Law Commons^™

The Police Gamesmanship Dilemma, Mary D. Fan

Articles

Police gamesmanship poses a recurring regulatory challenge for constitutional criminal procedure, leading to zigzags and murky zones in the law such as the recent rule shifts regarding searches incident to arrest and interrogation. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves tactics that press on blind spots, blurry regions or gaps in rules and remedies, undermining the purpose of the protections. Currently, courts generally avoid peering into the Pandora’s Box of police stratagems unless the circumvention of a protection becomes too obvious to ignore and requires a stopgap rule-patch that further complicates the maze of criminal procedure. …

The Asymmetry Of Duty In Criminal Trial Practice, Maureen A. Howard

Articles

Although the American trial system has been likened to an arena in which mental combatants fight “to the death” (the verdict), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different than that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party.

A lawyer who represents an individual client is duty-bound to advance that client’s interests vigorously within the bounds of the law. …

Revising Harmless Error: Making Innocence Relevant To Direct Appeals, Helen A. Anderson

Articles

In most jurisdictions, convicted defendants have the right to an appeal at public expense, and to the assistance of counsel with that appeal. But the direct appeal is almost never concerned with actual innocence. On direct appeal, courts will look at claims of trial error, and evaluate those claims and their "harmlessness" based only on the trial record. Thus, the chances of a reversal on direct appeal bear no relation to the chances that the wrong person has been convicted.

While the current appeal system may encourage proper trial procedures, it does not provide a check against wrongful conviction. The …