Law Commons^™

The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman

Michigan Law Review

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …

The Perils Of Courtroom Stories, Stephan Landsman

Michigan Law Review

As Janet Malcolm1 tells it, Sheila McGough was a middle-aged single woman living at home with her parents and working as an editor and administrator in the publications department of the Carnegie Institute when she decided to switch careers and go to law school. She applied and was admitted to the then recently accredited law school at George Mason University. After graduation, she began a solo practice in northern Virginia that involved a significant amount of stateappointed criminal defense work. In 1986, approximately four years after her graduation from law school, McGough received a call requesting assistance from an incarcerated …

Decisionmaking About General Damages: A Comparison Of Jurors, Judges, And Lawyers, Roselle L. Wissler, Allen J. Hart, Michael J. Saks

Michigan Law Review

Placing important decisions in the hands of the civil jury - made up of ordinary citizens untrained in the law - has long been criticized. For example, Erwin Griswold, law school dean and Solicitor General of the United States, asked, "Why should anyone think that 12 persons brought in from the street, selected in various ways, for their lack of general ability, should have any special capacity for deciding controversies between persons?" And Jerome Frank, law professor, aggressive legal realist, and judge, argued that juries are uncertain, capricious, and unpredictable, ignorant and prejudiced, poor factfinders, gullible, and incapable of following …

Damages-Pain And Suffering-Use Of A Mathematical Formula, Thomas D. Heekin S .Ed.

Michigan Law Review

Measurement of damages for pain and suffering is, in a sense, an attempt to measure the unmeasurable; yet as long as our law recognizes a right to recover for pain and suffering, the jury or judge must arrive at some concrete figure. The traditional approach of simply instructing the jury that they should arrive at a reasonable amount provides little, if any, guidance. The question is whether this approach, nevertheless, remains the best of a bad lot of alternatives. If more guidance is desirable, what can be accomplished within the framework of our present system? The mathematical formula discussed in …

A Comment On The Law Of Torts, Luke K. Cooperrider

Michigan Law Review

The recently-published treatise by Professors Harper and James, The Law of Torts, which is the subject of this article is no routine publication. It is not a mere recasting in different language of an already familiar synthesis; nor is it the kind of book one keeps around for casual reference. It is, rather, a statement of a philosophy of tort liability which, by reason of its consonance with much of the currently vocal thought in the field, and by reason of the powers of analysis and expression that the authors have brought to bear, is almost certainly destined to …

Workmen's Compensation - Federal Employers' Liability Act - Basis Of Liability Not Common Law Negligence, Robert L. Knauss S.Ed.

Michigan Law Review

Petitioner, a laborer in a railroad section gang, was assigned to burn weeds near a railroad track. He was injured when he fell into a culvert as he was trying to escape from smoke and flames which had been fanned by a passing train. A jury in the Circuit Court of St. Louis awarded damages under the Federal Employers' Liability Act (FELA). The Supreme Court of Missouri reversed upon the ground that the evidence was not sufficient to support a finding of the railroad's liability, and the case should not have been allowed to go to a jury. On certiorari …

Vanderbilt: Judges And Jurors: Their Functions, Qualifications And Selection, Maynard E. Pirsig

Michigan Law Review

A Review of Judges and Jurors: Their Functions, Qualifications and Selection. By Arthur T. Vanderbilt.

Evidence - Admissibility - Extent To Which Juror's Affidavit May Be Used To Impeach Verdict, Herbert R. Brown S.Ed.

Michigan Law Review

Defendant was convicted of murder in the first degree and made a motion for a new trial on the basis of a juror's affidavit which asserted that the jury had been divided eight to four in favor of life imprisonment over the death sentence, that subsequently several jurors introduced into the deliberations the fact that the defendant had been charged, in another indictment, with assault with intent to kill, that this became a part of the jury's deliberation, and that, as a result, the jury did not recommend life imprisonment and, instead, the death sentence was imposed. On appeal, held …

Constitutional Law - Due Process - Judicial Review Of Jury Determination On Coerced Character Of Confession, James M. Potter S.Ed.

Michigan Law Review

Petitioner, suspected of the murder of his parents, was subjected to intensive police interrogation culminating in a confession to a state-employed psychiatrist. Petitioner had been allowed only a small amount of sleep and was suffering from a sinus condition when he was introduced to the psychiatrist, who was represented as a general practitioner. The questioning of the psychiatrist, who was skilled in hypnosis, was a subtle blend of threats and promises of leniency. Within the next three and one-half hours petitioner also confessed to a police captain, a business associate, and two assistant state prosecutors. The confession to the psychiatrist …

Criminal Procedure - Juries - Effect Of Disqualified Juror On The Verdict, Joseph M. Kortenhof S.Ed.

Michigan Law Review

Defendant was convicted of selling whiskey and imprisoned in the county jail. After the time for appeal had elapsed he discovered that one jury member had been an unpardoned convict. In a habeas corpus proceeding the defendant urged that the judgment was void and subject to collateral attack. The county court refused to discharge the defendant. On appeal, held, affirmed. Discovery after the verdict that a convict sat on the jury, contrary to statute, gives an automatic right to a new trial. However, since the defect only renders the verdict voidable and not void it must be challenged within …

Hospitalizing The Mentally Ill, Henry Weihofen

Michigan Law Review

It is hard for lawyers and doctors to see eye to eye on the fundamental problem of how to eliminate needless legalistic formality in hospitalization procedures and at the same time maintain adequate legal safeguards against error and abuse.

Lawyers are inclined to emphasize the need to guard against "railroading" sane persons into institutions without giving them a chance to prove their sanity. They therefore stress the importance of a fair trial, with adequate notice and a chance to be heard before being deprived of one's liberty. As a special committee of the American Bar Association said a few years …

Negligence-Duty Of Care-Duty Of Possessor Of Land Conducting Activities Thereon To Keep A Lookout For Licensees, Duncan Noble

Michigan Law Review

Plaintiff, seeking employment, came onto the site of a road construction project under defendant's control as general contractor and posted by him with notices of construction and against trespassing. Plaintiff was struck by a materials truck backing, without lookout or warning, over the completed half of the road. On these facts the jury found that the truck was negligently operated and plaintiff prevailed. On appeal, held, affirmed. A contractor owes a duty of ordinary care to licensees in a case of "active," as distinguished from "passive" negligence. Evidence as to the mode of operating the truck and "likelihood" of …

Practice And Procedure-Trial Practice-Juror Affidavits, Paul M.D. Harrison S. Ed.

Michigan Law Review

The jury, in an action for trespass, returned a verdict in favor of the plaintiff and thereafter separated after being dismissed by the court. Subsequently, a juror reported to the court that the verdict as returned did not express the actual agreement of the jury. Five days after dismissal the jury was recalled and, upon being polled, unanimously agreed that the verdict as returned did not represent the actual agreement of the jury due to an error in computation. The jury was sent back to the jury room under instructions to refigure the verdict only upon evidence already presented in …

Constitutional Law-Fourteenth Amendment-Discrimination In Selection Of Grand Jurors, Alan C. Boyd S. Ed.

Michigan Law Review

Defendant's conviction of murder was affirmed by the Texas Court of Criminal Appeals, which rejected defendant's claim that discrimination in selection of the indicting grand jury had violated his constitutional rights. Defendant pointed out that the Negro proportion of grand jurors had uniformly been less than the ratio of Negroes to the total population of the county, and that on the past twenty-one lists the commissioners had consistently limited the number of Negroes to not more than one on each grand jury. On certiorari to the United States Supreme Court, held, reversed. Limitation of the number of Negroes on …

Insurance-Subrogation-Right Of Insured To Recover On An Automobile "Collision" Policy After Full Settlement With The Negligent Wrongdoer, Robert W. Shadd S.Ed.

Michigan Law Review

Respondent, whose automobile was covered by a policy of "collision" insurance in appellant insurance company, suffered serious personal injuries and complete loss of his car as a result of a collision with an oil company truck. Despite numerous telephone calls, appellant failed to settle for the cash value of the automobile, as required by the insurance contract. In the meantime, respondent brought an action against the oil company, joining the claims for personal injury and property damage, and executed a full release to that company in return for a settlement of $20,000. He then brought this action for actual damages …

Mr. Justice Murphy And Civil Rights, Thurgood Marshall

Michigan Law Review

There is constant danger that the unpopularity of an individual, or of the group of which he is a member, will be reflected in dealings with his rights by his neighbors or by the organized community. In America today this bias is most likely to stern from differences of race, origin, nationality, or religious or political belief. Prejudice may victimize an entire group or any of its members. Any charge of shocking or anti-social conduct against one who is already thus unpopular increases the likelihood of unfair treatment. Not only private citizens, but legislators, judges and administrative officers of government …

Appeal And Error-Union Of Law And Equity-Appealability Of Order Denying Demand For Jury Trial, Earl R. Boonstra S. Ed.

Michigan Law Review

Defendant held an insurance policy written by plaintiff which by its terms covered a hangar against loss by fire. After the hangar had been destroyed by fire, plaintiff instituted this suit for reformation on the ground that the contract had been written as a fire policy through mutual mistake. Defendant denied the mistake, filed a counterclaim to recover on the policy as written, and demanded a jury trial. Plaintiff moved to strike the demand, and the motion was granted. The court of appeals dismissed the defendant's appeal. On certiorari, held, affirmed. Not being a final decision, the order denying …

Appeal And Error-Right Of Defendant To New Trial Where Plaintiff Is Entitled To All Or None And Verdict Is Intermediate, Bruce L. Moore S.Ed.

Michigan Law Review

In an action on an express contrast, plaintiff sued for $1750, representing the agreed 5 per cent commission on the sale of real estate. Defendant denied the validity of the contract, and there was no issue as to the amount of liability if liability existed. The instruction to the jury was that plaintiff was entitled to 5 per cent commission if entitled to recover. The jury returned a verdict for $875, half the amount claimed. Defendant's motion for a new trial was denied. Held, although the verdict was unauthorized as to plaintiff, there was no error as to defendant …

Evidence-Two Witnesses Rule In Action For Perjury, Milton D. Solomon S.Ed.

Michigan Law Review

The petitioner was convicted of perjury. The trial judge refused to give the following instruction to the jury: "The government must establish the falsity of the statement alleged to have been made by the defendant under oath, by the testimony of two independent witnesses or one witness and corroborating circumstances. Unless that has been done, you must find the defendant not guilty." The petitioner was convicted and the circuit court of appeals affirmed the district court. Held, the refusal of the district judge to instruct the jury as requested was reversible error. Weiler v. United States, (U.S. 1945) …

Abstracts Of Recent Decisions, Benjamin M. Quigg, Jr.

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Habeas Corpus As A Method Of Review-Prohibition-Mandamus

Michigan Law Review

It is a well-settled rule, sustained by innumerable cases, that errors and irregularities committed by a court within the sphere of its jurisdiction cannot be inquired into in habeas corpus proceedings. The reason commonly given for this rule is that such a proceeding is a collateral attack on the judgment, and a collateral attack is necessarily limited to the inquiry whether the court has acted without jurisdiction or has exceeded its jurisdiction.

Evidence - Photographs - Admission To Show Physical Condition Of Person, Michigan Law Review

Michigan Law Review

Plaintiff's daughter was killed by the wrongful act of defendant. In a suit to recover for pecuniary injury through loss of financial aid, a photograph of decedent (a pretty girl) was introduced and admitted over objections of defendant that the photograph could serve no purpose relative to the issues, but would excite the sympathy of the jury to the prejudice of the defendant. Held, that no error was committed in admitting the photograph since the decedent's probable contributions for the benefit of her parents depended largely upon "the kind of a girl she was" and the photograph was some …

Automobiles - Host-Guest Statutes - "Gross Negligence Or Wilful And Wanton Misconduct'', Michigan Law Review

Michigan Law Review

Plaintiff, a guest in defendant's automobile, sustained injuries when defendant attempted to pass a car while approaching the brow of a hill and failed to see an oncoming car until too late to avoid a collision. Although the highway was heavily crowded, defendant had been driving at a speed of sixty-five to seventy miles per hour, and had been passing cars on the straight and over hills, ignoring the protests of his passengers. Defendant appealed from verdict and judgment for plaintiff. Held, with two justices dissenting, that under the statute requiring proof of defendant's "gross negligence or wilful and …

Torts - Negligence -The Duty Element

Michigan Law Review

Plaintiff was the driver of a large motor coach which had skidded on an icy road and knocked down a telephone post, causing a wire, strung thereon, to sag across the road. Perceiving that defendant's approaching truck would run into the wire, plaintiff signalled defendant to stop, but defendant did not stop until his truck had struck the wire, pulling the pole over so that it hit the plaintiff. Held, one judge dissenting, that the question of defendant's negligence was for the jury. Kennedy v. Scott Transportation Co., (C. C. A. 2d, 1932) 60 F. (2d) 717.

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Admiralty - Workmen's Compensation - Is a Hydroplane a Vessel? - Claimant was employed in the care and management of a hydroplane which was moored in navigable waters. The hydroplane began to drag anchor and drift toward the beach, where it was in danger of being wrecked. Claimant waded into the water and was struck by the propeller. Held, claimant is not entitled to compensation under the Workmen's Compensation Law, since a hydroplane while on navigable waters is a vessel, and therefore the jurisdiction of the admiralty excludes that of the State Industrial Commission. Reinhardt v. Newport Flying Service Corp. …