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Full-Text Articles in Law
Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman
Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce …
The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole
The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole
Georgetown Law Faculty Publications and Other Works
In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …
Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman
Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party. …
Making Constitutional Doctrine In A Realist Age, Victoria Nourse
Making Constitutional Doctrine In A Realist Age, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand …
Perils Of The Rulemaking Process: The Development, Application, And Unconstitutionality Of Rule 804(B)(3)'S Penal Interest Exception, Peter W. Tague
Perils Of The Rulemaking Process: The Development, Application, And Unconstitutionality Of Rule 804(B)(3)'S Penal Interest Exception, Peter W. Tague
Georgetown Law Faculty Publications and Other Works
As the culmination of a decade of rulemaking, in 1975 Congress enacted the Federal Rules of Evidence, which include in rule 804(b)(3) an exception to the hearsay rule that allows federal courts to admit statements against penal interest. Having reviewed previously unpublished memoranda and nonpublic tape recordings of the deliberations of the Advisory and Standing Committees to the Judicial Conference and the Special Subcommittee on Reform of Federal Criminal Laws of the House Judiciary Committee, Professor Tague explores the development of rule 804(b)(3), one of the more controversial rules that emerged from that rulemaking process. After analyzing rule 804(b)(3) and …
Federal Habeas Corpus And Ineffective Representation Of Counsel: The Supreme Court Has Work To Do, Peter W. Tague
Federal Habeas Corpus And Ineffective Representation Of Counsel: The Supreme Court Has Work To Do, Peter W. Tague
Georgetown Law Faculty Publications and Other Works
The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court's landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had "deliberately bypassed" the procedural opportunity to raise the claim; the Court defined "deliberate bypass" in terms of a defendant's intentional and voluntary relinquishment of …