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Mirror, Mirror, On The Wall—Biased Impartiality, Appearances, And The Need For Recusal Reform, Zygmont A. Pines

Dickinson Law Review (2017-Present)

The article focuses on a troubling aspect of contemporary judicial morality.

Impartiality—and the appearance of impartiality—are the foundation of judicial decision-making, judicial morality, and the public’s trust in the rule of law. Recusal, in which a jurist voluntarily removes himself or herself from participating in a case, is a process that attempts to preserve and promote the substance and the appearance of judicial impartiality. Nevertheless, the traditional common law recusal process, prevalent in many of our state court systems, manifestly subverts basic legal and ethical norms.

Today’s recusal practice—whether rooted in unintentional hypocrisy, wishful thinking, or a pathological cognitive dissonance— …

Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein

San Diego International Law Journal

The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …

Retrying The Acquitted In England Part Ii: The Exception To The Rule Against Double Jeopardy For Tainted Acquittals, David S. Rudstein

San Diego International Law Journal

Parliament enacted a statute in 1996 intended to limit the double jeopardy bar in some situations in which the defendant obtained an acquittal through improper means, thereby permitting the government to retry the person for the same offense of which he previously was tried and acquitted. The statute, part of the Criminal Procedure and Investigations Act 1996, allows a retrial when an individual's acquittal was tainted, which, under the statute, means an acquittal resulting from interference with, or intimidation of, a juror, witness, or potential witness. In allowing a retrial in such circumstances, the statute creates an exception to the …

Retrying The Acquitted In England, Part I: The Exception To The Rule Against Double Jeopardy For New And Compelling Evidence, David S. Rudstein

San Diego International Law Journal

More than 240 years ago, Sir William Blackstone, perhaps the most important commentator on the English common law, wrote that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. This plea of autrefois acquit (a former acquittal), Blackstone explained, is based upon the principle that no man is to be brought into jeopardy of his life, more than once for the same offence, which he called a universal maxim of …

Equity, Due Process And The Seventh Amendment: A Commentary On The Zenith Case, Patrick Devlin

Michigan Law Review

The seventh amendment to the United States Constitution requires that "[i]n Suits at common law . . . the right of trial by jury shall be preserved." What exactly is a suit at common law? When the amendment was enacted in 1791, there was no law that was common to all the states. In 1812 Supreme Court Justice Story, in a Circuit Court ruling, held that the common law alluded to was the common law of England, "the grand reservoir of all of our jurisprudence." This means that when today an American judge has to decide whether in any set …

The Attaint, John M. Zane

Michigan Law Review

The assize of novel disseisinoriginally lay against the disseisor in possession in favor of the disseisee, and was soon extended to the heir of -the disseisee, but not against the heir or grantee of the disseisor. But the disseisor might be dead or might have conveyed the land, and in such a case the disseisee would be driven to the writ of right with iis delays and chance of battle. But the cases where the defendant had come into possession under a lawful title which was limited in time and had ceased to exist, i.. e., cases where there was …

The Attaint, John M. Zane

Michigan Law Review

The practice of attainting a jury was the method by which for centuries the English law corrected an erroneous finding of fact by the body of men who, in course of time, came to be called a jury. Today this necessary corrective of judicial administration is very inadequately performed by the judge or judges presiding over the trial. The proceeding is now called a motion for a new trial. The new trial is inadequate for the reason that it does not, as did the attaint, substitute a correct verdict for the one given. It merely reverses or sets aside the …