Constitutional Law Commons^™

The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman

Articles

For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …

The Crawford Transformation, Richard D. Friedman

Articles

Crawford v. Washington, 124 S. Ct. 1354 (2004), is one of the most dramatic Evidence cases in recent history, radically transforming the doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Crawford is a very positive development, but leaves many open questions - and forces Evidence teachers to rethink how they teach hearsay and confrontation.

Delusions Of Grand Juries, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

Indianapolis V. Edmond And The Original Understanding Of The Fourth Amendment, Bruce Newman

ExpressO

In this article I examine to what extent Indianapolis v. Edmond is in keeping with the original understanding of the Fourth Amendment. I conclude that the Founders were much more concerned with searches of real property, often insisting, not only on suspicion, but also a on warrant when searches of real property are involved. Secondly, while the Founders did not consider warrants necessary for searches and seizures off of real property (which for the sake of simplicity I call searches in public areas) the evidence suggests suspicion was required. Indeed, the Fourth Amendment was a direct response to the British …

National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock

ExpressO

In the past two years there have been serious calls for a national identity system whose centerpiece would be some form of national identity card. Such a system is seen mainly as a tool against terrorists, but also as a useful response to illegal immigration, identity theft, and electoral fraud. Both proponents and opponents have noted the potential constitutional problems of such an identity system, but as yet there has been no published legal analysis of these questions. This article aims to fill that gap by analyzing the Fourth and Fifth Amendment issues in two major features of any likely …

The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen

ExpressO

No abstract provided.

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless

ExpressO

In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth …

Punishing The Faithful: Freud, Religion, And The Law, Davida A. Williams

Cardozo Law Review

No abstract provided.

Assassination, The War On Terrorism, And The Constitution, Rodney A. Smolla

University of Richmond Law Review

No abstract provided.

In The Wake Of Kyllo V. United States: The Future Of Thermal Imaging Cameras, 36 J. Marshall L. Rev. 507 (2003), Paul Kleppetsch

UIC Law Review

No abstract provided.

Mandamus As A Weapon Of "Class Warfare" In Sixth Amendment Jurisprudence: A Case Comment On United States V. Santos, 36 J. Marshall L. Rev. 733 (2003), John F. Costello Jr.

UIC Law Review

No abstract provided.

Stubbornness Of Pretexts, Daniel B. Yeager

Faculty Scholarship

This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.

The Middle Class Fourth Amendment, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

How The Overturn Of The Child Pornography Prevention Act Under Ashcroft V. Free Speech Coalition Contributes To The Protection Of Children, Emily D. Goldberg

Cardozo Journal of Equal Rights & Social Justice

The note examines the Supreme Court's decision in Ashcroft v. Free Speech Coalition, which struck down portions of the Child Pornography Prevention Act (CPPA) as unconstitutional under the First Amendment. The Court ruled that the CPPA's ban on virtual child pornography was overbroad, as it prohibited lawful speech that could have artistic, literary, or scientific value. The decision highlights the tension between protecting children from exploitation and safeguarding free speech, ultimately emphasizing the importance of allowing narratives that confront and address difficult issues like child sexual abuse.

Justice White And Judicial Review, Philip J. Weiser

Publications

No abstract provided.

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Faculty Scholarship

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting …

Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl

Cardozo Law Review

This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests …

Confrontation As A Hot Topic: The Virtues Of Going Back To Square One, Richard D. Friedman

Articles

I have been working so obsessively on the accused's right to confront the witnesses against him 1 that I am gratified that the organizers of this conference have designated confrontation as one of the "hot topics" of Evidence law. I am not so egotistical as to think that my work has made confrontation into a hot topic; I am just glad to know that I am working where a good deal of action is, and that other scholars recognize that confrontation is an important area in which dramatic changes may be occurring.

Crawford V. Washington, Richard D. Friedman

Articles

On June 9, by granting certiorari in Crawford v. Washington, 02-9410, the Supreme Court signaled its intention to enter once again into the realm of the Confrontation Clause, in which it has found itself deeply perplexed. This time there was a difference, however, because the grant indicated that the Court might be willing to rethink its jurisprudence in this area. Crawford, like Lee v. Illinois, 476 U.S. 530 (1986), and Lilly v. Virginia, 527 U.S. 116 (1999), presents a classic case of what might be called station-house testimony. Michael Crawford was accused of stabbing another man. His wife, Sylvia, was …

Are Police Free To Disregard Miranda?, Steven D. Clymer

Cornell Law Faculty Publications

Harris, Ring, And The Future Of Relevant Conduct Sentencing, Kyron J. Huigens

Articles

No abstract provided.

Criminal Law And Procedure, Julie E. Mcconnell, Gregory Franklin, Craig Winston Stallard

University of Richmond Law Review

No abstract provided.

What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

The Warren Court, Criminal Procedure Reform, And Retributive Punishment, Darryl K. Brown

Washington and Lee Law Review

No abstract provided.

How The Supreme Court Delivers Fire And Ice To State Criminal Justice, Ronald F. Wright

Washington and Lee Law Review

No abstract provided.

Law Of The Case In Nevada: Confusing Relatives, Scott Doney

Nevada Law Journal

No abstract provided.

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

Productive Silence On Carl Schmitt: Constrained Ignorance Or Concluded Reappraisal? A Reply To Detlev F. Vagts, Carl Schmitt In Context: Reflections On A Symposium, Emanuel Richter

Cardozo Law Review

No abstract provided.

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony - A Prosecutor's Perspective, Lynn Helland

University of Michigan Journal of Law Reform

Although the Supreme Court has declined, for now, to endorse the Judicial Conference proposal to add a Rule 26(b) of the Federal Rules of Criminal Procedure to permit live video testimony under limited circumstances, I agree with Professor Friedman that the matter is far from over. This is both because the potential benefits to be realized from the use of remote video testimony are too large to ignore and because, on closer inspection, any Confrontation Clause concerns that might underlie the Court's hesitation to adopt the proposal are not warranted. My purpose in writing is to summarize some of the …