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Articles 1 - 6 of 6
Full-Text Articles in Law
Judicial Fact-Finding At Sentencing, Stephanos Bibas
Judicial Fact-Finding At Sentencing, Stephanos Bibas
All Faculty Scholarship
This encyclopedia entry summarizes the pendulum-swings that led the Supreme Court in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker to limit judges' ability to find facts at sentencing. Paradoxically, the much-criticized Federal Sentencing Guidelines have survived; a line of cases that began as an effort to restore juries' role has turned into a guarantor of judicial discretion; and the doctrine has quickly moved far from its Sixth Amendment roots to a policy balancing test. The Court could instead have pursued a different, more fruitful path. The Court did not have to force sentencing factors into …
Scalian Skepticism And The Sixth Amendment In The Twilight Of The Rehnquist Court, M. Katherine B. Darmer
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, Retroactivity, And The Importance Of Being Earnest, J. Thomas Sullivan
Crawford, Retroactivity, And The Importance Of Being Earnest, J. Thomas Sullivan
Faculty Scholarship
In this article Professor Sullivan examines the Supreme Court's evolving Confrontation Clause jurisprudence through its dramatic return to pre-Sixth Amendment appreciation of the role of cross-examination in the criminal trial reflected in its 2004 decision in Crawford v. Washington. He discusses the past quarter century of the Court's confrontation decisions and their impact on his client, Ralph Rodney Earnest, recounting the defendant's conviction and twenty-four-year litigation journey through state and federal courts to his eventual release from prison in the only successful attempt to use Crawford retroactively known to date.
Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman
Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman
Articles
Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Articles
If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?
A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham
A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham
St. Mary's Law Journal
The Fifth Circuit’s failure to require the uncharged conduct to have a meaningful relationship with the conduct of conviction is flawed. An amendment of section 5K2.21 specifically approved the consideration of uncharged or dismissed offenses to serve as a basis for an upward departure to reflect the actual seriousness of the offense. Confusion amongst federal circuit courts of appeal arose as to whether such conduct included uncharged or dismissed criminal offenses. Interpreting the amendment’s language has caused a circuit split. The Fifth Circuit erroneously interpreted section 5K2.21 as to require nothing more than a “remote connection” between the uncharged crime …