Criminal Procedure Commons^™

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

The More Things Change: A Psychological Case Against Allowing The Federal Sentencing Guidelines To Stay The Same In Light Of Gall, Kimbrough, And New Understandings Of Reasonableness Review, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

In December 2007, through two decisions, the Supreme Court sought to clean up the confusion that it created just shy of three years earlier when it rendered the Federal Sentencing Guidelines advisory in United States v. Booker and called for circuit courts to begin reviewing sentences for "unreasonableness." In one of those December decisions, Gall v. United States, the Court clarified what it meant by reasonableness review and explained that such review had both a procedural and substantive component. In the other decision, Kimbrough v. United States, the Court gave more meaning to the substantive component, …

Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran

Articles

I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision …

Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber

Publications

This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The …

Miranda And The Media: Tracing The Cultural Evolution Of A Constitutional Revolution, Russell D. Covey

Faculty Publications By Year

This article explores the depiction of interrogation in film and television from the 1940s to the present, and contrasts that imagery with the Supreme Court's interrogation jurisprudence over the same time frame. Although my treatment of the subject is necessarily only fragmentary (a comprehensive review of either topic would fill many volumes), this article hazards a few tentative hypotheses.

Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller

Publications

No abstract provided.

Crawford And Davis: A Personal Reflection, Richard D. Friedman

Articles

I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

Georgia V. Randolph: Whose Castle Is It, Anyway?, Lesley Mccall

University of Richmond Law Review

The Fourth Amendment protects individuals against unreasonable searches and seizures. Generally, a warrant is required to conduct a lawful search of a person's home, and a warrantless search is unreasonable per se. However, there are some exceptions to this requirement. A warrantless search is reasonable if police obtain voluntary consent from a person to search their home or effects. The Supreme Court has also recognized that a third party with common authority over a household may consent to a police search affecting an absent co-occupant. The Supreme Court of the United States recently addressed whether third party consent was effective …

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.

Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman

Articles

So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

Section 5: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Democratic Prosecutor: Explaining The Constitutional Function Of The Federal Grand Jury, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman

Michigan Law Review First Impressions

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …

The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall

Michigan Law Review First Impressions

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …

Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien

Michigan Law Review First Impressions

In 1972, in Furman v. Georgia, the Supreme Court deemed it “incon-testable” that a death sentence is cruel and unusual if inflicted “by reason of [the defendant’s] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capi-tal crimes. The issue of innocence was barely a footnote in Furman; the Court’s concerns focused on …

The Revolution Enters The Court: The Constitutional Significance Of Wrongful Convictions In Contemporary Constitutional Regulation Of The Death Penalty, Jordan Steiker

Michigan Law Review First Impressions

Over the last decade, the most important events in American death pen-alty law have occurred outside the courts. The discovery of numerous wrongfully convicted death-sentenced inmates in Illinois led to the most substantial reflection on the American death penalty system since the late 1960s and early 1970s. Former Illinois Governor George Ryan, a Republi-can, first declared a moratorium on executions in 2000 and eventually commuted all 167 inmates on Illinois’s death row in 2003. The events in Illinois reverberated nationwide. Almost overnight, state legislative agendas shifted from expanding or maintaining the prevailing reach of the death penalty to studying its …

Legitimizing Error, Rebecca E. Woodman

Michigan Law Review First Impressions

Since Furman v. Georgia, the Supreme Court has sought to harmonize competing constitutional demands under Eighth Amendment rules regulat-ing the two-step eligibility and selection stages of the capital decision-making process. Furman’s demand for rationality and consistency requires that, at the eligibility stage, the sentencer’s discretion be limited and guided by clear and objective fact-based standards that rationally narrow the class of death-eligible defendants. The selection stage requires a determination of whether a specific death-eligible defendant actually deserves that punish-ment, as distinguished from other death-eligible defendants. Here, fundamental fairness and respect for the uniqueness of the individual are the cornerstones of …

The Story Of Crawford, Richard D. Friedman

Book Chapters

Michael Crawford had been charged with assault. At his trial, the prosecution offered a statement made in the police station on the night of the incident by Crawford's wife Sylvia, who did not testify at trial. He objected, in part on the ground that this violated his right under the Confrontation Clause. The trial court nevertheless admitted the statement, and Crawford was convicted. The Washington Supreme Court ultimately affirmed the judgment. In rejecting the Confrontation Clause challenge, that court purported to apply the then governing doctrine of Ohio v. Roberts, under which the Clause posed no obstacle to admissibility if …

Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar

Book Chapters

It is difficult, if not impossible, to discuss Dickerson1 intelligently without discussing Miranda whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this chapter I focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely …

Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin

Faculty Scholarship

The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …

Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar

Articles

June marks the 40th anniversary of one of the most praised, most maligned-and probably one of the most misunderstood-U.S. Supreme Court cases in American history, Miranda v. Arizona. The opinion by Chief Justice Earl Warren conditions police questioning of people in custody on the giving of warnings about the right to remain silent, the right to counsel and the waiver of those rights. 384 U.S. 436. This ruling represents a compromise of sorts between the former elusive, ambiguous and subjective voluntariness/totality-of-the-circumstances test and extreme proposals that would have eliminated police interrogation altogether. But William H. Rehnquist didn't see Miranda that …

We Really (For The Most Part) Mean It!, Richard D. Friedman

Articles

I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …

Souter Passant, Scalia Rampant: Combat In The Marsh, Samuel R. Gross

Articles

Kansas law provides that unless a capital sentencing jury concludes that the mitigating factors that apply to the defendant’s crime outweigh the aggravating factors, it must sentence the defendant to death. The Kansas Supreme Court held that this law violates the Eighth and Fourteenth Amendments because it “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” On June 26, in Kansas v. Marsh, the Supreme Court reversed in a 5 to 4 opinion by Justice Thomas.

Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman

Publications

This article addresses the response of Colorado courts, and that of certain other jurisdictions, to the 2004 U.S. Supreme Court decision in Crawford v. Washington.

Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth

Michigan Law Review

Everyone suspects that Supreme Court justices' own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute. Do their preferences exert some pressure at the margin or are they better viewed as the mainsprings of decision? The latter claim, identified with legal realism, has been lent some support by political scientists who point out that some justices regularly vote for or against certain kinds of claims (for example, under the Fourth Amendment), or that votes in some areas are broadly predictable according to a …

Section 7: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.