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Articles 1 - 10 of 10
Full-Text Articles in Law
Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz
Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz
Faculty Publications
Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants. The …
Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz
Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz
Faculty Publications
No abstract provided.
All Men Are (Or Should Be) Created Equal: An Argument Against The Use Of The Cultural Defense In A Post-Booker World, Elizabeth Martin
All Men Are (Or Should Be) Created Equal: An Argument Against The Use Of The Cultural Defense In A Post-Booker World, Elizabeth Martin
William & Mary Bill of Rights Journal
No abstract provided.
The Jurisprudence Of Punishment, Kyron Huigens
The Jurisprudence Of Punishment, Kyron Huigens
William & Mary Law Review
No abstract provided.
Terrorism And The New Criminal Process, John T. Parry
Terrorism And The New Criminal Process, John T. Parry
William & Mary Bill of Rights Journal
No abstract provided.
Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum
Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum
William & Mary Bill of Rights Journal
No abstract provided.
The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait
The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait
Articles & Chapters
After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American …
Imposing A Cap On Capital Punishment, Adam M. Gershowitz
Imposing A Cap On Capital Punishment, Adam M. Gershowitz
Faculty Publications
No abstract provided.
The Principled Exception And The Forgotten Criterion, Steve Coughlan
The Principled Exception And The Forgotten Criterion, Steve Coughlan
Articles, Book Chapters, & Popular Press
The principled exception to the hearsay rule is routinely described as being settled by the "twin criteria" of necessity and reliability. In fact a third criterion is also — or at least ought to be — at play: that admitting the evidence through hearsay would not undermine any other rule of evidence. The Court has made reference to this third criterion in the past, but it has largely been ignored in both Supreme Court and lower court decisions. The recent judgement in Couture depends in a limited way on that question, and so it marks an opportunity to articulate the …
Against Orthodoxy: Miranda Is Not Prophylactic And The Constitution Is Not Perfect, Lawrence Rosenthal
Against Orthodoxy: Miranda Is Not Prophylactic And The Constitution Is Not Perfect, Lawrence Rosenthal
Lawrence Rosenthal
In the four decades since the decision in Miranda v. Arizona, two point of consensus have emerged about that decision. The first area of agreement is that Miranda’s rationale for requiring its now-famous warnings is wrong, or at least dramatically overstated. In Michigan v. Tucker, the Court first labeled Miranda warnings as “prophylactic standards.” For their part, Miranda’s advocates do not spend much time defending its conception of unwarned custodial interrogation as inherently coercive. The second point of agreement is that Miranda has turned out to be a failure combating the coercive nature of custodial interrogation. Despite Miranda, coerced confessions …