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Plea Bargaining And The Right To Counsel At Bail Hearings, Charlie Gerstein
Plea Bargaining And The Right To Counsel At Bail Hearings, Charlie Gerstein
Michigan Law Review
A couple million indigent defendants in this country face bail hearings each year and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held …
Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz
Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz
Michigan Law Review
In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a …
Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Michigan Law Review
What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …
Identifying And (Re)Formulating Prophylactic Rules, Safe Harbors, And Incidental Rights In Constitutional Criminal Procedure, Susan R. Klein
Identifying And (Re)Formulating Prophylactic Rules, Safe Harbors, And Incidental Rights In Constitutional Criminal Procedure, Susan R. Klein
Michigan Law Review
The Miranda conundrum runs something like this. If the Miranda decision represents true constitutional interpretation, and all unwarned statements taken during custodial interrogation are "compelled" within the meaning of the Self-Incrimination Clause, the impeachment and "fruits" exceptions to Miranda should fall. If it is not true constitutional interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part …
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Michigan Law Review
Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …
Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker
Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker
Michigan Law Review
For the purposes of my argument, I adapt Professor Meir Dan-Cohen's distinction (which he in turn borrowed from Jeremy Bentham) between "conduct" rules and "decision" rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, "conduct" rules are addressed to the general public in order to guide its behavior (for example, "Let no person steal") and "decision" rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, "Let the judge cause whoever is convicted of stealing to be hanged"). But as any …
Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review
Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review
Michigan Law Review
Part I briefly identifies the considerations underlying the Stone Court's decision to limit habeas corpus review of fourth amendment claims. Part II then argues against applying Stone to the sixth amendment claim. After establishing the analytic difference between the two constitutional claims and examining Stone's "opportunity for full and fair litigation" standard, it concludes that Stone is fully consistent with free review of habeas corpus petitions alleging incompetent handling of fourth amendment questions. Finally, responding to a popular interpretation of Stone, Part II demonstrates that the possibility that ineffectiveness claims may not further the determination of a defendant's …
The Future Of Confrontation, Peter K. Westen
The Future Of Confrontation, Peter K. Westen
Michigan Law Review
The Supreme Court seems to be setting the stage for a long-awaited examination of the confrontation clause. It has been ten years since the Court endeavored in Dutton v. Evans to reconcile the evidentiary rules of hearsay with the constitutional commands of confrontation. Dutton came at the tail end of a string of confrontation cases that the Court had resolved without apparent difficulty. Not surprisingly, the Court approached Dutton in the evident belief that it could resolve the constitutional problems of hearsay once and for all. Instead, after oral argument in 1969 and a rehearing in 1970, the Court found …
Kirby, Biggers, And Ash: Do Any Constitutional Safeguards Remain Against The Danger Of Convicting The Innocent?, Joseph D. Grano
Kirby, Biggers, And Ash: Do Any Constitutional Safeguards Remain Against The Danger Of Convicting The Innocent?, Joseph D. Grano
Michigan Law Review
Even recognizing the danger of misidentification, procedural safeguards, especially constitutional ones, are not readily apparent. Some judges, such as Justice Stewart, find less need for counsel at photographic displays than at lineups; others find an equivalent or even greater need for counsel. Some judges, in approving on-the-scene identifications without counsel, find a guarantee of accuracy in the short interval between the crime and the identification; other judges decry such procedures and find them inherently suggestive. The problem stems directly from the lack of scientific knowledge and inquiry. Therefore, in analyzing the recent identification cases, this Article will draw upon experimental …
Criminal Law-Confessions-Admission Of Illegally Obtained Confession In State Criminal Prosecution Is Harmless Error Not Requiring Reversal Of Conviction--People V. Jacobson, Michigan Law Review
Criminal Law-Confessions-Admission Of Illegally Obtained Confession In State Criminal Prosecution Is Harmless Error Not Requiring Reversal Of Conviction--People V. Jacobson, Michigan Law Review
Michigan Law Review
Defendant voluntarily admitted that he had murdered his daughter to a social worker, two ambulance attendants, and three police officers sent to investigate the incident. He continued to declare his guilt to these officers after his arrest, on the way to the police station, and at the police station where he was interrogated without the benefit of counsel although he had not waived his right to counsel. All of the confessions-approximately ten-were admitted in evidence at the defendant's trial over his objection that the two confessions obtained during the interrogation should have been excluded since he had been denied his …
Kamisar, Inbau & Arnold: Criminal Justice In Our Time, Theodore Souris
Kamisar, Inbau & Arnold: Criminal Justice In Our Time, Theodore Souris
Michigan Law Review
A Review of Criminal Justice in Our Time by Yale Kamisar, Fred E. Inbau, and Thurman Arnold
The Constitution And Contempt Of Court, Ronald Goldfarb
The Constitution And Contempt Of Court, Ronald Goldfarb
Michigan Law Review
Few legal devices find conflict within the lines of our Constitution with the ubiquity of the contempt power. These conflicts involve issues concerning the governmental power structure such as the separation of powers and the delicate balancing of federal-state relations. In addition, there are civil rights issues attributable to the conflict between the use of the contempt power and such vital procedural protections as the right to trial by jury, freedom from self-incrimination, double jeopardy, and indictment-to name only the most recurrent and controversial examples. Aside from these problems, there are other civil liberties issues, such as those involving freedom …