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Full-Text Articles in Law
Standing Mute At Arrest As Evidence Of Guilt: The 'Right To Silence' Under Attack, Frank R. Herrmann S.J., Brownlow M. Speer
Standing Mute At Arrest As Evidence Of Guilt: The 'Right To Silence' Under Attack, Frank R. Herrmann S.J., Brownlow M. Speer
Frank R. Herrmann, S.J.
It is commonly understood that an arrested person has a right to remain silent and that the government may not use his or her silence to prove guilt at trial. Three Circuit Courts of Appeal, however, reject this understanding. They allow the prosecution to use an arrested person's pre-Miranda silence as direct evidence of guilt. This article argues that those Circuits are wrong. The article, first, demonstrates the historical antiquity of the Common Law principle that a detained person has the right to stand mute. Though the right was limited by statutory incursion and in tension, at times, with the …
The Uses Of History In Crawford V. Washington, Frank Herrmann
The Uses Of History In Crawford V. Washington, Frank Herrmann
Frank R. Herrmann, S.J.
To a striking degree, both the majority and concurring opinions in Crawford v. Washington are replete with references to Anglo-American historical materials, used to support differing conclusions about the application of the Confrontation Clause to testimonial hearsay. This essay sets out Justice Scalia's and Chief Justice Rehnquist's historical arguments and then employs the standards of legal historians to evaluate whether the two opinions use history in a valid manner. The essay concludes that the "history" in Crawford is not that of an historian, but is a "usable past," as conceived by Cass Sunstein and Stephen Griffin.