Law Commons^™

The Right To A Well-Rested Jury, Caroline Howe

Michigan Law Review

The vast amount of control that state trial judges exercise over the dynamics of their courtrooms is well established. The length of trial days and jury deliberations, however, has received little scholarly attention. Longstanding research has conclusively established the disruptive effects of sleep deprivation on many of the mental facilities necessary for juries to competently fulfill their duties. By depriving juries of sleep, trial judges may be compromising the fair rights of criminal defendants for the sake of efficiency. This Note argues that trial judges must use their discretion to ensure juries are well-rested, keeping jurors’ needs in mind. Further, …

"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe

Michigan Law Review

In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen …

Pinholster's Hostility To Victims Of Ineffective State Habeas Counsel, Jennifer Utrecht

Michigan Law Review

Cullen v. Pinholster foreclosed federal courts from considering new evidence when reviewing 28 U.S.C. § 2254(d) petitions for claims previously adjudicated on the merits in state court. This decision has a particularly adverse effect on petitioners whose state habeas counsel left an incomplete or undeveloped record. This Note discusses strategies for victims of ineffective state habeas counsel to avoid the hostile mandate of Pinholster. It argues that, in light of Martinez v. Ryan’s recognition of the importance of counsel in initialreview collateral proceedings, courts should be wary of dismissing claims left un- or underdeveloped by ineffective state habeas counsel. It …

Speedy Trial As A Viable Challenge To Chronic Underfunding In Indigent-Defense Systems, Emily Rose

Michigan Law Review

Across the country, underresourced indigent-defense systems create delays in taking cases to trial at both the state and federal levels. Attempts to increase funding for indigent defense by bringing ineffective assistance of counsel claims have been thwarted by high procedural and substantive hurdles, and consequently these attempts have failed to bring significant change. This Note argues that, because ineffective assistance of counsel litigation is most likely a dead end for system-wide reform, indigent defenders should challenge the constitutionality of underfunding based on the Sixth Amendment guarantee of speedy trial. Existing speedy trial jurisprudence suggests that the overworking and furloughing of …

Counsel's Control Over The Presentation Of Mitigating Evidence During Capital Sentencing, James Michael Blakemore

Michigan Law Review

The Sixth Amendment gives a defendant the right to control his defense and the right to a lawyer's assistance. A lawyer's assistance, however, sometimes interferes with a defendant's control over his case. As a result, the Supreme Court, over time, has had to delineate the spheres of authority that pertain to counsel and defendant respectively. The Court has not yet decisively assigned control over mitigating evidence to either counsel or defendant. This Note argues that counsel should control the presentation of mitigating evidence during capital sentencing. First, and most importantly, decisions concerning the presentation of mitigating evidence are best characterized …

Are Class Actions Unconstitutional?, Alexandra D. Lahav

Michigan Law Review

Are class actions unconstitutional? Many people-defendants and conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book Wholesale Justice provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Michigan Law Review

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

Commentary By Co-Defendant's Counsel On Defendant's Refusal To Testify: A Violation Of The Privilege Against Self-Incrimination?, Martin D. Litt

Michigan Law Review

Currently, the circuits are divided on whether comments by co-defendants' counsel on a defendant's silence impair that defendant's fifth amendment rights. Furthermore, among the circuits that regard such commentary as potentially prejudicial, disagreement exists over the proper test for identifying such comments. This Note asserts that the risk of prejudicing a defendant's fifth amendment rights is too great to allow counsel any comment on a defendant's decision to testify or to remain silent.

Part I of this Note examines the historical evolution of the privilege against self-incrimination and the policy goals behind the privilege. The Note argues that prohibiting comments …

Cameras In The Courtroom: Guidelines For State Criminal Trials, Nancy T. Gardner

Michigan Law Review

This Note analyzes the conflicting interests involved in televising state criminal trials and proposes a model set of guidelines for consideration by states that decide to permit electronic media in their courtrooms. The Note favors restrictions on broadcasters once in the courtroom and advocates that the defendant's right to a fair trial receive more scrupulous protection than the broadcast media's interest in attendance and the public's "right to know." Part I presents the constitutional principles with which any set of guidelines must comply. Part II analyzes the policy considerations that should guide the formulation of state guidelines, and concludes that …

Abstracts, Katherine Kempfer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.