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Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane
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 severe, …
Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass
Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass
Law Faculty Publications
The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …
Admissibility As Cause And Effect: Considering Affirmative Rights Under The Confrontation Clause, John G. Douglass
Admissibility As Cause And Effect: Considering Affirmative Rights Under The Confrontation Clause, John G. Douglass
Law Faculty Publications
In this essay, I first examine some of the strategic choices spawned by the Supreme Court's "microscopic" focus on reliability in confrontation-hearsay cases. Rather than promoting the value at the core of the Confrontation Clause-the adversarial testing of prosecution evidence-the Court's approach leads to choices that ignore that value. While the Court scrutinizes hearsay under the microscope of reliability, it leaves the parties free to ignore and even to avoid available opportunities for effective confrontation of the hearsay declarant. At the same time, the Court's constitutional definition of reliability-which it equates with "firmly rooted" hearsay exceptions -has encouraged prosecutors to …
Confronting The Reluctant Accomplice, John G. Douglass
Confronting The Reluctant Accomplice, John G. Douglass
Law Faculty Publications
The Supreme Court treats the Confrontation Clause as a rule of evidence that excludes unreliable hearsay. But where the hearsay declarant is an accomplice who refuses to testify at defendant's trial, the Court's approach leads prosecutors and defendants to ignore real opportunities for confrontation, while they debate the reliability of hearsay. And even where the Court's doctrine excludes hearsay, it leads prosecutors to purchase the accomplice's testimony through a process that raises equally serious questions of reliability. Thus, the Court's approach promotes neither reliability nor confrontation. This Article advocates an approach that applies the Confrontation Clause to hearsay declarants in …
Beyond Admissibility: Real Confrontation, Virtual Cross-Examination And The Right To Confront Hearsay, John G. Douglass
Beyond Admissibility: Real Confrontation, Virtual Cross-Examination And The Right To Confront Hearsay, John G. Douglass
Law Faculty Publications
Part I of this Article describes how the Court turned the Confrontation Clause into a rule excluding unreliable hearsay, culminating in the 1980 decision in Ohio v. Roberts, in which the Court set out the "general approach" that dominates confrontation-hearsay analysis today. Part II assesses the application of the Court's exclusionary rule in the two decades since Roberts, a period during which the Confrontation Clause largely has merged with, and disappeared into, the law of evidence, in the process losing its significance as an independent protection for the accused in an adversarial system. Part III argues that the Court's choice …