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The Burden Of Proof In Double Jeopardy Claims, Michigan Law Review

Michigan Law Review

This Note argues that once the defendant raises a nonfrivolous double jeopardy claim that turns on a question of fact, the government should have the burden of proving that the two crimes charged are actually different. Part I traces the development of the law and the major factors behind recent federal court scrutiny of the traditional rule. Part II argues that constitutional considerations require courts to shift the burden of proof to the government, not only when practical considerations suggest the shift, but in all cases turning on questions of fact. Finally, Part III reconciles this allocation with the well-established …

Criminal Venue In The Federal Courts: The Obstruction Of Justice Puzzle, Michigan Law Review

Michigan Law Review

Courts have struggled to determine venue for cases involving obstruction of justice with similarly inconsistent results. The circuits have divided over where to lay venue in prosecutions for obstruction of justice when the defendant allegedly acted in one judicial district to obstruct a proceeding that was pending in another. This Note argues that formalistic analysis, which has led courts to set venue in the district of the affected trial, should be rejected in favor of a more policy-oriented approach. Part I demonstrates that a formalistic statutory analysis that closely inspects either legislative history or the language of the statute ultimately …

"Knock, Knock" Is No Joke: Announcement Rules For Business Premises, Michigan Law Review

Michigan Law Review

This Note argues that the courts should reject a home-business distinction in the application of announcement requirements. The Note concludes that announcement rules should apply whenever their underlying policies are served. This approach would apply announcement requirements to closed and occupied business premises.

Part I examines the arguments offered by some courts for a restrictive interpretation of announcement protections in the business context. Part I suggests that these arguments are unpersuasive and that the courts' application of announcement rules should correspond to the policies behind them. Part II argues that the policy justifications for announcement are served in the business …

Government Compensation For The Costs Of Producting Subpoenaed Documents: A Proposal For Legislative Reform, Norman Gross

University of Michigan Journal of Law Reform

Current statutory and case law provide for the compensation of select categories of persons and entities that provide evidence to the federal government. This compensation scheme is inequitable insofar as it treats similarly situated persons and entities dissimilarly. This Note advocates the adoption of a blanket statutory provision to compensate all third party custodians for incurred costs in producing documents in compliance with a subpoena duces tecum issued on behalf of a federal authority. Part I describes the current federal reimbursement scheme. Part II examines the inequities that the current statutory scheme imposes upon similarly situated entities and argues for …

Improving Jury Deliberations: A Reconsideration Of Lesser Included Offense Instructions, Michael D. Craig

University of Michigan Journal of Law Reform

This Note approves of efforts to avoid hung juries by giving lesser included offense instructions but opposes those instructions that restrict juror decisions and coerce minority jurors. Rather, this Note offers a lesser included offense instruction that promotes flexibility and jury compromise without undermining the deliberative process. Part I describes the problem of hung juries and how courts have tried to prevent them with restrictive lesser included offense instructions. Part II analyzes the coercive impact of restrictive lesser included offense instructions and concludes that an instruction conditioning deliberations upon individual juror disagreement better promotes compromises on the merits while reducing …

Habeas Corpus Review Of State Trial Court Failure To Give Lesser Included Offense Instructions, Michael H. Hoffheimer

University of Michigan Journal of Law Reform

This Note advocates that federal courts review state criminal convictions in habeas corpus proceedings when lesser included offense instructions are available under state law but were not given. Part I demonstrates that granting such review conforms to the modern jurisdictional scope of federal collateral review because failure to give the instructions undermines the fact-finding function of juries and is therefore unconstitutional. Part II analyzes the proper standard of review and determines that the federal interest in protecting the reliability of the fact-finding process should prevail over any conflicting state interest in refusing to give lesser included offense instructions. Part II …

Forgotten Points In The "Exclusionary Rule" Debate, James Boyd White

Michigan Law Review

Most contemporary discussions of the "exclusionary rule" assume or assert that this "rule" is not part of the fourth amendment, nor required by its terms, but is rather a judicial "remedy" that was fashioned to protect those rights (against unreasonable search and seizure) that actually are granted by the fourth amendment. The protection is said to work by "deterring" official violations; this is, however, an odd use of the word, for the rule does not punish violations but merely deprives the government of some of the benefits that might ensue from them, namely the use in the criminal case of …

The Fourth Amendment As A Device For Protecting The Innocent, Arnold H. Loewy

Michigan Law Review

Part I of this Article establishes that the government has a right to search for and seize evidence of crime. Part II develops the corollary proposition that the fourth amendment does not protect the right to secrete evidence of crime. Part III explores the impact of the reasonable expectation of privacy concept on the innocent. Part IV evaluates consent searches and their effect on the innocent. Finally, Part V considers the exclusionary rule as a device for protecting the innocent.

Habeas Corpus: Its History And Its Future, Charles Alan Wright

Michigan Law Review

A Review of A Constitutional History of Habeas Corpus by William F. Duker

Exploring The Roots Of Our Criminal Justice Systems, Samuel Walker

Michigan Law Review

A Review of The Roots of Justice by Lawrence M. Friedman and Robert V. Percival, and Conscience and Convenience by David Rothman

Watching The Judiciary Watch The Police, Jon O. Newman

Michigan Law Review

A Review of Police Practices and the Law: Essays from the Michigan Law ReviewThe University of Michigan Press

International Cooperation In Penal Matters: The "Lockheed Agreements", Bruno A. Ristau

Michigan Journal of International Law

In February 1976, officials of the Lockheed Aircraft Corporation testified before a Senate committee that their company had paid $12.6 million in bribes, commissions and fees to Japanese businessmen and government officials to promote sales of Lockheed planes. News of these bribes rocked Japan's political establishment and governmental institutions. The Japanese Diet (parliament) passed a resolution urging that the United States government disclose to the Diet the names of the Japanese officials involved in these bribes. Prime Minister Takeo Mild sent a personal letter to President Ford requesting that the United States make available all information in its possession bearing …

The Political Offense Exception As Applied In French Cases Dealing With The Extradition Of Terrorists, Thomas E. Carbonneau

Michigan Journal of International Law

This article does not attempt to deal with all of the multifarious aspects of contemporary terrorism; its ambition is much more modest in scope, centering upon traditional legal mechanisms and doctrines that can be adapted to deal with terrorism. Using the decisional law of France as an illustrative model, this article analyzes the transnational and political character of terrorist acts and seeks to establish the implications of those characteristics for litigation dealing with the extradition of terrorist offenders. Several assumptions underlie the analysis. First, the effort to repress international crime is seen as a laudable objective of the international legal …

Jurisdictional Bases For Criminal Legislation And Its Enforcement, B.J. George Jr.

Michigan Journal of International Law

The doctrine of jurisdiction-the authority of nations or states to create or prescribe penal or regulatory norms and to enforce them through administrative and judicial action- has been a source of difficulty in both international and domestic law for centuries. The last two decades, however, have witnessed more conflicts over the invocation of forum penal laws to reach persons and activities outside national boundaries than had arisen for more than a century before. Moreover, treaties restricting some dimensions of penal jurisdiction based on other than the territorial concept have become increasingly common, and some nations have legislated to prevent their …

International Exchange Of Information In Criminal Cases, Michael E. Tigar, Austin J. Doyle Jr.

Michigan Journal of International Law

This article describes some of the means by which police and prosecutors obtain information in international criminal matters. An exhaustive catalog is not presented; rather, examples of international cooperation and conflict are dwelled upon to illustrate the need for systematic development of international law principles governing the interpretation and application of treaties, and the enforcement in both the demanding and the rendering state of rules concerning information exchange. These rules and principles should honor expectations of privacy and confidentiality, make dear the obligations of foreign persons and entities, including financial institutions, and ensure mutual respect for the sovereign interests of …

The Right To Bail In United States Extradition Proceedings, Carl A. Valenstein

Michigan Journal of International Law

This note examines the judicial rationale for denying bail in extradition proceedings except in special circumstances. The author maintains that the courts apply the special circumstances rule inconsistently. Moreover, a better balance should be struck between the interests of the accused and the interests of the United States Government. This can be accomplished by granting the accused in an extradition proceeding the same right to bail before a final order granting extradition as exists under the federal bail statute.

Procedural Unvertainty Attending The Assertion Of The Political Offense Exception In Extradition Hearings, Charles R. Meyer Iii

Michigan Journal of International Law

The American approach to the political offense exception to extradition is under increasing attack. Unfavorable commentary, sparked in part by the recent decision In re McMullen, has noted the confusion present in the operation of the exception. This article will trace some of the difficulties to the uncertain procedural burdens of raising and proving the exception in the judicial hearing. The current practice should be reformed to ameliorate the confusion. To this end, the United States Congress or Supreme Court must intervene to unify the procedural approaches taken by U.S. magistrates with respect to raising and proving the political …

Extradition From Israel, M. Dennis Gouldman

Michigan Journal of International Law

Following an introduction, the main part of the article will review the law of extradition from Israel-a subject about which little is known outside this country. The discussion will focus on the decisions and practices of both the judiciary and the executive. The remainder of the article will consider special problems that have arisen in Israel as a country with an "open gate" immigration policy for the Jews of the world and a new unwillingness to hand over its own nationals for trial and sentence abroad.