Professor Joel Johnson, "Cert Alert: Supreme Court Cases of Interest" Spring 2025 -- ABA Criminal Justice Magazine

Professor Joel S. Johnson's latest installment of his quarterly column, "Cert Alert: Supreme Court Cases of Interest," has been published in the Spring 2025 edition of the ABA Criminal Justice Magazine. The column discusses cases on the Supreme Court's criminal docket.

From Supreme Court Cases of Interest:

Eight of the 11 cases on the Court’s criminal docket for the October 2024 Term present questions concerning the interpretation of federal penal statutes, a category of cases that has dominated the Court’s criminal docket in recent years. The other three cases present difficult questions related to the Fourth Amendment, the Seventh Amendment right to a jury trial, and the Due Process Clause. Decisions in all 11 cases are expected by June.

In December, the Court heard argument in Kousisis v. United States, the latest in a series of cases in recent years concerning the scope of the federal fraud laws. The case poses the question whether a fraudulent-inducement theory can be used to prosecute someone who uses deception to enter into a transaction that does not financially harm the victim. The justices spent most of the oral argument asking each side a number of hypotheticals to tease out the limits of their position. Several justices expressed concern over the practical consequences of adopting an overly broad reading of the statutes. A narrow construction seems likely and would align with the Court’s practice of narrowly construing the federal fraud statutes.

In January, the Court heard argument in Thompson v. United States, another case concerning the degree to which federal law criminalizes deception. The question presented is whether a merely misleading statement constitutes a false statement under a statute that prohibits “knowingly mak[ing] any false statement” in certain communications with the Federal Deposit Insurance Corporation or banks that it insures. At argument, the justices seemed to signal agreement with the petitioner that not all misleading statements qualify as false statements. Yet the justices also expressed significant doubt that the statements at issue about the amount of debt the petitioner owed to the FDIC did not count as false statements in light of the context in which the statements were made. While a narrow reading of the statute appears likely, it is doubtful that the reading will be so narrow as to exclude the petitioner’s conduct in this case.

The complete article may be found at American Bar Association