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The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus
The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus
Michigan Law Review
Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this Article, I argue that if voluntariness is going to be the framework for …
Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer
Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer
Michigan Law Review
Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a …
A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch
A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch
Michigan Law Review
Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first …
Party's Over: Admissibility Of Post-Trial Juror Testimony Should Depend On The Nature Of The Conduct, Justin Gillett
Party's Over: Admissibility Of Post-Trial Juror Testimony Should Depend On The Nature Of The Conduct, Justin Gillett
University of Michigan Journal of Law Reform Caveat
What do you call a weeklong period in which you and a handful of acquaintances drink alcohol every day at lunch, sleep though the afternoons, smoke marijuana and ingest a couple lines of cocaine on occasion? You call it the time when a jury convicted Anthony Tanner and William Conover of conspiracy to defraud the United States and commit various acts of mail fraud. Under a current rule of evidence, which precludes juror testimony to impeach a verdict except on extraneous prejudicial information, juror intoxication is not an external influence about which jurors may testify. A new test for the …
Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger
Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger
Michigan Law Review First Impressions
Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court’s ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic. The Davis ruling could not possibly clear up all the confusion that followed Crawford v. Washington, the landmark 2004 case in which the Court strengthened the right of the accused to confront declarants of testimonial hearsay. In Davis, the Court focused on the facts under review and developed a taxonomy that will be useful in similar cases, but …
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Michigan Law Review First Impressions
The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Michigan Law Review First Impressions
The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. …
Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles
Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles
Michigan Law Review First Impressions
In his concurring opinion in Crawford v. Washington, Chief Justice Rehnquist criticized the majority for holding that the Confrontation Clause applies to “testimonial” statements but leaving for “another day” any effort to define sufficiently what “testimonial” means. Prosecutors and defendants, he said, “should not be left in the dark in this manner.” Over the next two years, both sides grappled with the meaning of testimonial, each gleaning import from sections of Crawford that seemingly proved their test was the right one. When the Court granted certiorari in Davis v. Washington and Hammon v. Indiana (hereinafter Davis), hopes were high that …
Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller
Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller
Michigan Law Review First Impressions
I begin with a question of effectiveness: does the new Confrontation Clause doctrine effectively protect defendants with respect to the most im-portant types of problematic out-of-court statements? Although they leave much room for the introduction of hearsay in the immediate aftermath of crime generally, Davis v. Washington and Hammon v. Indiana (together hereinafter Davis) are better opinions from that broad perspective than I had feared. The new doctrine now covers and provides substantial procedural protection for a very important class of problematic hearsay—statements made to government agents investigating past crime.
Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine
Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine
Michigan Law Review First Impressions
Clarification of the Supreme Court’s newly minted interpretation of the Confrontation Clause was desperately needed, and Davis v. Washington and Hammon v. Indiana promised to provide it. Two terms earlier, in Crawford v. Washington, the Supreme Court had worked a revolutionary transformation of Confrontation Clause analysis by overruling Ohio v. Roberts and severing the link between hearsay jurisprudence and the Clause. Crawford was hailed by the criminal defense bar, since it seemed to presage a sharp reduction in the frequency of so-called “victimless” trials by holding that “testimonial” hearsay, no matter how reliable, was constitutionally inadmissible in the absence of …
The Emerging International Consensus As To Criminal Procedure Rules, Craig M. Bradley
The Emerging International Consensus As To Criminal Procedure Rules, Craig M. Bradley
Michigan Journal of International Law
This article will demonstrate that these general claims, as well as certain observations about specific countries, were, with one significant exception, substantially wrong when they were written. More importantly, due to significant developments in several countries in the years since those reports came out, they are even more wrong now. That is, not only have the U.S. concepts of pre-interrogation warnings to suspects, a search warrant requirement, and the use of an exclusionary remedy to deter police misconduct been widely adopted, but in many cases other countries have gone beyond the U.S. requirements.
The Admission Of Criminal Histories At Trial, Department Of Justice Office Of Legal Policy
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.
18 U.S.C. § 3501 And The Admissibility Of Confessions Obtained During Unnecessary Prearraignment Delay, Matthew W. Frank
18 U.S.C. § 3501 And The Admissibility Of Confessions Obtained During Unnecessary Prearraignment Delay, Matthew W. Frank
Michigan Law Review
Part I thus argues that the admissibility of post-sixth-hour confessions is governed by Mallory, under which a voluntary confession is inadmissible if, but only if, it follows a period of unnecessary delay. Part II addresses a possible objection to this conclusion - namely, that, with limited exceptions, subsection 350l(c) renders all post-sixth hour confessions inadmissible without regard to the reasonableness of the prearraignment delay. This interpretation is derived by negative implication from the proviso in subsection 350l(c) and would require courts to suppress confessions even though there has been no unnecessary delay, and even though the confessions would be …
The Admissibility Of Prior Silence To Impeach The Testimony Of Criminal Defendants, Rex A. Sharp
The Admissibility Of Prior Silence To Impeach The Testimony Of Criminal Defendants, Rex A. Sharp
University of Michigan Journal of Law Reform
This Note focuses on whether a defendant who was called as a witness at the prior, severed trial of a codefendant and refused to testify by invoking the fifth amendment can subsequently be impeached by this silence at his own trial. In addition to the obvious implications this issue has for severed criminal trials, the factors considered when deciding whether impeachment by silence should be allowed generally are in sharpest focus in this factual setting. Thus, the analysis of the constitutional and evidentiary questions this Note enlists to argue that impeachment by silence in this context is permissible applies as …
Criminal Procedure - Searches And Seizures - Admissibility Of Evidence Obtained Through Unlawful Search And Seizure, Neil Flanagin S.Ed.
Criminal Procedure - Searches And Seizures - Admissibility Of Evidence Obtained Through Unlawful Search And Seizure, Neil Flanagin S.Ed.
Michigan Law Review
Defendants were prosecuted and convicted of conspiring to engage in horserace bookmaking and related offenses. The police had secured evidence of defendants' activities by concealing a listening device in premises occupied by them and also by unauthorized and forcible searches. The trial court admitted the evidence so obtained, notwithstanding the fact that the police action in securing it was clearly in violation of both federal and state constitutions and statutes. After conviction, the trial court denied defendants' motion for a new trial. On appeal, held, reversed, three justices dissenting. Evidence obtained in violation of the defendants' constitutional rights is …