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The Price Of Silence: How The Griffin Roadblock And Protection Against Adverse Inference Condemn The Criminal Defendant, Kelsey Craig
The Price Of Silence: How The Griffin Roadblock And Protection Against Adverse Inference Condemn The Criminal Defendant, Kelsey Craig
Vanderbilt Law Review
In 1965, the Supreme Court held in Griffin v. California that the Fifth Amendment privilege against compelled self-incrimination prohibits judges and prosecutors from pointing to a defendant's failure to testify as substantive evidence of guilt. This doctrine assumes that such a prosecutorial or judicial "adverse comment" compels a negative inference-that the defendant is hiding something. The Griffin Court held that this assumption amounts to an unfair penalty on a defendant's invocation of a constitutionally protected right. This doctrine, however, makes a dangerous misstep in additionally assuming that the prohibition of adverse comment and the administration of limiting instructions curtail a …
Bargaining About Future Jeopardy, Daniel C. Richman
Bargaining About Future Jeopardy, Daniel C. Richman
Vanderbilt Law Review
The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. The doctrinal focus of this debate ignores the fact that for the huge majority of defendants-those who plead guilty instead of standing trial-the Double Jeopardy Clause sin- ply sets a default rule, establishing a minimum level of protection when defendants choose not to bargain about the possibility of future charges. In this Article, Professor Richman examines the world that exists in the shadow of minimalist double jeopardy doctrine, exploring the dynamics of …
New York's Loyalty To The Spirit Of "Miranda": Simply The Best For Twenty-Five Years, Lorraine J. Adler
New York's Loyalty To The Spirit Of "Miranda": Simply The Best For Twenty-Five Years, Lorraine J. Adler
Vanderbilt Law Review
The landmark Supreme Court decision Miranda v. Arizona, recognized a defendant's right to be informed of the rights guaranteed by the Fifth Amendment's self-incrimination clause, including the right to counsel. The Miranda Court realized that a suspect may feel compelled to waive his Fifth Amendment privilege while in official detention. The Court held that the police must read the now-familiar warnings to a subject in custodial interrogation before he can waive his rights. Therefore, the Court in Miranda chose to strike the balance between effective law enforcement and protecting a subject's constitutional rights at the point of informing the subject …
The Acquisition Of Evidence For Criminal Prosecution: Some Constitutional Premises And Practices In Transition, H. Richard Uviller
The Acquisition Of Evidence For Criminal Prosecution: Some Constitutional Premises And Practices In Transition, H. Richard Uviller
Vanderbilt Law Review
This Article isolates only two of the many aspects of the Court's labors affecting the acquisition of evidence for criminal prosecution. The first concerns the allocation of primacy among the values that the exclusionary response to the illegal acquisition of evidence serves: a theoretical choice that may carry some notable practical consequences. The second requires are examination of the role of the trial court in supervising the preaccusatory search for evidence in a way that suggests the possible obsolescence of the Supreme Court's ruling credo in the Stewart era.
Witness For The Defense: A Right To Immunity, Robin D. Mass
Witness For The Defense: A Right To Immunity, Robin D. Mass
Vanderbilt Law Review
This Note has outlined various constitutional arguments that the criminal defendant can invoke in support of an application for witness immunity.First, the Note relies on the Supreme Court's decision in United States v. Nixon for its argument that courts should use a flexible separation of powers approach in the context of witness immunity grants. While the Nixon Court accepted the notion that separation of powers protects the decision making authority of the individual branches of government from infringement by the other branches, it observed that the doctrine does not enforce an absolute executive privilege. Thus, the separation of powers doctrine …
Immunity From Prosecution And The Fifth Amendment: An Analysis Of Constitutional Standards, R. Anthony Orsbon
Immunity From Prosecution And The Fifth Amendment: An Analysis Of Constitutional Standards, R. Anthony Orsbon
Vanderbilt Law Review
Transactional immunity, on one hand, affords a witness absolute immunity from prosecution for the offense to which the testimony relates, but testimonial immunity, on the other hand, provides protection only from the use of the testimony itself or any evidence derived' directly or indirectly from it--use and fruits immunity. Until the Supreme Court's recent decision in United States v. Kastigar, conflict over the immunity concept was best manifested by the attempts to formulate an appropriate characterization of the relationship between Counselman v. Hitchcock, which represents the transactional immunity approach, and Murphy v. Waterfront Commissioner of New York Harbor, representing a …
Federal Double Jeopardy Policy, Jay A. Sigler
Federal Double Jeopardy Policy, Jay A. Sigler
Vanderbilt Law Review
The fifth amendment provision against double jeopardy is one of the basic protections afforded defendants by the United States Constitution. Its roots are found in early common law,' and the policies which it represents have been gradually defined by federal courts to meet various situations of inequality in the position of a criminal defendant confronted by federal prosecuting attorneys. Presently the double jeopardy provision is not incorporated by the fourteenth amendment as a restriction upon state action, but this condition may not prevail much longer. Should double jeopardy become incorporated into the "due process" clause of the fourteenth amendment, states …