Criminal Law Commons^™

Criminal Justice Act Of 1964; State Malpractice Suit Against Appointed Counsel; Ferri V. Ackerman, Sandra J. Branda

Akron Law Review

The United States Supreme Court in Ferri v. Ackerman reversed the Pennsylvania Supreme Court and held that an attorney appointed by a federal judge to represent an indigent defendant in a federal criminal trial is not, as a matter of federal law, entitled to absolute immunity in a state malpractice suit brought against him by his former client. In a unanimous opinion, the Court decided that the function of appointed counsel is more closely analogous to that of private retained counsel, who enjoy no immunity from malpractice prosecution than to that of judges and prosecutors who have traditionally been accorded …

Motor Vehicles; Driving While Intoxicated; Section 4511.19; Implied Consent; Aurora V. Kepley, Amie Bruggeman

Akron Law Review

With the constant problem of accidents caused by drinking drivers and the fairly reliable results of breathalyzer tests established, judicial decisions have upheld the statutory scheme providing for its use through an era when rights of an accused have been greatly expanded. It has been held that the breathalyzer test results are not testimonial but physical evidence and therefore not protected by the Fifth Amendment privilege against self-incrimination. Thus, the accused has no constitutional right to refuse to take the test, and the prosecutor may comment at the trial on his refusal relying on its' probative value as to whether …

Release From Confinement Of Persons Acquitted By Reason Of Insanity In Ohio, Caryl A. Hess

Akron Law Review

The Court also held that the committing court, "... a tribunal composed of the judge of the court of common pleas of Allen county, the superintendent of the Lima state hospital, an alienist to be designated by said judge and superintendent, or a majority of them," can make the "restored to reason" determination and order release. This note focuses on the relationship between acquittal and release standards.

New Strategies For The Defense Of Capital Cases, Dennis N. Balske

Akron Law Review

Practically all capital defendants are poor people. Accordingly, the lawyer representing a capital defendant is usually court-appointed and has probably never tried a death case. In smaller communities, he or she may have represented a few criminal defendants, but does not specialize in criminal law. In larger metropolitan areas, overworked public defenders often times must shoulder the responsibilities of capital cases. Sobered by the possible sentence faced in the event of conviction, the defense lawyer seeks out new ideas, publications in the field, and practical advice or actual assistance from lawyers with expertise in trying capital cases. This article attempts …

Sixth Amendment; Right Of Confrontation Limitations On The Bruton Rule; Parker V. Randolph, Edward P. Mazak

Akron Law Review

In some joint criminal trials the right of one defendant to refrain from self incrimination may come into conflict with the right of another defendant to confront the witnesses against him. The problem arises when one defendant refuses to testify at trial after having made a voluntary, out of court statement which tends to implicate a second defendant. The rules of evidence allow the statement to be introduced at trial only against the party making it; its use against the implicated defendant is excluded as hearsay.' The rules also provide for the court to instruct the jury on the limited …

Reparation Awards To Victims Of Crimes In Ohio, Catherine Petraglia

Akron Law Review

Ohio has taken steps to assist victims of crime by enacting Revised Code sections 2743.51-.72.1 It is the purpose of this comment to review the provisions of the Ohio law, comparing it with the statutes of other states and making a preliminary assessment of its impact, strengths, and weaknesses, based on approximately two years of experience with the law in its present form. Comparison will be made with the provisions of the Uniform Crime Victims Reparation Act, drafted and approved by the National Conference of Commissioners on Uniform State Laws in 1973.

The Grand Jury: A Critical Evaluation, Ovio C. Lewis

Akron Law Review

It seems in retrospect that our grand jury was a microcosm of grand juries generally in that many of the problems noted in the literature were manifest throughout our term. This supports the proposition that the weaknesses and defects of grand juries are not reflective of lack of zeal or devotion to duty on the part of individual members of the juries, but rather are indicative of systemic and institutional dysfunctionalities that are inherent in the grand jury system as it is presently constituted and organized. Thus, the critical comments that appear herein ought not to be taken as an …

Sixth Amendment; Right To Counsel; Multiple Representation; Cuyler V. Sullivan, Howard S. Essner

Akron Law Review

In Cuyler v. Sullivan, the Supreme Court finally resolved two important issues in the areas of criminal law and the sixth amendment right to counsel. In this case, the Court is faced with a situation with which it has dealt but twice before: joint representation of criminal defendants. Cuyler represents the culmination of the legal inquiry into the problems inherent whenever a single attorney represents more than one defendant in a criminal proceeding.

Sixth Amendment; Right To Counsel; Use Of Prior Uncounseled Convictions; Lewis V. United States And Baldasar V. Illinois, Rita Marks

Akron Law Review

Once again the Supreme Court has spoken on the issue of the right to counsel. Within three months the Court rendered two decisions which appear to be inconsistent, not only with one another, but with prior decisions of the Court

The Courtroom Status Of The Polygraph, John A. Turlik

Akron Law Review

This comment will inform the reader of the status and various uses of the polygraph available to the criminal attorney, with an emphasis on Ohio law.

Impact Of Rico Upon Labor Unions, Robert M. Twiss

Akron Law Review

This paper will examine Title IX of the Organized Crime Control Act of 1970, relating to Racketeer Influenced and Corrupt Organizations (RICO). It will then discuss how Title IX pertains to labor unions and whether the assets of a labor organization may be forfeited under the civil forfeiture provisions of the Act.

The Probative Value Of Testimony From The Hypnotically Refreshed Recollection, Kevin L. Pelanda

Akron Law Review

"The experience of the last three centuries of judicial trials has demonstrated that in disputed issues one cannot depend upon the mere assertion of anybody, however plausible, without scrutiny into its basis." The recent increase in the use of hypnotic memory enhancement on the victims and witnesses of crimes, as well as on defendants' and plaintiffs' witnesses, necessitates an in-depth examination of the reliability of hypnosis as a basis for testimony or statements of persons who are speaking from a hypno-enhanced recollection. Such an examination of hypnosis reveals that hypnotically enhanced memories are likely to be fraught with fantasized and …

Johnson V. State Of Nevada, 131 Nev. Adv. Op. 58, Joseph Meissner

Nevada Supreme Court Summaries

The Court heard an appeal from a sentence and conviction following a jury trial of one count of conspiracy to commit robbery, two counts of robbery, and one count of battery with intent to commit a crime. Affirmed.

Polygraph Admission Through Compulsory Process, Timothy J. Walsh

Akron Law Review

Polygraph evidence is included within the broad category of expert testimony, yet it is treated quite differently from other forms of expert testimony. If admissible at all for the defense, polygraph evidence almost always requires the stipulation of the prosecution for it to be admitted into court. Such a requirement vests solely, within the hands of a prosecutor, the ability to eliminate that proof which may be necessary for the defendant to effectively prove his innocence. Furthermore, in some jurisdictions a defendant cannot even place his faith in the sympathy of a prosecutor. Instead, a rule bars him from proving …

Ohio Supreme Court Symposium

Akron Law Review

During the 1981-1982 term the Ohio Supreme Court rendered 250 written opinions on a wide range of topics from wiretapping to the liability of landlords for injuries. In several cases, individuals gained significant legal rights in dealing with business and others. In addition, there were some significant changes in the law governing municipal sovereignty and immunity. This symposium will not attempt to cover all decisions of the Ohio Supreme Court, but rather to highlight some of the major decisions which affect Ohioans.

The Business Papers Rule: Personal Privacy And White Collar Crime, John S. Applegate

Akron Law Review

The first step in this endeavor will be the development of a definition of white collar crime which adequately accounts for the difficulty in combatting it. The next step will be to examine individually the two competing goals law enforcement and privacy - to try to get a sense of the requirements of each. This will lead into a discussion of the conflict between the goals. The article will then move on to consider several unsatisfactory resolutions of the conflict, making that the basis for sketching out the necessary specifications of a good solution. Finally, the "business papers rule" will …

An Introductory Examination Of The Racketeer Influenced And Corrupt Organizations Act,, David E. Morris

Akron Law Review

This comment will attempt to serve as an introduction to RICO, addressed to those with little or no knowledge of either its provisions and intricacies, or its potential usefulness and adaptability as a prosecution tool. The recent criticism of RICO by the American Bar Association will also be reviewed, as well as the ABA's proposed amendments to RICO. Finally, the state RICO statutes will be discussed. The advantages they offer states currently without any substantive laws dealing directly and primarily with organized and white-collar crime will be examined.

Sixth Amendment, Televising Trials, Chandler V. Florida, Paul A. Patterson

Akron Law Review

The Supreme Court recently handed down a unanimous decision dealing with the respective rights of the press and defendants in regard to the televising of criminal trials. The case, Chandler v. Florida, while explicitly stated to be consistent with the Court's earlier decision in Estes v. Texas, has expanded the realm of media coverage of criminal trials beyond what apparently was permissible under Estes. The Court attempted to balance the competing constitutional guarantees of freedom of the press and the sixth amendment right to a fair trial. It held that while the presence of television cameras in …

The Need For Judicial Restriction On The Use Of Drug Detecting Canines, William R. Pomeroy

Akron Law Review

The purpose of this comment is to examine these issues, outline the conflicting positions, and attempt to forecast the direction the courts may take in their effort to bring some harmony to this unsettled (and to some, unsettling) area of law. Few people would attempt to deny law enforcement officials the use of this highly effective and relatively unintrusive law enforcement tool. Yet there are those who fear that the unsettled questions concerning limits on the use of this tool may lead to serious abuse, and who raise the specter of unlimited government intrusion should this type of investigatory activity …

Entrapment In Ohio, Margaret Barker

Akron Law Review

Police commonly pose as drug buyers, conspirators in bribery schemes, prostitutes, burglars, and receivers of stolen property in order to apprehend criminals. Does police involvement in these crimes constitute entrapment? Not necessarily. Entrapment, as distinguished from mere deception, occurs when the police, in order to prosecute a crime, induce a person to commit a crime which he would not ordinarily commit. A defendant who has been entrapped is entitled to an acquittal. This seems simple enough, but police, defendants, prosecutors, defense attorneys and judges have discovered that fine lines separate permissible and impermissible police activity. It is not easy, therefore, …

Admissibility Of Scientific Evidence: Voice Spectrography, Linda C. Ashar

Akron Law Review

In State v Williams, the Ohio Supreme Court addressed for the first time the issue of admissibility of voice analysis as identification evidence. The court ruled that expert testimony and exhibits based on voice spectrography analysis are admissible if they are relevant and will assist the trier of fact. Williams also pronounces how Ohio courts should evaluate the admissibility of scientific evidence.

Capital Punishment Of Children In Ohio: "They'd Never Send A Boy Of Seventeen To The Chair In Ohio, Would They?", Victor L. Streib

Akron Law Review

This article presents first an overview of the national legal environment and actual executions in American history and then a focused, in-depth analysis of Ohio as a reasonably representative American jurisdiction. Each of the nineteen verified and documented Ohio cases are examined in some detail to determine, so far as is possible, the reasons they were selected for capital punishment. The cases are discussed within the context of the legal environment existing at the time they were decided.

Interstate Agreement On Detainers And The Rights It Created, William A. Meadows

Akron Law Review

Prior to 1984, the Interstate Agreement on Detainers (lAD) generated very little concern. However, under a theory recently put forth by defense attorneys for accused serial killer Alton Coleman the IAD could provide a mechanism which would interfere with the execution of the death penalty.

This article will explore this issue in detail, but before doing so, a discussion of the workings of the IAD is appropriate in order to better appreciate the consequences of this theory. This article will first explore the effects of the detainer process and the events which led to the development of the IAD. Second, …

The Writ-Writers: Jailhouse Lawyers Right Of Meaningful Access To The Courts, John F. Myers

Akron Law Review

This comment will focus on the evolution of jailhouse lawyers, the rights they possess and the problems they face in a system that continually seeks to limit their activities

Using Microcomputers And P/G% To Predict Court Cases, Stuart S. Nagel

Akron Law Review

The purpose of this article is to analyze a microcomputer program that can process a set of (1) prior cases, (2) predictive criteria for distinguishing among the cases, and (3) the relations between each prior case and each criterion in order to arrive at an accurate decision rule. Such a rule will enable all the prior cases to be predicted without inconsistencies, and thereby maximize the likelihood of accurately predicting future cases. To illustrate the program, this article uses five substantive fields, including the predicting of cases dealing with religion in the public schools, legislative redistricting, housing discrimination, international law, …

Does The "One-Party Consent" Exception Effectuate The Underlying Goals Of Title Iii?, Thomas C. Daniels

Akron Law Review

Title III is an attempt to balance two purposes - protection of private citizens and control of organized crime. 9 Because of these diametric purposes, discussion of all aspects of Title III is beyond the scope of this comment. The first section of this comment will discuss the Supreme Court's past and present position on the use of electronic surveillance. The remainder of the comment will trace the development of the "one-party consent" exception as codified in Title III, analyzing its continued validity and applicability to private unauthorized electronic surveillance.

The Ineffective Assistance Of Counsel Quandry: The Debate Continues Strickland V. Washington, Susan K. Vanburen

Akron Law Review

In recent years, dissatisfied criminal defendants have increasingly resorted to claims alleging actual ineffectiveness of counsel as a vehicle for challenging their convictions. Prior to Strickland v. Washington, the Supreme Court had not delineated the "proper standards" for reviewing claims of actual ineffectiveness of counsel. The lack of a national standard for assessing defense counsel's performance, as it relates to the constitutional requirement, generated extensive deliberation by lower courts and commentators. Faced with a deluge of actual ineffectiveness claims, the lower courts were forced to formulate standards to distinguish effective from ineffective assistance. However, the ensuing diverse standards employed …

Imposing Punitive Damage Liabiliity On The Intoxicated Driver, Martin A. Kotler

Akron Law Review

It is important to keep in mind throughout this discussion that awareness and acknowledgement of the existence of a problem, even a very serious problem, should not make us overreact and thereby accept an unworkable solution in our zeal to do something. The imposition of punitive damages is, for the most part, just such an unworkable solution. More specifically, I will attempt to demonstrate that, with the possible exception of the case of the recidivist, non-alcoholic defendant, the imposition of punitive damages simply cannot be justified. That being the case, we must look elsewhere for a solution to an admittedly …

Escobedo And Miranda Revisited, Arthur J. Goldberg

Akron Law Review

Shortly before the close of the 1983 term, the Supreme Court of the United States decided two cases, U.S. v. Gouveia and New York v. Quarles, which in effect overruled Escobedo v. Illinois and undermined Miranda v. Arizona.

Children's Testimony In Sexual Abuse Cases: Ohio's Proposed Legislation, Deborah Mahusky

Akron Law Review

Legislatures are attempting to reduce the trauma to the child, and, at the same time, to increase convictions.

This legislation is often in the form of permitting videotaped pretrial statements and depositions to be admitted into evidence. Additionally, some legislatures are permitting testimony of the child at depositions or at trial to take place in a separate room from the defendant, the judge, the jury and the general public through the use of closed circuit television or monitors. However, this legislation may present an encroachment of sixth amendment guarantees.

Section I of this comment will discuss whether or not the …