Law Commons^™

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Hold On: The Remarkably Resilient, Constitutionally Dubious "48-Hour Hold", Steven Mulroy

Steven Mulroy

This article discusses the surprisingly widespread, little-known practice of “48-hour holds,” where police detain a suspect without charge or access to bail for up to 48 hours to continue their investigation; at the end of 48 hours, they either charge or release him. Although it has not been discussed in the scholarly literature, the practice has occurred in a number of large local jurisdictions over the past few decades, and continues today in some of them. The “holds” often take place, admittedly or tacitly, without the probable cause needed to charge a defendant, and thus in violation of the Fourth …

“Bull” Coming From The States: Why The U.S. Supreme Court Should Use Williams V. Illinois To Close One Of Bullcoming’S Confrontation Clause Loopholes, Tara Klimek Price

Tara Price

Imagine that you are selected as a juror in a trial where the defendant is accused of driving while under the influence of alcohol. You listen to the police officer who testifies that he observed the defendant and believed him to be intoxicated. You hear about how after obtaining a warrant, the officer took the defendant to the emergency room for a blood-alcohol test. The police officer finishes his testimony, and the next witness will testify about the results of the defendant’s blood-alcohol test.

But before the witness can testify, defense counsel objects. Apparently, this is not the laboratory analyst …

Faint-Hearted Fidelity To The Common Law In Justice Scalia’S Confrontation Clause Trilogy, Ellen Yee

ellen yee

FAINT-HEARTED FIDELITY TO THE COMMON LAW IN JUSTICE SCALIA’S CONFRONTATION CLAUSE TRILOGY Ellen Liang Yee ABSTRACT In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued the third Confrontation Clause opinion in its recent Crawford trilogy. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” The Court’s decision purports to hold that a defendant does not forfeit his Sixth Amendment confrontation …

The Facts About Ring V. Arizona And The Jury's Role In Capital Sentencing, Sam Kamin, Justin Marceau

Sam Kamin

When it was decided in 2002, Ring v. Arizona appeared to be a watershed in the way capital sentences are handed out in the United States: it overturned several states’ death penalty statutes and appeared to imperil many more. Ring announced that the rule of Apprendi v. New Jersey applied to capital sentencing and required that any fact necessary to the imposition of the death penalty be proven to a jury and beyond a reasonable doubt. Yet eight years after the case was decided, it is not clear what, if anything, Ring in fact demands of the states. Determining exactly …

Violent Crimes And Known Associates: The Residual Clause Of The Armed Career Criminal Act, David C. Holman

David Holman

Confusion reigns in federal courts over whether crimes qualify as “violent felonies” for purposes of the Armed Career Criminal Act (ACCA). The ACCA requires a fifteen-year minimum sentence for felons convicted of possessing a firearm who have three prior convictions for violent felonies. Many offenders receive the ACCA’s mandatory minimum sentence of fifteen years based on judges’ guesses that their prior crimes could be committed in a violent manner—instead of based on the statutory crimes of which they were actually convicted. Offenders who do not deserve a minimum sentence of fifteen years may receive it anyway.

The courts’ application of …

Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman

Frank O. Bowman III

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continues in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …

“I’M Dying To Tell You What Happened”: The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Peter Nicolas

In Crawford v. Washington and its progeny, the U.S. Supreme Court has re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote 6 of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This manuscript builds on the dictum set forth in footnote 6 of Crawford, the meaning of which the lower courts are just beginning to explore. In the manuscript, I first demonstrate that the …

Preface: Reclaiming Criminal Procedure, Jeffrey L. Fisher

Jeffrey L Fisher

The key to making sense of Crawford is to appreciate that the decision turned the right to confrontation from an evidentiary principle back into a criminal procedure right. As the Court ultimately put it, the Confrontation Clause "commands . . . that reliability be assessed in a particular manner by testing in the crucible of cross-examination. The Clause Thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.

This way of conceptualizing a constitutional right is unique to criminal procedure. Instead …

Scalian Skepticism And The Sixth Amendment In The Twilight Of The Rehnquist Court, M. Katherine B. Darmer

M. Katherine B. Darmer

While the late Chief Justice William Rehnquist left behind a rich criminal procedure legacy marked by pro-government successes in the Fourth and Fifth Amendment contexts, this paper argues that Rehnquist's vision failed with respect to the Sixth Amendment. In both the Federal Sentencing Guidelines and Confrontation Clause contexts, Justice Scalia marked out very different positions than Rehnquist on both the scope of the right to trial by jury and the right of cross-examination. Ultimately, Scalia's views prevailed, and part of the legacy of the Rehnquist Court is now the invalidation of the U.S. Sentencing Guidelines and a testimonial approach to …

Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …