Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Entire DC Network
The Fifth Amendment And The Inference Of Guilt From Silence: Griffin V. California After Fifteen Years, Donald B. Ayer
The Fifth Amendment And The Inference Of Guilt From Silence: Griffin V. California After Fifteen Years, Donald B. Ayer
Michigan Law Review
This Article will begin with an examination of the historic (and present) purposes underlying the fifth amendment privilege against self-incrimination, upon which any justification of the no-comment rule must ultimately rest. It will explore the danger that these purposes may be thwarted not only when defendants are actually compelled to be witnesses against themselves, but also when significant burdens are placed on defendants who choose not to testify. In Griffin, the Court reasoned that comment on the defendant's silence amounted to such an impermissible burden. But the Court failed to examine the weight of this burden. This failure makes …
Reforming The Federal Grand Jury And The State Preliminary Hearing To Prevent Conviction Without Adjudication, Peter Arenella
Reforming The Federal Grand Jury And The State Preliminary Hearing To Prevent Conviction Without Adjudication, Peter Arenella
Michigan Law Review
It is this Article's thesis that the substitution of plea-bargaining for the criminal trial as our primary method for determining legal guilt requires a fundamental reassessment of our pretrial screening processes. In a system where the prosecutor's decision to file charges is usually followed by a negotiated guilty plea, we can no longer pretend that the pretrial process does not adjudicate the defendant's guilt. Accordingly, this Article argues that it no longer makes sense to rely primarily on the trial to safeguard essential accusatorial principles when pretrial screening devices like the preliminary hearing and the grand jury perform the only …