Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to criminal law professor Mark Osler of the University of St. Thomas Law School in Minneapolis, Minnesota. The interview is as follows:
1. What recent developments in criminal law and procedure would you recommend that civil litigators be aware of?
With the Supreme Court reconsidering the rights of corporations, it will be interesting to see how that affects an important criminal law rule—that the 5th Amendment right against self-incrimination does not apply to companies. If organizations have a general right to free speech, they may also be the beneficiaries of such rights, which could strongly affect the prosecution of white collar crime.
2. In your experience, what is the biggest misconception that civil litigators have of the criminal process?
In civil law, the defendant often is advantaged by an arduous and lengthy discovery process, which wears down the plaintiff. In criminal law, this simply does not apply. Discovery in the criminal case is a different beast, and much less important—for the government, the investigation is the discovery, and in many jurisdictions defense attorneys are then given open access to the government files. I went from corporate civil litigation to federal prosecution, and I remember being shocked to find that instead of waves of interrogatories and depositions, a simple search warrant executed by the FBI did the trick. It is brutally efficient.
3. What is your opinion of the expanding usage of the RICO statute as a theory of recovery in civil actions? What, if anything, do you foresee on this front?
The pairing of civil and criminal RICO was one of the worst ideas a law professor ever had (yes, one of us dreamed that one up). The extensive rule-making by courts in civil RICO cases has made interpretation and use of the statute so confusing and inefficient that prosecutors avoid it if they can, preferring to charge money laundering or something under the fraud statutes. Given the current state of the law, in which civil RICO is used to tie people up in endless litigation, we would be better off without RICO in the federal code.
4. What is the most significant federal appellate court opinion to come out in the last year?
Few would argue that the Citizens United case, through which the Supreme Court allowed free speech rights to organizations in the context of political campaigns, was anything less than a blockbuster. As I mentioned above, the expanding idea of corporations and other organizations as individuals could alter many current doctrines.
5. If you could offer young lawyers beginning their careers one piece of advice, what would it be?
Pick the right mentor. Find someone with enthusiasm for what they do, who views his or her work as a calling of some kind. Do not accept a jaded mentor, or cynicism about the practice of law. If there is no one like that in your firm, you are not in a good place. If that’s where you are, well, we have room for you in criminal law, where there are plenty of true believers on both sides of the bar.
BONUS QUESTION: What do you think is the best depiction of a criminal trial in popular culture? The worst?
Best: American Violet, because the filmmakers stayed true to the story and resolved the case without a trial—a very realistic outcome these days.
Worst: My Cousin Vinny. Ugh. If someone quotes that me movie to me again, I may have a seizure.
BIOGRAPHY: A former federal prosecutor, Professor Osler teaches criminal law and sentencing at the University of St. Thomas School of Law, the faculty of which he joined in 2010. For the past ten years, he was a professor at the Baylor University School of Law in Waco, Texas. He is the author of Jesus on Death Row: The Trial of Jesus and American Capital Punishment, which was published in 2009. His blog, Osler’s Razor, can be found here.