Explaining the pheonomena of "in dicta"

[pex]

PAFOA is not immune from overreliance on 'in dicta'. Dicta is the notations made by justices to explain what swayed the court, but are not necessary to answer strictly the questions brought to the court (which are given by holdings: "Held:") Dicta often alludes to how a court may sway in the future but is certainly not a sure foreshadowing (maybe we can call this 'in dicta' something like 'judicial intent'.

I don't think laymen have a good sieve with which to filter dicta from holding. Could someone with the requisite legal background explain how to read the orders and opinions of a court?

[awkx]

IANAL, but I don't think there is a simple way to distinguish it. Obiter dicta (Latin for "(things) said in passing") are simply things that were not necessary for the court to reach its decision. However, the question (of whether a part of an opinion is necessary or not) is a substantive question that might not be easily answered. Sometimes the question can be easily answered; e.g., if the Supreme Court says in Heller v. DC that the Second Amendment is incorporated against the several states, then that determination would almost certainly be dicta, as it is hard to imagine how it would be necessary in deciding whether DC's ordinance is constitutional. However, in general, there isn't a simple method. Dicta usually aren't introduced by special syntactic constructions or anything like that. You basically need to read and fully understand the whole written decision of the court in order to distinguish dicta from binding precedent.

http://en.wikipedia.org/wiki/Obiter_dictum

[Jrod]

I have been practicing law for 15 years. You guys have it right. Especially with decisions from the U.S. Supreme Court (which tend to be more complex) you have to carefully read the entire decision, including the concurring opinions to understand how the court frames the issue to be decided and then how the Court applies the law to decide that issue (the "holding"). Comments of the Court that are not necessary to the holding are dicta and not precedential.

Supreme Court decisions come with a written syllabus that helps identify the holding. However, the syllabus is not written by the Court and is not the opinion of the Court and are sometimes a bit off the mark. However, they are a very good guide to focus your attention in reading the opinion.

[pex]

Although I've identified numerous occasions where we laymen would be better off understanding the words of the court if we had the training, what brings this question to the forefront of my mind is our continuing discussions (if you are keeping up with them) on when Terry frisks or Terry stops are allowed based on weapons, if seeing a firearm is RAS and allows for LTCF demand, or running serials, etc. mostly based on the holdings of Oritz, Hawkins, Robinson, Stevenson, and Hall as of late (I'm sure we can collect proper citations if you want to differentiate how we might approach these opinions compared to how we might approach SCOTUS opinions.)

I presume the questions to the court, at least as clearly as we can make them out to be if they are enumerated in clear question form, are very potent in directing the scope of what the court says, and are limits to its applicability...which we sometimes lose sight of in our zeal to prove things one way or the other.

The law is a tough thing...

[headcase]

Just for the record, as this topic relates to Commonwealth v. Hawkins(J-257-1996-5):

The Hawkins decision clearly ruled that police need a reasonable suspicion that a criminal act is occurring in order to stop and frisk a person, other than the mere possession of a firearm. They need a reason to believe that the person is carrying that firearm illegally. The case details, in short form, for anyone not familiar with it are as follows;
An anonymous 911 call was received, describing a man at a specific location and informing the dispatcher that this person was carrying a gun. When police arrived, they found a man matching the description exactly. They stopped the man and frisked him, finding a .22 handgun in his waistband. He was convicted of violating the UFA, and sentenced to twenty-one months probation. The Supreme Court determined that the controlling case law was Terry v. Ohio, which sets the standard for stopping and frisking a person. This standard states that the officer must have a reasonable articulable suspicion that criminal activity is occurring. The court ruled that there was no reason for the officers to suspect criminal activity, just because the man was reported to be carrying a gun, as that is not necessarily an illegal activity in this Commonwealth. There was no corroborating evidence that a crime was being committed. They direct that police, upon arriving at a call, may observe a subject to determine by their own observation whether there is a reasonable suspicion of criminal activity occurring. Since just carrying a firearm, in and of itself, is not enough to be reasonably suspicious that a crime is occurring, it is not justification for a stop and frisk under Terry. They footnote the ruling with the caveat that they do not address the scenario where the officer has an independent reason to believe that a crime(carrying a gun without a license) is in progress, inquires as to whether the carrier is licensed, and the carrier refuses to answer. It seems to me, that this would indicate that even if the officer has an independent reason to believe the carrier is not licensed, he must first inquire as to whether he is or is not, before conducting a Terry search, although that may be disputed by some as being a part "in dicta".

The "Dicta" part, I believe, comes from the editorializing the Justices did in rebuking the Commonwealth about their apparent standard procedure of stopping and frisking citizens whenever a gun is involved. In this part they give the Courts opinion that the Commonwealth is being hysterical seeing that citizens of this Commonwealth carry firearms legally, and that the citizens are protected from this unnecessary invasion by the State Constitutions guarantee of being secure in their papers and property. They also go on to "say in passing" that this policy tends to cause the possibility of conflict where none needs to exist.

[ChamberedRound]

I have been practicing law for 15 years. You guys have it right. Especially with decisions from the U.S. Supreme Court (which tend to be more complex) you have to carefully read the entire decision, including the concurring opinions to understand how the court frames the issue to be decided and then how the Court applies the law to decide that issue (the "holding"). Comments of the Court that are not necessary to the holding are dicta and not precedential.

Supreme Court decisions come with a written syllabus that helps identify the holding. However, the syllabus is not written by the Court and is not the opinion of the Court and are sometimes a bit off the mark. However, they are a very good guide to focus your attention in reading the opinion.

Jrod, welcome to the forum, and thanks for the clarification.

[Jrod]

Although I've identified numerous occasions where we laymen would be better off understanding the words of the court if we had the training, what brings this question to the forefront of my mind is our continuing discussions (if you are keeping up with them) on when Terry frisks or Terry stops are allowed based on weapons, if seeing a firearm is RAS and allows for LTCF demand, or running serials, etc. mostly based on the holdings of Oritz, Hawkins, Robinson, Stevenson, and Hall as of late (I'm sure we can collect proper citations if you want to differentiate how we might approach these opinions compared to how we might approach SCOTUS opinions.)

I presume the questions to the court, at least as clearly as we can make them out to be if they are enumerated in clear question form, are very potent in directing the scope of what the court says, and are limits to its applicability...which we sometimes lose sight of in our zeal to prove things one way or the other.

The law is a tough thing...

For the stop, search and seizure type cases, the holding of the case is going to be specific facts giving rise to the stope, search or seizure plus the legal result. For instance, if the case involved a motorist stopped upon LEO testimony of crossing the center line twice and the outcome is that the court rules there was PC for stop, then the holding of the court is framed in terms of PC exists for LEO to stop a motorist who is observed crossing the center line twice. The rest of the case where the court discusses other stop cases etc. leading up to its holding is not the holding.

If you want to shoot me a citation to a case to read and then answer your questions with it I'd be gald to do it.

[4XLT]

i dont know nuttin bout all that fancy stuffs you just saided but can you get me a quicky divorce for cheap ????

[ChuckS]

...can you get me a quicky divorce for cheap ????

NO such animal, but I'm guessing you know that.

[J8300]

Isnt 'in dicta' how railroads and hence every other type of corporation got 'personhood'?