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Articles 1 - 30 of 66
Full-Text Articles in Law
Regulating Interrogations And Excluding Confessions In The United States: Balancing Individual Rights And The Search For Truth, Jenia I. Turner
Regulating Interrogations And Excluding Confessions In The United States: Balancing Individual Rights And The Search For Truth, Jenia I. Turner
Faculty Journal Articles and Book Chapters
Like other criminal justice systems, the U.S. system must balance, on the one hand, enforcing the criminal law and, on the other, protecting individual rights in the process. Reliable fact-finding is a prerequisite to the effective enforcement of criminal law and to just outcomes. Protection of individual rights often promotes reliable fact-finding, as when a ban on involuntary confessions prevents the introduction of unreliable testimony at trial. On occasion, however, the commitment to accurate fact-finding may conflict with individual rights in a particular case. One of the clearest examples of such a conflict occurs when a court must decide whether …
Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus
Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus
Articles
Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections. One underappreciated a spect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pretrial right to counsel would support such an importation. This development is unfortunate …
Still Handcuffing The Cops? A Review Of Fifty Years Of Empirical Evidence Of Miranda's Harmful Effects On Law Enforcement, Paul Cassell, Richard Fowles
Still Handcuffing The Cops? A Review Of Fifty Years Of Empirical Evidence Of Miranda's Harmful Effects On Law Enforcement, Paul Cassell, Richard Fowles
Utah Law Faculty Scholarship
The fiftieth anniversary of Miranda v. Arizona offers a chance to assess how the decision has played out in the real world and, in particular, to determine whether it has harmed law enforcement. In this Article, we take advantage of the time since the Miranda decision—now a little more than fifty years—to see whether it has produced the predicted harmful consequences. In particular, we survey the available empirical evidence about Miranda’s effects on law enforcement. We collect confession rate data, both from the time of Miranda and since, to assess whether Miranda caused confession rates to fall. We also review …
A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, Yale Kamisar
A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, Yale Kamisar
Articles
I am indebted to Professor William Pizzi for remembering—and praising—the “Gatehouses and Mansions” essay I wrote fifty years ago. A great many articles and books have been written about Miranda. So it is nice to be remembered for an article published a year before that famous case was ever decided.
The Constitutionality Of Negotiated Criminal Judgments In Germany, Thomas Weigend, Jenia I. Turner
The Constitutionality Of Negotiated Criminal Judgments In Germany, Thomas Weigend, Jenia I. Turner
Faculty Journal Articles and Book Chapters
In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. In this Article, we provide background on recent developments in “plea bargaining” law and practice in Germany and offer a critique of the Court’s decision.
The Court attempted to rein in negotiated judgments by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework. The Court builds its judgment on the notion that the search for truth, …
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran
Articles
The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That silly …
Taking Confrontation Seriously Does Crawford Mean That Confessions Must Be Crossexamined, Mark A. Summers
Taking Confrontation Seriously Does Crawford Mean That Confessions Must Be Crossexamined, Mark A. Summers
Faculty Scholarship
No abstract provided.
Police “Science” In The Interrogation Room: Seventy Years Of Pseudo-Psychological Interrogation Methods To Obtain Inadmissible Confessions, Brian Gallini
School of Law Faculty Publications and Presentations
Nearly all confessions obtained by interrogators nationwide are inadmissible, but nonetheless admitted. In the process, police arrest the wrong suspect and allow the guilty to go free. An unshakeable addiction to pseudo-scientific interrogation methods – initially created in the 1940s – is to blame. The so-called “Reid technique” of interrogation was initially a welcome and revolutionary change from the violent “third degree” method it replaced. But, we no longer live in the 1940s and, not surprisingly, we no longer drive 1940s automobiles, practice early twentieth century medicine, or dial rotary phones. Why, then, are police still using 1940s methods of …
Justice Carter’S Dissent In People V. Crooker: An Early Step Towards Miranda Warnings And The Expansion Of The Fifth Amendment To Pre-Trial Confessions, Helen Y. Chang
Publications
By the middle of the 20th century, police interrogation of criminal suspects had developed into a fine art designed to extract confessions. The use of the “third degree,” otherwise known as the infliction of physical or mental suffering, was not uncommon. “[T]he most frequently utilized interrogation techniques have involved mental and psychological stratagems—trickery, deceit, deception, cajolery, subterfuge, chicanery, wheedling, false pretenses of sympathy, and various other artifices and ploys.” As the United States Supreme Court noted in its famous Miranda v. Arizona decision, this type of police interrogation involved “inherent compulsion,” was “inherently coercive,” “exact[ed] a heavy toll on individual …
Reply To Richard A. Leo And Jon B. Gould, Samuel R. Gross, Barbara O'Brien
Reply To Richard A. Leo And Jon B. Gould, Samuel R. Gross, Barbara O'Brien
Articles
The following is a letter to the Ohio State Journal of Criminal Law received from Professors Samuel Gross and Barbara O'Brien, responding to an article published in the Journal in Fall 2009 by Professors Richard Leo and Jon Gould. This letter is followed by a reply from Professors Leo and Gould. Professors Gross and O'Brien did not see the reply prior to the Journal going to press. As we have indicated before, we welcome letters to the Journal from readers on any topic covered in a prior issue. - Editors
Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa
Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa
Journal Articles
In this article I examine three borderline cases in which it is not clear whether a confession had been obtained in violation of the nemo tenetur principle (i.e. the rights against self-incrimination and forced inculpation). The case of the false confession presents a situation in which a person made a voluntary confession but the overwhelming evidence pointed to the falsity of the statements. In contrast, the confession obtained in the case of the truth serum is of high probative value. However, it could be argued that the suspect did not voluntarily decide to incriminate himself, given that he confessed when …
Shining The Bright Light On Police Interrogation In America, Mark A. Godsey
Shining The Bright Light On Police Interrogation In America, Mark A. Godsey
Faculty Articles and Other Publications
This article reviews Richard A. Leo’s book 'Police Interrogation and American Justice.' Prior to entering legal academia, Leo served as an associate professor of psychology and criminology, and performed groundbreaking empirical research into how police interrogators obtain confessions and how their interrogation techniques affect suspects. His body of work shines the bright light on police interrogation in American today. Leo depicts the values and structure of interrogation in a way that few, outside of the actual subjects/victims of interrogation, fully understand. Although I do not agree with all of his conclusions and proposed reforms, his work convincingly raises a point …
Colorado V. Connelly: What Really Happened, William T. Pizzi
Colorado V. Connelly: What Really Happened, William T. Pizzi
Publications
In 1986, the Supreme Court decided Colorado v. Connelly, a landmark case in due process and fifth amendment law. The case began when Francis Barry Connelly approached a police officer on the street in downtown Denver to confess to having killed a young woman several months earlier in southwest Denver. Because Connelly was suffering from acute schizophrenia and was hearing auditory hallucinations commanding him to confess, state courts suppressed his statements to the police on the grounds (1) that his statements before arrest were involuntary and inadmissible under the due process clause and (2) those statements post-arrest could not …
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
Articles
Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.
Reformulating The Miranda Warnings In Light Of Contemporary Law And Understandings, Mark A. Godsey
Reformulating The Miranda Warnings In Light Of Contemporary Law And Understandings, Mark A. Godsey
Faculty Articles and Other Publications
Since Miranda v. Arizona was decided in 1966, much scholarly attention has been devoted to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda warnings requirement is a prophylactic rule that can change and evolve. However, in spite of 40 years of legal developments and practical experience, the content of these famous four warnings has never been modified or even been subjected to systematic scrutiny.
This Article proposes that the substance of the Miranda …
Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar
Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar
Articles
June marks the 40th anniversary of one of the most praised, most maligned-and probably one of the most misunderstood-U.S. Supreme Court cases in American history, Miranda v. Arizona. The opinion by Chief Justice Earl Warren conditions police questioning of people in custody on the giving of warnings about the right to remain silent, the right to counsel and the waiver of those rights. 384 U.S. 436. This ruling represents a compromise of sorts between the former elusive, ambiguous and subjective voluntariness/totality-of-the-circumstances test and extreme proposals that would have eliminated police interrogation altogether. But William H. Rehnquist didn't see Miranda that …
Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar
Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar
Book Chapters
It is difficult, if not impossible, to discuss Dickerson1 intelligently without discussing Miranda whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this chapter I focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely …
Rethinking The Involuntary Confession Rule: Toward A Workable Test For Identifying Compelled Self-Incrimination, Mark A. Godsey
Rethinking The Involuntary Confession Rule: Toward A Workable Test For Identifying Compelled Self-Incrimination, Mark A. Godsey
Faculty Articles and Other Publications
For more than a century, the Supreme Court has interpreted the Bill of Rights as prohibiting the police from obtaining involuntary confessions from suspects through the use of coercion. If asked whether this involuntary confession rule is an understandable and workable doctrine, however, a noticeable percentage of judges, prosecutors, police officers, criminal defense attorneys and law professors would answer with an unequivocal no.
Basic questions concerning voluntariness and free will - whether it exists, and if so, when it exists, etc. - have puzzled philosophers for centuries and represent one of history's Gordian knots. Not surprisingly, judges have fared no …
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
Articles
Before becoming governor of California, Earl Warren had spent his entire legal career, twenty-two years, in law enforcement. Professor Kamisar maintains that this experience significantly influenced Warren's work as a Supreme Court justice and gave him a unique perspective into police interrogation and other police practices. This article discusses some of Warren's experiences in law enforcement and searches for evidence of that experience in Warren's opinions. For example, when Warren was head of the Alameda County District Attorney's Office, he and his deputies not only relied on confessions in many homicide cases but also themselves interrogated homicide suspects. The seeds …
The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru
The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Whose Music Is It Anyway? How We Came To View Musical Expression As A Form Of Property, Michael W. Carroll
Whose Music Is It Anyway? How We Came To View Musical Expression As A Form Of Property, Michael W. Carroll
Articles in Law Reviews & Other Academic Journals
Many participants in the music industry consider unauthorized transmissions of music files over the Internet to be theft of their property. Many Internet users who exchange music files reject this characterization. Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing music making in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some …
The Role Of The Parent/Guardian In Juvenile Custodial Interrogations: Friend Or Foe?, Hillary B. Farber
The Role Of The Parent/Guardian In Juvenile Custodial Interrogations: Friend Or Foe?, Hillary B. Farber
Faculty Publications
Part II briefly sets out the historical context of juvenile delinquency proceedings before and after the landmark U.S. Supreme Court case In re Gault. Part III discusses the two current approaches to assessing the validity of a juvenile's waiver. Part IV examines three inadequacies with the parent/guardian advisor: (1) the standardless approach with which courts assess their appropriateness; (2) the inadequacy with which adults understand Miranda; and (3) the conflicts of interest that arise in this context. Part V analogizes to the abortion and paternity contexts to support the argument that lawyers should act as primary advisors to …
Postscript: Another Look At Patane And Seibert, The 2004 Miranda 'Poisoned Fruit' Cases, Yale Kamisar
Postscript: Another Look At Patane And Seibert, The 2004 Miranda 'Poisoned Fruit' Cases, Yale Kamisar
Articles
Some months after I finished writing an article that, inter alia, discussed the lower court opinions in Patane and Seibert (an article that appears elsewhere in this issue of the Journa),1 the Supreme Court handed down its decisions in those cases.2 In Patane, a 5-4 majority held admissible a Glock pistol located as a result of a failure to comply with Miranda. In Seibert, a 5-4 majority agreed with the state court that a "second confession," one obtained after the police had deliberately used a two-stage interrogation technique designed to undermine the Miranda warnings, was inadmissible. 3 In Patane, Justice …
A Look Back On A Half-Century Of Teaching, Writing And Speaking About Criminal Law And Criminal Procedure, Yale Kamisar
A Look Back On A Half-Century Of Teaching, Writing And Speaking About Criminal Law And Criminal Procedure, Yale Kamisar
Articles
When I look back at my academic career, I realize that, as hard as I tried to plan things, various events often overrode my plans.
In Defense Of The Search And Seizure Exclusionary Rule (Law And Truth - The Twenty-First Annual National Student Federalist Society Symposium On Law And Public Policy - 2002), Yale Kamisar
Articles
think Dean Pye's advice about casebook writing was sound,6 and what he had to say also applies to discussions and debates about such issues as the search and seizure exclusionary rule. We cannot (at least we should not) begin with Mapp v. Ohio. We need a prelude.
Confessions, Search And Seizure, And The Rehnquist Court, Yale Kamisar
Confessions, Search And Seizure, And The Rehnquist Court, Yale Kamisar
Book Chapters
About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life.
In Moran v. Burbine, a six to three majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (1) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (2) because the police failed to inform the suspect of the attorney's efforts to reach him.
Although Burbine has …
Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar
Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar
Articles
Over the years, Miranda v. Arizona1 has been criticized both for going too far2 and for not going far enough.3 Nevertheless, on the basis of talks with many criminal procedure professors in the sixteen months between the time a panel of the Fourth Circuit upheld a statute (18 U.S.C. § 3501) purporting to "overrule" Miranda and a 7-2 majority of the Supreme Court overturned that ruling in the case of Dickerson v. United States,4 I am convinced that most criminal procedure professors wanted the Supreme Court to do what it did-"reaffirm" Miranda. This is not surprising. As Professor Grano once …
The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow-Kleinhaus
The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow-Kleinhaus
Scholarly Works
No abstract provided.
Congress' Arrogance, Yale Kamisar
Congress' Arrogance, Yale Kamisar
Articles
Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …
"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar
"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar
Articles
I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …