Law Commons^™

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Michigan Law Review

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals …

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron

Michigan Law Review Online

Personal jurisdiction has a nonresident alien problem. Or, more accurately, personal jurisdiction has two nonresident alien problems. The first is the extent to which the specter of the nonresident alien defendant has overshadowed-if not unfairly driven-the discourse and doctrine over constitutional personal jurisdiction. The second is that the constitutional right to resist personal jurisdiction enjoyed by the nonresident alien defendant in a civil lawsuit is remarkably out of alignment with that same nonresident alien's ability to assert nearly every other constitutional right. Neither of these observations is new, although the first problem has drawn far more scholarly attention than the …

Confessions In An International Age: Re-Examining Admissibility Through The Lens Of Foreign Interrogations, Julie Tanaka Siegel

Michigan Law Review

In Colorado v. Connelly the Supreme Court held that police misconduct is necessary for an inadmissible confession. Since the Connelly decision, courts and scholars have framed the admissibility of a confession in terms of whether it successfully deters future police misconduct. As a result, the admissibility of a confession turns largely on whether U.S. police acted poorly, and only after overcoming this threshold have courts considered factors pointing to the reliability and voluntariness of the confession. In the international context, this translates into the routine and almost mechanic admission of confessions— even when there is clear indication that the confession …

Special Administrative Measures And The War On Terror: When Do Extreme Pretrial Detention Measures Offend The Constitution?, Andrew Dalack

Michigan Journal of Race and Law

Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive …

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Michigan Journal of Race and Law

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

Prosecuting Torturers, Protecting "Child Molesters": Toward A Power Balance Model Of Criminal Process For International Human Rights Law, Mykola Sorochinsky

Michigan Journal of International Law

In the age of terrorism, human rights law globally suffers substantial setbacks. However, at the regional level, human rights law is now more relevant than ever. More cases are decided each year by regional human rights tribunals, particularly in Europe. More importantly, human rights law affects more areas of domestic legal systems than ever before-from trademark law to limits on corporal punishment of children. This growing complexity presents two challenges: first, the challenge of comprehension (or the increasing need to make sense of the ever-expanding case law in many substantive areas) and second, the challenge of responsibility (or the fact …

The Limits Of Localism, Richard C. Schragger

Michigan Law Review

In Chicago v. Morales, the Supreme Court struck down Chicago's Gang Congregation Ordinance, which barred "criminal street gang members from loitering with one another or with other persons in any public place." The stated purpose of the ordinance was to wrest control of public areas from gang members who, simply by their presence, intimidated the public and established control over identifiable areas of the city, namely certain inner-city streets, sidewalks, and corners. The ordinance required that police officers determine whether at least one of two or more persons present in a public place were members of a criminal street gang …

Miranda'S Failure To Restrain Pernicious Interrogation Practices, Welsh S. White

Michigan Law Review

As Yale Kamisar's writings on police interrogation demonstrate, our simultaneous commitments to promoting law enforcement's interest in obtaining confessions and to protecting individuals from overreaching interrogation practices have created a nearly irreconcilable tension. If the police must be granted authority to engage in effective questioning of suspects, it will obviously be difficult to insure that "the terrible engine of the criminal law . . . not . . . be used to overreach individuals who stand helpless against it." If we are committed to accommodating these conflicting interests, however, some means must be found to impose appropriate restraints on the …

Preventative Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler

Michigan Law Review

This article, echoing Highmore's treatise of 1783, maintains that neither a legitimate nor a very important governmental interest can justify preventive detention in the absence of significant proof of past wrongdoing or an inability to control one's behavior. Both the Supreme Court's neglect of this issue and Congress' similar neglect in the preventive detention provisions of the Federal Bail Reform Act of 1984 reveal the extent to which cost-benefit analysis has captured American law and threatened core concepts of individual dignity.

The article does not oppose all forms of preventive pretrial detention. To the contrary, it recognizes that the detention …

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 …

Due Process And Parole Revocation, Michigan Law Review

Michigan Law Review

In Morrissey, the Court set the level of due process needed in parole revocations. Specifically, it held that the parolee facing •revocation has a right (a) to receive written notice of the claimed parole violations; (b) to hear the evidence against him; (c) to be heard in person and to present witnesses and documentary evidence; (d) to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing the confrontation); (e) to have a neutral and detached hearing body, members of which need not be judicial officers or lawyers; and (f) to be given …

Kirby, Biggers, And Ash: Do Any Constitutional Safeguards Remain Against The Danger Of Convicting The Innocent?, Joseph D. Grano

Michigan Law Review

Even recognizing the danger of misidentification, procedural safeguards, especially constitutional ones, are not readily apparent. Some judges, such as Justice Stewart, find less need for counsel at photographic displays than at lineups; others find an equivalent or even greater need for counsel. Some judges, in approving on-the-scene identifications without counsel, find a guarantee of accuracy in the short interval between the crime and the identification; other judges decry such procedures and find them inherently suggestive. The problem stems directly from the lack of scientific knowledge and inquiry. Therefore, in analyzing the recent identification cases, this Article will draw upon experimental …

The Role Of A Trial Jury In Determining The Voluntariness Of A Confession, Michigan Law Review

Michigan Law Review

The Supreme Court of the United States has vigorously implemented the principle that criminal prosecution is an investigative, not an inquisitorial, process. Evidence of guilt must be obtained by methods free from physical or psychological coercion. Protections in the Bill of Rights against illegal search and seizure, self-incrimination, and trial without counsel have been extended to the states through the due process clause of the fourteenth amendment. Safeguards against the admissibility of coerced confessions into evidence have also been instituted. Because a confession practically determines the ultimate question of guilt, the critical standards for· admissibility are frequently challenged on appeal. …

Constitutional Law - Due Process - Right Of Second Offender To Pre-Sentence Hearing Regarding Prior Conviction, John Edward Porter S.Ed.

Michigan Law Review

Relator was convicted of burglary in 1953 and of voluntary manslaughter in 1954. While passing sentence after the latter conviction, the court declared that it was exercising its discretion under the Habitual Criminal Act by imposing a double penalty on the relator. Neither relator nor his counsel objected to the procedure or demanded a hearing regarding the prior conviction. On petition for writ of habeas corpus, which was denied by the lower court, relator admitted the fact of his prior conviction. He asserted, however, that although the habitual criminal statute in terms contains no provision granting alleged second offenders notice …

The Supreme Court - October 1958 Term, Bernard Schwartz

Michigan Law Review

The Supreme Court, reads a famous passage by Bryce, "feels the touch of public opinion. Opinion is stronger in America than anywhere else in the world, and judges are only men. To yield a little may be prudent, for the tree that cannot bend to the blast may be broken."

The history of the highest Court bears constant witness to the truth of Bryce's statement. Supreme Court action which has moved too far in one direction has always ultimately provoked an equivalent reaction in the opposite direction. Even an institution as august as the high tribunal cannot escape the law …

Constitutional Law - Criminal Procedure - Successive State Prosecutions For Same Activity, Robert L. Bombaugh

Michigan Law Review

Petitioner suspected of having robbed five persons on a single occasion. was indicted and tried for the robbery of three of them. His sole defense was alibi and he was acquitted when only one of the five victims identified him as the robber. Petitioner was then tried under an indictment for the robbery of a fourth victim. Petitioner interposed the same defense but was convicted at this second trial. The New Jersey Supreme Court affirmed. On certiorari to the United States Supreme Court, held, affirmed, three justices dissenting. Neither the successive trials nor the failure of the court to …

Constitutional Law - Due Process -Knowledge Of The Law Required For Conviction Under Criminal Registration Ordinance, David C. Berg

Michigan Law Review

Defendant-appellant was charged with violation of a Los Angeles municipal ordinance which required all persons convicted of a felony in California, or of a crime committed elsewhere which would have been punishable as a felony in California, subsequent to January 1, 1921, to register with the Chief of Police upon remaining in the city longer than five days, or upon making more than five visits to the city within a thirty-day period. At the time of her arrest, appellant had been a resident of Los Angeles for seven years. Within that period she had been convicted (in Los Angeles) of …

Constitutional Law - Due Process - Use Of Habeas Corpus To Allow Federal Court To Review State Court Jury Determination Of Voluntariness Of Confession, Herbert R. Brown S.Ed.

Michigan Law Review

The prisoner had been convicted of murder in the state court. He brought a habeas corpus proceeding in federal district court to secure his release from custody on the ground that the conviction was based on a confession which was obtained by physical violence. The confession had been submitted to the jury, which was instructed to consider it only if it found that it was not obtained by duress or fear produced by threats. The district court granted the writ of habeas corpus. On appeal, held, affirmed. The district court could determine the facts of the case for itself. …

Constitutional Law - Public Trial In Criminal Cases, Carl S. Krueger S.Ed.

Michigan Law Review

The criminal trial has been traditionally open to the public in Anglo-Saxon procedure, as it was in Roman and other civilized societies of an earlier time. The public trial of today, however, has been subjected to considerable criticism on the ground that there is a tendency for criminal trials to degenerate into public spectacles, frequently interrupting the orderly procedure of justice, and not infrequently actually prejudicing the accused. If no useful purpose is served by the presence of the idle public during the deadly serious determination of guilt or innocence, should not the judge, subject to the right of admittance …

Evidence-Confessions-Mcnabb Rule Not Applicable Under The Fourteenth Amendment, Harry T. Baumann S.Ed.

Michigan Law Review

Defendant, detained on a vagrancy charge in Texas, voluntarily confessed to a homicide committed in Nebraska. Upon his return to the latter state, the defendant repeated his confession and was subsequently arraigned, having been in custody for twenty-five days. The confessions were introduced at the trial and a conviction of manslaughter followed. Defendant, failing to gain a reversal in the state court, sought review by the United States Supreme Court, charging that a failure to arraign the defendant promptly in breach of local statutes was a want of due process under the Fourteenth Amendment. On certiorari, held, affirmed, Justices …

Judgments - Double Jeopardy - Res Judicata - Effect Of Prior Conviction Or Acquittal On Subsequent Suit For Statutory Penalty Or Forfeiture, Edward W. Rothe S.Ed.

Michigan Law Review

The case of United States v. One De Soto Sedan has again focused attention on some of the perplexing problems raised by the statutory imposition of both criminal and civil sanctions for the same wrongful act. The court held that an acquittal in a criminal prosecution for possessing liquor on which no federal tax had been paid was a bar to a civil in rem proceeding to forfeit claimant's car as having been used in the removal, deposit and concealment of the same liquor with intent to defraud the United States of taxes. Since the two proceedings involved the same …

Constitutional Law-Due Process-Use Of Extraneous Evidence In Determining Criminal Sentence, Colvin A. Peterson, Jr. S. Ed.

Michigan Law Review

Petitioner was convicted of murder in the first degree with a recommendation for life imprisonment. In reliance on police and probation reports showing petitioner's background which included over thirty burglaries for which he had never been arraigned and a "morbid sexuality," the trial judge disregarded the jury's recommendation and imposed the death sentence. Although petitioner did not have an opportunity to examine the reports prior to the sentence hearing, he was represented by counsel at the hearing and did not challenge them at that time. Petitioner contended that he had been denied due process of law because his sentence had …

Habeas Corpus-Inadequacy Of State Remedy, Joseph Gricar

Michigan Law Review

Petitioner had pleaded guilty to a criminal indictment and was sentenced to prison by an Illinois circuit court. His petition for a writ of habeas corpus, based upon an alleged denial of due process at trial, was denied without hearing. The Illinois Supreme Court in People v. Loftus, decided in 1949, seems squarely to have held that habeas corpus is a proper post-trial proceeding for hearing charges of denial of due process. Since the Illinois Supreme Court does not review habeas corpus proceedings in the circuit court, the United States Supreme Court granted certiorari. Held, remanded to the …

Appeal And Error-Eisler's Flight And The Case And Controversy Question, Albert B. Perlin, Jr. S.Ed.

Michigan Law Review

The United States Supreme Court granted certiorari to review a federal court conviction on a charge of contempt of Congress. Pending determination of the appeal, appellant was released on bail and, after argument on the merits but before a decision had been rendered, he wrongfully fled the country. Subsequently the Attorney General notified the Court that appellant had been apprehended in England at the request of the Secretary of State and that a court of competent jurisdiction there found that appellant was not guilty of an extraditable offense under English law. The Court of its own motion then considered the …

Constitutional Law-Due Process Of Law-Freedom From Unreasonable Search And Seizure-The Admissibility Of Illegally Seized Evidence, Bernard Goldstone S.Ed.

Michigan Law Review

Local police officers entered the private office of petitioner, a practising physician, without a warrant and seized his private books and records. As a result of the information thus obtained, petitioner was convicted of conspiracy to perform an abortion. Petitioner claimed that his constitutional rights were invaded contending that due process of law under the Fourteenth Amendment includes freedom from unreasonable search and seizure and prevents the admission of illegally seized evidence, but this was denied by the Supreme Court of Colorado and the conviction was affirmed. On certiorari to the Supreme Court of the United States, held, affirmed, …

Evidence-Federal Criminal Procedure-Admissibility Of Confession Obtained During Illegal Detention, William F. Snyder S. Ed.

Michigan Law Review

Petitioner was arrested without a warrant on suspicion of larceny. He was held without commitment for a period of thirty hours during which he was intermittently questioned but was not subjected to any form of physical coercion. At the end of this period, he signed a confession which was the basis for his conviction in the district court. On certiorari to the United States Supreme Court, following affirmation in the court of appeals, held, reversed. The detention was unlawful as a violation of rule 5 (a) of the Federal Rules of Criminal Procedure, and the confession thus obtained was …

Habeas Corpus-Federal Courts-Exhaustion Of State Remedies, E. W. Rothe, Jr.

Michigan Law Review

Petitioner's writ of habeas corpus, alleging denial of due process of law in violation of the Fourteenth Amendment, was quashed on the merits by an inferior Florida court whose action was affirmed without opinion by the Florida Supreme Court. It was impossible to ascertain whether the affirmance was on the merits or on the ground that, under Florida law, habeas corpus was not the proper procedure to raise the due process issue. A later decision by the Florida Supreme Court clearly established that the prior case had been decided on the merits of the constitutional question, and that habeas corpus …

Constitutional Law-Due Process-Federal Right To Counsel In Non-Capital Cases In State Courts, J. D. Mcleod

Michigan Law Review

Petitioner was convicted in Illinois on pleas of guilty to two indictments charging him with a non-capital offense. On writ of error to the Supreme Court of Illinois, petitioner alleged that the trial court had not inquired into his desire or ability to have counsel and that he had been convicted without having had assistance of counsel. His contention that the circumstances alleged constituted a violation of the State and Federal Constitutions was overruled, and the judgments of the lower court affirmed. On certiorari to the United States Supreme Court, held affirmed. The due process clause of the Fourteenth Amendment …

Constitutional Law-Due Process-Right Of Prisoner Condemned To Death To Hearing On His Sanity, E. Blythe Stason Jr.

Michigan Law Review

Petitioner, sentenced to death in California for murder, obtained a judicial stay of execution on the ground that he had become insane since sentence had been passed. Eighteen days later he was certified as sane by the medical superintendent of the state hospital, who made this determination by an ex parte examination without giving petitioner notice or opportunity of hearing. A new date for execution was then set. The applicable statute provided a procedure, enforceable by mandamus, whereby a sentenced prisoner could obtain a hearing on his sanity. The petitioner, without seeking mandamus to compel the warden to act, applied …