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Articles 1 - 25 of 25
Full-Text Articles in Law Enforcement and Corrections
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 …
J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson
J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson
Michigan Law Review First Impressions
This Term, the Supreme Court was presented with a prime opportunity to provide some much-needed clarification on a "backdrop" issue of law-one of many topics that arises in a variety of legal contexts, but is rarely analyzed on its own terms. In J.D.B. v. North Carolina, the Court considered whether age was a relevant factor in determining if a suspect is "in custody" for Miranda purposes, and thus must have her rights read to her before being questioned by the police. Miranda, like dozens of other areas of law, employs a reasonable person test on the custodial question: it asks …
Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar
Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar
Articles
June marks the 40th anniversary of one of the most praised, most maligned-and probably one of the most misunderstood-U.S. Supreme Court cases in American history, Miranda v. Arizona. The opinion by Chief Justice Earl Warren conditions police questioning of people in custody on the giving of warnings about the right to remain silent, the right to counsel and the waiver of those rights. 384 U.S. 436. This ruling represents a compromise of sorts between the former elusive, ambiguous and subjective voluntariness/totality-of-the-circumstances test and extreme proposals that would have eliminated police interrogation altogether. But William H. Rehnquist didn't see Miranda that …
Congress' Arrogance, Yale Kamisar
Congress' Arrogance, Yale Kamisar
Articles
Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …
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.
Errors In Good Faith: The Leon Exception Six Years Later, David Clark Esseks
Errors In Good Faith: The Leon Exception Six Years Later, David Clark Esseks
Michigan Law Review
Given this vast literature on the good faith exception, little room appears to exist for additional commentary on the propriety of the decision, its theoretical weaknesses or strengths, or what further changes in constitutional criminal procedure it forebodes. This Note will not add to the many voices complaining of the Court's misconstrual of the grounding of the exclusionary rule, nor of its crabbed notion of deterrence. Instead, it accepts, arguendo, the propriety of the exception and its underlying purpose, and then examines the six-year experience with the revised rule. The proliferation of reported applications of the good faith exception …
Confusing The Fifth Amendment With The Sixth: Lower Court Misapplication Of The Innis Definition Of Interrogation, Jonathan L. Marks
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 …
Police-Obtained Evidence And The Constitution: Distinguishing Unconstitutionally Obtained Evidence From Unconstitutionally Used Evidence, Arnold H. Loewy
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 …
Arizona V. Youngblood: Does The Criminal Defendant Lose His Right To Due Process When The State Loses Exculpatory Evidence?, Willis C. Moore
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.
'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar
'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar
Articles
It is not . . . easy to see what the shock-the-conscience test adds, or should be allowed to add, to the deterrent function of exclusionary rules. Where no deterrence of unconstitutional police behavior is possible, a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence. So spoke Judge Robert H. Bork, concurring in a ruling that the fourth amendment exclusionary rule does not apply to foreign searches conducted exclusively by foreign officials. A short time thereafter, when an interviewer …
Loss Of Innocence: Eyewitness Identification And Proof Of Guilt, Samuel R. Gross
Loss Of Innocence: Eyewitness Identification And Proof Of Guilt, Samuel R. Gross
Articles
It is no news that eyewitness identification in criminal cases is a problem; it is an old and famous problem. Judges and lawyers have long known that the identification of strangers is a chancy matter, and nearly a century of psychological research has confirmed this skeptical view. In 1967 the Supreme Court attempted to mitigate the problem by regulating the use of eyewitness identification evidence in criminal trials; since then it has retreated part way from that effort. Legal scholars have written a small library of books and articles on this problem, the courts' response to it, and various proposed …
Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar
Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar
Articles
Twenty years ago, concurring in Mapp v. Ohio (1961), Justice William 0. Douglas looked back on Wolf v. Colorado (1949) (which had held that the Fourth Amendment's substantive protection against "unreasonable search and seizure" was binding on the states through the due process clause, but that the Fourth Amendment exclusionary rule was not) and recalled that the Wolf case had evoked "a storm of controversy which only today finds its end." But, of course, in the twenty years since Justice Douglas made that observation the storm of controversy has only intensified, and it has engulfed the exclusionary rule in federal …
Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag
Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag
Publications
No abstract provided.
The Privacy Protection Act Of 1980: Curbing Unrestricted Third-Party Searches In The Wake Of Zurcher V. Stanford Daily, Jose M. Sariego
The Privacy Protection Act Of 1980: Curbing Unrestricted Third-Party Searches In The Wake Of Zurcher V. Stanford Daily, Jose M. Sariego
University of Michigan Journal of Law Reform
This article analyzes the Privacy Protection Act as a response to Zurcher. Part I discusses the Zurcher decision and its effect on First and Fourth Amendment rights, as well as its impact on state testimonial privileges. Part II critically examines key features of the statute, focusing on the parties and materials protected, the police practices regulated, the remedies provided for violations, and the Act's constitutional underpinnings. Part II also offers suggestions for remedying the problems the Act currently presents. The article concludes that the Privacy Protection Act, while a necessary first step to minimizing the impact of Zurcher, is …
Exclusionary Rule: Reasonable Remarks On Unreasonable Search And Seizure, Yale Kamisar
Exclusionary Rule: Reasonable Remarks On Unreasonable Search And Seizure, Yale Kamisar
Articles
Can we live with the so-called exclusionary rule, which bars the use of illegally gained evidence in criminal trials? Can the Fourth Amendment live without it? A growing number of lawyers and judges, including Chief Justice Warren Burger, have called for abandonment of the rule, usually on the ground that it has not prevented illegal searches and seizures and on the ground that the rule has contributed significantly to the increase in crime. No one has convincingly demonstrated a causal link between the high rate of crime in America and the exclusionary rule, and I do not believe that any …
The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar
The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar
Articles
In the 65 years since the Supreme Court adopted the exclusionary rule, few critics have attacked it with as much vigor and on as many fronts as did Judge Malcolm Wilkey in his recent Judicature article, "The exclusionary rule: why suppress valid evidence?" (November 1978).
Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar
Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar
Articles
More than 50 years have passed since the Supreme Court decided the Weeks case, barring the use in federal prosecutions of evidence obtained in violation of the Fourth Amendment, and the Silverthorne case, invoking what has come to be known as the "fruit of the poisonous tree" doctrine. The justices who decided those cases would, I think, be quite surprised to learn that some day the value of the exclusionary rule would be measured by-and the very life of the rule might depend on-an empirical evaluation of its efficacy in deterring police misconduct. These justices were engaged in a less …
Criminal Procedure--Self-Incrimination--Harmless Error--Application Of The Harmless Error Doctrine To Violations Of Miranda: The California Experience, Michigan Law Review
Criminal Procedure--Self-Incrimination--Harmless Error--Application Of The Harmless Error Doctrine To Violations Of Miranda: The California Experience, Michigan Law Review
Michigan Law Review
Using decisions of the appellate courts of California that have applied the federal harmless error rule to violations of Miranda v. Arizona and Escobedo v. Illinois, this Note will examine the logic and effects of the California application. However, the California experience can only be understood by first briefly describing the United States Supreme Court's decisions regarding harmless constitutional error and then showing the approaches taken by other states in their application of the harmless error rule to Miranda violations. Not only will this analysis put the California experience in its proper perspective, but it will also show the …
Searches Without Warrants, Jerold H. Israel
Searches Without Warrants, Jerold H. Israel
Book Chapters
My primary area of concentration today is the search made without a warrant. Studies indicate that 95 percent or more of all searches are without warrants. It is quite understandable, then, that most of the search-and-seizure litigation concerns the validity of searches without warrants.
Custodial Police Interrogation In Our Nation's Capital: The Attempt To Implement Miranda, Richard J. Medalie, Leonard Zeitz, Paul Alexander
Custodial Police Interrogation In Our Nation's Capital: The Attempt To Implement Miranda, Richard J. Medalie, Leonard Zeitz, Paul Alexander
Michigan Law Review
In his attempt to define the meaning of democracy, Carl Becker, looking back to Plato's view of society, observed that "[a]ll human institutions, we are told, have their ideal forms laid away in heaven, and we do not need to be told that the actual institutions conform but indifferently to these ideal counterparts." Becker's observation may well set the perspective from which to view what occurred when the attempt was made in the District of Columbia to implement the Supreme Court's decision in Miranda v. Arizona.
Search By Consent, Jerold H. Israel
Search By Consent, Jerold H. Israel
Book Chapters
My topics this morning are eavesdropping, search by consent and entrance gained by fraud and deceit. You should be forewarned that these are areas in which the law has been "on the move" for the past few years. Changes have occurred and still more will take place in the future. I will attempt to anticipate some of those developments, but, obviously, the only safe course is keeping up-to-date through continuing education. In covering my assigned topics, I hope to paint with a rather broad brush. It has always been my feeling that the pohce officer cannot be expected to learn …
Recent Developments In The Law Of Search And Seizure, Jerold H. Israel
Recent Developments In The Law Of Search And Seizure, Jerold H. Israel
Book Chapters
This article is designed to provide a survey of recent decisions dealing with several important issues in the area of search and seizure. It is intended primarily as a basic collection of sources. I have, therefore, sought to keep my own commentary at a minimum and the citations to relevant cases at a maximum. Wherever space permits, I have let the courts speak for themselves. In most instances, however, it has been necessary to provide fairly general descriptions of the cases.
'Custodial Interrogation' Within The Meaning Of Miranda, Yale Kamisar
'Custodial Interrogation' Within The Meaning Of Miranda, Yale Kamisar
Book Chapters
The primary conceptual hurdle confronting the Miranda Court was the "legal reasoning" that any and all police interrogation is unaffected by the privilege against self-incrimination because such interrogation does not involve any kind of judicial process for the taking of testimony; inasmuch as police officers have no legal authority to compel statements of any kind, there is no legal obligation, ran the argument, to which a privilege can apply. See, e.g., the discussion and authorities collected in Kamisar, A Dissent from the Miranda Dissents: Some Comments on the "New" Fifth Amendment and the Old "Voluntariness" Test, 65 MICH. L. REv. …
The Citizen On Trial: The New Confession Rules, Yale Kamisar
The Citizen On Trial: The New Confession Rules, Yale Kamisar
Articles
Commenting on why it has taken the United States so long to apply "the privilege against self-incrimination and the right to counsel to the proceedings in the stationhouse as well as to those in the courtroom" - as the Supreme Court did in Miranda v. Arizona - this author notes that, "To a large extent this is so because here, as elsewhere, there has been a wide gap between the principles to which we aspire and the practices we actually employ."
Police Interrogation And The Supreme Court--The Latest Round, Jerold H. Israel
Police Interrogation And The Supreme Court--The Latest Round, Jerold H. Israel
Book Chapters
My first task is to explain to some degree the nature of the problem embodied in our title. This book has been designated as "Escobedo-The Second Round." What we will be discussing is a series of cases, decided in June, 1966, the most noteworthy of which is Miranda v. Arizona [384 U.S. 436 (1966)]. In these cases, the United States Supreme Court prescribed a new set of standards governing the introduction in evidence of statements obtained from the defendant through police interrogation. Actually, to a degree these standards were not entirely new. They had been suggested, at least in part, …