Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Criminal Procedure (126)
- Constitutional Law (125)
- Criminal Law (73)
- Supreme Court of the United States (65)
- Courts (63)
-
- Evidence (47)
- Law Enforcement and Corrections (17)
- Fourteenth Amendment (13)
- Law and Society (13)
- Legal History (12)
- Judges (10)
- Litigation (10)
- Social and Behavioral Sciences (10)
- Civil Rights and Discrimination (9)
- Fourth Amendment (8)
- Jurisprudence (8)
- Legal Ethics and Professional Responsibility (8)
- Public Law and Legal Theory (8)
- Legal Profession (7)
- Common Law (5)
- Immigration Law (5)
- Law and Race (5)
- Sociology (5)
- State and Local Government Law (5)
- Criminology (4)
- Criminology and Criminal Justice (4)
- Law and Politics (4)
- Legal Studies (4)
- Civil Law (3)
- Institution
-
- University of Michigan Law School (58)
- University of Pennsylvania Carey Law School (13)
- New York Law School (9)
- University of Missouri School of Law (8)
- Cornell University Law School (7)
-
- Southern Methodist University (7)
- University of Colorado Law School (7)
- Washington and Lee University School of Law (6)
- Fordham Law School (5)
- Maurer School of Law: Indiana University (5)
- St. Mary's University (5)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (5)
- University of Richmond (5)
- Vanderbilt University Law School (5)
- Boston University School of Law (4)
- University of Cincinnati College of Law (4)
- University of Georgia School of Law (4)
- American University Washington College of Law (3)
- Duke Law (3)
- Georgetown University Law Center (3)
- Touro University Jacob D. Fuchsberg Law Center (3)
- University of Arkansas at Little Rock William H. Bowen School of Law (3)
- University of Denver (3)
- University of Florida Levin College of Law (3)
- Barry University School of Law (2)
- Case Western Reserve University School of Law (2)
- Columbia Law School (2)
- Emory University School of Law (2)
- Penn State Law (2)
- Santa Clara Law (2)
- Publication Year
- Publication
-
- Articles (53)
- Faculty Scholarship (21)
- All Faculty Scholarship (15)
- Faculty Publications (12)
- Scholarly Works (10)
-
- Articles & Chapters (9)
- Faculty Articles (7)
- Faculty Journal Articles and Book Chapters (7)
- Publications (7)
- Cornell Law Faculty Publications (6)
- Journal Articles (6)
- Articles by Maurer Faculty (5)
- Law Faculty Publications (5)
- Vanderbilt Law School Faculty Publications (5)
- Faculty Articles and Other Publications (4)
- Supreme Court Case Files (4)
- Articles in Law Reviews & Other Academic Journals (3)
- Duke Journal of Constitutional Law & Public Policy Sidebar (3)
- Georgetown Law Faculty Publications and Other Works (3)
- Sturm College of Law: Faculty Scholarship (3)
- UF Law Faculty Publications (3)
- Book Chapters (2)
- Nevada Supreme Court Summaries (2)
- Other Publications (2)
- Reviews (2)
- Scholarly Articles (2)
- Cornell Law School J.D. Student Research Papers (1)
- Criminology and Criminal Justice Faculty Publications (1)
- Elisabeth Haub School of Law Faculty Publications (1)
- GGU Law Review Blog (1)
Articles 31 - 60 of 208
Full-Text Articles in Law
The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson
The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson
Scholarly Works
In misdemeanor cases, pretrial detention poses a particular problem because it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas—the thirdlargest county in the United States—to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly …
The Choice Between Right And Easy: Pena-Rodriguez V. Colorado And The Necessity Of A Racial Bias Exception To Rule 606(B), Kevin Zhao
Duke Journal of Constitutional Law & Public Policy Sidebar
Traditionally, under Rule 606(b) of the Federal Rules of Evidence, jurors are barred from testifying towards matters within juror deliberations. However, many jurisdictions in the United States have adopted an exception to this rule for racial prejudice. That is, if a juror comes forward post-verdict to testify that another juror made racially charged comments within the jury room, then the verdict may be overturned. The Supreme Court will address this issue in its upcoming decision in Pena-Rodriguez v. Colorado. This commentary will argue that a racial bias exception is necessary to protect defendants' rights to a fair trial and …
Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas
Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas
All Faculty Scholarship
Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …
Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman
Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman
Articles
Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.
Ring Around The Jury: Reviewing Florida's Capital Sentencing Framework In Hurst V. Florida, Richard Guyer
Ring Around The Jury: Reviewing Florida's Capital Sentencing Framework In Hurst V. Florida, Richard Guyer
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary discusses Hurst v. Florida, a case in which the Supreme court will review Florida's death sentencing scheme to determine whether it violates the Sixth of Eighth Amendments. The author argues that Florida's capital sentencing framework violates the Sixth Amendment. A jury, rather than a judge, better reflects society's moral views, which are critical to weigh when deciding whether to impose the death penalty.
Coming To Grips With The Ethical Challenges For Capital Post-Conviction Representation Posed By Martinez V. Ryan, John H. Blume, W. Bradley Wendel
Coming To Grips With The Ethical Challenges For Capital Post-Conviction Representation Posed By Martinez V. Ryan, John H. Blume, W. Bradley Wendel
Cornell Law Faculty Publications
In its groundbreaking decision in Martinez v. Ryan, 556 U.S. 1 (2012), the Supreme Court of the United States held that inadequate assistance of post-conviction counsel could be sufficient “cause” to excuse a procedural default thus allowing a federal court in habeas corpus proceedings to reach the merits of an otherwise barred claim that an inmate was deprived of his Sixth Amendment right to the effective assistance of counsel at trial. The upshot of Martinez is that, if state post-conviction counsel unreasonably (and prejudicially) fails to raise a viable claim of ineffective assistance of trial counsel, then there is “cause” …
Luis V. United States: Asset Forfeiture Butts Heads With The Sixth Amendment, Jordan Glassberg
Luis V. United States: Asset Forfeiture Butts Heads With The Sixth Amendment, Jordan Glassberg
Duke Journal of Constitutional Law & Public Policy Sidebar
In recent years, the federal government has vastly increased its use of asset forfeiture, the seizure of property connected to illegal activities. As authorized under federal law, the government is also able to restrain assets prior to trial when the government belives those assets will ultimately be found to be forfeitable. This pretrial restraint potentially implicates the constitutionally guaranteed right to counsel for criminal defendants. In the upcoming Supreme Court case of Luis v. United States, the Court will address the question of whether a pretrial restraint of assets which are not traceable to any illegal activity is permissible …
Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi
Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi
Publications
No abstract provided.
Booker's Ironies, Ryan W. Scott
The Antidemocratic Sixth Amendment, Janet Moore
The Antidemocratic Sixth Amendment, Janet Moore
Faculty Articles and Other Publications
Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …
What Gideon Did, Sara Mayeux
What Gideon Did, Sara Mayeux
All Faculty Scholarship
Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.
Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …
Communication And Competence For Self-Representation, E. Lea Johnston
Communication And Competence For Self-Representation, E. Lea Johnston
UF Law Faculty Publications
In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. States have applied these standards to …
Against Professing: Practicing Critical Criminal Procedure, Mae Quinn
Against Professing: Practicing Critical Criminal Procedure, Mae Quinn
Journal Articles
No abstract provided.
Confrontation After Ohio V. Clark, Anne R. Traum
Confrontation After Ohio V. Clark, Anne R. Traum
Scholarly Works
The Supreme Court’s decision in Ohio v. Clark, provides an occasion to take stock of the Sixth Amendment Right to Confrontation since the court’s landmark 2004 decision in Crawford v. Washington. Crawford strengthened a defendant’s right to confront his accusers face-to-face, underscoring that cross-examination is the constitutionally preferred method for testing the reliability of accusatory statements. Clark could eliminate that right in a wide range of cases where, although the reliability of a declarant’s out-of-court statements is critically important, a defendant has no right to confrontation.
The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci
The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci
Articles
This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …
What Is Criminal Restitution?, Cortney E. Lollar
What Is Criminal Restitution?, Cortney E. Lollar
Law Faculty Scholarly Articles
A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel …
An Originalist Argument For A Sixth Amendment Right To Competent Counsel, Erica J. Hashimoto
An Originalist Argument For A Sixth Amendment Right To Competent Counsel, Erica J. Hashimoto
Scholarly Works
The Treason Act of 1696 provided a right to counsel in treason cases in England and laid the framework for the right to counsel both in England and in the United States. Evidence suggests that the Treason Act may have influenced the Framers of the Constitution; thus, any historical understanding of the Sixth Amendment right to counsel should consider the quality of representation treason defendants received. If, as appears to be the case, treason defendants had competent, experienced lawyers representing them, then the Sixth Amendment right to counsel may well include that right to such representation. This Essay suggest that …
Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel
Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel
Articles
Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …
Ineffective Assistance Of Counsel Before Powell V. Alabama: Lessons From History For The Future Of The Right To Counsel, Sara Mayeux
All Faculty Scholarship
The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason …
Videoconference Technology And The Confrontation Clause, Russell Kostelak
Videoconference Technology And The Confrontation Clause, Russell Kostelak
Cornell Law School J.D. Student Research Papers
No abstract provided.
Gideon V. Wainwright A Half Century Later, Yale Kamisar
Gideon V. Wainwright A Half Century Later, Yale Kamisar
Reviews
When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.
Observers As Participants: Letting The Public Monitor The Criminal Justice Bureaucracy, Stephanos Bibas
Observers As Participants: Letting The Public Monitor The Criminal Justice Bureaucracy, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Sentencing And Prior Convictions: The Past, The Future, And The End Of The Prior-Conviction Exception To "Apprendi", Nancy J. King
Sentencing And Prior Convictions: The Past, The Future, And The End Of The Prior-Conviction Exception To "Apprendi", Nancy J. King
Vanderbilt Law School Faculty Publications
This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned. The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use …
Using Outcomes To Reframe Guilty Plea Adjudication, Anne R. Traum
Using Outcomes To Reframe Guilty Plea Adjudication, Anne R. Traum
Scholarly Works
The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea-bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court-level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. …
Autopsy Reports And The Confrontation Clause: A Presumption Of Admissibility, Daniel J. Capra, Joseph Tartakovsky
Autopsy Reports And The Confrontation Clause: A Presumption Of Admissibility, Daniel J. Capra, Joseph Tartakovsky
Faculty Scholarship
Courts nationwide are divided over whether autopsy reports are “testimonial” under the Sixth Amendment’s Confrontation Clause. Resolving that split will affect medical examiners as dramatically as Miranda did police. This article applies the latest Supreme Court jurisprudence to the work of modern medical examiners in a comprehensive inquiry. It argues that autopsy reports should be presumed non-testimonial—a presumption overcome only by a showing that law enforcement involvement materially influenced the examiner’s autopsy report.
The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas
The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky
Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky
All Faculty Scholarship
There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …
Testimonial Is As Testimonial Does, Ben L. Trachtenberg
Testimonial Is As Testimonial Does, Ben L. Trachtenberg
Faculty Publications
In December 2012, the Florida Law Review published Ben Trachtenberg’s article “Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause,” 64 Fla. L. Rev. 1669 (2012). Using the example of hearsay admitted in criminal prosecutions related to the Holy Land Foundation, the article argued that under Crawford v. Washington, courts had begun admitting unreliable hearsay against criminal defendants that previously would have been barred under Ohio v. Roberts, the Confrontation Clause case upended by Crawford.
Richard D. Friedman, the Alene and Allan F. Smith Professor of Law at the University of Michigan, responded in “The Mold …
The Mold That Shapes Hearsay Law, Richard D. Friedman
The Mold That Shapes Hearsay Law, Richard D. Friedman
Articles
In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …
Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein
Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein
Scholarly Works
Whereas in 2013 there had been widespread celebration of the fiftieth anniversary of the landmark Supreme Court decision in Gideon v. Wainwright, much has been written in subsequent years about the unhappy state of the quality of counsel provided to indigents. But it is not just defense counsel who fail to comply with all that we hope and expect would be done by those who are part of our criminal courts; prosecutorial misconduct, if not actually increasing, is becoming more visible. The judiciary chooses to focus on the rapid processing of cases, often ignoring the rights of those being prosecuted …