Law Commons^™

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

W. Bradley Wendel

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Confronting Science: Expert Evidence And The Confrontation Clause, David H. Kaye, Jennifer L. Mnookin

David Kaye

In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.

In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal …

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

David Kaye

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic area …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

The Answer To Trial Publicity Is A Better Question, Kevin F. Qualls

Kevin F Qualls

Free-Press/Fair-Trial contests now happen in a new media age. Judicial remedies such as change-of-venue, sequestration, jury admonitions, and gag orders were fashioned in an era that included broadcast radio and television, an emerging cable television industry, and the traditional print media of newspapers and magazines. That content was, to some degree, geographically bound and temporary. Now those judicial remedies are applied in a new media age that extends the reach of traditional media in time and space while offering interactive capability. The efficacy of these remedies is in question. This paper provides an historical overview of how judicial remedies for …

Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein

Richard Daniel Klein

Whereas in 2013 there had been widespread celebration of the fiftieth anniversary of the landmark Supreme Court decision in Gideon v. Wainwright, much has been written in subsequent years about the unhappy state of the quality of counsel provided to indigents. But it is not just defense counsel who fail to comply with all that we hope and expect would be done by those who are part of our criminal courts; prosecutorial misconduct, if not actually increasing, is becoming more visible. The judiciary chooses to focus on the rapid processing of cases, often ignoring the rights of those being prosecuted …

Democracy Enhancement And The Sixth Amendment Right To Choose, Janet Moore

Janet Moore

A democracy deficit undermines the legitimacy of criminal justice systems. People enmeshed in these systems are disproportionately poor people and people of color with little voice in creating or implementing the governing law. A stark example is the Sixth Amendment right to choose a lawyer. This understudied and undertheorized right is protected for criminal defendants who can afford to hire counsel. Yet according to Supreme Court dicta and rulings by other courts across the country, poor people “have no right to choose” their lawyers. This Article argues that the Sixth Amendment right to choose should apply to the overwhelming majority …

The Aba Guidelines And The Norms Of Capital Defense Representation, Russell Stetler, W. Bradley Wendel

W. Bradley Wendel

The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“Guidelines”), as revised in 2003, continue to stand as the single most authoritative summary of the prevailing professional norms in the realm of capital defense practice. Hundreds of court opinions have cited the Guidelines. They have been particularly useful in helping courts to assess the investigation and presentation of mitigating evidence in death penalty cases. This Article will discuss how these Guidelines have come to reflect prevailing professional norms in this critical area of capital defense practice and how that practice has developed in the …

The Perilous Psychology Of Public Defending, Scott Howe

Scott W. Howe

This article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of …

Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless

Rebecca Sharpless

Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part One, John Blume, Emily Paavola

John H. Blume

This article addresses the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements.

Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part Two, John H. Blume, Emily C. Paavola

John H. Blume

Part One of this article addressed the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements. Part Two discusses the Sixth Amendment, the 14th Amendment's Due Process Clause and impeachment issues.

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

James L. Kainen

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

Effective Assistance Of Counsel: In Quest Of A Uniform Standard Of Review, Theresa L. Springmann, John Eric Smithburn

J. Eric Smithburn

No abstract provided.

A Criminal Quartet: The Supreme Court's Resolution Of Four Critical Issues In The Criminal Justice System, Richard Klein

Richard Daniel Klein

No abstract provided.

Padilla Postconviction Claims In Florida: Squaring Chaidez, Hernandez And Castaño, Rebecca Sharpless, Andrew Stanton

Rebecca Sharpless

In Padilla v. Kentucky, the U.S. Supreme Court ruled that the Sixth Amendment requires defense attorneys to counsel their noncitizen clients about the immigration consequences of a plea. Padilla had pled guilty in state court to a drug crime and, after his conviction became final, filed a state postconviction motion alleging that his attorney rendered ineffective assistance of counsel by failing to advise him that his plea would trigger deportation. In holding that Padilla was entitled to competent advice regarding the consequences of his plea, the Court recognized what professional norms have required for at least the last two decades. …

Protecting Employee Rights And Prosecuting Corporate Crimes: A Proposal For Criminal Cumis Counsel, Josephine Sandler Nelson

J.S. Nelson

Forgetting Furman: Arbitrary Death Penalty Schemes Across The Nation, Sarah A. Mourer

Sarah Mourer

The legislature has forgotten the lessons taught by Furman v. Georgia and today, the “untrammeled discretion” once held by juries is now held by the judiciary. Many death penalty sentencing procedures are unconstitutional, in violation of both the Sixth and Eighth Amendments, because the judge alone is authorized to sentence the defendant to life or death despite being uninformed of the jury’s factual findings. Pursuant to the Sixth Amendment as articulated in Ring v. Arizona, the factual findings upon which a death sentence rests must be found by the jury, and only the jury. Nevertheless, many jurisdictions permit the judge …

Hold On: The Remarkably Resilient, Constitutionally Dubious "48-Hour Hold", Steven Mulroy

Steven Mulroy

This article discusses the surprisingly widespread, little-known practice of “48-hour holds,” where police detain a suspect without charge or access to bail for up to 48 hours to continue their investigation; at the end of 48 hours, they either charge or release him. Although it has not been discussed in the scholarly literature, the practice has occurred in a number of large local jurisdictions over the past few decades, and continues today in some of them. The “holds” often take place, admittedly or tacitly, without the probable cause needed to charge a defendant, and thus in violation of the Fourth …

Presumed Guilty, Terrence Cain

Terrence Cain

It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the …

The Contradictory Stance On Jury Nullification, Kenneth J. Duvall

Kenneth J Duvall

Arguments about jury nullification in both courts and academia proceed under the assumption that either proponents and opponents of nullification could decisively carry the day. But as current Supreme Court law stands, nullification is at once prohibited and protected. This Article shines a light on the uneasy, confusing compromise in the doctrine, and finds that the two ways out of the dilemma—fully embracing nullification, or rejecting it—are equally taboo to the American legal mind. In Part I, this Article briefly explains the contested history of nullification. In Part II, it examines modern courts’ intermittent recognition of nullification. Part III then …

Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall Lucas

Lauren Sudeall Lucas

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …

The Indigent Defense Crisis, Richard Klein, Robert Spangenberg

Richard Daniel Klein

No abstract provided.

Justice In The Shadowlands: Pretrial Detention, Punishment And The Sixth Amendment, Laura I. Appleman

Laura I Appleman

This Article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those convicted offenders existing in prisons. Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a cross-section of the offender’s community adjudicates his crime and finds him guilty. This Article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both …

Massachusetts Firearms Prosecutions In The Wake Of Melendez-Diaz, Kevin P. Chapman

Kevin P. Chapman

The Supreme Court ruling in Melendez-Diaz fundamentally changed the way that firearms offenses are prosecuted in Massachusetts. This paper presents the history of firearms prosecutions and the current state of the law, and it raises several unanswered questions that could further change the nature of future firearms prosecutions.

Padilla V. Kentucky And The Evolving Right To Deportation Counsel: Watershed Or Work-In-Progress?, Daniel Kanstroom

Daniel Kanstroom

Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The …

“Bull” Coming From The States: Why The U.S. Supreme Court Should Use Williams V. Illinois To Close One Of Bullcoming’S Confrontation Clause Loopholes, Tara Klimek Price

Tara Price

Imagine that you are selected as a juror in a trial where the defendant is accused of driving while under the influence of alcohol. You listen to the police officer who testifies that he observed the defendant and believed him to be intoxicated. You hear about how after obtaining a warrant, the officer took the defendant to the emergency room for a blood-alcohol test. The police officer finishes his testimony, and the next witness will testify about the results of the defendant’s blood-alcohol test.

But before the witness can testify, defense counsel objects. Apparently, this is not the laboratory analyst …

Funding Gideon's Promise By Viewing Excessive Caseloads As Conflicts Of Interests, Heidi R. Anderson

Heidi R Anderson

Some states recently have attempted to legislate around a defendant’s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Sadly, that step is nothing new. Step two—the one that has slipped by without sufficient notice or criticism—is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants’ Sixth Amendment rights to effective assistance.

In this article, I urge courts to “constitutionalize” the excessive caseload …

Fourth, Fifth And Sixth Amendment Considerations For Admissibility Of Defendants’ Admissions And Confessions, Nancy Haydt

Nancy Haydt

Over the past three terms, the U.S. Supreme Court has rendered opinions that have great impact on the admissibility of a criminal defendant's statement which constitutes an admission under FRE Rule 801(d)(2). This paper addresses recent High Court rulings implicating Fourth Amendment Search and Seizure rights, Fifth Amendment Rights to silence and to counsel, and Sixth Amendment Right to non-interference with trial counsel in the context of admissions and confessions, and discusses the profound effect these rulings have in Criminal Procedure.