Digital Commons Network^™

Ballot Propositions: The Challenge Of Direct Democracy To State Constitutional Jurisprudence, James M. Fischer

UC Law Constitutional Quarterly

No abstract provided.

Systematic Exclusion Of Cognizable Groups By Use Of Peremptory Challenges, Stephen W. Dicker

Fordham Urban Law Journal

An integral part of the jury selection process is the individual challenge, where a party has the privilege to remove potentially biased jurors. There are two forms of the individual challenge: for cause and peremptory. For cause challenges must be based on a legally provable bias, whereas peremptory challenges may be used to remove jurors who possess a bias peculiar to the immediate case, but whose bias is not articulable in terms of a challenge for cause. Given the vague underpinnings and potential abuses of the peremptory challenge, legislatures enforce a limitation on the number of such challenges a party …

The Minnesota Commitment Act Of 1982 Summary And Analysis, Eric S. Janus, Richard M. Wolfson

Faculty Scholarship

Minnesota law governing commitments has been substantially

revised and recodified in the Minnesota Commitment Act of 1982.

The prior law is repealed and the new law is substituted for it effective

August 1, 1982.

This article has three purposes. First, the significant changes in

the civil commitment law are identified and their implications explored.

Second, where appropriate, the legal background underlying

the changes is explored in order to place the changes in context.

Third, the article identifies ambiguities and inconsistencies in the

Act, posits resolutions, and suggests areas for legislative attention.

Constitutional Limitations On Prosecutorial Discovery, Eric Blumenson

Suffolk University Law School Faculty Works

The purpose of this Article is to explore the constitutional implications of prosecutorial discovery and to define the limits that the Constitution imposes upon it. Following an examination of the impact of prosecutorial discovery on the accusatorial system of justice, this Article identifies and describes four constitutionally grounded principles which call into question whether prosecutorial discovery may permissibly be expanded beyond the scope of the rule upheld by the Supreme Court in Williams v. Florida. First, the fifth amendment privilege against self-incrimination, as interpreted by the Supreme Court in Williams, limits prosecutorial discovery to evidence that the defendant presently intends …

Questions Surrounding Virginia's Death Penalty, James T. Lloyd Jr.

University of Richmond Law Review

On August 10, 1982, Frank J. Coppola died in Virginia's electric chair. His was the fifth execution since the 1976 Supreme Court decision holding that a punishment of death was not unconstitutional per se. In the Commonwealth of Virginia, Coppola's was the first execution in over a decade.

The Exclusionary Rule In Germany, Craig M. Bradley

Articles by Maurer Faculty

The exclusionary rule that the Supreme Court has fashioned to suppress evidence obtained unconstitutionally is directed at least in part toward deterring police conduct that violates constitutional norms. Since the inception of the rule, the value and efficacy of a prescript that excludes otherwise relevant and probative evidence in a factfinding proceeding has been a subject of heated debate. In this Article, Professor Bradley examines the rather different exclusionary rules used in Germany. He argues that a comparison of exclusionary rules in Germany and the United States suggests that a number of different policies of a criminal justice system could …

Prosecutorial Peremptory Challenge Practices In Capital Cases: An Empirical Study And A Constitutional Analysis, Bruce J. Winick

Michigan Law Review

As presently construed, the Constitution does not prohibit the death penalty. The states and the federal government may punish the commission of certain crimes with death, so long as the extreme penalty is not imposed on a mandatory basis and so long as the procedures used in imposing a death sentence meet constitutional scrutiny.

A demonstration that the prosecutor used the peremptory challenge in the manner described in a single case probably would be insufficient to support a constitutional challenge in the federal courts and in the vast majority of state courts. In these courts a prosecutor's use of the …

Prosecutorial Vindictiveness In The Criminal Appellate Process: Due Process Protection After United States V. Goodwin, Michigan Law Review

Michigan Law Review

This Note reformulates the doctrine of prosecutorial vindictiveness in light of the distinction drawn in Goodwin between pretrial and posttrial charging decisions. Part I recounts the development of the vindictiveness concept, and argues that in extending the doctrine beyond the factual settings which moved the Supreme Court to fashion its original prophylactic rule, the circuit courts have seriously eroded an essential due process safeguard. Part II critically examines the distinction between pretrial and posttrial charging decisions relied upon in Goodwin. Developing the logical corollary of the Goodwin holding, this Part argues that just as the pretrial situation does not …

Constitutional Constraints On The Admissibility Of Grand Jury Testimony: The Unavailable Witness, Confrontation, And Due Process, Barbara L. Strack

University of Michigan Journal of Law Reform

Defendants, however, have raised serious constitutional objections to the introduction of grand jury testimony when the witness is unavailable to testify at trial. These claims have focused on the confrontation clause of the sixth amendment and the due process clauses of the fifth and fourteenth amendments. Defendants have contended that the introduction of testimony from a grand jury proceeding which cannot be subjected to cross-examination fatally compromises the defendant's right to a fair trial. Lower courts are split over admitting grand jury testimony in these circumstances, and the Supreme Court has yet to rule on the issue. As a result, …

The Constitutionality Of The Special Prosecutor Law, Donald J. Simon

University of Michigan Journal of Law Reform

This Article explores the constitutional questions posed by the special prosecutor law and concludes that the law is constitutional. Part I examines the political setting that gave rise to the special prosecutor provisions and discusses the intent of the drafters. Part II explains the precise manner in which the provisions operate and surveys the recent experience under the law. Finally, part III evaluates the constitutional objections raised by critics of the legislation.

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 …

Punishment And Juvenile Justice: A Conceptual Framework For Assessing Constitutional Rights Of Youthful Offenders, Martin R. Gardner

Vanderbilt Law Review

This Article attempts to provide an analytical framework for identifying the punitive aspects of the juvenile justice system. The Article proposes a framework that is extrapolated from Supreme Court cases which define punishment in contexts outside the juvenile area. Several commentators have criticized the Court's definitional efforts, some because of perceived inadequacies in the developed definitions, others because of the belief that the very enterprise of defining constitutional rights in terms of the presence or absence of punishment is misguided . Although many of these criticisms of the Court's record are understandable, the alleged defects are less detrimental to an …

Defense Of The Civilly Disobedient, Deborah Greenblatt

North Carolina Central Law Review

No abstract provided.

The Media In The Courtroom: Attending, Reporting, Televising Criminal Cases, Paul Marcus

Faculty Publications

No abstract provided.

Constitutional Law And Civil Rights, Kingsley R. Browne

Law Faculty Research Publications

During the period covered by this survey, most of the constitutional law and civil rights cases considered by the Tenth Circuit Court of Appeals were discrimination actions brought under either section 1983 of the Civil Rights Act of 1871 or Title VII of the Civil Rights Act of 1964. Some of the other topics dealt with by the court were age discrimination, Indian rights, prisoners' rights, drug paraphernalia, ballot access, religious freedom, and the supremacy clause.

A Tribute To Justice Abe Fortas, Arthur J. Goldberg

UC Law Constitutional Quarterly

No abstract provided.

The Confrontation Clause, The Right Against Self-Incrimination And The Supreme Court: A Critique And Some Modest Proposals, David E. Seidelson

Duquesne Law Review

The impact of Supreme Court decisions on fifth and sixth amendment rights of the accused criminal is the subject of Professor Seidelson's most recent quest into the field of constitutional law. Using the Court's most recent decision on the sixth amendment confrontation clause as a vehicle, he examines the development of the clause over the past two decades and concludes that the Court's decisions have rendered the clause virtually coextensive with the hearsay rule. In a second part of the article Professor Seidelson discusses the effect of the Court's refusal to include physical evidence within the scope of the fifth …

Gender Equality And Judicial Federalism: The Role Of State Appellate Courts, G. Alan Tarr, Mary Cornelia Porter

UC Law Constitutional Quarterly

No abstract provided.

Involuntary Commitment: The Move Toward Dangerousness, 15 J. Marshall L. Rev. 83 (1982), Robert Weissbourd

UIC Law Review

No abstract provided.

The Federal Speedy Trial Act: Stampede Into Ambush, 16 J. Marshall L. Rev. 27 (1982), Robert L. Doyel

UIC Law Review

No abstract provided.

Survey Of Developments In West Virginia Law: 1981

West Virginia Law Review

No abstract provided.

Salvaging Proportionate Prison Sentencing: A Reply To Rummel V. Estelle, Thomas F. Cavalier

University of Michigan Journal of Law Reform

Part I of this Note provides a capsule of the Court's holding in Rummel. Part II argues, contrary to Rummel, that precedential support can be mustered to support eighth amendment review of sentence length. Finally, part 11,1 discusses the continued viability of the proportionality test as a vehicle for assessing challenges to the length of imprisonment, and discounts the concerns voiced in Rummel regarding the difficulty of judicial review of legislative sentencing decisions.

Entrapment, Shocked Consciences, And The Staged Arrest, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article discusses the relatively spare and unsettled case law relating to the staged arrest, reflected primarily in United States v. Archer and Nigrone v. Murtagh. Part III of this Article examines the defense of entrapment, one of the most confusing and controversial legal doctrines, and its application to the staged arrest. Because the staged arrest ineluctably raises questions of offensive government conduct that neither constitutes unlawful entrapment nor invades any independent rights of citizens, part IV considers the analysis of courts that have invoked the due process clause to limit government investigations. In view of the failure of these …

Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel

Book Chapters

During the 1960s, the Warren Court's decisions in the field of criminal procedure were strongly denounced by many prosecutors, police officers, and conservative politicians. Some of these critics were careful in their description of the Warren Court's record. Others let their strong opposition to several of the Court's more highly publicized decisions destroy their perception of the Court's work as a whole.

A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar

Book Chapters

If the several conferences and workshops (and many lunch conversations) on police interrogation and confessions in which I have participated this past summer are any indication, Miranda v. Arizona has evoked much anger and spread much sorrow among judges, lawyers and professors. In the months and years ahead, such reaction is likely to be translated into microscopic analyses and relentless, probing criticism of the majority opinion. During this period of agonizing appraisal and reappraisal, I think it important that various assumptions and assertions in the dissenting opinions do not escape attention.

Death-Qualification And The Fireside Induction, Robert M. Berry

University of Arkansas at Little Rock Law Review

No abstract provided.

A Tribute To Justice Arthur J. Goldberg, Stanley Mosk

UC Law Constitutional Quarterly

No abstract provided.

The Exclusionary Rule Revisited: Good Faith In Fourth Amendment Search And Seizure, Holly Martin Stone

Kentucky Law Journal

No abstract provided.

The Right To Defense Experts, Paul C. Giannelli

Faculty Publications

No abstract provided.

Selective Incorporation Revisited, Jerold H. Israel

Articles

In June 1960 Justice Brennan's separate opinion in Ohio ex re. Eaton v. Price' set forth what came to be the doctrinal foundation of the Warren Court's criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the "selective incorporation" theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment's due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the Court found incorporated …