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Prosecutorial Peremptory Challenge Practices In Capital Cases: An Empirical Study And A Constitutional Analysis, Bruce J. Winick

Michigan Law Review

As presently construed, the Constitution does not prohibit the death penalty. The states and the federal government may punish the commission of certain crimes with death, so long as the extreme penalty is not imposed on a mandatory basis and so long as the procedures used in imposing a death sentence meet constitutional scrutiny.

A demonstration that the prosecutor used the peremptory challenge in the manner described in a single case probably would be insufficient to support a constitutional challenge in the federal courts and in the vast majority of state courts. In these courts a prosecutor's use of the …

Prosecutorial Vindictiveness In The Criminal Appellate Process: Due Process Protection After United States V. Goodwin, Michigan Law Review

Michigan Law Review

This Note reformulates the doctrine of prosecutorial vindictiveness in light of the distinction drawn in Goodwin between pretrial and posttrial charging decisions. Part I recounts the development of the vindictiveness concept, and argues that in extending the doctrine beyond the factual settings which moved the Supreme Court to fashion its original prophylactic rule, the circuit courts have seriously eroded an essential due process safeguard. Part II critically examines the distinction between pretrial and posttrial charging decisions relied upon in Goodwin. Developing the logical corollary of the Goodwin holding, this Part argues that just as the pretrial situation does not …

Constitutional Constraints On The Admissibility Of Grand Jury Testimony: The Unavailable Witness, Confrontation, And Due Process, Barbara L. Strack

University of Michigan Journal of Law Reform

Defendants, however, have raised serious constitutional objections to the introduction of grand jury testimony when the witness is unavailable to testify at trial. These claims have focused on the confrontation clause of the sixth amendment and the due process clauses of the fifth and fourteenth amendments. Defendants have contended that the introduction of testimony from a grand jury proceeding which cannot be subjected to cross-examination fatally compromises the defendant's right to a fair trial. Lower courts are split over admitting grand jury testimony in these circumstances, and the Supreme Court has yet to rule on the issue. As a result, …

Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review

Michigan Law Review

Part I briefly identifies the considerations underlying the Stone Court's decision to limit habeas corpus review of fourth amendment claims. Part II then argues against applying Stone to the sixth amendment claim. After establishing the analytic difference between the two constitutional claims and examining Stone's "opportunity for full and fair litigation" standard, it concludes that Stone is fully consistent with free review of habeas corpus petitions alleging incompetent handling of fourth amendment questions. Finally, responding to a popular interpretation of Stone, Part II demonstrates that the possibility that ineffectiveness claims may not further the determination of a defendant's …