Law Commons^™

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …

The Dignitary Confrontation Clause, Erin L. Sheley

Faculty Scholarship

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

With the Supreme Court's recent incorporation-in Ramos v. Louisiana of the Sixth Amendment's jury unanimity requirement to apply to the states, the project of "total incorporation" is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government but also the states with one exception. The Fifth Amendment's grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the …

Juries, Democracy, And Petty Crime, John D. King

Scholarly Articles

The right to trial by jury in criminal cases is basic to the design of American criminal justice and to the structure of American government. Guaranteed by Article III of the Constitution, the Sixth Amendment, and every one of the original state constitutions, the criminal jury was seen as critically important not only to the protection of individual rights but also to the architecture of American democracy. The vast majority of criminal prosecutions today, however, are resolved without even the prospect of community review by a jury. Despite the textual clarity of the guarantee, the Supreme Court has long recognized …

Constitutional Rights In The Time Of Covid-19: Sf Public Defender Sues Sf Superior Court, Alleging Violations Of Detainees’ Sixth Amendment Rights, Golden Gate University School Of Law

GGU Law Review Blog

“One of the most oppressive things a state can do is to take away your freedom and then deny you what’s necessary to win it back,” said Manojar Raju, San Francisco Public Defender, during a rally held on the front steps of San Francisco’s Hall of Justice.

On September 14, 2021, Raju filed a lawsuit against the Superior Court of California and the city of San Francisco. The lawsuit alleges that the San Francisco Superior Court has been routinely violating citizens’ Sixth Amendment right to a speedy trial.

In fact, as of August 30, 2021, there are about 429 people …

Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce …

Santa Fe Reporter Interviews Maryam Ahranjani: Change Of Venue, District Court Judge To Consider Defense’S Argument That A Fair Trial In The Slaying Of Basketball Star Is Impossible In Santa Fe, Maryam Ahranjani, Katherine Lewin

Faculty Scholarship

Maryam Ahranjani, a criminal law professor at the University of New Mexico, concedes that the "accessibility" of information is much different now than when the Founding Fathers ratified the Sixth Amendment (the right to a speedy and public trial by an impartial jury), but that the original idea of that section of the Constitution stemmed from the belief trials are best held in the community in which they occurred.

"Certainly judges are willing to change venues sometimes, consistent with that original idea that the local community is what defines the crime and so they're the ones who should determine whether …

What’S In A Name? Strict Scrutiny And The Right To A Public Trial, Stephen Smith

Faculty Publications

The right to a public trial has only rarely been addressed by the Supreme Court, but in Waller v. Georgia, the Court set forth a test for determining when it is appropriate to close a courtroom to the public, despite the general public trial command. The language of the Waller test suggests great rigor. This essay proposes a reconsideration of the test for courtroom closures, rethinking whether traditional strict scrutiny thinking is appropriate in this constitutional and practical context. That said, this essay does not argue with Waller’s broad outlines. Courts making closure decisions should consider reasons and …

Transparency In Plea Bargaining, Jenia I. Turner

Faculty Journal Articles and Book Chapters

lea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it …

A Small But Mighty Docket: Select Criminal Law And Procedure Cases From The Supreme Court's 2019-20 Term, Eve Brensike Primus, Jeremy Shur

Articles

With its 2019-20 Term disrupted by the COVID-19 pandemic, the Supreme Court released just 53 signed decisions, the fewest decisions in a Term since the Civil War. But the Court's lighter docket still featured important criminal law and procedure cases touching on what constitutes reasonable individualized suspicion, the necessity of jury unanimity, and the proper form of the insanity defense.

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would …

The Right To A Public Trial In The Time Of Covid-19, Stephen E. Smith

Faculty Publications

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific …

Nevada V. Inzunza, 135 Nev. Adv. Op. 69 (Dec. 26, 2019), Christopher Gonzalez

Nevada Supreme Court Summaries

The Court affirmed a pretrial motion to dismiss of an indictment after it determined that the State failed to rebut the presumption of prejudice after an analysis under the Barker-Doggett factors. The Court afforded “the only possible remedy” after it was found that a 26 month delay resulted from the State’s gross negligence and the delay was prejudicial to Inzunza.

Anderson (Arnold) V. State, 135 Nev. Adv. Op. 37 (Sept. 5, 2019), Alexandra Matloff

Nevada Supreme Court Summaries

The Court held that if a trial court determines by a preponderance of the evidence that a witness is unable to testify because the defendant wrongfully procured the witness’s unavailability and acted with intent to do so, the forfeiture-by-wrongdoing exception can be applied in order to deny a defendant’s rights under the Confrontation Clause of the Sixth Amendment. The Court also held that in determining whether the forfeiture-by-wrongdoing exception applies, the trial court must hear the opposing parties’ arguments in the absence of a jury.

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support …

Reviving Escobedo, Janet Moore

Faculty Articles and Other Publications

This Symposium Essay reflects on the fifty years that have passed since the Chicago Eight trial by highlighting a new development in criminal procedure that has drawn little scholarly attention: Judges are reviving the right of stationhouse access to defense counsel along lines previously envisaged in Escobedo v. Illinois. The Essay also offers fresh historical and theoretical perspective on the need for stationhouse counsel. First, the Essay draws on a series of events occurring during and after the Chicago Eight trial to illustrate the interrelationship of violence and silence in criminal legal systems, the distinctive coerciveness of custodial interrogation for …

Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane

Law Faculty Publications

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, …

Privatizing Criminal Procedure, John D. King

Scholarly Articles

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology …

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

Scholarly Works

In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …

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 …

Runaway Jury: An Analysis Of State Laws Concerning Juror Impeachment, Brenda I. Rowe, Wesley S. Mccann

Criminology and Criminal Justice Faculty Publications

The no impeachment rule bars the admission into evidence of juror testimony regarding jury deliberations in proceedings questioning the validity of a verdict. In Pena-Rodriguez v. Colorado (2017), the U.S. Supreme Court created a constitutional exception to the no impeachment rule to allow impeachment of a verdict by a juror’s testimony regarding a fellow juror’s clear statement during jury deliberations indicating reliance on racial bias as a substantial motivating factor for that juror’s vote. This study traces the history of the no impeachment rule, analyzes the Court’s decision in Pena-Rodriguez v. Colorado (2017), examines variation in exceptions provided by states’ …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

Cornell Law Faculty Publications

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

Racial Character Evidence In Police Killing Cases, Jasmine Gonzales Rose

Faculty Scholarship

The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors …

Defense Counsel And Public Defence, Eve Brensike Primus

Book Chapters

Public-defense delivery systems nationwide are grossly inadequate. Public defenders are forced to handle caseloads that no one could effectively manage. They often have no funding for investigation or expert assistance. They aren’t adequately trained, and there is little to no oversight of their work. In many jurisdictions, the public-defense function is not sufficiently independent of the judiciary or the elected branches to allow for zealous representation. The result is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process. Innocent people are convicted, precious resources are wasted, and …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Limits(?) Of Originalism, Gary S. Lawson

Faculty Scholarship

Crawford v. Washington, which revamped (and even revolutionized) interpretation and application of the Sixth Amendment’s Confrontation Clause, just might be Justice Scalia’s most important majority opinion, for three reasons. First, its impact on the criminal justice system has been immense, and even if the case is overruled in the near future, as seems quite possible, that effect will still likely exceed the concrete impact of any other opinion that he wrote. Second, and more importantly, Crawford emphasizes the trite but crucial point that methodology matters. Crawford has generally been a boon to criminal defendants and a bane to prosecutors. When …

Qualitative Diversity: Affirmative Action's New Reframe, Eang L. Ngov

Faculty Scholarship

No abstract provided.

From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold

Articles

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art—rooted in assessing the individual “character” of the potential parolee. In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes …

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 …

Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore

Faculty Articles and Other Publications

No abstract provided.