Digital Commons Network^™

The Acquisition Of Evidence For Criminal Prosecution: Some Constitutional Premises And Practices In Transition, H. Richard Uviller

Vanderbilt Law Review

This Article isolates only two of the many aspects of the Court's labors affecting the acquisition of evidence for criminal prosecution. The first concerns the allocation of primacy among the values that the exclusionary response to the illegal acquisition of evidence serves: a theoretical choice that may carry some notable practical consequences. The second requires are examination of the role of the trial court in supervising the preaccusatory search for evidence in a way that suggests the possible obsolescence of the Supreme Court's ruling credo in the Stewart era.

A Judicial Perspective On Opinion Evidence Under The Federal Rules, George C. Pratt

Washington and Lee Law Review

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 …

How We Got The Fourth Amendment Exclusionary Rule And Why We Need It, Yale Kamisar

Articles

Why the continuing storm of controversy over the exclusionary rule? Why the deep and widespread hostility to it? I think a recent law office search case, because it arose in a setting so unlike the typical search and seizure case, furnishes a clue. In O'Connor v. Johnson, St. Paul police obtained a warrant to search an attorney's office for business records of a client suspected of making false written statements in applying for a liquor license. The attorney happened to be present when the police arrived. Holding on to his work product file, which contained some of the records sought, …

Forensic Hair Analysis: The Case Against The Underemployment Of Scientific Evidence, Edward J. Imwinkelried

Washington and Lee Law Review

No abstract provided.

Estelle V. Smith: The Constitutional Contours Of The Forensic Evaluation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Estelle v. Smith,' the United States Supreme Court recognized for the first time that an evaluation of a criminal defendant by a mental health professional may implicate both the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. The issues raised in Estelle are significant not only for the legal profession but also for those in the mental health professions who perform "clinical" evaluations for the criminal courts. Estelle involved the case of Ernest Smith, who was sentenced to death by a Texas jury in 1974. Prior to trial, the judge ordered a psychiatrist, Dr. Grigson, …

The Business Papers Rule: Personal Privacy And White Collar Crime, John S. Applegate

Articles by Maurer Faculty

No abstract provided.

Witness For The Defense: A Right To Immunity, Robin D. Mass

Vanderbilt Law Review

This Note has outlined various constitutional arguments that the criminal defendant can invoke in support of an application for witness immunity.First, the Note relies on the Supreme Court's decision in United States v. Nixon for its argument that courts should use a flexible separation of powers approach in the context of witness immunity grants. While the Nixon Court accepted the notion that separation of powers protects the decision making authority of the individual branches of government from infringement by the other branches, it observed that the doctrine does not enforce an absolute executive privilege. Thus, the separation of powers doctrine …

Parent-Child Incest: Proof At Trial Without Testimony In Court By The Victim, Dustin P. Ordway

University of Michigan Journal of Law Reform

This Note argues that the incest victim should not testify personally at trial. Rather, the child's testimony should be replaced with tape-recorded pretrial examinations of the victim by an expert, supplemented by the in-court testimony of the examining expert. Part I discusses how the present system of requiring in-court testimony by the victim harms the child, fails to correct the incest problem, and produces unreliable evidence. Part II outlines and discusses the merits of the proposed reform. Part ill examines the proposed reform in light of the defendant's constitutional rights to due process and to confront witnesses against him. The …

United States V. Payner--Constriction Of The Federal Courts' Supervisory Power, Mary Rich Lewis

West Virginia Law Review

No abstract provided.

Reflections On Alfred Hill's "Testimonial Privilege And Fair Trial", Peter Westen

University of Michigan Journal of Law Reform

I have learned a great deal from "Testimonial Privilege and Fair Trial"-as I always do from Professor Hill's work. Indeed, he has changed my way of thinking in this area in several important respects. At the same time, I come to rather different conclusions than he regarding each of his three major topics. Part I of this article examines the problem of finding a "remedy" for testimonial privileges that violate a defendant's right to a fair trial. Part II discusses the problem of determining when a defendant is entitled to assert that the "right" has been violated. Finally, Part III …

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 …

Psycholegal Research: Past And Present, Wallace D. Loh

Michigan Law Review

A Review of The Psychology of Eyewitness Testimony by A. Daniel Yarmey, and Eyewitness Testimony by Elizabeth F. Loftus, and Social Psychology in Court by Michael J. Saks and Reid Hastie, and The Criminal Justice System and Its Psychology by Alfred Cohn and Roy Udolf

Current Controversies Concerning Witness Immunity In The Federal Courts, Jane Duffy

Villanova Law Review (1956 - )

No abstract provided.

Symposium Proceedings, Various Editors

Villanova Law Review (1956 - )

No abstract provided.

Grand Jury: A Prosecutor Need Not Present Exculpatory Evidence

Washington and Lee Law Review

No abstract provided.

Capacity To Contest A Search And Seizure: The Passing Of Old Rules And Some Suggestions For New Ones, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Professor Slobogin examines recent Supreme Court decisions involving standing to challenge search and seizure violations, and argues that the Court's commitment to a "totality of the circumstances" approach has permitted erosion of fourth amendment protections. After concluding that these decisions provide little guidance to lower courts, Professor Slobogin offers a set of principles which will aid in analyzing the Court's direction.

Perils Of The Rulemaking Process: The Development, Application, And Unconstitutionality Of Rule 804(B)(3)'S Penal Interest Exception, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

As the culmination of a decade of rulemaking, in 1975 Congress enacted the Federal Rules of Evidence, which include in rule 804(b)(3) an exception to the hearsay rule that allows federal courts to admit statements against penal interest. Having reviewed previously unpublished memoranda and nonpublic tape recordings of the deliberations of the Advisory and Standing Committees to the Judicial Conference and the Special Subcommittee on Reform of Federal Criminal Laws of the House Judiciary Committee, Professor Tague explores the development of rule 804(b)(3), one of the more controversial rules that emerged from that rulemaking process. After analyzing rule 804(b)(3) and …

Constitutional Protection For Private Papers, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Georgia's Witness Immunity Statute: Explication And Recommendations For Judicial Development, Roald Mykkeltvedt

Mercer Law Review

In 1975 the Georgia General Assembly enacted a comprehensive witness immunity statute' providing for a procedure to obtain the testimony of persons who refuse to testify on self-incrimination grounds. That procedure is summarized in the following excerpt from the act:

Whenever in the judgment of the Attorney General or any district attorney, the testimony of any person or the production of evidence of any kind by any person in any criminal proceeding before a court or grand jury is necessary to the public interest, then the Attorney General or the district attorney may request the superior court, in writing, to …

Prosecutorial Discovery: An Overview, Harry G. Deitzler, Susan Klimas, Walt Auvil

West Virginia Law Review

No abstract provided.

Inculpatory Declarations Against Penal Interest And The Coconspirator Rule Under The Federal Rules Of Evidence, Diane M. Frye

Indiana Law Journal

No abstract provided.

State V. Frazier, Lucinda Masterton

West Virginia Law Review

No abstract provided.

The Privilege Against Self-Incrimination In Civil Commitment Proceedings, Marianne Wesson

Publications

No abstract provided.

Mathematical Models And Legal Realities: Some Comments On The Poisson Model Of Jury Behavior, David H. Kaye

Faculty Scholarship

While a mathematical model cannot reflect all the elements of reality, modeling involves drastic simplifications, and those expounding the mathematical model would recognize the complexity of the elements. This article illuminates this cause with a mathematical model that seems to be in vogue, developed by the renowned mathematician Simeon Poisson. It reviews the Poisson model in order to enucleate its many assumptions. It also explains why these assumptions may introduce serious errors into the probabilities calculated according to the model. It also indicates one reason that even a relatively error free model would have limited usefulness in resolving the constitutional …

Scientific Evidence - Part I, Paul C. Giannelli

Faculty Publications

No abstract provided.

Exploring The Limits Of Brady V. Maryland: Criminal Discovery As A Due Process Right In Access To Police Investigations And State Crime Laboratories, Walter H. Ohar

University of Richmond Law Review

Why not criminal discovery? This question has been posited by legal scholars and learned jurists alike since the liberalization of discovery methods under the modern codes of civil procedure. As inexact as the term criminal discovery may be and, according to its critics, as inapplicable as discovery may be in the criminal context, there is little doubt that the current trend is the expansion of that which is discoverable by either side prior to a criminal trial. In fact, criminal discovery has developed into something more than a problem of procedure to be resolved by the individual jurisdictions in piecemeal …

Due Process Versus Data Processing: An Analysis Of Computerized Criminal History Information Systems, Donald Doernberg, Donald H. Zeigler

Articles & Chapters

This article, based on a comprehensive empirical study of New York's computerized criminal history information system and on national surveys of similar systems, concludes that current regulations governing the dispersion of criminal history information are grossly inadequate. Although information drawn from computerized criminal history files is often inaccurate, incomplete, ambiguous or inappropriate, criminal justice officials and judges routinely use such information in making decisions affecting defendants' liberty. This practice is unconstitutional, and the article suggests ways to regulate criminal history information systems that would protect a defendant's right not to be deprived of liberty without due process of law.

Rape Victim Shield Laws And The Sixth Amendment, J. Alexander Tanford, Anthony J. Bocchino

Articles by Maurer Faculty

No abstract provided.

United States V. Payner, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.