Criminal Procedure Commons^™

Introduction - The Changed And Changing World Of Constitutional Criminal Procedure: The Contribution Of The Department Of Justice's Office Of Legal Policy, Joseph D. Grano

University of Michigan Journal of Law Reform

The world of constitutional criminal procedure is changing slowly. Repudiating much of the thinking that led to the existing world, the changes are being driven by arguments that share common ground with those expressed in the Office of Legal Policy Reports. The unanswered question is whether tomorrow's changes will mirror the logical ramifications of this new way of thinking. What we cannot know today, as we ponder these Reports, is whether twenty years hence, as a new generation of law students begin to study our endeavors, the mistakes of the 1960s will be little more than "cold history." Whatever our …

The Law Of Pretrial Interrogation, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The existing rules in the United States governing the questioning of suspects in custody are based on the Supreme Court's five to four decision in Miranda v. Arizona. The Court in Miranda promulgated a new, code-like set of rules for custodial questioning, including the creation of a right to counsel in connection with custodial questioning, a requirement of warnings, a prohibition of questioning unless the suspect affirmatively waives the rights set out in the warnings, and a prohibition of questioning if the suspect asks for a lawyer or indicates in any manner that he is unwilling to talk. These …

The Judiciary's Use Of Supervisory Power To Control Federal Law Enforcement Activity, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

In McNabb v. United States, the Supreme Court claimed- for the first time in its history-the prerogative of "establishing and maintaining civilized standards of procedure and evidence" in the exercise of "supervisory authority over the administration of criminal justice in the federal courts." Since then, the Court has used this self-declared oversight power on numerous occasions and for a wide variety of purposes, but it has never adequately explained either the provenance or the scope of this type of judicial authority. Lower federal courts have followed suit, on the largely unexamined assumption that they too are endowed with supervisory …

Double Jeopardy And G0vernment Appeals Of Acquittals, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

As part of a continuing series of papers on impediments to the search for truth in criminal investigation and adjudication, the Office of Legal Policy has carried out a review of the law governing double jeopardy prohibitions on federal government appeals of criminal acquittals. These prohibitions undermine the search for truth in criminal adjudication by allowing some wrongly acquitted, culpable individuals to go unpunished. The results of our review are set out in this Report.

The Admission Of Criminal Histories At Trial, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

As part of a continuing series of studies on impediments to the search for truth in criminal investigation and adjudication, the Office of Legal Policy has carried out a review of the law governing the admission of the criminal records of defendants and other persons at trial. The results of this review are set out in this Report.

The Sixth Amendment Right To Counsel Under The Massiah Line Of Cases, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The sixth amendment guarantees to the accused in a criminal prosecution the right "to have the Assistance of Counsel for his defence." In Massiah v. United States, the Supreme Court held this right was violated when there was used against the defendant at trial evidence of incriminating statements deliberately elicited from him by an informant after he had been indicted and in the absence of counsel. In effect, this decision and others that 'followed have created a new constitutional right not to be questioned about pending charges prior to trial except in the presence of an attorney.

One consequence …

The Search And Seizure Exclusionary Rule, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The fourth amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This guaranty is not self-executing, however, and the courts and criminal justice systems in this country have long been bedeviled by questions concerning appropriate methods of ensuring its observance. As a result of the Supreme Court's decisions in Weeks v. United States and Mapp v. Ohio, the method principally relied upon today is a judicially created rule excluding from criminal trials evidence obtained in violation of the defendant's fourth amendment rights.

The search and seizure …

Adverse Inferences From Silence, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

This Report, the eighth in the Truth in Criminal Justice series, assesses the rules relating to the evidentiary consideration of the defendant's silence. Its general conclusion is that the existing restrictive rules in this area are unjustified impediments to the search for truth. The notion that the fifth amendment's prohibition of compelling a person in a criminal case to be a witness against himself bars drawing adverse inferences from the defendant's silence is not well-founded. In practical effect, these rules impede the conviction of the guilty by barring consideration of an aspect of the defendant's conduct-his failure to respond to …

Police-Obtained Evidence And The Constitution: Distinguishing Unconstitutionally Obtained Evidence From Unconstitutionally Used Evidence, Arnold H. Loewy

Michigan Law Review

The article will consider four different types of police-obtained evidence: evidence obtained from an unconstitutional search and seizure, evidence obtained from a Miranda violation, confessions and lineup identifications obtained in violation of the sixth amendment right to counsel, and coerced confessions. My conclusions are that evidence obtained from an unconstitutional search and seizure is excluded because of the police misconduct by which it was obtained. On the other hand, evidence obtained from a Miranda violation is (or ought to be) excluded because use of that evidence compromises the defendant's procedural right not to be compelled to be a witness against …

Confusing The Fifth Amendment With The Sixth: Lower Court Misapplication Of The Innis Definition Of Interrogation, Jonathan L. Marks

Michigan Law Review

This Note examines how these courts have applied or misapplied Innis, and concludes that, while many of these decisions are consistent with Miranda and Innis, too many others are not. In order to evaluate these cases, it is first necessary to understand the meaning and significance of Innis. Part I thus considers Innis and its background. Part II then examines lower court decisions applying the Innis test, dividing these decisions into six groups based on the most common factual scenarios. Because the cases deal with factually specific police practices, this method constitutes the most useful way to …

Arizona V. Youngblood: Does The Criminal Defendant Lose His Right To Due Process When The State Loses Exculpatory Evidence?, Willis C. Moore

Touro Law Review

No abstract provided.

The Supreme Court's New Vision Of Federal Habeas Corpus For State Prisoners, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar

Articles

Professor Yale Kamisar, the country's foremost scholar of Miranda and police interrogation, presents an analysis and critique of the Supreme Court's latest interpretation of Miranda. In Duckworth, a 5-4 Court upheld the "if and when" language systematically used by the Hammond, Indiana, Police Department: "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." The real issue was whether the police effectively conveyed the substance of a vital part of Miranda: the right to have a lawyer appointed prior to any questioning. Professor Kamisar …