You (Might) Have the Right to Remain Silent: Supreme Court Set to Decide Whether Public Accommodation Law Can Compel Speech

Photo Credit: Ted Eytan (licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license)

*Nicholas Balzano

I. INTRODUCTION

The Supreme Court’s 2021-2022 term was filled with widespread media coverage, particularly concerning the Court’s decisions in Dobbs v. Jackson and NYSRPA v. Bruen.[1] While the 2021-2022 term has ended, another case with the potential to create a new precedent undoing years of previous precedent looms on the horizon.[2] In 303 Creative LLC v. Elenis, the Court will answer the question of whether speech can be compelled through the application of a public-accommodation law.[3] The case deals with a Colorado website owner refusing to create websites that celebrate same-sex marriages.[4] The Court will decide whether the owner’s refusal is permissible given Colorado’s Anti-Discrimination Act (CADA) that “restricts a public accommodation’s ability to refuse to provide services based on a customer’s identity.”[5]

The Tenth Circuit ruled in favor of Colorado and found that, while the Appellant’s right to free speech is compelling, Colorado’s interest in protecting its citizens from discrimination is more essential.[6] The Supreme Court granted certiorari to address only the issue of compelled speech[7] during their 2022-2023 term.[8]

II. THE ORIGINS OF 303 CREATIVE LLC V. ELENIS

This case originated in 2017, when Lorie Smith (Smith) and her website company, 303 Creative, LLC, brought a pre-enforcement challenge to CADA.[9] At the time of the lawsuit, Smith had yet to offer wedding-related services on her website; however, she intended to do so only for opposite-sex marriages.[10] This proposed action was potentially at odds with CADA and Smith wanted the issue decided before acting.[11]

Initially, the United States District Court of Colorado “declined to rule on the merits of the Appellants’ Communication Clause challenges, [sic] because Masterpiece Cakeshop was then pending before the United States Supreme Court.”[12] After the Court decided Masterpiece Cakeshop, the district court ruled in favor of Colorado[13] and “assume[d] the constitutionality of the Accommodation Clause.”[14] Appellants appealed this decision to the Tenth Circuit, which found that while the Appellant’s free speech is compelling, Colorado’s interest to protect its citizens from discrimination is significantly more essential.[15] The court held that “CADA satisfies strict scrutiny, and thus permissibly compels Appellants’ speech.”[16]  CADA satisfied strict scrutiny because the court found that it was both a neutral law and generally applicable, allowing the law to satisfy the heightened standard.[17]

This type of case has been decided differently in the various circuits.[18] In the Eighth Circuit, a public accommodation law that would have required videographers to make videos for only opposite-sex marriages was struck down, which is in direct conflict with the Tenth Circuit opinion in 303 Creative LLC. [19] Due to the existing circuit split regarding how to address free speech and public accommodation laws, the Supreme Court granted certiorari to decide this issue.[20]

III. HOW MIGHT THE COURT DECIDE THE ISSUE?

The issue of whether public accommodation laws can compel speech has been unanswered for years, as the Court left the question for “further elaboration in the courts” in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n.[21] Given the Court’s highly conservative makeup and its recent controversial decisions,[22] pundits expect that the Court will side in favor of Smith,[23] either by finding CADA unconstitutional or by implementing a narrower “Masterpiece-like procedural approach[,]” where the Court would issue only a case-specific ruling.[24] However, just how far the Court is willing to go if they opt for the former approach remains unclear.[25] The Court has been known to decide issues dealing with the right of free speech in a “far bolder” manner than “in the area of religion” [26] and with 303 Creative, LLC docketed to address only the issue of free speech, it may indicate that the Court is “considering a more sweeping ruling.”[27] If the Court finds CADA to be unconstitutional, it could provide the Court with the potential to “carve out a business rule exception to LGBTQ anti-discrimination rules based on religious persons’ right to free speech[,]”[28] which would allow businesses the ability to discriminate based upon sexual orientation.[29]

IV. HOW COULD THE DECISION IN 303 CREATIVE, LLC AFFECT BUSINESSES?

If the Court were to favor Smith and find that she cannot be compelled to provide services to same-sex couples, this holding could produce a dangerous precedent for business that reflects pre-Civil Rights Era litigation.[30] For years, there has been a “settled social consensus” “that businesses cannot claim constitutional cover from public accommodation laws.”[31] The possibility of a decision allowing Smith to refuse services to same-sex married couples may have larger ramifications. Such an outcome could permit “[c]hefs, printers, florists, tailors, jewelers, barbers, bartenders, and bakers [to] refuse to provide wedding-related services to gays and lesbians on the grounds that their conscience precludes them from applying their skills to enhance their wedding celebration.”[32] Allowing businesses to discriminate under the guise of free speech has the potential to do irreparable harm to the LGBTQ community[33] and could make it substantially more difficult to “obtain services that can be classified as speech.”[34] This decision would change the landscape of how members of the LGBTQ community interact with businesses and would force members of that community to forego certain services due to animus towards them, a clear mirror of the pre-Civil Rights era. [35]

A decision in favor of Smith would allow businesses providing goods and services that could be classified as “speech” to be run “in a way that allows them not to service entire, large categories of people based on their religious views.”[36] Many businesses already comply with the anti-discrimination laws in their state,[37] so the effect that a decision in favor of Smith would have on companies would likely be state-specific.[38]

V. CONCLUSION

As the 2022-2023 Supreme Court session will begin in October,[39] the Court is faced with yet another case that will have lasting ramifications.[40] The Court will deliver an opinion on 303 Creative LLC that has the potential to either expand the power of free speech to cover discrimination or to provide the LGBTQIA+ community with adequate protection against discrimination.[41] The potential dangerous effects that a decision in favor of Smith may have cannot be understated. While free speech is compelling, protecting the LGBTQIA+ community from discrimination under the guise of free speech remains more important. It is essential that society moves forward toward acceptance, not backwards.

*Nicholas Balzano is a second-year day student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review, a member of the Royal Graham Shannonhouse III Honor Society, and a member of the Honor Board. Prior to law school, Nicholas worked as a law clerk at Atkinson Law. During his 1L summer, Nicholas interned with the Honorable Audrey J.S. Carrión, Administrative Judge and Chief Judge for the Circuit Court for Baltimore City.


[1] See Brydon Black, Supreme Court Roundup: The Biggest Decisions From This Past Historic Session, Arbiter (Aug. 20, 2022), https://arbiteronline.com/2022/08/20/supreme-court-roundup-the-biggest-decisions-from-this-past-historic-session/.

[2] See Hila Keren, The Alarming Legal Strategy Behind a SCOTUS Case That Could Undo Decades of Civil Rights Protections, Slate (Mar. 9, 2022), https://slate.com/news-and-politics/2022/03/supreme-court-303-creative-coordinated-anti-lgbt-legal-strategy.html.

[3] 303 Creative LLC v. Elenis, 142 S. Ct. 1106, 1106 (2022) (mem).

[4] 303 Creative LLC v. Elenis, 6 F.4th 1160, 1169–70 (10th Cir. 2021), cert. granted in part, 142 S. Ct. 1106 (2022) (mem).

[5] Id.

[6] See Elenis, 6 F.4th 1160 at 1190.

[7] See Elenis, 142 S. Ct. at 1106.

[8] See Supreme Court Cases, October Term 2022-2023, Ballotpedia, https://ballotpedia.org/Supreme_Court_cases,_October_term_2022-2023#:~:text=The%202022%2D2023%20term%20of,here%20as%20it%20becomes%20availabe (last visited Aug. 23, 2022).

[9] See Elenis, 6 F.4th 1160 at 1190.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15]  Id.

[16] Id.

[17] Id. at 1183.

[18] See id. at 1160; see also Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019).

[19] Id.

[20] Id.

[21] See Masterpiece Cakeshop, Ltd. v. Colorado Civ. Rights Comm’n., 138 S. Ct. 1719, 1732 (2018); see also Adam Liptak, Supreme Court to Hear Case of Web Designer Who Objects to Same-Sex Marriage, N.Y. Times (Feb. 22, 2022), https://www.nytimes.com/2022/02/22/us/colorado-supreme-court-same-sex-marriage.html.

[22] See Nina Totenberg, The Supreme Court is the Most Conservative in 90 Years, NPR (July 5, 2022), https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative; see also Andrew Koppelman, The Dangerous 303 Creative Case, Canopy F. (Jun. 15, 2022), https://canopyforum.org/2022/06/15/the-dangerous-303-creative-case/.

[23] See Judy Greenwald, Supreme Court Expected to Favor Business in Bias Case, but Likely Effect of Ruling Unclear, Bus. Ins. (Apr. 1, 2022), https://www.businessinsurance.com/article/20220401/NEWS06/912348705/US-Supreme-Court-expected-to-favor-business-in-bias-case,-but-likely-effect-of-ruling-unclear; see also Evan Gerstmann, Supreme Court Will Be Making a Major Ruling on Free Speech and the Rights of Sexual Minorities, Forbes (Mar. 27, 2022), https://www.forbes.com/sites/evangerstmann/2022/03/27/supreme-court-will-be-making-a-major-ruling-on-free-speech-and-the-rights-of-sexual-minorities/?sh=71120b01be10; see also Koppelman, supra note 22.

[24] See Greenwald, supra note 23; see also Coley et al., Despite Public Opposition, the Supreme Court May Fundamentally Change the Trajectory of LGBTQ Rights, PRRI (Apr. 1, 2022), https://www.prri.org/spotlight/despite-public-opposition-the-supreme-court-may-fundamentally-change-the-trajectory-of-lgbtq-rights/.

[25] See Greenwald, supra note 23.

[26] See Gerstmann, supra note 23.

[27] Id.

[28] See Greenwald, supra note 23.

[29] See Amanda Robert, SCOTUS Should Uphold Long-Standing Precedent in Case Involving Objection to Same-Sex Marriage, ABA says, ABA J. (Aug. 22, 2022), https://www.abajournal.com/web/article/scotus-should-uphold–longstanding-precedent-in-case-involving-objection-to-same-sex-marriage-aba-says.

[30] Id.

[31] Id.

[32] Id.

[33] See Coley et al., supra note 24.

[34] Id.

[35] See Robert, supra note 29.

[36] See Greenwald, supra note 23.

[37] Id.

[38] Id.

[39] See Ballotpedia, supra note 8.

[40] See discussion supra Parts I, II, III, IV.

[41] Id.

Highest Case Note from Write-On 2022: O’Sullivan v. State, 265 A.3d 1015 (Md. 2021)

*Devyn King

The Court of Appeals of Maryland refused to abrogate the two-witness rule for common law perjury cases. O’Sullivan v. State, 265 A.3d 1015 (Md. 2021).

I. Introduction

In O’Sullivan v. State, the Court of Appeals of Maryland assessed the State’s request to abrogate the two-witness rule for misdemeanor perjury offenses.[1] In a perjury trial against a Baltimore City police officer, who made sworn statements that were contradicted by body camera footage, the State submitted the footage into evidence to corroborate the arrestee’s testimony.[2] On a post-conviction cross-appeal, the Court of Appeals refused the State’s petition to abrogate the two-witness rule. The two-witness rule requires direct testimony from at least two witnesses, or independent circumstantial evidence corroborating direct testimony from one witness, to secure a perjury conviction.[3] The Court found that abandoning its precedent would be inconsistent with the doctrine of stare decisis.[4] The holding marks a slight variation in Maryland case law, which previously required evidence of equal weight to that of a second witness and a deviation from the justice system’s pervasive practice of weighing the credibility of the evidence rather than the number of witnesses.[5] The Court affirmed O’Sullivan’s conviction and concluded that the video evidence, in conjunction with the witness’s testimony, was sufficient to satisfy the two-witness rule.[6]

II. Historical Development

A. The United States Supreme Court Retained the Two-Witness Rule Originally Rooted in the Numerical System of English Ecclesiastical Courts.

European law historically relied on a numerical system that required a specific number of witnesses to obtain certain convictions.[7] The system was frequently used in ecclesiastical courts in England,[8] notably the Court of Star Chamber, which almost exclusively tried perjury cases.[9] Because perjury was one of the few cases in which the defendant’s testimony was admitted as evidence, requiring the prosecution to present direct testimony from two witnesses prevented the case from being decided merely by “oath against oath.”[10] When the Court of Star Chamber was abolished and its jurisdiction transferred to the King’s Bench, the two-witness rule transferred with it, rooting itself into the common law.[11]

The United States retained the two-witness rule for many years,[12] despite relying on a qualitative, rather than quantitative, approach to determine guilt.[13] In Weiler v. United States, the Supreme Court expressed the modern rationale for retaining the two-witness rule: “To bar a jury from convicting for perjury on the uncorroborated oath of a single witness.”[14] The Supreme Court reasoned this protection is needed because losing litigants may feel resentment towards adverse witnesses and seek retaliation through a perjury accusation.[15] Consequently, the interests of justice require heightened protection to allow truthful witnesses to testify freely, without fear of undue harassment or unfounded perjury allegations.[16]

B. Maryland Case Law Supports a Relaxed Version of the Two-Witness Rule, Allowing Independent Evidence to Corroborate a Single Witness on a Perjury Charge.

The crime of perjury, codified in the Maryland Code Annotated, Criminal Law, at § 9-101, does not specify a two-witness requirement.[17] Before it decided Brown v. State in 1961, the Maryland Court of Appeals had not addressed the burden of production required for a perjury conviction.[18] In Brown, the Court of Appeals announced a relaxation of the rule to permit a conviction where the State had introduced direct testimony of at least two witnesses or direct and positive testimony of one witness corroborated by independent, circumstantial evidence.[19] To sustain the latter, the combined evidence “must be of such a nature so as to be of equal weight to that of at least a second witness, thus foreclosing any reasonable hypothesis other than the defendant’s guilt.”[20]

Maryland courts subsequently upheld the rule from Brown,[21] though at times criticizing the two-witness rule’s continuation.[22] In Smith v. State, the Court of Special Appeals stated that the Brown “conviction was based solely on circumstantial evidence,” not direct witness testimony.[23] Therefore, where a conviction can be attained on circumstantial evidence alone, “thus foreclosing any reasonable hypothesis other than the defendant’s guilt,”[24] the two-witness rule does not apply.[25] Additionally, the Smith court expressed its belief that the two-witness rule conflicts with the justice system’s universal standard of proof beyond a reasonable doubt.[26]

The Court of Special Appeals’ critique of the two-witness rule continued in Hourie v. State (Hourie I). In Hourie I, the court referred to the two-witness rule as “an alien from a long-dead world that was … accidentally caught in a time warp.”[27] The court found that the purpose of the rule was no longer sound in the current justice system.[28] Charged with determining whether the rule should apply to other crimes subject to the penalties for perjury (i.e., welfare fraud),[29] the court refused to extend the rule, limiting it solely to common law perjury cases.[30]

On appeal, the Court of Appeals affirmed the judgment in Hourie I on different grounds.[31] Instead, the court followed its reasoning in Brown, finding that the circumstantial evidence alone was enough to prove guilt; therefore, the two-witness rule was not applicable.[32] This holding limited the two-witness rule’s application to situations where direct and positive witness testimony is needed to support a conviction,[33] following the same principle established in Smith.[34]

In 2021, in State v. McGagh, the Court of Appeals upheld the relaxed two-witness rule established in Brown, emphasizing that therule applies only to the falsity element.[35] The court found that direct witness testimony and video surveillance footage were sufficient to prove falsity beyond a reasonable doubt.[36] Nevertheless, the court affirmed the two-witness rule’s modern purpose of preventing oath-against-oath situations.[37] Finally, the court reiterated that to satisfy the two-witness rule, the evidence must be of “equal weight” to testimony from a second witness.[38]

C. Federal and State Courts are Split on the Two-Witness Rule.

Maryland courts are not alone in their critique of the two-witness rule; other states’ courts, as well as federal courts, [39] have expressed concern that the rule is no longer consistent with the modern judicial system.[40] At least six  states have abandoned the two-witness rule,[41] while fourteen states continue to follow it.[42] Moreover, subsequent to its implementation of the two-witness rule in Weiler,[43] the Supreme Court explicitly held in In re Winship that due process requires a universal standard of proof beyond a reasonable doubt for every element of a crime to sustain a conviction.[44]

III. Instant Case

Officer Michael O’Sullivan testified at Yusuf Smith’s trial that he observed Smith remove a handgun from his waistband and throw it.[45] The State dismissed the charges against Smith while an appeal of his conviction was pending. Subsequently, a grand jury indicted O’Sullivan for perjury and misconduct in office regarding his testimony at Smith’s trial.[46]

At a bench trial, Smith testified that O’Sullivan’s prior statement that O’Sullivan had seen Smith throw a gun was “inconsistent with the truth.”[47] To supplement Smith’s testimony, the State introduced body camera footage from the investigation which led to Smith’s arrest.[48] The trial court held that the evidence sufficiently demonstrated O’Sullivan was untruthful in his testimony and he was found guilty of perjury and misconduct in office.[49]

On appeal, O’Sullivan questioned whether the evidence was legally sufficient to support his convictions.[50] The Court of Special Appeals affirmed his conviction, holding that the case was not an oath-against-oath situation and did not invoke the two-witness rule. The Court’s rationale was that a reasonable factfinder could have reached the same conclusion based solely on the body camera footage.[51] Moreover, the Court of Special Appeals noted that it would have affirmed the convictions even if it had applied the two-witness rule, as the body camera footage corroborated Smith’s testimony such that the evidence was “legally sufficient to foreclose any reasonable hypothesis other than O’Sullivan’s guilt.”[52]

O’Sullivan petitioned for certiorari, arguing that the Court of Special Appeals should have applied the two-witness rule.[53] O’Sullivan reasoned that the State relied on Smith’s testimony as direct evidence of falsity, indicating an oath-against-oath case.[54] The State filed a cross-petition for certiorari, asking the Court of Appeals to abrogate the two-witness rule in favor of the standard burden of proof, which requires the State to prove guilt beyond a reasonable doubt.[55]

The Court of Appeals first addressed the State’s petition to abrogate the two-witness rule for perjury offenses.[56] Under stare decisis, a court may only overrule a decision if it is “clearly wrong and contrary to established principles” or if it has been “superseded by significant changes in the law or facts.”[57] The court rejected the State’s argument that it should overturn its precedent.[58] The court found no evidence that perjury occurs more frequently in Maryland than other states that have abrogated the rule.[59] Additionally, the court found that because perjury is a type of crime that offends the legal system, the two-witness rule restrains prosecutors from losing objectivity in charging adverse witnesses.[60] Finally, the court justified a unique burden of production for the falsity element of perjury because triers of fact are permitted to infer the element of willfulness when falsity is proven, making it easier for the State to prove each element.[61] Because the rule’s purpose of safeguarding against wrongful perjury prosecutions and convictions remains sound, it is not clearly erroneous.[62]

The court agreed that a standard of proof beyond a reasonable doubt for every element of the crime, as guaranteed in In re Winship,[63] appears at odds with the two-witness rule’s unique burden of production. However, the beyond a reasonable doubt standard had already been used in Maryland for nearly a century[64] when the court officially recognized the two-witness rule in Brown.[65] Therefore, there were no significant changes in law or fact to justify overturning its precedent.[66] Because neither of the exceptions that would allow an appellate court to overrule precedent were applicable, abandoning the rule would be inconsistent with stare decisis.[67] Accordingly, the court refused to abrogate the two-witness rule.[68]

The court also determined whether the evidence was sufficient to support O’Sullivan’s perjury conviction.[69] The court reiterated that the two-witness rule applies only if the State seeks to introduce witness testimony as direct evidence of falsity,[70] but the rule does not apply if the State seeks to prove falsity through only circumstantial evidence.[71] The court agreed with O’Sullivan that the two-witness rule applied to this case, because the State introduced Smith’s testimony as direct evidence of falsity but did not agree that a different standard of review for sufficiency of the evidence should apply.[72] The court emphasized that the burden of production under the two-witness rule should not be conflated with the State’s burden of persuasion to prove falsity beyond a reasonable doubt,[73] as had been done in prior cases.[74] The court concluded that the State had met both its burden of production under the two-witness rule and its burden of persuasion, affirming O’Sullivan’s conviction.[75]

In an opinion concurring in part and dissenting in part, Judge Raker, joined by Judge McDonald, agreed that the evidence was sufficient to sustain O’Sullivan’s conviction but would have abrogated the two-witness rule for perjury charges.[76] Judge Raker argued that it is illogical to maintain a unique burden of production for perjury as an exception to the universal beyond a reasonable doubt standard.[77] Judge Raker argues that courts should rule based on the credibility of the evidence as determined by the triers of fact[78] rather than based on the number of witnesses.[79]

IV. Analysis

A. The Court’s Holding Clarifies the Correct Application of the Two-Witness Rule.

By emphasizing that the two-witness rule creates a unique burden of production rather than a burden of persuasion,[80] the Court of Appeals distinguished the rule’s application from its holdings in Brown and McGagh, noting that such prior application had conflated the two distinct burdens.[81] Under the two witness rule, the State may meet its burden of production for falsity by direct and positive testimony from at least two witnesses, solely circumstantial evidence, or a combination of both.[82] With the Court’s ruling, circumstantial evidence introduced with direct witness testimony no longer needs to be equal in weight to that of a second witness.[83] Instead, once the State meets its burden of production in submitting the appropriate evidence, a court should review the totality of the evidence to determine whether “any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.”[84] Though the two-witness rule creates a heightened requirement for the amount of evidence the State must produce, the burden of persuasion, as for all other crimes, is to prove every element beyond a reasonable doubt.[85]

B. Despite the Court’s Clarification, the Two-Witness Requirement for Perjury Remains an Anomaly.

Though the two-witness rule may have been effective in ecclesiastical courts, preventing oath-against-oath situations when perjury was one of the few crimes in which defendants were permitted to testify,[86] defendants in the United States have the right to testify in their own defense regardless of the crime, which frequently results in oath-against-oath scenarios.[87] Additionally, the institutionalization of the American criminal justice system decreases the danger of retaliatory accusations that was prevalent among English private prosecutions.[88] Furthermore, today’s public conscience generally does not consider perjury as serious of a crime as felonies such as homicide or armed robbery.[89] The motivation for retaining a higher burden of production solely for perjury prosecutions has lost its relevance.[90]

In his study on quantitative measures of proof, John Wigmore noted that the common law rejected the quantitative system due to the widespread belief that credibility is not dependent on the number of witnesses.[91] The Supreme Court expressed similar sentiments in Weiler, where despite articulating the modern rationale for keeping the rule,[92] the Court explicitly stated, “Our system of justice rests on the general assumption that the truth is not to be determined merely by the number of witnesses on each side of a controversy.”[93] By preserving the two-witness rule solely for common law perjury offenses,[94] the Court of Appeals diverts from the standard practice of deciding cases based on the credibility of the evidence.

V. Conclusion

The Court’s refusal to abrogate the two-witness rule contrasted with Judge Raker’s dissent urging its abandonment[95] demonstrates the conflicting opinions among jurists across the United States.[96] Though the Court of Appeals intends for the rule to protect innocent witnesses from unfounded perjury accusations and prevent decisions based solely on oath against oath,[97] this purpose is undermined by the universal standard of proving each element beyond a reasonable doubt, based on the credibility of the evidence as determined by triers of fact.[98] As a result, the Court’s holding maintains a heightened burden of production that prosecutors must meet to secure a conviction only for the misdemeanor of perjury. To ensure uniformity among criminal prosecutions in Maryland, the state legislature should act to statutorily abandon the rule.[99]

*Devyn King is a staff editor for Law Review and a second-year student at the University of Baltimore School of Law. She is currently the Vice President of the Students Supporting the Women’s Law Center chapter at UB and is a teaching assistant for Intro​duction to Lawyering Skills/Civil Procedure I. Devyn is also a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society and a proud graduate of the University of Pittsburgh. In 2022, Devyn worked as a summer associate for Gallagher Evelius and Jones LLP. After receiving her J.D., Devyn hopes to work as a transactional attorney in Baltimore City.


[1] O’Sullivan v. State, 265 A.3d 1015, 1021 (Md. 2021).

[2] Id. at 1020.

[3] Id.

[4] Id. at 1030.

[5] See discussion infra Part IV.

[6] O’Sullivan, 265 A.3d at 1021.

[7] John H. Wigmore, Required Numbers of Witnesses; A Brief History of the Numerical System in England, 15 Harv. L. Rev. 83, 83 (1901).

[8] Id. at 84.

[9] Id. at 107.

[10] Id. at 107–08.

[11] Id.

[12] Weiler v. United States, 323 U.S. 606, 608–09 (1945).

[13] Id. at 608.

[14] Id. at 611.

[15] Id. at 609.

[16] Id.

[17] Md. Code Ann., Crim. Law § 9-101 (West 2022).

[18] Brown v. State, 171 A.2d 456, 458 (Md. 1961).

[19] Id.

[20] Id.

[21] See Smith v. State, 443 A.2d 985, 993 (Md. Ct. Spec. App. 1982).

[22] See id. (“[T]he rule is now incongruous in our present system of jurisprudence”) (internal quotations omitted); Hourie v. State, 452 A.2d 440, 443–44 (Md. Ct. Spec. App. 1982), aff’d, 467 A.2d 1016 (Md. 1983).

[23] Smith, 443 A.2d at 994.

[24] Id.

[25] Id. at 995.

[26] Id. at 993.

[27] Hourie, 452 A.2d at 443–44.

[28] Id. at 449–50.

[29] Id. at 441.

[30] Id. at 454.

[31] Hourie v. State, 467 A.2d 1016, 1017 (Md. 1983).

[32] Id. at 1024.

[33] See id. at 1022–24.

[34] Smith v. State, 443 A.2d 985, 995 (Md. Ct. Spec. App. 1982).

[35] State v. McGagh, 244 A.3d 1117, 1135 (Md. 2021).

[36] Id. at 1136.

[37] Id. at 1136–37.

[38] Id.

[39] See Goins v. United States, 99 F.2d 147, 149–50 (4th Cir. 1938) (expressing in dicta doubt as to the necessity of requiring a different burden of proof for perjury than all other crimes); Cohen v. United States, 27 F.2d 713, 714 (2d Cir. 1928) (expressing in dicta that it is difficult to justify extending the two-witness rule).

[40] See State v. Storey, 182 N.W. 613, 615 (Minn. 1921).

[41] See Alaska Stat. Ann. § 11.56.220 (West 2022); Ariz. Rev. Stat. Ann. § 13-2707 (2022); N.D. Cent. Code Ann. § 12.1-11-01(2) (West 2022); Okla. Stat. Ann. tit. 21, § 498(a) (West 2022); 11 R.I. Gen. Laws Ann. § 11-33-1(e) (West 2022). See also State v. Sands, 467 A.2d 202, 214 (N.H. 1983).

[42] See Ala. Code § 13A-10-105 (2022); Ark. Code Ann. § 5-53-107 (West 2022); Cal. Penal Code § 118(b) (West 2022); Del. Code Ann. tit. 11, § 1234 (West 2022); Haw. Rev. Stat. § 710-1067 (2022); Ky. Rev. Stat. Ann. § 523.060 (West 2022); Mo. Rev. Stat. § 575.070 (2022); Mont. Code Ann. § 45-7-201(7) (2022); Neb. Rev. Stat. § 28- 915(7) (2022); N.J. Stat. Ann. § 2C:28-1(e) (West 2022); N.Y. Penal Law § 210.50 (McKinney 2022); Ohio Rev. Code Ann. § 2921.11(E) (West 2022); Or. Rev. Stat. § 162.115 (2022); 18 Pa. Cons. Stat. § 4902(f) (2022); Tex. Code Crim. Proc. Ann. art. 38.18(a) (West 2022); Utah Code Ann. § 76-8-505(1) (West 2022).

[43] Weiler v. United States, 323 U.S. 606, 608–09 (1945).

[44] In re Winship, 397 U.S. 358, 364 (1970).

[45] O’Sullivan v. State, 265 A.3d 1015, 1025 (Md. 2021).

[46] Id.

[47] Id. at 1028.

[48] Id. at 1026.

[49] Id. at 1028.

[50] Id. at 1028–29.

[51] Id. at 1029.

[52] Id. (quoting O’Sullivan v. State, No. 2275, 2020 WL 7419686, at *8 (Md. Ct. Spec. App. Dec. 18, 2020)).

[53] Id.

[54] Id. at 1035.

[55] Id. at 1029.

[56] Id. at 1030.

[57] Id. (quoting Wallace v. State, 158 A.3d 521, 535 (Md. 2017)).

[58] Id. at 1031.

[59] Id.

[60] Id. at 1032.

[61] Id. at 1032–33.

[62] Id. at 1031–33.

[63] Id. at 1034 (citing In re Winship, 397 U.S. 358, 364 (1970)).

[64] Id. (citing Norwood v. State, 45 Md. 68, 75 (1876)).

[65] Id.

[66] Id.

[67] Id. at 1034.

[68] Id. at 1030.

[69] Id. at 1034.

[70] Id.

[71] Id. at 1035.

[72] Id.

[73] Id.

[74] See discussion supra Section II.B.

[75] O’Sullivan, 256 A.3d at 1036.

[76] Id. at 1040 (Raker, J., dissenting).

[77] Id. at 1041 n.1 (Raker, J., dissenting).

[78] Id. (Raker, J., dissenting) (quoting Hourie v. State, 452 A.2d 440, 443–44 (Md. Ct. Spec. App. 1982), aff’d, 467 A.2d 1016 (Md. 1983)).

[79] Id. at 1042 (Raker, J., dissenting).

[80] Id. at 1035.

[81] Id.

[82] Id. at 1036.

[83] Id.

[84] Id. (quoting State v. McGagh, 244 A.3d 1117 (Md. 2021) (internal citation omitted)).

[85] Id. at 1035–36.

[86] Wigmore, supra note 6, at 107–08.

[87] Hourie v. State, 452 A.2d 440, 447–49 (Md. Ct. Spec. App. 1982), aff’d, 467 A.2d 1016 (Md. 1983).

[88] Id. at 451.

[89] Id. at 452.

[90] See id. at 447–49.

[91] O’Sullivan v. State, 256 A.3d 1015, 1041 n.3 (Md. 2021) (Raker, J., dissenting) (quoting Hourie, 452 A.2d at 446).

[92] Weiler v. United States, 323 U.S. 606, 609 (1945).

[93] Id. at 608.

[94] O’Sullivan, 256 A.3d at 1030.

[95] See discussion supra Part III.

[96] See discussion supra Section II.C.

[97] See discussion supra Part III.

[98] See discussion supra Section IV.B.

[99] O’Sullivan, 256 A.3d at 1041 (Raker, J., dissenting).

Volume 52 Submissions

The University of Baltimore Law Review is currently accepting submissions for publication in Volume 52. Submissions are accepted on a rolling basis throughout the year. Authors are welcomed to submit articles for consideration, along with a resume and cover letter, to ublawreview@ubalt.edu or via Scholastica. More information on the submission process can be found at on the Submissions page. Please contact University of Baltimore Law Review Articles Editor, Jeff Neuman, with any questions or concerns at the above-mentioned email. We look forward to your submission!

“And Justice for All”: Is Environmental Justice Thwarted by the Federal Legislative Process?

Photo credit: Susan Melkisethian

*Ashli Glatfelter

I. Introduction

The idea that nature is the “great equalizer” unfortunately seems to have little merit lately.[1] Ideally, clean air, drinking water, and recreational spaces are available to all Americans without discrimination based on race or socioeconomic status.[2] In reality, unequal access to the benefits of these natural resources is another injustice facing persons of color and low-income individuals (POC/LII).[3] Both federal and state government recognize the presence of environmental injustice, as policymakers at both levels are addressing the inequitable distribution of nature to POC/LII.[4] For example, in March 2021, the U.S. House of Representatives and Senate proposed identical bills, collectively the Environmental Justice for All Acts (the “EJA Acts”), “to begin remedying the long history of environmental racism and injustice in the United States[.]”[5] However, over a year later, POC/LII have yet to experience the anticipated benefits of the EJA Acts. Seemingly, our own legislative process is the obstacle preventing environmental justice for all.

Continue reading ““And Justice for All”: Is Environmental Justice Thwarted by the Federal Legislative Process?”

Moral Duty or Legal Right: Supreme Court Decides Third Nazi-Looted Art Case Hinged on Procedural Questions Under the Foreign Sovereign Immunities Act

*Torra Hausmann

I. Introduction

On April 21, 2022, the Supreme Court quietly issued its third decision in two terms on yet another issue involving the provenance of a piece of artwork looted by Nazis during the Second World War.[1] The petition for certiorari came after a long legal battle dating back to 2005 between the Estate of Lilly Cassirer (Cassirer Family) and the Spain-based Thyssen-Bornemisza National Museum (Foundation).[2] The Cassirer Family posed a narrow question to the Court: whether a federal court hearing state law claims initiated under the Foreign Sovereign Immunities Act (FSIA) should be determined by the forum state’s choice of law rules or by federal common law rules?[3]

FSIA grants immunity to foreign states and their instrumentalities from civil action in the U.S., unless the civil action falls under one of FSIA’s enumerated exceptions.[4] For example, one exception removes immunity for any cases involving “rights in property taken in violation of international law.”[5] FSIA’s purpose “is to spell out, as a matter of federal law, the suits against foreign sovereigns that American courts do, and do not, have power to decide.”[6] Ultimately, the Court held that the forum state’s choice of law rules apply, settling a circuit split regarding the application and interpretation of choice of law rules for FSIA claims.[7]

Continue reading “Moral Duty or Legal Right: Supreme Court Decides Third Nazi-Looted Art Case Hinged on Procedural Questions Under the Foreign Sovereign Immunities Act”