It was an epic throw down between two powerhouse teams on Monday in the heart of London. I don’t mean basketball. I certainly don’t mean football. I mean the moot court competition between UNC’s School of Law students and Middle Temple’s barristers-in-training (see earlier post this fall about Middle Temple). No winner was declared, to the disappointment of my students who were rooting on their fellow Tar Heels. But, the teams racked up the legal and educational points.
Every other year UNC Law School and the Middle Temple Society have participated in an exchange program culminating in a moot court competition. In odd-numbered years, British law students come to UNC. In even-numbered years, UNC law students come to London. In addition to the good fortune of being here in an even-numbered year, I also knew the “chief justice” of the moot court, Ken Broun, who was my evidence professor and law school dean way back in, well, you don’t need to know. He was kind enough to extend an invitation to my class. I was delighted to see another familiar face on the bench, “associate justice” and current UNC Law School Dean Martin Brinkley.
As an added bonus, the moot court was held at the old Old Bailey, built in 1907—not that old by London standards but older and certainly grander than the modern annex where we watched criminal court a few weeks ago. This picture of the halls at the hall of justice should give you an idea of what I mean.
During a brief tour before the moot court argument, we learned that the site wasn’t always so fine. It previously was home to the infamous Newgate Prison, where many died from the harsh conditions and treatment there and others were hung at public executions. Neither Newgate Prison nor the death penalty still exists in the UK.
As for the moot court, the case involved a criminal appeal, appropriate to the setting and our criminal justice class. The issue involved application of the marital privilege, appropriate to my former evidence professor and author of North Carolina’s renowned evidence treatise.
The specific evidence rules differ in the US and UK, but most of the moot court argument, and the questions to the advocates from the bench, concerned the reasons for a marital privilege. As the discussion made clear, the privilege represents a policy choice. We are willing to forgo potentially relevant evidence to protect the marital relationship. Some exceptions exist—North Carolina doesn’t recognize a marital privilege in abuse and neglect cases, for example—but the burden is relatively low for reliance on the privilege.
The discussion made me think about the balancing of other criminal justice interests—protection of victims and public safety, equal treatment regardless of means, and avoidance of racial bias, among others. The specific legal standards obviously differ for different issues. Ultimately, however, the balance that the law strikes, as reflected in the various legal standards and their application, represents a policy choice, whether the issue involves evidence privileges, racial disparities in police stops, or other concerns. Our class will continue to examine those policy choices as the term progresses.