Law Commons^™

Should Michigan Rule Of Evidence 703 Be Revised?, Brian Benner, Ronald L. Carlson

Popular Media

Technical witnesses regularly assist the fact-finding process in Michigan trials. Jury or bench trials in federal and state courts routinely feature the appearance of experts. Properly policed by our courts, few forms of testimony hold more promise for advancing the truth-seeking function of American litigation. The expanding presence of experts raises hard questions. Are the Michigan rules in turn with modern needs? Should the state rule controlling the basis for expert opinion be aligned with the federal pattern? If Michigan Rule of Evidence 703 could stand revision, does proper alteration require significant additions not presently contained in either state or …

Domestic Violence Against Women: A Comparative Analysis Of Remedies Under The American And Indian Legal Systems, Anita Elizabeth Jacob Ninan

LLM Theses and Essays

The purpose of this thesis is to compare the legal remedies available to women who are the victims of domestic violence in the United States and India and analyze whether the existing laws in the two systems are effective and sufficient in combating this growing problem. Domestic violence against women is a reality. It haunts the female species form the cradle to the grave, manifesting itself in sociocultural crime peculiar to some societies like India, such as female feticide, female infanticide, bride burning dowry deaths, and wife battering (both a developing country like India and an economically developed country like …

Bad Check Crime: A Comparison Study Between The United Arab Emirates And The United States, Abdurahim Y.M. Sharaf

LLM Theses and Essays

This thesis analyzes the law relating to bad checks in the United States and the United Arab Emirates. The objective is to examine the major similarities and differences between the two countries and whether these differences might be lessened. The focus is on the criminal offense of writing checks with insufficient funds, or the "bad check crime."

The Great Writ: No Longer As Dear To The Tories As To The Whigs -- A Critique Of Senator Nunn's Habeas Corpus Article, Donald E. Wilkes Jr.

Scholarly Works

The days of praise for the Great Writ from all political quarters are over. Today the legal literature includes a growing body of articles lashing out at the modern federal habeas corpus remedy for state prisoners authorized by 28 U.S.C. § 2254 and advocating statutory changes to make it more difficult to obtain Section 2254 relief. In the vanguard of these articles are those by conservative political figures or law enforcement officials. In 1984 this criticism of the Section 2254 remedy in scholarly journals arguably reached its zenith, in terms of degree of harshness, when the attorney general of Alabama …

Balancing Government Efficienty And The Protection Of Individual Liberties: An Analysis Of The Conflit Between Executive Branch "Housekeeping" Regulations And Criminal Defendants' Rights To A Constitutionally Fair Trial, James F. Ponsoldt

Scholarly Works

This Article addresses the issue of whether an accused person should be entitled to obtain and use at trial relevant government information or the testimony of government employees to prove his innocence, regardless of whether he has revealed in advance to his adversary his intended use of that information or the specific content of that testimony. Part I describes the federal "housekeeping" statute and the Justice Department's housekeeping regulations, which require that subpoenaed government employees not disclose evidence unless the person seeking that evidence has first summarized the requested evidence in advance, explained its intended use, and obtained permission from …

When Guilt Should Be Irrelevant: Government Overreaching As A Bar To Reprosecution Under The Double Jeopardy Clause After Oregon V. Kennedy, James F. Ponsoldt

Scholarly Works

This article examines the effect of Oregon v. Kennedy on the Burger Court's double jeopardy jurisprudence in cases where government misconduct has interfered with the integrity of a first trial. The article proposes the complete elimination of current distinctions between mistrial and appellate reversal cases for double jeopardy analysis, on the ground that those distinctions no longer have intellectual or practical support. Moreover, against the contention of the Court in Oregon v. Kennedy that any test for overreaching necessarily would be standardless, this article proposes the adoption of a "plain error" standard. Under this test, "plain" government error, engaged in …

A Due Process Of Judicially-Authorized Presumptions In Federal Aggravated Bank Robbery Cases, James F. Ponsoldt

Scholarly Works

Within the past fifteen years several broadly-focused articles have identified general constitutional limits, under the due process clause, on presumptions and inferences created by statute or applied by courts in trying criminal cases. Recently, in County Court of Ulster County, New York v. Allen , the Supreme Court affirmed the validity of the evidentiary devices of inference and presumptions and labeled them "a staple of our adversary system of factfinding." This suggest that to unreasonably curtail the use of circumstantial evidence in the factfinding process would place an intolerable burden on prosecutors in their efforts to prove guilt beyond a …

An Inventory Of The Criminal Justice Curriculum Of American Law Schools, Paul M. Kurtz

Scholarly Works

The purpose of this study is to examine the structure of the criminal justice curriculum in the American law school. This entails an analysis of what courses are being offered, how many hours of classroom instruction (both required and elective) are available, and when during the educational process the student is exposed to criminal law courses. The reason for undertaking the study is to provide at least a gross picture of what the present situation is as a guide to what we as a profession or as individual schools might like to do by way of improving the structure. Hopefully, …

Controlling The Contemporary Loanshark: The Law Of Illicit Lending And The Problem Of Witness Fear, Ronald Goldstock, Dan T. Coenen

Scholarly Works

This Article discusses the origins of, practices typifying, and laws directed at contemporary loansharking. Loansharks prosper by exploiting their victims' fears, and in case after case this same fear threatens to silence key government witnesses. The result is problems for the prosecutor, who must attempt to protect his witnesses and develop alternative methods of proof. The Article explores prosecutorial difficulties caused by witness fear and identifies options the prosecutor may use in attempting to neutralize the problem.

Material Witness And Material Injustice, Ronald L. Carlson, Mark S. Voelpel

Scholarly Works

No serious student of the adversary system can ignore the grave threat to the integrity of the American witness process posed by this nation’s material witness statutes. These outmoded laws, some dating back to the territorial period of a state’s history, are not invoked in every case, perhaps not even routinely, but when dusted off and put into operation, these archaic statutes result in innocent citizens spending weeks – even months – in custody. To remedy such injustices the authors, after examining cases decided and legislation adopted during the last ten years, will propose a model material witness law that …

Habeas Corpus And Freedom Of Speech, Michael L. Wells

Scholarly Works

Discussion concerning the proper scope of federal habeas corpus for state prisoners usually focuses upon the use of the writ as a federal remedy for procedural errors of constitutional magnitude in state criminal trials. Proponents of “liberal” habeas argue that only federal courts can adequately protect the federal procedural rights of state criminal defendants, while critics contend that the states' interest in administering their criminal laws free from federal interference overshadows the asserted benefits. Setting the proper scope of the writ requires a weighing of these competing values.

The focus on procedure is appropriate, because the vast majority of habeas …

Habeas Corpus And Freedom Of Speech, Michael Wells

Scholarly Works

This Article will examine substantive attacks on habeas based on the assertion that the petitioner's confinement violates his first amendment rights of free speech, press or assembly. The thesis is that when these rights are at issue, the considerations supporting broad habeas are stronger, and the costs of habeas are lower, than when the petitioner is asserting the violation of a federal procedural right. As a result, the necessary choice of values is more easily resolved in favor of broad first amendment habeas than it is for broad procedural habeas. Essential to this analysis is the premise that a habeas …

Postconviction Habeas Corpus Relief In Georgia: A Decade After The Habeas Corpus Act, Donald E. Wilkes Jr.

Scholarly Works

Part II of this Article will highlight the grounds for relief from a conviction or sentence that were available to a Georgia prisoner prior to 1967 and the procedural obstacles to relief that existed. Part III will explore the grounds for relief currently available, and Part IV will examine the procedural obstacles to postconviction relief that remain. Part V will briefly summarize the availability of postconfiction relief in federal court to determine whether the 1967 Act has in fact eliminated the friction between the state courts and the federal courts.

Federal Postconviction Relief, Donald E. Wilkes Jr.

Scholarly Works

A provision of the federal habeas corpus statute, 28 U.S.C. §2254(a) (1970), authorizes federal district courts to grant habeas corpus relief to persons detained pursuant to a state court judgment whenever the detention is in violation of federal law. But does §2254(a) authorize federal courts to grant habeas corpus relief to state prisoners convicted on the basis of evidence seized in violation of the Fourth Amendment?

"A Most Deplorable Paradox": Admitting Illegally Obtained Evidence In Georgia--Past, Present, And Future, Donald E. Wilkes Jr.

Scholarly Works

This Article explores the admissibility of illegally obtained evidence in Georgia criminal cases prior to 1961 and during the post-Mapp era and endeavors to assess the future admissibility of illegally seized evidence in Georgia under both federal and state law.

Claiming Illegal Electronic Surveillance: An Examination Of 18 U.S.C. 3504(A)(1), Margaret V. Sachs

Scholarly Works

This Comment will first discuss the making of claims under section 3504(a)(1), and will show that the statute should not be read to require that claims be accompanied by evidentiary support. It will then suggest that the statute should be read to encompass claims of attorney-third party conversations. Finally, the scope of the government's response to section 3504(a)(I) claims will be examined.

The New Federalism In Criminal Procedure Revisited, Donald E. Wilkes Jr.

Scholarly Works

As a result of the Burger Court's seemingly inexorable relaxation of federal protection for criminal defendants, a number of state courts have continued to expand basic rights on state law grounds, thereby utilizing the adequate state ground doctrine to avoid further review by the Burger Court. Part II of this article will examine the evasion cases decided since March 1975. The prospects for continued evasion will be accessed in Part III.

A Critique Of Two Arguments Against The Exclusionary Rule: The Historical Error And The Comparative Myth, Donald E. Wilkes Jr.

Scholarly Works

“The great body of the law of evidence consists of rules that operate to exclude relevant evidence.” The most controversial of these rules are those which prevent the admission of probative evidence because of the irregular manner in which the evidence was obtained. Depending on whether the method of obtaining violated a provision of positive law, irregularly obtained evidence may be separated into two classes. Evidence obtained by methods which meet legal requirements but contravene some moral or ethical principle is unfairly obtained evidence. Evidence obtained in violation of a legal right or immunity is improperly obtained evidence, regardless of …

More On The New Federalism In Criminal Procedure, Donald E. Wilkes Jr.

Scholarly Works

The Burger Court has continued to relax federal constitutional restraints on the power of police and prosecutorial officials to detect and convict persons suspected of crime. During the 1973 Term, the fourth amendment right to be free from unreasonable search and seizure appears to have been the principal casualty of the Court's permissive attitude toward the exercise of governmental authority to enforce criminal laws. Although over half a dozen search and seizure cases were decided, in not a single one did the Court find that evidence had been obtained in violation of the fourth amendment. Other decisions narrowly interpreted the …

A New Role For An Ancient Writ: Postconviction Habeas Corpus Relief In Georgia (Part Ii), Donald E. Wilkes Jr.

Scholarly Works

In Part I of this Article, appearing in Volume 8 of the Georgia Law Review at page 313, Professor Wilkes traced the development of postconviction habeas corpus in Georgia up to 1967. In this the second part of the Article, he examines the background and passage of the Georgia Habeas Corpus Act of 1967. Finally, Professor Wilkes assesses the degree to which the Act has fulfilled its purposes, and suggests several possible changes for the future.

"Criminal Records"--A Comparative Approach, Sigmund A. Cohn

Scholarly Works

There is in the United States a need to balance the interest of the public in the apprehension and conviction of criminals with that of individuals arrested but not convicted of any wrongdoing. As has been shown, some of the leading civil law countries have approached this goal in two ways: first, by not requiring an arrest in a great number of criminal cases and thus not furthering in the mind of the public the idea that arrest and criminal wrongdoing are identical, and second, by confining entries in criminal records, at least on principle, to final convictions of criminal …

A New Role For An Ancient Writ: Postconviction Habeas Corpus Relief In Georgia (Part I), Donald E. Wilkes Jr.

Scholarly Works

Because it has been esteemed in this state for centuries, the writ of habeas corpus has played a significant role in the history of Georgia civil liberties. Indeed, one Georgia court early state that "[w]hen the writ is applied for, no inquiry is made as to the complexion of the petitioner, or the place of his permanent allegiance. All of every condition, of every country and of every complexion are equally entitled to it, the native of South Africa, not less than the Peer of the Realms." In the first part of his Article, Professor Wilkes examines the origins of …

The New Federalism In Criminal Procedure: State Court Evasion Of The Burger Court, Donald E. Wilkes Jr.

Scholarly Works

It is hardly news that the Supreme Court has changed since the innovative Sixties. In cases involving obscenity, juvenile justice, loyalty oaths, loss of nationality, preinduction review of selective service board orders, and federal injunctive and declaratory relief against state criminal prosecutions, the Burger Court has shown that its judicial philosophy is substantially different from that of the Warren Court. Nowhere is this change more evident than in the field of criminal procedure. Since June 23, 1969, when Warren E. Burger became the fifteenth Chief Justice, it has grown increasingly obvious that the Burger Court intends to reverse the trend …

Book Review: Correctional Institutions (1972), Donald E. Wilkes Jr.

Scholarly Works

Book review of CORRECTIONAL INSTITUTIONS, edited by Robert M. Carter, Daniel Glaser, and Leslie T. Wilkins (Philadelphia: J.B. Lippincott Co., 1972)

Warrantless Searches And Seizures, Mack Allen Player

Scholarly Works

The fourth amendment to the Constitution has two basic clauses. The first, the reasonableness clause, protects the people against unreasonable searches and seizures. The second, the warrant clause, sets forth conditions under which a warrant may issue. Searches and seizures made pursuant to a warrant are, quite obviously, governed by the commands of the warrant clause. However, the effect of the warrant clause upon searches and seizures made without warrants is not clear from the amendment itself, and the Supreme Court has failed to develop a consistent interpretation of the proper role of that clause.

False Or Suppressed Evidence: Why A Need For The Prosecutorial Tie?, Ronald L. Carlson

Scholarly Works

Many United States Supreme Court decisions have overturned criminal convictions for the reason that the government employed false evidence to obtain the conviction or failed to disclose relevant evidence important to the defense. In reversing federal or state judgments, the Court often has located direct proof of wrongdoing by the prosecutor. The notorious “bloody shorts” case is an example in point. There, the state introduced as evidence a pair of men’s “blood-stained” undershorts to achieve conviction of the accused. When the blood turned out to be red paint, the Supreme Court granted habeas corpus relief to the defendant because “[ilt …

False Or Suppressed Evidence: Why A Need For The Prosecutorial Tie, Ronald L. Carlson

Scholarly Works

Many United States Supreme Court decisions have overturned criminal convictions for the reason that the government employed false evidence to obtain the conviction or failed to disclose relevant evidence important to the defense. In reversing federal or state judgments, the Court often has located direct proof of wrongdoing by the prosecutor. The notorious "bloody shorts" case is an example in point.' There, the state introduced as evidence a pair of men's "blood-stained" undershorts to achieve conviction of the accused. When the blood turned out to be red paint, the Supreme Court granted habeas corpus relief to the defendant because "[it …

The Supreme Court, The Individual And The Criminal Process, E. Hunter Taylor Jr.

Scholarly Works

The sweeping social changes presently occurring in this country are having important effects on the law. The impact of this philosophical revolution upon th elaw is manifesting itself most directly and vividly in the Supreme Court of the United States where the entire concept of "individual liberty and freedom" is undergoing far-reaching change. One of the most important changes is occurring in the development of constitutional rules of criminal procedure, particularly those applicable to the states through the fourteenth amendment. Most of the particular longstanding announced aims of the Court, e.g., protection against the conviction of the innocent and prevention …

Appointed Counsel In Criminal Prosecutions: A Study Of Indigent Defense, Ronald L. Carlson

Scholarly Works

Attorney Carlson surveyed Iowa for the American Bar Association's study of the defense of indigent accused persons, and in this Article the results of that study are disclosed. The author sets forth recent constitutional developments involving appointments of counsel in criminal cases, then reviews criminal procedure and practice as it relates to the indigent. Survey techniques utilized in the study are revealed, and the responses obtained from jurists, prosecutors, and defense attorneys throughout the jurisdiction are detailed. Finally, he advances recommendations to assist in meeting the challenge of justice for the poor.