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Anderson (Arnold) V. State, 135 Nev. Adv. Op. 37 (Sept. 5, 2019), Alexandra Matloff Sep 2019

Anderson (Arnold) V. State, 135 Nev. Adv. Op. 37 (Sept. 5, 2019), Alexandra Matloff

Nevada Supreme Court Summaries

The Court held that if a trial court determines by a preponderance of the evidence that a witness is unable to testify because the defendant wrongfully procured the witness’s unavailability and acted with intent to do so, the forfeiture-by-wrongdoing exception can be applied in order to deny a defendant’s rights under the Confrontation Clause of the Sixth Amendment. The Court also held that in determining whether the forfeiture-by-wrongdoing exception applies, the trial court must hear the opposing parties’ arguments in the absence of a jury.


Recent Developments: The Right To A Fair Cross-Section Of The Community And The Black Box Of Jury Pool Selection In Arkansas, Raelynn J. Hillhouse Aug 2019

Recent Developments: The Right To A Fair Cross-Section Of The Community And The Black Box Of Jury Pool Selection In Arkansas, Raelynn J. Hillhouse

Arkansas Law Review

A Washington County, Arkansas court conducted a hearing on October 15, 2018 on a criminal defendant’s motion to compel discovery to assure a fair and accurate cross-section of the community for the jury as guaranteed by the United States and Arkansas Constitutions. At the hearing, the jury coordinator for the Circuit Clerk’s office testified that counties may elect to use a state-sponsored jury selection computer program, or they may use proprietary programs. Washington County uses a proprietary computer program to select the jury pool from a list of registered voters. The clerk described how her office takes an ...


Peña-Rodriguez V. Colorado: Carving Out A Racial-Bias Exception To The No-Impeachment Rule, John Austin Morales Aug 2019

Peña-Rodriguez V. Colorado: Carving Out A Racial-Bias Exception To The No-Impeachment Rule, John Austin Morales

St. Mary's Law Journal

The Sixth Amendment safeguards an accused in criminal proceedings and affords them “the right to a speedy and public trial, by an impartial jury.” Consistent with this right, the no-impeachment rule prohibits a juror from testifying after a verdict has been handed down about the jurors’ deliberations. While there are limited exceptions to the no-impeachment rule, juror expressed racial bias is not one of them. When presented with the dilemma of a juror using racial bias in deliberations, courts must weigh two competing doctrines that serve as the foundation to our judicial system: (1) affording a defendant his or her ...


Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel Jul 2019

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

W. Bradley Wendel

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes ...


Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer Jun 2019

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Pace Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social ...


Privatizing Criminal Procedure, John D. King Apr 2019

Privatizing Criminal Procedure, John D. King

John D. King

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology ...


Addressing Racial Bias In The Jury System: Another Failed Attempt?, Alisa Micu Apr 2019

Addressing Racial Bias In The Jury System: Another Failed Attempt?, Alisa Micu

Georgia State University Law Review

This Note explores the majority opinion and the dissents in Pena- Rodriguez regarding whether the Supreme Court has adequately provided guidance for lower courts to follow the ruling, which now allows exceptions for evidence of racial bias to Rule 606(b). Part I discusses the history of the no-impeachment rule, its foundation in the Sixth Amendment, and its constitutional requirements. Further, Part I discusses the different approaches that courts have taken in adopting Rule 606(b) and what problems courts have identified in its application. Part II analyzes whether the Supreme Court, as a practical matter, has provided a workable ...


Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook Jan 2019

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

Scholarly Works

In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In ...


Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane Jan 2019

Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane

Law Faculty Publications

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how ...


Reviving Escobedo, Janet Moore Jan 2019

Reviving Escobedo, Janet Moore

Faculty Articles and Other Publications

This Symposium Essay reflects on the fifty years that have passed since the Chicago Eight trial by highlighting a new development in criminal procedure that has drawn little scholarly attention: Judges are reviving the right of stationhouse access to defense counsel along lines previously envisaged in Escobedo v. Illinois. The Essay also offers fresh historical and theoretical perspective on the need for stationhouse counsel. First, the Essay draws on a series of events occurring during and after the Chicago Eight trial to illustrate the interrelationship of violence and silence in criminal legal systems, the distinctive coerciveness of custodial interrogation for ...


Privatizing Criminal Procedure, John D. King Jan 2019

Privatizing Criminal Procedure, John D. King

Scholarly Articles

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology ...


Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown Aug 2018

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown

Georgia State University Law Review

Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.

Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea ...


Testimonial Statements, Reliability, And The Sole Or Decisive Evidence Rule: A Comparative Look At The Right Of Confrontation In The United States, Canada, And Europe, Deborah Paruch Mar 2018

Testimonial Statements, Reliability, And The Sole Or Decisive Evidence Rule: A Comparative Look At The Right Of Confrontation In The United States, Canada, And Europe, Deborah Paruch

Catholic University Law Review

Criminal trials in the United States are meant to ascertain the truth. But other societal values, such as fairness to the parties and public confidence in the integrity of the process, are at stake as well. Among the cornerstone rights to protect a defendant’s right to a fair trial is the right to confrontation. The right to confrontation enables a criminal defendant to exclude hearsay evidence from a trial when the defendant did not have an opportunity to cross-examine the witness. This right has undergone substantial changes and revisions over the last decade, both in the United States and ...


It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White Jan 2018

It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White

Dickinson Law Review

The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction.

This article first looks at the history surrounding effective assistance of counsel and discusses ...


Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel Jan 2018

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

Cornell Law Faculty Publications

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes ...


Defense Counsel And Public Defence, Eve Brensike Primus Nov 2017

Defense Counsel And Public Defence, Eve Brensike Primus

Book Chapters

Public-defense delivery systems nationwide are grossly inadequate. Public defenders are forced to handle caseloads that no one could effectively manage. They often have no funding for investigation or expert assistance. They aren’t adequately trained, and there is little to no oversight of their work. In many jurisdictions, the public-defense function is not sufficiently independent of the judiciary or the elected branches to allow for zealous representation. The result is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process. Innocent people are convicted, precious resources are wasted ...


Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky Jun 2017

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


In Their Defense: Conflict Between The Criminal Defendant’S Right To Counsel Of Choice And The Right To Appointed Counsel, Kit Thomas Jun 2017

In Their Defense: Conflict Between The Criminal Defendant’S Right To Counsel Of Choice And The Right To Appointed Counsel, Kit Thomas

Washington and Lee Law Review

No abstract provided.


Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus May 2017

Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus

Articles

Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections. One underappreciated a spect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pretrial right to counsel would support such an importation. This development is ...


The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson Jan 2017

The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson

Scholarly Works

In misdemeanor cases, pretrial detention poses a particular problem because it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas—the thirdlargest county in the United States—to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely ...


Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas Aug 2016

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

Faculty Scholarship at Penn Law

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to ...


Hurst V. Florida’S Ha’P’Orth Of Tar: The Need To Revisit Caldwell, Clemons, And Proffitt, Craig Trocino, Chance Meyer Aug 2016

Hurst V. Florida’S Ha’P’Orth Of Tar: The Need To Revisit Caldwell, Clemons, And Proffitt, Craig Trocino, Chance Meyer

University of Miami Law Review

In Hurst v. Florida, the Supreme Court held Florida’s death penalty scheme violated the Sixth Amendment because judges, rather than juries, found sentencing facts necessary to impose death. That Sixth Amendment ruling has implications for Florida’s Eighth Amendment jurisprudence.

Under the Eighth Amendment rule of Caldwell v. Mississippi, capital juries must appreciate their responsibility for death sentencing. Yet, Florida has instructed juries that their fact-findings merely support sentencing recommendations, while leaving the ultimate sentencing decision to a judge. Because Hurst clarifies that the Sixth Amendment requires juries to find the operative set of facts on which sentences are ...


Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman Jun 2016

Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman

Articles

Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.


Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried Mar 2016

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

David Kaye

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic ...


Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi Jan 2016

Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi

Articles

No abstract provided.


Administration Of The Criminal Justice System: When Efficiency Trumps A Fundamental Right, Sean Mcleod Jan 2016

Administration Of The Criminal Justice System: When Efficiency Trumps A Fundamental Right, Sean Mcleod

Touro Law Review

No abstract provided.


The Eighth Amendment’S Lost Jurors: Death Qualification And Evolving Standards Of Decency, Aliza Plener Cover Jan 2016

The Eighth Amendment’S Lost Jurors: Death Qualification And Evolving Standards Of Decency, Aliza Plener Cover

Indiana Law Journal

The Supreme Court’s inquiry into the constitutionality of the death penalty has over-looked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and dis-torts its Eighth Amendment analysis.

This Article presents ...


Recent Development: Peterson V. State: Limitations On Defense Cross-Examination Are Permitted When The Testimony Lacks A Factual Foundation, Is Overly Prejudicial, Or Has Not Been Adequately Preserved, Meghan E. Ellis Jan 2016

Recent Development: Peterson V. State: Limitations On Defense Cross-Examination Are Permitted When The Testimony Lacks A Factual Foundation, Is Overly Prejudicial, Or Has Not Been Adequately Preserved, Meghan E. Ellis

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the defendant’s right to confrontation was not violated when the defense was precluded from cross-examining a witness about hallucinations and his potential sentence prior to entering into a plea agreement. Peterson v. State, 444 Md. 105, 153-54, 118 A.3d 925, 952-53 (2015). The court found that the defendant failed to preserve the issue of a witness’s expectation of benefit with respect to pending charges, and failed to show sufficient factual foundation for a cross-examination regarding the expectation. Id. at 138-39, 118 A.3d at 944. In addition, the court ...


Communication And Competence For Self-Representation, E. Lea Johnston Jan 2016

Communication And Competence For Self-Representation, E. Lea Johnston

UF Law Faculty Publications

In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. States have applied these standards ...


Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii Jan 2016

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued ...