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Full-Text Articles in Law
Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel
Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel
Articles
Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …
Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary
Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary
Articles
No abstract provided.
The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar
The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar
Articles
There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4
A Structural Vision Of Habeas Corpus, Eve Brensike Primus
A Structural Vision Of Habeas Corpus, Eve Brensike Primus
Articles
As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …
Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus
Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus
Articles
The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …
How Much Does It Matter Whether Courts Work Within The "Clearly Marked" Provisions Of The Bill Of Rights Or With The "Generalities" Of The Fourteenth Amendment?, Yale Kamisar
Articles
We know that it really mattered to Justice Hugo Black. As he made clear in his famous dissenting opinion in Adamson v. California] Black was convinced that the purpose of the Fourteenth Amendment was to apply the complete protection of the Bill of Rights to the states.2 And, as he also made plain in his Adamson dissent, he was equally convinced that working with the "specific" or "explicit" guarantees of the first Eight Amendments would furnish Americans more protection than would applying the generalities of the Fourteenth Amendment.3
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
Articles
Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Articles
Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …
A Look Back On A Half-Century Of Teaching, Writing And Speaking About Criminal Law And Criminal Procedure, Yale Kamisar
A Look Back On A Half-Century Of Teaching, Writing And Speaking About Criminal Law And Criminal Procedure, Yale Kamisar
Articles
When I look back at my academic career, I realize that, as hard as I tried to plan things, various events often overrode my plans.
Fallen Superheroes And Constitutional Mirages: The Tale Of Brady V. Maryland, Scott E. Sundby
Fallen Superheroes And Constitutional Mirages: The Tale Of Brady V. Maryland, Scott E. Sundby
Articles
No abstract provided.
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar
Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar
Articles
Over the years, Miranda v. Arizona1 has been criticized both for going too far2 and for not going far enough.3 Nevertheless, on the basis of talks with many criminal procedure professors in the sixteen months between the time a panel of the Fourth Circuit upheld a statute (18 U.S.C. § 3501) purporting to "overrule" Miranda and a 7-2 majority of the Supreme Court overturned that ruling in the case of Dickerson v. United States,4 I am convinced that most criminal procedure professors wanted the Supreme Court to do what it did-"reaffirm" Miranda. This is not surprising. As Professor Grano once …
"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar
"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar
Articles
I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …
Cornerstones Of The Judicial Process, Jerold H. Israel
Cornerstones Of The Judicial Process, Jerold H. Israel
Articles
Under our federated system of government, each state and the federal government have their own criminal justice processes. The federal system must comply with the constitutional prerequisites set forth in the Bill of Rights, and the state systems must comply with those Bill of Rights' provisions made applicable to the states by the Fourteenth Amendment,1 but those constitutional prerequisites allow considerable room for variation from one jurisdiction to another. In many respects, the fifty states and the federal government have used that leeway to produce considerable diversity in their respective criminal justice processes. At the same time, however, one can …
Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar
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
Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel
Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel
Articles
During the 1962 Term, the Supreme Court, on a single Monday, announced six decisions concerned with constitutional limitations upon state criminal procedure. The most publicized of these, though probably not the most important in terms of legal theory or practical effect, was Gideon v. Wainwright. In an era of constantly expanding federal restrictions on state criminal processes, the holding of Gideon-that an indigent defendant in a state criminal prosecution has an unqualified right to the appointment of counsel-was hardly startling. And while Gideon will obviously have an important effect in the handful of states that still fail to appoint counsel …