Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 3 of 3
Full-Text Articles in Law
Limiting Access To Remedies: Select Criminal Law And Procedure Cases From The Supreme Court's 2021-22 Term, Eve Brensike Primus, Justin Hill
Limiting Access To Remedies: Select Criminal Law And Procedure Cases From The Supreme Court's 2021-22 Term, Eve Brensike Primus, Justin Hill
Articles
Although the most memorable cases from the Supreme Court’s 2021-22 Term were on the civil side of its docket, the Court addressed significant cases on the criminal side involving the Confrontation Clause, capital punishment, double jeopardy, criminal jurisdiction in Indian Country, and important statutory interpretation principles, such as the mens rea presumption and the scope of the rule of lenity. Looking back, the Court’s decisions limiting individuals’ access to remedies for violations of their constitutional criminal procedure rights stand out. Shinn v. Ramirez and Shoop v. Twyford drastically limit the ability of persons incarcerated in state facilities to challenge the …
Military Justice As Justice: Fitting Confrontation Clause Jurisprudence Into Military Commissions, Christina Frohock
Military Justice As Justice: Fitting Confrontation Clause Jurisprudence Into Military Commissions, Christina Frohock
Articles
The Guantánamo prosecution of Abd al-Rahim al-Nashiri, the alleged mastermind behind the deadly USS Cole bombing, highlights an unresolved issue in military commissions: whether the Confrontation Clause of the Sixth Amendment to the Constitution applies to bar hearsay statements of unavailable witnesses. While al-Nashiri's counsel recently moved for the military judge to take judicial notice that the Confrontation Clause applies, it is worth considering that the question may be framed differently. Rather than ask whether the Confrontation Clause applies in a military commission, we may ask whether a "testimonial statement" - the only kind of hearsay evidence that triggers the …
An Accuser-Obligation Approach To The Confrontation Clause, Sherman J. Clark
An Accuser-Obligation Approach To The Confrontation Clause, Sherman J. Clark
Articles
This Essay argues that the Confrontation Clause of the Sixth Amendment ought to be re-understood as primarily an accuser's obligation rather than primarily as a defendant's right. We demand that those who would perform this potentially dangerous, morally weighty, and symbolically loaded act-the act of accusation-be willing to do so face to face. We impose this requirement not only because out-of-court accusations are unreliable, though they may often be, but also in response to a deep, if inchoate, feeling that it is somehow beneath us inconsistent with our sense of who we want to be as a community-to allow witnesses …