Appellate Court Opinions & Multi-Part Tests

We're about to be graced with the latest round of opinions from the Supremes. Of course, this will be accompanied also by the latest round of critiques against the Supremes. Some will criticize them for reaching the wrong decision (been there, done that). Some will criticize them for making decisions which so broad as to provide little actual guidance so that unity could be achieved. Some will criticize them for being fractious and deciding opinions by a razor thin majority. Personally, my greatest dislike at the moment is multi-part tests.

To be fair, every conviction involves some sort of multi-part tests. For instance, a grand larceny requires the prosecution to prove that an (1) item (2) was taken (3) from its owner (4) with the intent to permanently deprive the owner thereof. Of course, each of these elements is part of a multi-part test. The problems arise when there is some sort of ambiguity as to one part of the elements of a crime or an unsettled constitutional issue.

In more modern times multi-part tests have become more common. One reason I have seen given for this is the ghost writing of decisions by inexperienced clerks for their Justice. I'm not so sure of this. I think it may be a sign of Justices writing about things in which they have no personal experiences. In either event, I think the multi-part test is generally an indication that the writer is feeling his way around in the dark.

Multi-part tests come in a variety of flavors. Among the most prominent are the actual multi-part, the overbroad multi-part, and the false multi-part. The actual multi-part is what it says it is: each part of the test must be fulfilled. I think this is probably most often reached in explaining an element of a law. If you are trying to understand the "taking" element of a grand larceny it could be a two part test:

(1) Caption: Did the defendant take possession of the item?
(2) Asportation: Did the defendant carry the item away?

This is fairly straight forward. Unfortunately, it also seems to be the least common.

The overbroad multi-part happens in a lot of cases where the courts are trying describe judicial discretion. These are the ones in which the court cites 27 different tests which don't narrow anything down. Usually, all the multi-part does is set the particular set of circumstances for the case at bar inside or outside the acceptable circumstances in an entirety of the circumstances test.

The false multi-part is actually one test masked as a multi-part. Sometimes this is the same question repeated in three different forms. At other times it is several meaningless tests surrounding the one actual question.

Multi-parts seldom solve anything. They don't draw bright lines and usually leave so much wiggle room that they basically are just telling the judge to make his best guess.