholar Hadley Arkes: in a system of three coequal branches of government, one branch does not dictate hermeneutics to another.

In other words, the Constitution is our sacred text, and each branch of government has an independent obligation to interpret and enforce it within its appropriate sphere. The Court simply tends to be the last to reach the issue. After the legislature first acts by enacting a statute, the president or executive then acts by enforcing a statute, and then finally the Court weighs in, which usually happens to be the last word. As one adage goes, it's not that they're right because they’re final; they're final because they’re the last word.

Jeffrey Lewis
Yeah, but I suspect the fellows you mentioned—Lincoln, Jackson, Jefferson—I suspect they had in mind, when they said those things, that there would be a respect among the three branches, and that to the extent that branches weighed in on a subject, it wouldn't ping back and forth like a ping-pong ball between the executive and the judicial branch.

At some point, there'd be some respect accorded to a final interpretation by a president or a final disposition by a court. But yeah, it's interesting; the debate still rages today.

Tim Kowal
And I think the view of judicial supremacy is the one expressed in the case Cooper v. Aaron. We'll leave that one there.

So let's move on to the next deep dive that I wanted to cover. This is one of my favorite legal fictions, and it concerns the Scopes Monkey Trial. The famous trial: Clarence Darrow and William Jennings Bryan were the attorney combatants in that case involving the teaching of evolution in a Tennessee school, where the Tennessee legislature had prohibited evolution from being taught in its schools. The teacher went ahead and taught evolution anyway, and so he was prosecuted.

The story has now become more fiction than case law. It's been turned into a play, and then into the movie Inherit the Wind, where the heroic teacher is persecuted for teaching evolution. He was defended by the brilliant Clarence Darrow against the buffoonish fundamentalist William Jennings Bryan, and the court case was covered by H.L. Mencken. It was framed as a case of science versus ignorance.

What actually happened was something a little bit different. First, the trial was a publicity stunt. The ACLU advertised for a test case, and the town of Dayton, Tennessee, volunteered because it wanted the attention. Scopes wasn't even sure he'd actually taught evolution. He was a substitute teacher and a football coach. He agreed to be the defendant.

Jeffrey Lewis
So the whole thing was set up or stage-managed from the beginning.

Tim Kowal
Yeah, it was mostly a stage-managed test case. The deeper myth is about Bryan. What Bryan actually said in his closing argument was much more thoughtful and nuanced than you would be led to believe. He was not up there just grandstanding for creation or teaching science via the book of Genesis.

He said he thought it would be just as easy for the kind of God we believe in to make the earth in six days as in six years, or six million years, or six hundred million years. “I do not think it is important whether we believe one or the other.” That's not really what the movie or the play shows. Bryan's actual argument wasn't young-earth creationism. It was about the people's right to decide what was taught to their children in schools.

The part that I think no one mentions that's most interesting is that the evolution textbook at issue was George William Hunter's Civic Biology, which contained explicit eugenics content. It ranked human races in a hierarchy and endorsed selective breeding. So while ostensibly Bryan was supporting creationism, in practical effect, he was opposing teaching survival-of-the-fittest ideology to schoolchildren.

Jeffrey Lewis
Wait, are you telling me that the school board of Dayton, Tennessee, saw this book and decided, because it discussed eugenics, that that was the reason they wanted to not teach that book? Was the book banned because of that? Or was it the issue of teaching about God and creationism?

Tim Kowal
That's a good question. What did the actual school board members think, or what did the actual legislators think?

Jeffrey Lewis
We'll have William do some research on that.

Tim Kowal
Yeah, although if you wanted to look into it, Edward Larson won the Pulitzer Prize for Summer for the Gods, the definitive history of the trial, and he documents how radically the movie Inherit the Wind distorted the historical record.

Jeffrey Lewis
Yep, and the debate still rages on today about the extent of parents’ control over curriculum and the tension between school boards and parents and state and federal governments in terms of what our kids are learning.

Tim Kowal
Okay, and now let's move on to a case that will be timely, Jeff, because it's going to touch on the oral arguments that are coming up in the Supreme Court, I think this week, in Trump v. Barbara, the birthright-citizenship case. So the myth, trope, or operating fiction that we're dealing with here is: dual citizenship has long been the law of the land.

My rating on that one, Jeff, is “not so fast” at best. It's an operating fiction that the system knowingly runs on. Again, this one is timely because of Trump v. Barbara, which is testing the meaning of the birthright-citizenship clause and specifically the limiting phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment.

The backdrop that most people don't know is that dual citizenship was considered a “self-evident absurdity” by Theodore Roosevelt as late as the twentieth century. The diplomat George Bancroft said, “We should as soon tolerate a man with two wives as a man with two countries.” And the 1930 Hague Convention aimed to abolish double nationality.

The reason that dual citizenship is important to the question of birthright citizenship is that there is more than one way to establish citizenship. It could be the location where you were born, or it could be the nationality of one's parents.

For example, here are two examples on point. The first is British impressment before the War of 1812. Great Britain maintained the doctrine that anyone born a British subject remained a British subject forever, even if they immigrated, lived in America for years, and became a naturalized citizen. By 1812, the U.S. State Department had recorded that at least 6,200 American citizens had been pressed into service in the Royal Navy; the actual number was probably much higher. Britain's position was simple: allegiance is indelible—you were born British, you stay British.

The U.S. and Britain literally went to war over this. It was one of the primary causes of the War of 1812, and even the Treaty of Ghent didn't resolve it.

Another example where alleged dual citizenship came up was in Prussian conscription of naturalized Americans in the 1860s, right around the time that the Fourteenth Amendment was being drafted. Prussia and other German states asserted that their former subjects who had emigrated to America and become U.S. citizens were still nonetheless subject to military conscription in their countries if they set foot back on German soil.

Prussia didn't just assert this in theory; it actually expelled naturalized Americans who returned to visit. The Prussians argued that permitting them to return while claiming American nationality would endanger what they called “one of the most essential and important foundations of our state life,” meaning the military-service obligation. This crisis led directly to the Bancroft Treaties and the Expatriation Act, both in 1868, again right around the time of the Fourteenth Amendment. So all these issues were really in flux and still far from being decided or settled at the time the Fourteenth Amendment was ratified.

Jeffrey Lewis
Interesting. Okay, so when the Supreme Court hears arguments this week on whether or not the Fourteenth Amendment allows for the kids of undocumented people who are born here to be automatically citizens, how does this issue of dual citizenship tie into what the Supreme Court justices should do?

Tim Kowal
Well, that's a difficult question. It's apparently never been a settled matter of international law or even domestic law whether you can have dual citizenship or triple citizenship or anything more than single citizenship. Again, the official record is replete with examples of many of our statesmen decrying dual citizenship as an absurdity or a contradiction or almost a kind of political bigamy.

In fact, no Congress has ever passed a statute saying dual citizenship is permissible. Rather, the idea of dual citizenship emerged through a series of Supreme Court decisions in the 1960s and 1980s, including Afroyim v. Rusk and Vance v. Terrazas, that made it nearly impossible for the government to involuntarily strip citizenship. The State Department simply acquiesced eventually, resulting in what we basically have now, which is de facto dual citizenship—not because anyone decided it was a good idea, but because the hard question was simply never resolved.

Jeffrey Lewis
Well, yeah, I would say enforcing the Fourteenth Amendment is a lot easier than the alternative. Right now, if a baby is born in a U.S. hospital, they hand a Social Security card to the parents, and that kid is entitled to medical benefits and everything else as a citizen, no questions asked. If the Supreme Court overturns the more convenient basis for establishing citizenship, imagine what the hospitals are going to have to do.

When a couple checks into a hospital, will they have to have a birth certificate in hand and all of their immigration records before that baby can be born? Or if that baby's born, will it be given medical treatment, etc.? I would hate to be a hospital administrator right now.

Tim Kowal
Yeah, well, those processes certainly are longstanding. So a lot of paperwork workflows would have to change if the Court decided to change anything. The fact that there has never been any black-letter recognition of dual citizenship seems to me to bear on the question of the meaning of “subject to the jurisdiction thereof.”

In other words, if a baby born in the United States is subject to the jurisdiction of the United States, doesn't that mean to the exclusion of the jurisdiction of any other sovereign? Because at the time, it certainly seemed to be the understanding that one could not be the subject of more than one sovereign.

Jeffrey Lewis
Yeah, although the key question is “at the time,” because in the 1950s or 1960s, Congress passed an immigration law that mirrored the similar language of “subject to the jurisdiction.” So the question's not going to be limited in terms of discussion before the Supreme Court to what the framers intended when they passed the Fourteenth Amendment back in the 1860s.

It's going to be: what did Congress have in mind in the 1950s or ’60s when they passed similar legislation? Was there dual nationality or dual citizenship or other factors that mean Congress may have raised the floor in terms of who gets citizenship, as opposed to the constitutional minimum set by the Fourteenth Amendment? I'll be looking forward to seeing this week's argument to see how much the justices refer to the congressional law passed in the 1950s, that's for sure.

Tim Kowal
Okay. Well, we'll be watching that one.

Let's go to the next one. This is another interesting point of constitutional drift, maybe. “The Constitution requires separation of church and state.” Again, this is a half-true slogan with a partly dark backstory. The phrase “separation of church and state” or “wall of separation” doesn't appear in the Constitution.

Most of our listeners will probably know that it comes from a letter from Thomas Jefferson to the Danbury Baptists. The First Amendment actually just says, “Congress shall make no law respecting an establishment of religion,” which is a restriction on Congress, not a general principle of separation—or at least, if it is, it's not nearly as clear or forceful as the idea of a wall of separation.

The Jefferson line wasn't imported into constitutional law until Everson v. Board of Education in 1947, where Justice Hugo Black used Jefferson's wall-of-separation metaphor. But there’s an interesting biography behind Justice Hugo Black and the background to the Everson decision. Philip Hamburger's research documents that Hugo Black was a former Klansman— not a reluctant one either—who had barnstormed Alabama on an anti-Catholic platform demanding exactly that wall of separation.

The concept was historically used as an anti-Catholic political weapon. Now, that doesn't by itself tell you what the Establishment Clause should mean today, but it may give you pause about treating separation of church and state as if it were self-evidently the original constitutional design.

Jeffrey Lewis
Yeah, stay tuned to see if that wall holds. Or the metaphor.

Tim Kowal
Yeah. Okay, we're getting down to the last couple, Jeff. We'll close with something a little different—not myths that the public believes. These are truths that the legal system itself knows are not true and runs on anyway. They're the operating fictions.

Maybe this is just a surprising fact: Buck v. Bell. Remember the case of Buck v. Bell, the one in which Justice Oliver Wendell Holmes famously said, “Three generations of imbeciles are enough,” upholding a compulsory-sterilization law? Buck v. Bell has never been overruled. It's regarded by many as one of the worst opinions in judicial history, probably in the annals up there with Korematsu and Dred Scott.

Justice Holmes wrote an 8–1 majority in that 1927 case, upholding compulsory sterilization of the “unfit” because three generations of imbeciles are enough. The case has been universally condemned, but never formally overruled.

Jeffrey Lewis
Well, I don't know that it surprises me that four justices of the Supreme Court haven't thought it's a good idea to bring their dirty laundry and ancient history up to the Supreme Court to rehash terrible decisions of the past. I'm not sure it'll ever be overruled.

Tim Kowal
Yeah, maybe there just hasn't been the occasion. I mean, it's not like the Court has a blog where it writes, “Dear diary, here's what I'm thinking today. I really wish I wouldn't have written that Buck v. Bell decision way back when, and if I had the chance, I would overrule it.” The justices only talk about past cases when it comes up directly in a current case.

Jeffrey Lewis
Yeah, if only there were a circumstance where camps or prisons of people were established on the grounds of national security. Maybe that kind of situation might one day pop up and get back to the Supreme Court, and Korematsu can be re-examined. All right, take us home, Tim.

Tim Kowal
Okay, Jeff, I feel a troll coming on here.

Okay, last couple of fun ones here. Here's a few legal fictions the system knowingly maintains, like the presumption that jurors follow instructions. That's why it's so important that we spend all this time putting together jury instructions and boring them to tears by reading those jury instructions to them on the last day of trial.

Jeffrey Lewis
Ha ha. Yeah, yeah. And it's a huge barrier for you and me when we're doing appellate briefs, with that presumption that jurors followed the law—read the instructions, understood them, and followed them. Talk about your walls between getting at reality; it's a huge myth.

Tim Kowal
Yeah, it is. It's one of the more demoralizing parts of the job when you read through jury instructions that were read to the jury, and you're going to try to make the argument that, see, if only the judge had read a slightly different wording to this jury instruction, then the light bulb would have come on, and they would have ruled differently. Talk about a harmless error. Okay, you got one, Jeff?

Jeffrey Lewis
Yeah, for sure. There's a myth in the idea of constructive notice. Tim, when you bought your house, before you signed on the dotted line and closed escrow and all that, you went down to the county recorder's office, and you read all the CC&Rs dating back to the 1930s for the home you live in, right?

Tim Kowal
Of course, because I'm aware of the doctrine of constructive notice that I have to make myself aware of everything that is recorded in the recorder's office.

Jeffrey Lewis
Yeah, yeah, another myth. And then in our world, the appellate world, there's the presumption of correctness that exists in appellate review—that every judgment or order that comes before the appellate court is presumed correct, giving the appellant the burden of demonstrating error.

It's a daunting burden for any appellate lawyer to have to overcome, and it's a heavy presumption that tips the scale. But I suppose the appellate justices have to tip it one way or the other. They can't just say no one has the burden coming in.

Tim Kowal
Yeah, and the flip side of it is, if the judge got this legal question wrong, then therefore the whole judgment has to be reversed. Not only are mistakes not presumed, but even if there is a mistake, that doesn't mean there was an error that resulted in any difference one way or the other to the judgment.

Jeffrey Lewis
Yeah. All right, I think that is going to bring this April Fool's edition of myths and half-truths of the law to a close. If you have suggestions for future episodes, or if you want to tell Tim why he's wrong about the Fourteenth Amendment, go ahead and email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal
See you next time.