Digital Commons Network^™

Criminal Law, Frank C. Mills Iii

Mercer Law Review

In the hundreds of cases reviewed for this survey, there were few earthshaking decisions. DNA evidence has arrived in Georgia, and the year and- a-day rule has left. Nevertheless, there are more noteworthy cases than can be adequately addressed in this survey. There are plenty of pitfalls for the unwary. In fact the most notable trend is the ever-increasing number of challenges to former counsel. Prosecutors, defense counsel, and courts are well-advised to use the Checklist for Unified Appeals as a guide in any criminal case.

Due to the significance of the Checklist for Unified Appeal, the author uses a …

Constitutional Criminal Procedure, John L. Carroll

Mercer Law Review

In 1990 the United States Court of Appeals for the Eleventh Circuit was a court in transition. In the Fall of 1989, Judges Roney and Hill took senior status. Then in December of 1989, Judge Vance fell victim to a mail bomb which had been sent to his house. The court then entered 1990 with three vacancies and a tremendous workload. President Bush made appointments to fill two of those vacancies. Judge Birch joined the court on June 12, 1990, and Judge Dubina moved up from the district court of the Middle District of Alabama on October 5, 1990. Despite …

Minnick V. Mississippi: Additional Protection For The Criminal Defendant, Gabe Hotard Jr.

Mercer Law Review

In Minnick v. Mississippi, the United States Supreme Court held that when counsel is requested by an accused in custody, interrogation of the accused must cease, and officials may not re-initiate interrogation without counsel present, whether or not the accused has consulted with his attorney. The privilege against self-incrimination as guaranteed by the fifth amendment and as developed into its modern form nearly a quarter-century ago in Miranda v. Arizona provided the backbone of the Supreme Court's decision. The Court's holding clarifies the previously unclear issue of whether counsel's presence on behalf of an accused is required at any interrogation …

Building The Powerfully Persuasive Criminal Defense, Stephen C. Rench

Mercer Law Review

The persuasive case remains the foundation and sine qua non of trial advocacy. The importance of building the persuasive case first cannot be overestimated, for everything else flows 'from the thoroughly prepared and developed case. It furnishes the essential solid foundation from which the lawyer works in evaluating, negotiating, and when necessary, preparing the individual phases of the trial; The purpose of this Article is to describe the persuasive case and then to set forth a system and process for the building of that persuasive criminal defense case.

The Art Of Impeachment, J. Vincent Aprile Ii

Mercer Law Review

Impeachment is more than a cross-examination technique; impeachment is often a criminal defense lawyer's only weapon against the prosecution's case-in-chief. Impeachment is not a trial tactic or strategy that often can be extemporaneously employed to undermine a prosecution witness's believability. When impeachment, regardless of the mode or technique, is a significant part of the defense strategy, defense counsel must begin to build the context of the impeachment, at the latest, during voir dire and, at the earliest, no later than pretrial motion practice.

Closing Argument: Tapping The Human Experience, Drew Findling

Mercer Law Review

To every criminal defense attorney there comes the inevitable daydream. That time when you imagine yourself in front of the jury passionately proclaiming your client's innocence. It is a fantasy dominated by your emotion and shared with an imaginary jury. You can sense the jury move with every word you utter. You expect the jury to applaud you at any moment. Finally, at the end of this reverie, you receive the ultimate ovation, a verdict of not guilty. It is your responsibility to convert that daydream into reality. Your closing argument should be that segment of the trial in which …

Opening Statements, Robert B. Hirschhorn

Mercer Law Review

As we begin the last decade of the twentieth century, we are experiencing a revolution in the courtroom. The techniques of the old guard must give way to new and innovative means of motivating our captive audience called the jury. I will not engage in a legal treatise of the opening statement. Few cases have ever been reversed on error committed during the opening statement. Instead, I intend to address the humanistic factors that make the difference between a losing and a winning opening statement. Some cases have been lost because of an ineffective opening, but a disproportionate number of …

And God Created Woman. . . . But To Be A Criminal Defense Attorney?, Ellen S. Podgor, Leonard D. Pertnoy

Mercer Law Review

The focus of this Article is to discuss how different stereotypes affect the court presentation by a male and female defense attorney. The authors believe actual differences predicated upon a feminist methodology or approach are gender neutral. An awareness by an individual of what has been termed "feminist" controls actual methodology. For a more comprehensive discussion of feminist legal method or methodology, see generally Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990); C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987).

Every Mother's Son: Humanizing The Defendant, Lisbeth Potts

Mercer Law Review

When the jury panel walks into the courtroom, the first thing they do with "bull's eye" accuracy is zero in on your client. "He must be guilty. Why else would I have to be here? If he wasn't guilty, he wouldn't be here." Those are the thoughts flashing through most of their minds., This is typically the situation, whether the defendant has been charged with a minor offense or a heinous crime.

Handling Client Perjury After Nix V. Whiteside: A Criminal Defense Lawyer's View, John Wesley Hall Jr.

Mercer Law Review

The law of client perjury remains a paradox,. notwithstanding the United States Supreme Court's vaunted, yet seemingly failed, effort to resolve some of the issues by dicta in Nix v. Whiteside. Where we have come from is still confusing, and even five years after Whiteside, where we are going remains a mystery.

A Crisis Of Legality In The Criminal Law? Reflections On The Rule Of Law, Francis A. Allen

Mercer Law Review

The Carl Vinson Lecture

The notion of the Rule of Law dates from the beginnings of political thought in the western world. In many ways it has had a curious career, for the concept has inspired hyperbole and bombast while, at the same time, generating some of our most sensitive meditations on the nature of law and the relation of individual rights to the exercise of political power and authority.

There Is No Such Thing As A Free Question: Examining The Hidden Costs Of Trial Advocacy, Michelle Schieber

Mercer Law Review

Readers of Robert H. Klonoff and Paul L. Colby's new book on trial tactics might well be surprised by the authors' frequent references to fictional works such as Presumed Innocent and Perry Mason. A reader might even go so far as to conclude that the text which he has undertaken to peruse is somewhat radical. But if the reader also assumes that the authors' quirky approach has resulted in a book without merit, then he would be very wrong indeed.

Telling Stories: The Spoken Narrative Tradition In Criminal Defense Discourse, Laura Gardner Webster

Mercer Law Review

Near the end of the Criminal Procedure course that I teach, I assigned the case of Cuyler v. Sullivan, a treacherously complex decision grounded in the sixth amendment right to conflict-free counsel in criminal trials. While the case demonstrates the intricacies of federal habeas corpus review of state criminal convictions, I do not find it absorbing for that reason. I assign it because the respondent, John Sullivan, having successfully urged his claim before the United States Supreme Court, died in the jail in which he had spent most of the previous twenty years of his life.

Cross-Examination, David L. Lewis

Mercer Law Review

Cross-examination is a force of nature, an unswept intangible force of the universe harnessed in a small space for a very short time at best. It is akin to a newly created element seeking a place on the periodic table. Cross-examination is also the hunger of the wolf and the thirst for justice. It does not admit to being tied to a theory but only to being capable of absorbing life's breath. Good cross-examination begins with the very breath of life, complete with passion and righteousness. It is a terrible, swift sword.

The Defendant As A Witness, Alex Zipperer

Mercer Law Review

Few tactical decisions facing the criminal defense lawyer are as problematic as the decision whether to present evidence on behalf of the defense, and particularly whether to have the defendant testify. Trial lawyering cannot be practiced effectively by simply "going by the book." There are no definitive studies, nor can there be, to tell us what the general rule should be in deciding whether the defendant should testify, or otherwise present evidence in any given case. The nature of the criminal trial does not lend itself to a neat set of rules one pulls out of the hip pocket and …

Political Trials, Ephraim Margolin

Mercer Law Review

In Political Criminal Trials, John Sink distinguished between cases in which the defendant admits the deeds, but invokes political reasons as a justification, and cases in which the prosecution proceeds against suspects for political reasons of its own. Each category of case is tried differently. Each compels a different approach to the handling of the media.

Literature, History, And Quotations: A New Perspective On An Old Technique, Peter A. Chang Jr., Elton B. Richey Jr.

Mercer Law Review

It was getting late. Outside, the sounds of the five o'clock traffic died down, and the grey twilight of a cold winter's day descended across empty streets and sidewalks. Across the square, the clock on the old church rang out the half-hour. Darkness was taking over inside as well. The grey twilight slipped through the windows and rolled like fog down the stairs and hallways of the aged building on Liberty Street, making the orange glow spilling out of the office at the end of the hall seem warmer still. Exasperated, the apprentice turned to the advocate.

Calling Your Attention To The Direct Examination: How To Avoid The What Happened Next Question, Christina L. Hunt

Mercer Law Review

When presenting a direct examination, whether it'is the testimony of your client or of another witness, you must remember one thing-prepare your case. Without preparation, a number of consequences inevitably follow:

1. you will definitely lose your client's case;
2. your client will call you every day and drive you insane;
3. your client will then proceed to the penitentiary;
4. he will say unflattering things' about you (and you will deserve it);
5. you will lose potential new clients;
6. he will file habeas corpus papers pro se;
7. he also will sue you for millions of dollars, and, he will do that pro …

Defending The Death Penalty Case: What Makes Death Different?, Andrea D. Lyon

Mercer Law Review

The United States Supreme Court has said time and again that "death is different." Lately, reading the Court's decisions makes the death penalty defense attorney wonder why, in those cases in which the imposition of the death penalty is the greatest, it is seemingly all right to have the most conviction-prone jury, a racially biased history of the death penalty's imposition, and fewer procedural safeguards.

Admissibility Of Video-Taped Testimony: What Is The Standard After Maryland V. Craig And How Will The Practicing Defense Attorney Be Affected?, Christopher A. Whitlock

Mercer Law Review

In Maryland v. Craig, the Supreme Court addressed "whether the [c]onfrontation [c]lause of the [s]ixth [a]mendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television." The majority, in an opinion written by Justice O'Connor, held that provided the trial court makes a case-specific finding of necessity, the confrontation clause does not prohibit a state from using a one-way closed-circuit. television procedure for receiving testimony by a child witness in a child sexual abuse case.