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Full-Text Articles in Law
Avoiding A Confrontation?: How Courts Have Erred In Finding That Nontestimonial Hearsay Is Beyond The Scope Of The Bruton Doctrine, Colin Miller
Colin Miller
The Bruton doctrine holds that the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant’s confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence. Under this doctrine, Co-Defendant’s confession to Police Officer that “Defendant and I killed Victim” could not be admitted unless Co-Defendant testified at trial. But what if Co-Defendant made his confession to his mother, his brother, his lover, or his friend? While the vast majority of courts before 2004 would have held that such “noncustodial” confessions violated the Bruton doctrine, the tables have …
Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller
Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller
Colin Miller
The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal …
Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller
Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller
Colin Miller
The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal …
Deal Or No Deal: Why Courts Should Allow Defendants To Present Evidence That They Rejected Favorable Plea Bargains, Colin Miller
Deal Or No Deal: Why Courts Should Allow Defendants To Present Evidence That They Rejected Favorable Plea Bargains, Colin Miller
Colin Miller
Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions….” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence. This article addresses the question of whether courts can …
Lawyers, Guns, And Money: Why The Tiahrt Amendment’S Ban On The Admissibility Of Atf Trace Data In State Court Actions Violates The Commerce Clause And The Tenth Amendment, Colin Miller
Colin Miller
The Tiahrt Amendment provides in relevant part that ATF trace data "shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court..." This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as …
Stranger Than Dictum: Why Arizona V. Gant Compels The Conclusion That Suspicionless Buie Searches Incident To Lawful Arrests Are Unconstitutional, Colin Miller
Colin Miller
In its 1990 opinion in Maryland v. Buie, the Supreme Court held that as an incident to a lawful (home) arrest, officers can “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” While this holding was actually dictum, thereafter courts categorically concluded that Buie authorizes suspicionless searches of sufficiently large spaces not only in arrest rooms, but also in rooms immediately abutting arrest rooms and connected to arrest rooms by hallways. Buie was one of three Supreme Court …
Dismissed With Prejudice: Why Application Of The Anti-Jury Impeachment Rule To Allegations Of Racial, Religious, Or Other Bias Violates The Right To Present A Defense, Colin Miller
Colin Miller
It is well established that the presence of a biased juror is a structural defect not subject to a harmless error analysis; however, courts repeatedly have precluded criminal defendants from proving such bias by applying Rule of Evidence 606(b) to prevent jurors from impeaching their verdicts through allegations of racial, religious, or other prejudice by jurors. Court also routinely have held that application of the Rule in such cases does not violate the Sixth Amendment right to an impartial jury based upon the Supreme Court’s conclusion in Tanner v. United States that the Rule did not violate the right to …
Impeachable Offenses?: Why Civil Parties In Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under The Felony Impeachment Rule, Colin Miller
Colin Miller
With one exception, every Federal Rule of Evidence dealing with propensity character evidence or evidence which can be misused as propensity character evidence makes it either: (a) as difficult to admit such evidence in civil trials as it is in criminal trials, or (b) more difficult to admit such evidence in civil trials than it is in criminal trials. The “mercy rule” falls into this latter category as it allows criminal defendants to inject the issue of character into their trials while a similar luxury is not afforded to civil parties. Before 2006, however, a substantial minority of courts extended …
Even Better Than The Real Thing: How Courts Have Been Anything But Liberal In Finding Genuine Questions Raised As To The Authenticity Of Originals Under Rule 1003, Colin Miller
Colin Miller
In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their nonproduction. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their nonproduction, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could …