Law Commons^™

The Life And Times Of Boyd V. United States (1886-1976), Michigan Law Review

Michigan Law Review

In Boyd v. United States, the Supreme Court held that the fourth and fifth amendments create a zone of privacy encompassing an individual's person and property. The government, according to Boyd, cannot enter this zone, either by compelling an individual to testify against himself or by subpoenaing or seizing his books and papers for use as evidence against him in a criminal or quasi-criminal proceeding. The Court found an "intimate relation" between the two amendments such that the search and seizure of books and papers may be "unreasonable" even if conducted pursuant to a court order.

Over time, …

Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel

Articles

I start in Section I of this Article with an examination of the first major theme of the criminal procedure decisions of the Warren Court, the selective incorporation of Bill of Rights' guarantees into the due process clause of the fourteenth amendment. My conclusion is that the selective incorporation principle, which provided the doctrinal basis for many of the "liberal" decisions of the Warren Court, remains firmly established today under the Burger Court. Section II of the Article then analyzes the theme of equality and the role it played in Warren Court decisions in the criminal procedure area. It is …

Mondale On Mapp, Yale Kamisar

Articles

Any judicial reversal of the Mapp rule threatens to have just the opposite effect. Law enforcement officials are likely to treat a decision that illegally obtained evidence may be admitted into state criminal trials as though that were a practical suspension of the constitutional rules as to lawful arrest, search, and seizure. They are likely to feel that once again "the judiciary is okaying it." With the smell of revelations of FBI "black-bag jobs" and intelligence agency abuses still in the air, is this how we want the Court to contribute to the atmosphere of police practices as we enter …

Hostile-Audience Confrontations: Police Conduct And First Amendment Rights, Michigan Law Review

Michigan Law Review

This Note first suggests an explicit standard for police conduct in the hostile-audience situation that defines procedures the police must follow at various stages to avoid violating the first amendment. The standard reflects the fact that first amendment free speech rights are not absolute and that such rights must be weighed against both compelling state interests and the competing constitutional claims of other persons. It seeks to reconcile the interest in public order with our constitutional commitment to open discussion and robust debate. Finally, to deter police abuse of first amendment rights in the hostile-audience context, reforms of tort law …

Subsequent Use Of Electronic Surveillance Interceptions And The Plain View Doctrine: Fourth Amendment Limitations On The Omnibus Crime Control Act, Raymond R. Kepner

University of Michigan Journal of Law Reform

Despite the critical examination to which many sections of Title III have been subjected, section 2517(5) has received little serious scrutiny from either the courts or the commentators. This note will analyze the constitutionality of the section in terms of the standards which the Supreme Court has articulated, both with respect to the law of search and seizure generally and with respect to electronic surveillance. This examination will reveal that section 2517(5) cannot be sustained under the existing contours of fourth amendment interpretation.

The Future Of Imprisonment, Ronald J. Allen

Michigan Law Review

A Review of The Future of Imprisonment by Normal Morris

Standards For Accepting Guilty Pleas To Misdemeanor Charges, Richard A. Kopek

University of Michigan Journal of Law Reform

The guilty plea-not the trial-is the most common manner of disposing of criminal cases in America. It has been estimated that 90 percent of all convictions and 95 percent of misdemeanor convictions are the result of guilty pleas. Various reasons have been advanced to explain this heavy reliance on the guilty plea. For example, it avoids the drain on judicial resources that would occur if all cases had to be tried. In addition, it eliminates the risks and uncertainties of trials and permits flexibility in sentencing. Because of the prevalence of guilty pleas, there must be procedural safeguards to insure …

Conjugal Visitation Rights And The Appropriate Standard Of Judicial Review For Prison Regulations, Michigan Law Review

Michigan Law Review

Conjugal visitation rights allow prison inmates and spouses to visit privately and have sexual relations. A number of countries, particularly in Latin America, permit conjugal visits. Although in the United States only Mississippi and California currently permit conjugal visitation, the experience of these two states shows that such programs are workable. Conjugal visitation has met with varied reaction in the literature, but persuasive arguments have been made that it would offer potential psychological benefits to the prisoner, reduce prison homosexuality, and allow the inmate to preserve his or her marital ties. Nevertheless, the reaction of penal administrators in this country …

Legislative Regulation Of Searches And Seizures: The Michigan Proposals, Jerold H. Israel

Articles

IN March 1971, the Michigan Bar Commissioners appointed a twenty-five-member committee with a directive "to promulgate a recommended revision of the Code of Criminal Procedure codifying existing statutory and case law provisions which, in the judgment of the Committee, should be retained and adding thereto such provisions as the Committee, in its judgment, deems warranted; and to incorporate such recommendations into proposed legislation for submission to the Legislature."' The committee membership included judges, prosecutors, legislators, criminal defense lawyers, law school professors, and representatives of Michigan police and corrections agencies.2 Judge Horace Gilmore served as Chairman, and I served as Reporter.

Judicial Examination Of The Accused--A Remedy For The Third Degree, Paul G. Kauper

Michigan Law Review

Reprint from 30 Michigan Law Review 1224.

In its report on "Lawlessness in Law Enforcement" the Wickersham Commission concludes that in the police systems of a number of American municipalities the "third degree" is very generally practiced as a means of extorting from accused persons under arrest confessions, incriminating statements, and other information of value to the police. The conclusion of the Commission confirms the results of private investigation made in the same field. It is true that the methods of inquiry pursued by the Commission leave doubt as to the accuracy of some of the facts reported. But the …

Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar

Articles

For a long time before Professor Paul Kauper wrote "Judicial Examination of the Accused" in 1932, and for a long time thereafter, the "legal mind" shut out the de facto inquisitorial system that characterized American criminal procedure. Paul Kauper could not look away. He recognized the "naked, ugly facts" (p. 1224) and was determined to do something about them -more than thirty years before Escobedo v. Illinois' or Miranda v. Arizona.2

The Future Of Imprisonment: Toward A Punitive Philosophy, Norval Morris

Michigan Law Review

Proper use of imprisonment as a penal sanction is of primary philosophical and practical importance to the future of society. With the increasing vulnerability of our social organization and the growing complexity and interdependence of governmental structures, reassessment of appropriate limits on the power that society should exercise over its members becomes increasingly important. Perhaps if the "prison problem" is solved, many of the uneasy tensions between freedom and power in postindustrial society will diminish. The effort made here will, I hope, contribute to the solution of the "prison problem" by offering a new model of imprisonment that recognizes fundamental …

Kirby, Biggers, And Ash: Do Any Constitutional Safeguards Remain Against The Danger Of Convicting The Innocent?, Joseph D. Grano

Michigan Law Review

Even recognizing the danger of misidentification, procedural safeguards, especially constitutional ones, are not readily apparent. Some judges, such as Justice Stewart, find less need for counsel at photographic displays than at lineups; others find an equivalent or even greater need for counsel. Some judges, in approving on-the-scene identifications without counsel, find a guarantee of accuracy in the short interval between the crime and the identification; other judges decry such procedures and find them inherently suggestive. The problem stems directly from the lack of scientific knowledge and inquiry. Therefore, in analyzing the recent identification cases, this Article will draw upon experimental …

Elevation Of Entrapment To A Constitutional Defense, Robert H. Thomson Iii

University of Michigan Journal of Law Reform

The issue of entrapment arises initially as a defense when a person is accused of committing a criminal act in which government agents solicited, and perhaps actively participated in, the conduct for which the defendant stands accused. Classic entrapment situations occur when law enforcement officers, through agents or informers, solicit an illegal transaction, such as the sale of contraband. The evidence thereby obtained is used to support the prosecution of the individual accepting the solicitation. Solicitation is an important technique of law enforcement because evidence of illegal transactions is often impossible to obtain by other methods. Certain uses of solicitation …

Protection Of Privacy Of Computerized Records In The National Crime Information Center, Stuart R. Hemphill

University of Michigan Journal of Law Reform

The purpose of this article is to describe the social benefits and costs of the NCIC and to indicate the need for a program of operational controls to temper the system's impact on the balance between individual privacy and law enforcement needs. Various approaches which could be incorporated into a program of safeguards are introduced and briefly analyzed. Finally, the article discusses several overall design issues which should be considered in the construction of an adequate program of safeguards. Particular emphasis is placed on the NCCH file since it is the major source of the tensions underlying the issues addressed.

Minimum Wages For Prisoners: Legal Obstacles And Suggested Reforms, James J. Maiwurm, Wendy S. Maiwurm

University of Michigan Journal of Law Reform

The growing literature on prisoners' rights has not yet focused on inmates' demands for minimum wages and the justification for such demands. This article explains why statutory minimum wage coverage should be extended to inmates, discusses the judicial treatment of prison labor and the minimum wage question, advocates adoption of legislation now pending in Congress, and suggests further legislative reform necessary to implement the minimum wage proposal. Many conditions in our prison system are undoubtedly more harmful and degrading than lack of meaningful wages. This article focuses on only one feasible reform, not on the priorities of prison reform in …

Legal Rights In A Juvenile Correctional Institution, Matthew L. Myers

University of Michigan Journal of Law Reform

This article focuses on the effect on juvenile correctional institutions of the erosion of the "hands-off" doctrine and the introduction of procedural safeguards in the juvenile justice system. In so doing, the article examines the difficulties inherent in any attempt to reform institutional practices and procedures to accommodate the goals of the juvenile correctional model. In the juvenile context, the extent to which fundamental rights need or may be abrogated to allow the institution freedom to rehabilitate and treat its inmates is crucial. Therefore, this article examines three areas involving fundamental constitutional rights: imposition of punitive segregation, freedom of communication, …

Rule-Making And The Police, Carl Mcgowan

Michigan Law Review

That remarkable man, Justice Oliver Wendell Holmes, in whose name and by whose providence we are met on this occasion, had many profound perceptions about the nature of law-making. Except for the violence of the Civil War in his youth, his life was largely lived at a time and in a society which seem simple and benevolent by comparison with our own. Some of his generalizations, nevertheless, continue to define accurately the limitations under which we confront the complexities presently assailing us on every side. This is notably true of the administration of criminal justice.

Police Initiated Emergency Psychiatric Detention In Michigan, Mark F. Mehlman

University of Michigan Journal of Law Reform

While performing his duties a police officer may frequently be confronted with the behavior of an individual which threatens or has resulted in self-inflicted injury, or which poses an imminent threat to the safety of others. Under such circumstances an officer may determine that criminal arrest is inappropriate but that some form of restraint is necessary. Michigan has provided an alternative course of action by authorizing temporary emergency psychiatric detention of an individual whom a police officer deems to be "mentally ill and manifesting homicidal or other dangerous tendencies."

The Parole Board's Duty Of Self-Regulation, John P. Quinn

University of Michigan Journal of Law Reform

This article examines the Michigan Parole Board in terms of its structure, mode of operation, and certain legal issues raised by its procedures. The note argues that the Board's and the legislature's concept of professional, scientific decision-making is not an adequate substitute for the checks and balances which confine and control the discretion of other governmental agencies, and furthermore, that this concept is inconsistent with both the letter and spirit of the Michigan Administrative Procedures Act (MAPA or Act). Thereafter, an approach is suggested by which the Act can be used as a tool to legitimate and rationalize Parole Board …

The Concept Of Privacy And The Fourth Amendment, Steven C. Douse

University of Michigan Journal of Law Reform

This Article attempts at a minimum to offer a common background and frame of reference for defining and comparing myriad facets of the law. If successful, they furnish a model for the integration of these many facets. This inquiry begins with an examination of the proposition that the essence of the fourth amendment is protection of a right of privacy. The concept of privacy is then defined and elaborated, both without and within the constitutional context. These conclusions are further extended in an exploration of mechanisms for defining the invasions and protection of fourth amendment privacy.

Criminal Procedure--Self-Incrimination--Harmless Error--Application Of The Harmless Error Doctrine To Violations Of Miranda: The California Experience, Michigan Law Review

Michigan Law Review

Using decisions of the appellate courts of California that have applied the federal harmless error rule to violations of Miranda v. Arizona and Escobedo v. Illinois, this Note will examine the logic and effects of the California application. However, the California experience can only be understood by first briefly describing the United States Supreme Court's decisions regarding harmless constitutional error and then showing the approaches taken by other states in their application of the harmless error rule to Miranda violations. Not only will this analysis put the California experience in its proper perspective, but it will also show the …

Searches Without Warrants, Jerold H. Israel

Book Chapters

My primary area of concentration today is the search made without a warrant. Studies indicate that 95 percent or more of all searches are without warrants. It is quite understandable, then, that most of the search-and-seizure litigation concerns the validity of searches without warrants.

Preventive Detention During Riots, Jerold H. Israel

Book Chapters

Various studies of the administration of justice during riots establish that persons arrested during riots generally have been detained for substantially longer periods than persons arrested during nonriot situations. This "extra" period of pretrial detention has been the product of quite different practices in different cities, and these practices have been based on several different administrative policies including, but not limited to, preventive detention.

In several cities, extra-lengthy detention resulted from a general judicial policy of setting extraordinarily high bail for the duration of the riot. A prime example was Detroit, where 70% of the bail initially set was in …

An Introduction To Riot Legislation, Jerold H. Israel

Book Chapters

My speech will provide an introduction to criminal code legislation specifically pertaining to riots and a brief description of our recent experience with riots. Hopefully, this description, supplemented by the film on the Detroit riot, will provide an appropriate factual background for both the remainder of my own talk and the analyses of proper police procedures during riots (and other civil disorders) to be presented by Major Brown and Professor Martin.

When The Cops Were Not 'Handcuffed', Yale Kamisar

Book Chapters

Are we losing the war against crime? Is the public getting a fair break? Has the pendulum swung too far to the left? Do the victims of crime have some rights, too? Are the courts handcuffing the police?

If there were a hit parade for newspaper and magazine articles, speeches and panel discussions, these questions would rank high on the list. Not only are they being raised with increasing frequency, but they are being debated with growing fury.

Last year, probably the most famous police chief in the United States, William H. Parker of Los Angeles, protested that American police …

National Study Of The Aftermath Of Apprehension, Martin Gold, Jay R. Williams

University of Michigan Journal of Law Reform

It appears, unfortunately, that what legal authorities now commonly do upon apprehending a juvenile for his delinquent behavior is worse than not apprehending him at all. Two independent studies demonstrate that apprehension itself encourages rather than deters further delinquency. Such a conclusion constitutes a serious indictment of current procedures. This article documents that conclusion and, together with the reactions to these data of men professionally concerned with the problem of delinquency, suggests what might be done about this problem.

Aftermath Of Apprehension: Juvenile Court Judge's Response, John P. Steketee

University of Michigan Journal of Law Reform

It would appear that juveniles find apprehension to be a reinforcement of their delinquent behavior. Being apprehended and questioned by the police, referred to juvenile court, meeting a probation officer, and going before a judge, not to mention the status one gains in one's group from police and/or court contact, can be a very significant chain of events for many adolescents who have never known the excitement of personal recognition by parents, school officials or even friends. For the first time, they are recognized and listened to, albeit for the wrong reasons. The attention need not be positive; shouting, scolding, …

Aftermath Of Apprehension: Family Lawyer's Response, Robert F. Drinan S.J.

University of Michigan Journal of Law Reform

It is contended here that Gold and Williams' statement of their thesis in National Study of the Aftermath of Apprehension that "apprehension itself encourages rather than deters further delinquency" is not what their research proves. The research proves rather that the revelation of the apprehension to the delinquent's parents without the consent of the youth apprehended is the real cause of the youth's further delinquency. Stated more precisely, it is the attitude of the parents towards the youth who has been apprehended by the police which is the critical factor in encouraging or deterring the youth from further delinquency.

Aftermath Of Apprehension: Social Scientist's Response, Richard B. Stuart

University of Michigan Journal of Law Reform

Gold and Williams suggest in National Study of the Aftermath of Apprehension that "It appears, unfortunately, that what legal authorities commonly do upon apprehending a juvenile for his delinquent behavior is worse than not apprehending him at all." If this conclusion is correct, and it is the result of two interrelated studies, then it should influence sweeping programmatic reforms in the social institutions concerned with promoting and safeguarding the development of youth. The intent of this article is to suggest avenues available for this reform both within and beyond the juvenile justice system. Before addressing the implications of the research, …