Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Sixth Amendment (3)
- Supreme Court (2)
- Absent Declarants (1)
- Charles Bell (1)
- Confrontation Clause (1)
-
- Constitutional Criminal Procedure (1)
- Crawford v. Washington (1)
- Death penalty (1)
- Doctrinal Shifts (1)
- Donald Paradis (1)
- Effective counsel (1)
- Evidence Rules (1)
- Exclusionary Rule (1)
- Fact Finding (1)
- Fifth Amendment (1)
- Hearsay Declarations (1)
- Hearsay Exception (1)
- Illegally-Obtained Evidence (1)
- James v. Illinois (1)
- Judge Henry Friendly (1)
- Judicial Discretion (1)
- Jury (1)
- Justice Antonin Scalia (1)
- Lafler v. Cooper (1)
- Missouri v. Frye (1)
- Nonhearsay (1)
- Plea bargaining (1)
- Proof (1)
- Prosecutorial Neglect (1)
- Right to counsel (1)
Articles 1 - 6 of 6
Full-Text Articles in Criminal Law
The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green
Faculty Scholarship
In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Faculty Scholarship
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …
Truth, Deterrence, And The Impeachment Exception , James L. Kainen
Truth, Deterrence, And The Impeachment Exception , James L. Kainen
Faculty Scholarship
James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …
Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein
Faculty Scholarship
This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …
Lethal Fiction: The Meaning Of "Counsel" In The Sixth Amendment , Bruce A. Green
Lethal Fiction: The Meaning Of "Counsel" In The Sixth Amendment , Bruce A. Green
Faculty Scholarship
Charles Bell, Donald Paradis, and Shirley Tyler were tried in different states for murder. Each was convicted and sentenced to death. Charles Bell was represented at trial by a recent law school graduate who had never before tried a criminal case to completion. Donald Paradis's lawyer had passed the bar exam six months earlier, had never previously represented a criminal accused, and had not elected courses in criminal law, criminal procedure, or trial advocacy while in law school. Shirley Tyler's trial lawyer was also a member of the bar for only a few months. He had defended one previous assault …
Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen
Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen
Faculty Scholarship
The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …