Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication
- Publication Type
Articles 1 - 11 of 11
Full-Text Articles in Law
Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii
Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii
Faculty Publications
This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …
Apprendi's Limits, Roger Craig Green
Apprendi's Limits, Roger Craig Green
ExpressO
This article argues that Blakely v. Washington did not decide (explicitly or implicitly) whether the Federal Sentencing Guidelines are constitutional. It also claims that the best interpretation of Apprendi v. New Jersey would uphold the Guidelines because they do not result in a punishment above the crime of conviction's statutory maximum. The notion that statutory maxima are constitutionally important stems from separation of power principles. Congress, not the Commission, is responsible for defining crimes, and thereby for prescribing how much punishment is authorized by a jury's guilty verdict.
The Sky Is Not Falling—That Which You Feel Is Merely A No. 10 Earthquake—Blakely V. Washington: The Supreme Court Sentences The American Criminal Justice System To Disaster, Bedlam, And Reform, Christopher P. Carrington
The Sky Is Not Falling—That Which You Feel Is Merely A No. 10 Earthquake—Blakely V. Washington: The Supreme Court Sentences The American Criminal Justice System To Disaster, Bedlam, And Reform, Christopher P. Carrington
University of Arkansas at Little Rock Law Review
No abstract provided.
Summerlin V. Stewart And Ring Retroactivity, Tonya G. Newman
Summerlin V. Stewart And Ring Retroactivity, Tonya G. Newman
Chicago-Kent Law Review
The Sixth Amendment guarantees criminal defendants a trial before a jury. Until the Supreme Court decided Ring v. Arizona, however, nine states wholly or partially surrendered a portion of the jury's role to a sentencing judge. Specifically, those states allowed sentencing judges to make factual determinations regarding sentencing considerations by which capital defendants became eligible for the death penalty. The Ring Court halted the use of sentencing considerations to erode the jury's fundamental role in preserving accuracy and fairness of criminal proceedings, holding that the Sixth Amendment requires that a jury make factual findings on all elements, including sentencing …
The Use Of Prior Convictions After Apprendi, Colleen P. Murphy
The Use Of Prior Convictions After Apprendi, Colleen P. Murphy
Law Faculty Scholarship
No abstract provided.
Teaching A Course On Regulation Of The Police (With A Special Focus On The Sixth Amendment), Christopher Slobogin
Teaching A Course On Regulation Of The Police (With A Special Focus On The Sixth Amendment), Christopher Slobogin
Vanderbilt Law School Faculty Publications
The organizers of this symposium gave us the choice of writing about effective assistance of counsel or about teaching criminal procedure. I've decided to do both. This article discusses teaching the criminal procedure course most often called "Police Practices," for which I write a textbook entitled Regulation of Police Investigation: Legal, Historical, Empirical and Comparative Materials.' Borrowing heavily from the Teacher's Manual for that book, the first part of this article describes my general philosophy for teaching the course. The rest of the article illustrates this philosophy by describing how I teach students about the application of the Sixth Amendment …
Face To Face With The Right Of Confrontation, Richard D. Friedman
Face To Face With The Right Of Confrontation, Richard D. Friedman
Other Publications
This article is an edited excerpt from the amicus curiae brief filed in Crawford v. Washington, heard before the United States Supreme Court on November 10, 2003. Prof. Friedman wrote the brief for the Court.
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Articles
The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …
The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman
The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman
Articles
For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …
Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman
Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman
Articles
In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court radically transformed its doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Craitiord is a very positive development, restoring to its central position one of the basic protections of the common law system of criminal justice. But the decision leaves many open questions, and all lawyers involved in the criminal justice process will have to adjust to the new regime that it creates. This article outlines and summarizes the problems with the law as it stood before Crait/brd. It then explains the theoretical …
The Crawford Transformation, Richard D. Friedman
The Crawford Transformation, Richard D. Friedman
Articles
Crawford v. Washington, 124 S. Ct. 1354 (2004), is one of the most dramatic Evidence cases in recent history, radically transforming the doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Crawford is a very positive development, but leaves many open questions - and forces Evidence teachers to rethink how they teach hearsay and confrontation.