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struggle4progress

(118,285 posts)
Thu Jun 25, 2020, 02:16 AM Jun 2020

Why Do Rule 48(a) Dismissals Require "Leave of Court"? (Stanford Law Review June 2020)

Thomas Ward Frampton

... The dilemma faced by the district judge in Woody was well-known in legal circles when the Rules of Criminal Procedure were developed between 1941 and 1944. Several months after the Supreme Court appointed an Advisory Committee to draft the rules in February 1941, another federal district judge in California penned an impassioned plea for the federal courts to adopt a new approach to dismissals. Quoting at length from Woody, Judge Leon Yankwich urged that it was critical to grant judges greater “control . . . over
criminal proceedings” so they would not be similarly “compelled to grant the dismissal of an indictment [when such a dismissal] savored too much of favoritism” ...

The question whether the trial court should wield the power to deny a motion to dismiss first prompted debate at the Advisory Committee’s January 13, 1942 meeting. From the outset, the Advisory Committee’s concern focused on the possibility that improper political influence might spur a prosecutor’s decision to drop a case ...

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Why Do Rule 48(a) Dismissals Require "Leave of Court"? (Stanford Law Review June 2020) (Original Post) struggle4progress Jun 2020 OP
From the outset, the Advisory Committee's concern focused on the possibility that improper political elleng Jun 2020 #1
From the outset people don't notice the elephant in the room. Igel Jun 2020 #2

elleng

(130,914 posts)
1. From the outset, the Advisory Committee's concern focused on the possibility that improper political
Thu Jun 25, 2020, 03:07 AM
Jun 2020

influence might spur a prosecutor’s decision to drop a case.'

Igel

(35,311 posts)
2. From the outset people don't notice the elephant in the room.
Thu Jun 25, 2020, 09:36 AM
Jun 2020

There was a rule. It focused on the rights of the prosecution to bail and the protection of the defendant in those cases.

Nobody was discussing these things. They were slam dunks. The rule was already largely written on the first take. After that the "by the leave" phrase was the only thing that was up for discussion.

Making the entire rule about those few words overlooks pretty much the entire rule. It backgrounds it, makes it invisible--but the only reason the few added rules are there is because of the background. Focus on the fish caught, not on the Pacific, then say that the trip really had nothing to do with the ocean, the boat, water, etc. All the preparations involved just focusing on the fish. Seems silly. It's law.

That some thought it important and some not made it an issue that kept resurfacing. That it failed, 7-7, shows that the committee didn't leap right on it with the obvious solution. The language was probably a sop to get the thing out of committee--not the trunk and roots of the huge sequoia.

That this was discussed is a valid point. But saying that it was really the main point is simply delusional. And, like winning a 110-109 basketball game by 1 point, rather assumes that the previous 109 points have absolutely no use and it's only that last point that has any important. Subtract the rest of the game's scoring, and you're left with 1 really awesome winning point.

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