Law Commons^™

Resolving The Dilemma Of The Exclusionary Rule: An Application Of Restitutive Principles Of Justice, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Discussions of the merits of the exclusionary rule usually begin and end with a dilemma not unlike the classic "prisoner's dilemma." Suppression of illegally obtained, but reliable, evidence that leads to the release of a guilty defendant may constitute an injustice and a threat to the safety of innocent citizens. Admitting illegally obtained evidence, however, may encourage police officers to engage in illegal conduct to the detriment of countless numbers of citizens. The premise of the prisoner's dilemma is that the prisoner's choices have been limited by his captor to two, each of which is morally objectionable. The debate over …

The Justice Of Restitution, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A restitutive theory of justice is a rights-based approach to criminal sanctions that views a crime as an offense by one individual against the rights of another calling for forced reparations by the criminal to the victim. This is a sharp departure from the two predominant sanctioning theories-retribution and crime prevention. Rights-based analysts have criticized this approach for failing to include mens rea, or criminal intent into the calculation of sanctions, thereby ignoring the traditional distinction between crime and tort. Such a distinction is problematic, however, since punishment for an evil mind cannot be made compatible with a coherent individual …

The Federal Rules Of Evidence: Six Years After, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Evidence have been in effect since 1975. Six years of experience is not much time in which to assess such a complex and important body of law. Nevertheless, there is now some "evidence" of the impact of the Federal Rules on the various states and circuits.

The Rules do seem to have proved successful enough to stimulate widespread imitation. Approximately half the states in the United States have or will very shortly have evidence codes patterned substantially on the Rules, even down to their numbers. Many of the remaining states (e.g., Iowa, Illinois, and Pennsylvania) have …

Perils Of The Rulemaking Process: The Development, Application, And Unconstitutionality Of Rule 804(B)(3)'S Penal Interest Exception, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

As the culmination of a decade of rulemaking, in 1975 Congress enacted the Federal Rules of Evidence, which include in rule 804(b)(3) an exception to the hearsay rule that allows federal courts to admit statements against penal interest. Having reviewed previously unpublished memoranda and nonpublic tape recordings of the deliberations of the Advisory and Standing Committees to the Judicial Conference and the Special Subcommittee on Reform of Federal Criminal Laws of the House Judiciary Committee, Professor Tague explores the development of rule 804(b)(3), one of the more controversial rules that emerged from that rulemaking process. After analyzing rule 804(b)(3) and …

Multiple Representation And Conflicts Of Interest In Criminal Cases, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Conflicts of interest resulting from multiple representation in criminal cases impose heavy burdens on all the participants in the criminal justice system. Although the Supreme Court in Holloway v. Arkansas refused to hold that joint representation is unconstitutional per se, it recently approved Proposed Rule of Criminal Procedure 44(c), which would require trial courts to protect a defendant's right to counsel in this situation. After discussing the current approaches of the courts to the problems presented by joint representation, Professor Tague analyzes the proposed rule. He criticizes the proposed rule for its failure to define the role of the trial …

Special Report - Federal Criminal Code Revision: Some Problems With Culpability Provisions, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The age of federal codification is upon us. The Federal Rules of Evidence and the new bankruptcy and copyright revisions are but examples. By far the most ambitious undertaking in this regard is the effort to recodify federal criminal law.

The federal criminal code project, spanning more than a decade was most recently embodied in the last Congress in S. 1437, which passed the Senate, and H.R. 13959, which competed in the House with S. 1437. Neither bill passed the House. Thus, the Congress closed without a new Code. But both the bills will be back with us, introduced with …

Federal Habeas Corpus And Ineffective Representation Of Counsel: The Supreme Court Has Work To Do, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court's landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had "deliberately bypassed" the procedural opportunity to raise the claim; the Court defined "deliberate bypass" in terms of a defendant's intentional and voluntary relinquishment of …

Restitution: A New Paradigm For Criminal Justice, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This paper will analyze the breakdown of our system of criminal justice in terms of what Thomas Kuhn would describe as a crisis of an old paradigm- punishment. I propose that this crisis could be solved by the adoption of a new paradigm of criminal justice-restitution. The approach will be mainly theoretical, though at various points in the discussion the practical implications of the rival paradigms will also be considered. A fundamental contention will be that many, if not most, of our system's ills stem from errors in the underlying paradigm. Any attempt to correct these symptomatic debilities without a …

The Attempt To Improve Criminal Defense Representation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Improvement of criminal defense representation is one of the most critical problems that faces the criminal justice system. The problem is extensive; some attorneys are frequently ineffective and probably all attorneys are occasionally inadequate because of error, overwork, personal problems or ethical conflicts.

The defendant's only remedy against his attorney's ineffectiveness is through direct appeal or collateral post-conviction attack. This article discusses the reasons why courts cannot improve defense representation through these avenues of review. Deep disagreement among judges about the purpose of post-conviction review has crippled any attempt at improvement. The key unresolved question is whether the standard for …

The Second Circuit Review--1975-76 Term: Courts-- Evidence & Procedure: Commentary: The Second Circuit And The Federal Rules Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The most significant development in federal trial procedure in recent years has been the enactment of the Federal Rules of Evidence, effective July 1, 1975. In the intervening two years since the Rules became effective, the courts of the Second Circuit have bad occasion to make several illuminating applications of and references to them.

An examination of some of these decisions provides insight into the kinds of questions that are coming up not only in the Second Circuit, but around the country, and the kinds of answers that are being given. It is not the bizarre or unusual case that …

An Evidence Code: The American Experience, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Professor Paul Rothstien's opening address at the Conference on Current Trends in Evidence, Dalhousie University, 26th November 1976.

Rothstein discusses the American Evidence Code, the American experience with it, and compares it to a proposed Code that Canada is considering.

Some Themes In The Proposed Federal Rules Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Although the Federal Rules of Evidence are under consideration by Congress, it is unlikely that many of their major themes will be reversed. The present article examines some of these themes as they appear in the Supreme Court-approved draft. The aim is merely to make more explicit the effects of the Rules and suggest some questions for study.

How The Uniform Crime Victims Reparations Act Works, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Uniform Crime Victims Reparations Act, approved by the American Bar Association's House of Delegates, has been submitted to state legislatures. This timely act seeks recompense for the victims of crimes, but also incorporates numerous safeguards to prevent abuse.

The American Bar Association's House of Delegates, meeting in Houston on February 5, 1974, approved an idea whose time is rapidly approaching the Uniform Crime Victims Reparations Act. The act is the product of a committee of the National Conference of Commissioners on Uniform State Laws for which I served as consultant and reporter over its three years of deliberations. The …

The Second Circuit Review: Ix. Evidence: Introduction, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The past year's developments in the law of evidence have been characterized by a hardening attitude toward criminal defendants. The United States Supreme Court's evidentiary rulings during the term covered by the Second Circuit Review (1971-72) manifested this trend (although not uniformly). For example, police stop-and-frisk authority was broadened (and with it the use of evidence obtained therefrom); the scope of the immunity from criminal prosecution required to be granted by a governmental body before self-incriminatory statements can be compelled from a witness was narrowed; the right to have counsel at line-ups was limited to postindictment or post-charge line-ups (with …

Causation In Common Sense: A Reply To Messrs. Hart And Honore, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

No abstract provided.