Criminal Law Commons^™

'The Question Is Which Is To Be Master - That's All': Cunningham, Claiborne, Rita And The Sixth Amendment Muddle, Frank O. Bowman Iii

Faculty Publications

Three things are clear from the Supreme Court's opinion in Cunningham v. California, in which the Court struck down California's sentencing law as violative of the Sixth Amendment, and from the briefs in the pending cases involving post-Booker federal sentencing, Claiborne v. United States and Rita v. United States. First, the Supreme Court has plunged Sixth Amendment sentencing law deep down the rabbit hole. Second, both the government and petitioners in Claiborne and Rita have adopted indefensible positions. Third, neither the parties nor the amici in Rita and Claiborne have offered the Court any real help in crafting a sensible …

Reconceiving The Right To Present Witnesses, Richard A. Nagareda

Michigan Law Review

Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …

The Constitutionalization Of Ineffective Assistance Of Counsel, Richard Klein

Scholarly Works

No abstract provided.

Right To Trial By Jury, Court Of Appeals People V. Foy

Touro Law Review

No abstract provided.

Pretrial Publicity In Criminal Cases Of National Notoriety: Constructing A Remedy For The Remediless Wrong, Robert M. Hardaway, Douglas B. Tumminello

Sturm College of Law: Faculty Scholarship

Part I of this Article examines the history of pretrial publicity in American courts and explores the values that the Sixth Amendment seeks to protect. Part II criticizes the Supreme Court's current approach to the pretrial publicity problem. Part III analyzes case studies of nationally notorious trials. Part IV explores remedial measures reasonably calculated to nullify the effects of prejudicial publicity and cases in which a trial judge's omission of those measures constitutes reversible error. Finally, this Article concludes by setting forth a proposed standard that should be applied in order to ensure the defendant's right to a fair trial …

Petty Offenses, Serious Consequences: Multiple Petty Offenses And The Sixth Amendment Right To Jury Trial, Jeff E. Butler

Michigan Law Review

In Blanton v. City of North Las Vegas, the Supreme Court set forth the definitive standard for distinguishing petty offenses from serious crimes.7 The benchmark used by the Court is the maximum prison term assigned to each offense by the legislature. Where the penalty exceeds six months' imprisonment, the offense is serious enough to trigger the right to jury trial. Where the penalty is six months' imprisonment or less, there is a strong presumption that the offense is petty; therefore, a defendant accused of that offense has no Sixth Amendment right to jury trial.

This Note argues that a criminal …

Losing The Right To Confront: Defining Waiver To Better Address A Defendant's Actions And Their Effects On A Witness, David J. Tess

University of Michigan Journal of Law Reform

Part I of this Note examines the current legal landscape regarding a defendant's waiver of the right to confrontation. This Part explores the justifications courts have provided for finding a waiver of the confrontation right, both through the use of the traditional "intentional relinquishment of a known right" standard and the less precise formulations of waiver found in cases of defendant misconduct. Part II offers a critique of the reasoning courts employ to find waiver of the right to confrontation. In the process, the analysis explores general theories of waiver which have been advanced by other commentators. In so doing, …

The Sixth Amendment On Ice-United States V. Jones: Whether Sentence Enhancements For Failure To Plead Guilty Chill The Exercise Of The Right To Trial, Andrew Neal Siegel

American University Law Review

No abstract provided.

Right To Counsel

Touro Law Review

No abstract provided.

After White V. Illinois: Fundamental Guarantees To A Hollow Right To Confront Witnesses, Patricia W. Bennett

Journal Articles

The thrust of this Article is three-fold: (1) to discuss the historical aspects of the Confrontation Clause and its interpretation by the United States Supreme Court, (2) to show that, with White v. Illinois, the Supreme Court lost its moorings with previous decisions and drifted into treacherous constitutional seas, and (3) to suggest a textual construction of the Confrontation Clause that would be harmonious with the hearsay rule while preserving the rights of the accused to face their actual accusers.

The Sixth Amendment Lives! A Reply To Professor Jonakait, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Lethal Fiction: The Meaning Of "Counsel" In The Sixth Amendment , Bruce A. Green

Faculty Scholarship

Charles Bell, Donald Paradis, and Shirley Tyler were tried in different states for murder. Each was convicted and sentenced to death. Charles Bell was represented at trial by a recent law school graduate who had never before tried a criminal case to completion. Donald Paradis's lawyer had passed the bar exam six months earlier, had never previously represented a criminal accused, and had not elected courses in criminal law, criminal procedure, or trial advocacy while in law school. Shirley Tyler's trial lawyer was also a member of the bar for only a few months. He had defended one previous assault …

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

Faculty Scholarship

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 …

Who’S Afraid Of The Sanction Wolf: Imposing Sanctions On Pro Se Litigants, Donalda Gillies

Cardozo Law Review

No abstract provided.

Restoring The Confrontation Clause To The Sixth Amendment, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

Note: United States V. Harvey: Are Criminal Defense Fees More Vulnerable Than Necessary?, Eric Easton

All Faculty Scholarship

In United States v. Harvey, the United States Court of Appeals for the Fourth Circuit held that Congress may not constitutionally require convicted racketeers and drug traffickers to forfeit property used to pay legitimate defense attorney fees. To the extent that such forfeitures and related pre-conviction restraints on transfer are authorized by provisions of the Comprehensive Forfeiture Act of 1984 (the Act), those provisions violate an accused's right to counsel of choice as secured by the Sixth Amendment.This article argues that the court's holding in Harvey was more narrowly drawn than necessary, and that as a consequence criminal defense attorney …

Expert Services And The Indigent Criminal Defendant: The Constitutional Madate Of Ake V. Oklahoma, John M. West

Michigan Law Review

This Note attempts to define the boundaries of the indigent criminal defendant's constitutional right to expert assistance, in the light of Ake v. Oklahoma. Part I briefly reviews the Ake decision and examines its constitutional background. Part II inquires into Ake's implications for experts other than psychiatrists and in contexts other than the insanity defense, arguing that the principles that guided the Ake decision have validity well beyond the facts of that case. Part III asks whether the Ake doctrine should be limited to capital cases. Rejecting such a limitation, it concludes that the right to expert assistance …

Constitutional Constraints On The Admissibility Of Grand Jury Testimony: The Unavailable Witness, Confrontation, And Due Process, Barbara L. Strack

University of Michigan Journal of Law Reform

Defendants, however, have raised serious constitutional objections to the introduction of grand jury testimony when the witness is unavailable to testify at trial. These claims have focused on the confrontation clause of the sixth amendment and the due process clauses of the fifth and fourteenth amendments. Defendants have contended that the introduction of testimony from a grand jury proceeding which cannot be subjected to cross-examination fatally compromises the defendant's right to a fair trial. Lower courts are split over admitting grand jury testimony in these circumstances, and the Supreme Court has yet to rule on the issue. As a result, …

Estelle V. Smith: The Constitutional Contours Of The Forensic Evaluation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Estelle v. Smith,' the United States Supreme Court recognized for the first time that an evaluation of a criminal defendant by a mental health professional may implicate both the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. The issues raised in Estelle are significant not only for the legal profession but also for those in the mental health professions who perform "clinical" evaluations for the criminal courts. Estelle involved the case of Ernest Smith, who was sentenced to death by a Texas jury in 1974. Prior to trial, the judge ordered a psychiatrist, Dr. Grigson, …

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

Journal Articles

Nearly a decade ago, the United States Supreme Court in McMann v. Richardson held that the sixth amendment right to counsel was a right to effective assistance of counsel. The Court declared that criminal defense attorneys must act "within the range of competence demanded of attorneys in criminal cases, '' and that trial judges must "strive ... to maintain proper standards of performance by attorneys ... in their courts." The Court has not elaborated, however, on what conduct the right to effective counsel requires of both defense counsel and the trial judge, or the procedure by which appellate review can …

Student Representation Of Indigent Defendants And The Sixth Amendment: On A Collision Course, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

This article will review the parallel patterns of development of clinical education and the sixth amendment, highlighting areas in which the practices of the former either conflict, or contain the potential for conflict with the latter. An analysis will be made of the present legal status of law student representation of indigent criminal defendants, with reference primarily to constitutional and sixth amendment considerations, but also to such related matters as the confidentiality of student-client communications, law student professional responsibility, and the applicability to students of state bar disciplinary rules. Finally, guidelines will be proposed regarding the proper scope of student …

Turner V. State, 340 So. 2d 132 (Fla. 2d Dist. Ct. App. 1976), Melanie Hines Alford

Florida State University Law Review

Criminal Law- ETHICS- PUBLIC DEFENDER'S OFFICE IS A "LAW FIRM" FOR PURPOSE OF DETERMINING WHETHER CONFLICT EXISTS IN REPRESENTATION OF CODEFENDANTS.

A Further Inquiry Into The Quality Of Indigent Felony Defense., Richard L. Huff

St. Mary's Law Journal

One of the primary goals of a democracy is equality before the law for all of its citizens. To this end, in 1963, the Supreme Court held that states must provide counsel to indigent defendants, at their own expense, in all felony trials. Although other jurisdictions have chosen a defender system of criminal attorneys hired by the local government to meet the Supreme Court’s mandate, Bexar County, Texas, utilizes a system of assigning members of the local bar to defendants in rotation. Contrary to the prevailing view, it is submitted that Bexar County's assigned counsel system provides adequate representation for …

Michigan V. Tucker, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

The Confrontation Clause And The Scope Of The Unavailability Requirement, Jerry J. Phillips

University of Michigan Journal of Law Reform

The confrontation clause is that language of the sixth amendment to the United States Constitution which provides, "[I]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him." Despite the seemingly absolute language of the confrontation clause, which would suggest that no hearsay evidence may be admitted against an accused in a criminal proceeding, its guarantee has been subject to exception. For example, when either a witness to an event or his testimony is shown to be unavailable, others will be allowed to testify as to the information which the declarant-witness has related …

Achieving Prompt Criminal Trials In New York, W. David Curtiss

Cornell Law Faculty Publications

During the past two years there have been several significant developments in New York related to achieving prompt trials in criminal prosecutions. These developments, which include judicial decisions, administrative rules and legislative enactments, come into special focus when delay in the trial of criminal cases is attributable to calendar congestion and the need for additional personnel and facilities. This article will examine these decisions, rules and statutes, with particular reference to their relationship to basic principles of judicial administration.

Appointed Counsel For The Indigent Civil Defendant: A Constitutional Right Without A Judicial Remedy., Michael Botein

Articles & Chapters

No abstract provided.

Criminal Law-Confessions-Admission Of Illegally Obtained Confession In State Criminal Prosecution Is Harmless Error Not Requiring Reversal Of Conviction--People V. Jacobson, Michigan Law Review

Michigan Law Review

Defendant voluntarily admitted that he had murdered his daughter to a social worker, two ambulance attendants, and three police officers sent to investigate the incident. He continued to declare his guilt to these officers after his arrest, on the way to the police station, and at the police station where he was interrogated without the benefit of counsel although he had not waived his right to counsel. All of the confessions-approximately ten-were admitted in evidence at the defendant's trial over his objection that the two confessions obtained during the interrogation should have been excluded since he had been denied his …

Model Defense Of Needy Persons Act, Reed Dickerson

Articles by Maurer Faculty

Recent decisions of the Supreme Court have expanded the duty of the states to provide counsel for defendants in criminal cases. The following statute seeks to set up a workable system of assuring the accused the assistance of counsel early in the proceedings against him and, if necessary, at no cost.

Right To Counsel In Criminal Cases, Edward T. Haggins

Cleveland State Law Review

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law... He requires the guiding hand of counsel at every step of the proceedings against him." These words, written in 1932 by Mr. Justice Sutherland for the majority in the famous case of Powell v. Alabama underline the fundamental right of a defendant in American criminal proceeding to have the assistance of counsel.