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Articles 1 - 30 of 36
Full-Text Articles in Law
Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer
Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer
Touro Law Review
No abstract provided.
Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis
Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis
Dickinson Law Review (2017-Present)
A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …
A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber
A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber
Maine Law Review
This Article challenges the Law Court's expansive interpretation in State v. Caouette of the scope of the privilege against self-incrimination embodied in Article I, section 6 of the Maine Constitution in the context of reviewing claims of the involuntariness of a confession. The court's declaration that a reliable confession must be suppressed on state constitutional grounds based solely on a suspect's internal factors, and in the absence of any police overreaching in obtaining the confession, contradicted two centuries of constitutional jurisprudence requiring some form of government action to implicate the protections of the Bill of Rights and the Declaration of …
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Moving Beyond Miranda: Concessions For Confessions, Scott W. Howe
Moving Beyond Miranda: Concessions For Confessions, Scott W. Howe
Northwestern University Law Review
The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of informed, …
The Right To Silence V. The Fifth Amendment, Tracey Maclin
The Right To Silence V. The Fifth Amendment, Tracey Maclin
Faculty Scholarship
This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …
Recent Development: Williams V. State: A Confession Is Voluntary Unless The Defendant Unambiguously Invokes His Constitutional Right To Remain Silent Or The Confession Is Obtained Through Coercion Or Inducement, Pascale Cadelien
University of Baltimore Law Forum
The Court of Appeals of Maryland held that “I don’t want to say nothing. I don’t know,” is an ambiguous invocation of the right to remain silent. Williams v. State, 445 Md. 452, 455, 128 A.3d 30, 32 (2015). The court reasoned that the defendant’s addition of “I don’t know” to his initial assertion “I don’t want to say nothing” created uncertainty about whether he intended to invoke his right to remain silent. Id. at 477, A.3d at 44. This allowed a reasonable officer to interpret his statement as an “ambiguous request to remain silent.” Id. Furthermore, the officers’ implication …
The Right To Silence V. The Fifth Amendment, Tracey Maclin
The Right To Silence V. The Fifth Amendment, Tracey Maclin
UF Law Faculty Publications
This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …
Court Of Appeals Of New York, People V. Paulman, Michele Kligman
Court Of Appeals Of New York, People V. Paulman, Michele Kligman
Touro Law Review
No abstract provided.
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Pepperdine Law Review
No abstract provided.
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
Samuel J. Levine
No abstract provided.
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
Scholarly Works
No abstract provided.
Right To An Attorney, Henry L. Chambers, Jr.
Right To An Attorney, Henry L. Chambers, Jr.
Law Faculty Publications
The Supreme Court has identified two distinct rights to an attorney that stem from the U.S. Constitution. One is rooted in the Fifth Amendment. The other is rooted in the Sixth and Fourteenth Amendments.
We Can Do This The Easy Way Or The Hard Way: The Use Of Deceit To Induce Consent Searches, Rebecca Strauss
We Can Do This The Easy Way Or The Hard Way: The Use Of Deceit To Induce Consent Searches, Rebecca Strauss
Michigan Law Review
In October of 1995, Aaron Salvo was studying and living at Ashland College. College officials informed local FBI agents that they suspected Salvo of possible child molestation and related conduct based on incriminating electronic mail. FBI agents approached Salvo at his dormitory, asked to speak with him in private about the suspicious mail, and suggested they speak in Salvo's dorm room. Salvo agreed to speak with the officers, but declined to do so in his room because his roommate was there, and he did not want to get anyone else involved in the embarrassing nature of the upcoming conversation. Salvo …
Miranda'S Mistake, William J. Stuntz
Miranda'S Mistake, William J. Stuntz
Michigan Law Review
The oddest thing about Miranda is its politics - a point reinforced by the decision in, and the reaction to, Dickerson v. United States. In Dickerson, the Supreme Court faced the question whether Miranda ought to be overturned, either directly or by permitting legislative overrides. The lawyers, the literature, and the Court split along right-left - or, in the Court's case, right-center - lines, with the right seeking to do away with Miranda's restrictions on police questioning, and the left (or center) seeking to maintain them. The split is familiar. Reactions to Miranda have always divided along ideological lines, with …
Questioning The Relevance Of Miranda In The Twenty-First Century, Richard A. Leo
Questioning The Relevance Of Miranda In The Twenty-First Century, Richard A. Leo
Michigan Law Review
Miranda v. Arizona is the most well-known criminal justice decision - arguably the most well-known legal decision - in American history. Since it was decided in 1966, the Miranda decision has spawned voluminous newspaper coverage, political and legal debate, and academic commentary. The Miranda warnings themselves have become so well-known through the media of television that most people recognize them immediately. As Patrick Malone has pointed out, the Miranda decision has added its own lexicon of words and phrases to the American language. Perhaps with this understanding in mind, George Thomas recently suggested that the Miranda warnings are more well-known …
Miranda, Dickerson, And The Puzzling Persistence Of Fifth Amendment Exceptionalism, Stephen J. Schulhofer
Miranda, Dickerson, And The Puzzling Persistence Of Fifth Amendment Exceptionalism, Stephen J. Schulhofer
Michigan Law Review
Dickerson v. United States preserves the status quo regime for judicial oversight of police interrogation. That result could be seen, in the present climate, as a victory for due process values, but there remain many reasons for concern that existing safeguards are flawed - that they are either too restrictive or not restrictive enough. Such concerns are partly empirical, of course. They depend on factual assessments of how much the Miranda rules do restrict the police. But such concerns also reflect a crucial, though often unstated, normative premise; they presuppose a certain view of how much the police should be …
Do As I Say And Not As I Do: Dickerson, Constitutional Common Law And The Imperial Supreme Court, Kevin Mcnamee
Do As I Say And Not As I Do: Dickerson, Constitutional Common Law And The Imperial Supreme Court, Kevin Mcnamee
Fordham Urban Law Journal
This Comment examines the Supreme Court's Miranda jurisprudence through the lens of the "constitutional common law" theory, which suggests that the Supreme Court has crafted a large body of subconstitutional rules that are not compelled by the text of the Constitution but serve to protect values implicit in the text. As a result, such rules are subject to the limitations of modification and nullification by later courts. After presenting the characteristics of the constitutional common law theory and its relationship to federalism and separation of powers, the author suggests that the theory can explain the erosion of Miranda decision's brightline …
Miranda'S Fall?, Kenji Yoshino
Miranda'S Fall?, Kenji Yoshino
Michigan Law Review
If one wishes to revisit a classic, Albert Crunus's The Fall is a riskier choice than Harper Lee's To Kill a Mockingbird, which Steven Lubet eloquently discussed last year in these pages. It is not only that Camus's work will be less familiar to legal audiences than Lee's, despite the fact that The Fall is becoming recognized through critical "revisitation" as perhaps Crunus's greatest novel. It is also that the legal protagonist of The Fall, Jean-Baptiste Clamence, does not have Atticus Finch's immediate appeal. Finch is idealistic, Clamence is existential; Finch is pious, Clamence is debauched; Finch is hopeful, Clamence …
The Confrontation Clause: Statements Against Penal Interest As A Firmly Rooted Hearsay Exception, Amy N. Loth
The Confrontation Clause: Statements Against Penal Interest As A Firmly Rooted Hearsay Exception, Amy N. Loth
Cleveland State Law Review
This Article will explore why these types of confessions, called self-inculpatory statements, should be admissible under the Confrontation Clause of the Sixth Amendment. Part IIA of this Article will discuss the two-part test set forth in Ohio v. Roberts. Part IIB will address Lilly v. Virginia, the Supreme Court's first attempt to resolve whether statements against penal interest are sufficiently reliable to be admissible under the Confrontation Clause. Part IIB will also explore the distinction between self-inculpatory and non-self-inculpatory statements, what constitutes a "firmnly rooted" hearsay exception, and also the policy concerns behind creating a "firmly rooted" hearsay exception. Part …
Self Incrimination: People V. Tankleff
Drugs, Ideology, And The Deconstitutionalization Of Criminal Procedure, Gerald G. Ashdown
Drugs, Ideology, And The Deconstitutionalization Of Criminal Procedure, Gerald G. Ashdown
West Virginia Law Review
No abstract provided.
Arizona V. Fulminante: The Application Of Harmless Error Analysis To Admission Of A Coerced Confession In Violation Of The Due Clause Of The Fourteenth Amendment, Robert Paul
West Virginia Law Review
No abstract provided.
Police Interrogation And Confessions, Yale Kamisar
Police Interrogation And Confessions, Yale Kamisar
Book Chapters
In the police interrogation room, where, until the second third of the century, police practices were unscrutinized and virtually unregulated, constitutional ideals collide with the grim realities of law enforcement.
State V. Stanley Exclusion Of Statements Made By Illegally Seized Suspects, Rebecca L. Stepto
State V. Stanley Exclusion Of Statements Made By Illegally Seized Suspects, Rebecca L. Stepto
West Virginia Law Review
No abstract provided.
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 …