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Full-Text Articles in Law
Reflections On Brady V. Maryland, Bennett L. Gershman
Reflections On Brady V. Maryland, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
Part I of this Article describes the evolution of the Brady rule over the past forty-three years. Part I sketches the origins of the rule and its doctrinal developments. Part II closely examines Brady's impact on constitutional criminal procedure. Part II suggests that Brady's essential goal has been eroded by the courts, subverted by prosecutors, and ignored by disciplinary bodies. Part III proposes that only through expanding a defendant's right to discovery can the goal of Brady be realized. The Article concludes that Brady, more than any other rule of constitutional criminal procedure, has been the most fertile and widespread …
"Can You Hear Me Now?": Expectations Of Privacy, False Friends, And The Perils Of Speaking Under The Supreme Court's Fourth Amendment Jurisprudence, Donald L. Doernberg
"Can You Hear Me Now?": Expectations Of Privacy, False Friends, And The Perils Of Speaking Under The Supreme Court's Fourth Amendment Jurisprudence, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court's articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court's reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend's observation, the Court's method has united these cases under a single analytical rubric. Part …
Prosecutorial Ethics And Victims' Rights: The Prosecutor's Duty Of Neutrality, Bennett L. Gershman
Prosecutorial Ethics And Victims' Rights: The Prosecutor's Duty Of Neutrality, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
In recent years, enhanced legal protections for victims has caused victims to become increasingly involved in the criminal justice process, often working closely with prosecutors. In this Article, Professor Gershman analyzes the potential challenges to prosecutors' ethical duties that victims'participation may bring and suggests appropriate responses.
Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin
Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin
Elisabeth Haub School of Law Faculty Publications
This article analyzes the U. S. constitutional law interpreting the concept of “same offence.” Included is a survey of the Supreme Court's attempts to interpret constitutional text in order to provide adequate protection for the underlying double jeopardy interest against vexatious reprosecutions, which have frequently produced inconsistent and illogical results. Part III of this article analyzes U.K. law relating to the concept of “same offence,” where the same narrow double jeopardy protection adopted by the U.S. Supreme Court is supplemented with a broad discretion to prevent unfair successive prosecution that constitutes an abuse of process. Part IV draws lessons from …
The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin
The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin
Elisabeth Haub School of Law Faculty Publications
This Article analyzes the different modes in which two facially similar adversarial systems remedy wrongful convictions. Part I briefly examines the origins of wrongful convictions in both England and the United States. Part II describes the appellate processes in the two countries for correcting wrongful convictions. Part III addresses the processes for correcting wrongful convictions after the appellate processes have been completed. Part IV critiques the English process and examines whether aspects of that process may be carried over to the United States.
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The prosecutorial tactic of burdening a defendant’s exercise of constitutional rights has appeared in a variety of contexts. Prosecutors have asked juries to infer guilt based on a defendant’s decision not to testify, not to call witnesses, to remain silent after being given Miranda warnings, to go to trial, to secure the assistance of counsel, to refuse to consent to a warrantless search, and to testify. In all of these instances, courts have found the prosecutor’s remarks to constitute misconduct.
What Do You Do When You Meet A "Walking Violation Of The Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, Vanessa Merton
What Do You Do When You Meet A "Walking Violation Of The Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, Vanessa Merton
Elisabeth Haub School of Law Faculty Publications
For the purpose of this article, the relevance of my experience as a criminal defense attorney is this: if ever one might expect to find a prosecutor inclined to err on the side of fairness of process and protecting the rights of defendants, it ought to be me. Also, for more than twenty years, I have been something of a professional ethicist--as research fellow, teacher, staff member of an ethics center, chair and/or member of several institutional review boards, pro bono trial counsel to a disciplinary committee, ethics consultant, and expert witness--and, therefore, one might think, especially susceptible to the …
Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell
Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell
Elisabeth Haub School of Law Faculty Publications
This Article unravels the non-self-executing treaty doctrine, examines the invocation of a treaty as a defense to governmental action, and develops a test for when an individual (rather than a government) may assert a treaty defensively in state or federal courts. Lastly, this Article applies this test to state-sponsored kidnapping and the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The parties to this treaty, which was sponsored by the United States, barred one country's law enforcement agents from operating without permission on another country's soil and rejected a provision requiring a country to extradite its own …
The Gate Is Open But The Door Is Locked - Habeas Corpus And Harmless Error, Bennett L. Gershman
The Gate Is Open But The Door Is Locked - Habeas Corpus And Harmless Error, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
Brecht is a paradigm of the Rehnquist Court's result-oriented approach to habeas corpus and harmless error. The decision purports to be a principled application of the policies of finality, federalism, and judicial economy that underlay the Court's new habeas and harmless error jurisprudence. It is, in fact, an unwarranted and unprincipled extension of those policies. Depending on how the lower federal courts interpret and implement the decision, Brecht could have a devastating impact on the way state prosecutors and judges administer criminal justice, as well as the ability of state prisoners to redress constitutional violations.
Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin
Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin
Elisabeth Haub School of Law Faculty Publications
In Gideon v. Wainwright, the Supreme Court unanimously held that indigent state felony defendants are constitutionally entitled to the appointment of trial counsel. The opinion aroused wide support, and even enthusiasm, almost from the moment it was announced in 1963. Two and a half decades later this support has not diminished. However, are the words of praise only lip service to the noble idea of the right to counsel? Has Gideon really made a difference? Has its promise of a fair shake for poor criminal defendants been kept, or has Gideon meant only that defendants are provided with the fleeting …
Whose Right Is It Anyway?: Rethinking Competency To Stand Trial In Light Of The Synthetically Sane Insanity Defendant, Linda C. Fentiman
Whose Right Is It Anyway?: Rethinking Competency To Stand Trial In Light Of The Synthetically Sane Insanity Defendant, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
This article's thesis is that given the magnitude of the insanity defendant's fundamental constitutional liberties--his constitutional right to present and conduct his defense, his privilege against self-incrimination, his constitutional right to privacy and bodily integrity, and his common law right to give informed consent to medical treatment--the state's interest in assuring the defendant's competency must give way if he chooses to waive his right to be tried while competent. Most, if not all, of the purposes of the prohibition against trying an incompetent defendant can be met even if the defendant is tried without psychotropic medication as long as he …
Attorney Loyalty And Client Perjury - A Postscript To Nix V. Whiteside, Bennett L. Gershman
Attorney Loyalty And Client Perjury - A Postscript To Nix V. Whiteside, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
How much, if at all, can a criminal defense lawyer cooperate in his or her client's decision to commit perjury? Courts, commentators, and bar committees have grappled with this question for years without offering clear or consistent guidelines. Any principled response must take into account some very hard questions. Under what circumstances, for instance, does the lawyer ever really "know" that his client's proposed testimony is false? Is it sufficient if the lawyer simply disbelieves his client's story, or that of his client's witnesses? Does it make any difference if the attorney learns of a plan to perjure during the …
Entrapment, Shocked Consciences, And The Staged Arrest, Bennett L. Gershman
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 …
Harmless Error: Constitutional Sneak Thief, Steven H. Goldberg
Harmless Error: Constitutional Sneak Thief, Steven H. Goldberg
Elisabeth Haub School of Law Faculty Publications
"Harmless constitutional error" is among the most insidious of legal doctrines. Since its promulgation by the United States Supreme Court in Chapman v. California, it has determined as many criminal appeals as have some of the more well-known and hotly debated decisions of the 1960s. Despite the frequency of its use in determining criminal appeals-possibly as high as ten percent of all criminal appeals during the last thirteen years it has received comparatively little critical attention. The reason for the inattention? It's a sneak thief. Its appearance does not raise apprehension, and its application does not leave concentrated areas of …