“At least, that is how I read Hubbell. No one is really sure.”

This was a quote at the bottom of a page of our Criminal Procedure syllabus.

Hubbell refers to United States v. Hubbell, a case that grew out of Ken Starr’s Whitewater investigation (which, of course, grew into the Monica Lewinsky investigation, President Clinton’s impeachment, etc).

The case itself is significant in that it dealt with the questions of how the act of producing documents in response to a subpoena does, or does not, impact a person’s 5th Amendment privilege against self-incrimination and whether a government’s offer of immunity in order to secure production of such documents precludes prosecution of the person producing the information.

There is some disagreement among lawyers over Hubbell’s effect and our professor has a reading of it that seems reasonable to me. Naturally, for the purposes of the class, the professor’s view is the “correct” approach for the exam, whatever ends up being the “correct” approach in real life. (Though the professor in question is a former prosecutor, has decades of teaching experience, and has written extensively on issues in evidence and criminal procedure. So I’m inclined to think he’s more likely to be at least mostly right.)

The interesting thing is that this isn’t the first time we’ve encountered an unsettled area of case law (Crim Pro is basically all case law) where our Professor has proposed what he thinks is the correct way to settle the conflicting cases and principles (another one being Montejo’s impact on the 6th Amendment right to the assistance of counsel).

This is an interesting function of a professor and it hasn’t really happened in other classes where the rules we needed to know are more settled. But it’s a vital function for students to rely on.

It’s not we’re not capable of figuring this all out on our own. We are. Really once you’ve completed first semester you’re capable of doing that.

But let’s face it: professors know more than us at this point and we don’t have the time to catch up fully. Plus understanding how an experienced attorney settles these issue provide a good picture, a learning experience, of how we will do it when we’re out of school.

No related posts.