Criminal Procedure Commons^™

Standards Of Persuasion And The Distinction Between Fact And Law, Richard D. Friedman

Articles

The invitation to respond in these pages to Gary Lawson's very interesting article, Proving the Law, was tempting enough. But what made it irresistible was Professor Lawson's comment that he is "addressing, with a brevity that borders on the irresponsible, subjects well beyond [his] depth." Now, that's the kind of debate I really like. Let me jump right in. A principal question raised by Lawson, which I find quite interesting, may be phrased in general, and purposefully ambiguous, terms as follows: Before an actor treats a proposition as a valid2 proposition of law, what standard of persuasion should that proposition …

An Asymmetrical Approach To The Problem Of Peremptories?, Richard D. Friedman

Articles

The Supreme Court's decision in Batson v. Kentucky, and the extension of Batson to parties other than prosecutors, may be expected to put pressure on the institution of peremptory challenges. After a brief review of the history of peremptories, this article contends that peremptories for criminal defendants serve important values of our criminal justice system. It then argues that peremptories for prosecutors are not as important, and that it may no longer be worthwhile to maintain them in light of the administrative complexities inevitable in a system of peremptories consistent with Batson. The article concludes that the asymmetry of allowing …

Guilt: Henry Friendly Meets The Maharal Of Prague, Irene Merker Rosenberg, Yale L. Rosenberg

Michigan Law Review

So while the overnight deliberation rule is at least partially bound up with the question of reliability and relates to the judicial process itself, the broader and more fundamental issue raised by this law is whether we should free the guilty to preserve a value that we deem necessary to proper working of the criminal justice process, regardless of the culpability of individual defendants. To this Judge Friendly's answer is generally no, 113 and the MaHaRaL's is yes.

The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii

Michigan Law Review

This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …

Telling Tales In Court: Trial Procedure And The Story Model, Richard O. Lempert

Articles

There are three ways in which stories may figure prominently at trials. First, litigants may tell stories to jurors. Not only is there some social science evidence that this happens, but trial lawyers have an instinctive sense that this is what they do. Ask a litigator to describe a current case and she is likely to reply, "Our story is ... " Second, jurors may try to make sense of the evidence they receive by fitting it to some story pattern. If so, the process is likely to feed back on itself. That is, jurors are likely to build a …

The Fourth Amendment And Its Exclusionary Rule, Yale Kamisar

Articles

"The history of liberty," Justice Felix Frankfurter once noted, "has largely been the history of observance of procedural safeguards" and "the history of the destruction of liberty," Professor Anthony Amsterdam has added, "has largely been the history of the relaxation of those safeguards in the face of plausible sounding governmental claims of a need to deal with widely frightening and emotion freighted threats to the good order of society." These plausible-sounding government claims are being heard today -and they are putting enormous pressure on the Fourth Amendment, the constitutional provision that protects "the right of the people to be secure …

Evaluating The Fourth Amendment Exclusionary Rule: The Problem Of Police Compliance With The Law, William C. Heffernan, Richard W. Lovely

University of Michigan Journal of Law Reform

Part I of this article reviews background matters bearing on our research - in particular, we discuss the Court's framework for analyzing exclusion as a deterrent safeguard, the research questions that need to be raised within that framework, and the research strategy we adopted in light of the Court's approach to exclusion. Part II analyzes our findings on police knowledge of the rules of search and seizure. Part III analyzes our findings on officers' willingness to obey the law. Part IV evaluates our findings in light of policy questions concerning the exclusionary rule. We consider whether the Court should retain …

To Tell What We Know Or Wait For Godot?, Phoebe C. Ellsworth

Articles

Professor Elliott raises two questions about the American Psychological Association's practice of submitting amicus briefs to the courts. First, are our data sufficiently valid, consistent, and generalizable to be applicable to the real world issues? Second, are amicus briefs adequate to communicate scientific findings? The first of these is not a general question, but must be addressed anew each time the Association considers a new issue. An evaluation of the quality and sufficiency of scientific knowledge about racial discrimination, for example, tells us nothing at all about the quality and sufficiency of scientific knowledge about sexual abuse. "Are the data …

Character Impeachment Evidence: Psycho-Bayesian (!?) Analysis And A Proposed Overhaul, Richard D. Friedman

Articles

Typically, arguments for restricting character impeachment evidence are based in part on the premise that prior crimes, at least violent crimes, generally indicate little about a person's veracity. The argument advanced here against character impeachment of criminal defendants does not rely on that premise; in fact, it accepts the premise that prior antisocial behavior, even not involving dishonesty, often does indicate a good deal about a person's general truthtelling inclination. A careful analysis of the situation of the accused on the witness stand-rather than an easy assumption about irrelevance-leads to this Article's broad conclusion that character impeachment evidence of criminal …

Controlling Discretion By Administrative Regulations: The Use, Misuse, And The Nonuse Of Police Rules And Policies In Fourth Amendment Adjudication, Wayne R. Lafave

Michigan Law Review

In assaying fourth amendment jurisprudence, it is useful to take into account available knowledge regarding the actual search and seizure practices of the police. Especially helpful is the perspective afforded by the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States, which ranks as the preeminent empirical study of law enforcement procedures in this country. Despite the fact - or, more likely, because of the fact that the ABF Survey was published over twenty years ago, certain insights from that study highlight some recent and significant changes in this corpus juris inconstans .

Clearly "the …

Legislating Confession Law In Great Britain: A Statutory Approach To Police Interrogations, Mark Berger

University of Michigan Journal of Law Reform

Part I provides an overview of the development of British confession law, including the changes under PACE. Part II examines PACE's impact on related subjects, such as detention conditions, access to legal advice, and waiver of the right of access to a solicitor. Finally, Part III suggests that the British experience in developing a statutory framework to regulate these issues can serve as a model for undertaking such reforms in the United States.

Beyond The Warren Court And Its Conservative Critics: Toward A Unified Theory Of Constitutional Criminal Procedure, Donald A. Dripps

University of Michigan Journal of Law Reform

Part I develops more fully the differences that divide liberal and conservative commentators on criminal procedure, taking special note of the series of Reports prepared by the Justice Department's Office of Legal Policy and published recently in the University of Michigan Journal of Law Reform. Part II explains my disquiet with the suggestion that original-meaning jurisprudence ought to guide criminal procedure doctrine. Part II also defends the thesis that the fourteenth amendment protects the individual interest in freedom from unjust punishment, rather than any abstract interest in truth for its own sake. Part III considers two familiar controversies in criminal …

The Truth About Massiah, James J. Tomkovicz

University of Michigan Journal of Law Reform

First, the Article will summarize the Justice Department's discussion of the Massiah right to counsel and the exclusion of evidence under Massiah. Next, it will evaluate the nature of the Report and the character of legal scholarship. Finally, it will explore the substantive debate over Massiah. In that section, the Article will point out the matters on which the DOJ and I agree, will attempt to frame the fundamental questions raised by the Massiah doctrine, and will investigate potential sources of answers to those constitutional questions. Ultimately, it will provide the answers that I prefer, explaining the premises …

Remembering The 'Old World' Of Criminal Procedure: A Reply To Professor Grano, Yale Kamisar

Articles

When I graduated from high school in 1961, the "old world" of criminal procedure still existed, albeit in its waning days; when I graduated from law school in 1968, circa the time most of today's first-year law students were arriving on the scene, the "new world" had fully dislodged the old. Indeed, the force of the new world's revolutionary impetus already had crested. Some of the change that the criminal procedure revolution effected was for the better, but much of it, at least as some of us see it, was decidedly for the worse. My students, however, cannot make the …

A Revisionist Theory Of Abstention, Barry Friedman

Michigan Law Review

This article offers a straightforward model for identifying cases in which abstention threatens federal rights - and so is inappropriate and cases in which federal rights are not so threatened and state interests require abstention. Part I provides some background on the abstention doctrines, clarifying· the competing premises that must be reconciled in order to develop a coherent, unified abstention doctrine. Part II then sets out the basis for the revisionist theory and the manner in which it would operate, arguing that a federal trial forum only need be - and only should be - available where necessary to protect …

The Law Of Pretrial Interrogation, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The existing rules in the United States governing the questioning of suspects in custody are based on the Supreme Court's five to four decision in Miranda v. Arizona. The Court in Miranda promulgated a new, code-like set of rules for custodial questioning, including the creation of a right to counsel in connection with custodial questioning, a requirement of warnings, a prohibition of questioning unless the suspect affirmatively waives the rights set out in the warnings, and a prohibition of questioning if the suspect asks for a lawyer or indicates in any manner that he is unwilling to talk. These …

Foreword - The 'Truth In Criminal Justice' Series, Stephen J. Markman

University of Michigan Journal of Law Reform

This special issue of the University of Michigan Journal of Law Reform contains a series of reports-the 'Truth in Criminal Justice' series-that reexamine a variety of basic issues in the law of criminal procedure and evidence. In publishing this series, the editors of the Journal have made an important and timely contribution to the national debate over the character and future development of criminal justice in the United States. There is an abundance of legal writing on criminal justice issues, but relatively little of it concerns increasing the system's effectiveness in bringing criminals to justice or doing justice for the …

The Search And Seizure Exclusionary Rule, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The fourth amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This guaranty is not self-executing, however, and the courts and criminal justice systems in this country have long been bedeviled by questions concerning appropriate methods of ensuring its observance. As a result of the Supreme Court's decisions in Weeks v. United States and Mapp v. Ohio, the method principally relied upon today is a judicially created rule excluding from criminal trials evidence obtained in violation of the defendant's fourth amendment rights.

The search and seizure …

The Judiciary's Use Of Supervisory Power To Control Federal Law Enforcement Activity, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

In McNabb v. United States, the Supreme Court claimed- for the first time in its history-the prerogative of "establishing and maintaining civilized standards of procedure and evidence" in the exercise of "supervisory authority over the administration of criminal justice in the federal courts." Since then, the Court has used this self-declared oversight power on numerous occasions and for a wide variety of purposes, but it has never adequately explained either the provenance or the scope of this type of judicial authority. Lower federal courts have followed suit, on the largely unexamined assumption that they too are endowed with supervisory …

Adverse Inferences From Silence, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

This Report, the eighth in the Truth in Criminal Justice series, assesses the rules relating to the evidentiary consideration of the defendant's silence. Its general conclusion is that the existing restrictive rules in this area are unjustified impediments to the search for truth. The notion that the fifth amendment's prohibition of compelling a person in a criminal case to be a witness against himself bars drawing adverse inferences from the defendant's silence is not well-founded. In practical effect, these rules impede the conviction of the guilty by barring consideration of an aspect of the defendant's conduct-his failure to respond to …

The Admission Of Criminal Histories At Trial, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

As part of a continuing series of studies on impediments to the search for truth in criminal investigation and adjudication, the Office of Legal Policy has carried out a review of the law governing the admission of the criminal records of defendants and other persons at trial. The results of this review are set out in this Report.

The Sixth Amendment Right To Counsel Under The Massiah Line Of Cases, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The sixth amendment guarantees to the accused in a criminal prosecution the right "to have the Assistance of Counsel for his defence." In Massiah v. United States, the Supreme Court held this right was violated when there was used against the defendant at trial evidence of incriminating statements deliberately elicited from him by an informant after he had been indicted and in the absence of counsel. In effect, this decision and others that 'followed have created a new constitutional right not to be questioned about pending charges prior to trial except in the presence of an attorney.

One consequence …

Introduction - The Changed And Changing World Of Constitutional Criminal Procedure: The Contribution Of The Department Of Justice's Office Of Legal Policy, Joseph D. Grano

University of Michigan Journal of Law Reform

The world of constitutional criminal procedure is changing slowly. Repudiating much of the thinking that led to the existing world, the changes are being driven by arguments that share common ground with those expressed in the Office of Legal Policy Reports. The unanswered question is whether tomorrow's changes will mirror the logical ramifications of this new way of thinking. What we cannot know today, as we ponder these Reports, is whether twenty years hence, as a new generation of law students begin to study our endeavors, the mistakes of the 1960s will be little more than "cold history." Whatever our …

Preface, Journal Of Law Reform

University of Michigan Journal of Law Reform

This compilation of articles confronted the Journal with some unusual decisions. In order to present the series accurately, we have retained the original style and source references rather than perform our usual editorial revisions. Thus we did not implement the standard stylistic conventions of the Journal, such as alternating masculine and feminine pronouns. The Foreword and Introduction, however, did receive comprehensive Journal editing, and any variations in style conventions and form were by the request of the authors.

Confusing The Fifth Amendment With The Sixth: Lower Court Misapplication Of The Innis Definition Of Interrogation, Jonathan L. Marks

Michigan Law Review

This Note examines how these courts have applied or misapplied Innis, and concludes that, while many of these decisions are consistent with Miranda and Innis, too many others are not. In order to evaluate these cases, it is first necessary to understand the meaning and significance of Innis. Part I thus considers Innis and its background. Part II then examines lower court decisions applying the Innis test, dividing these decisions into six groups based on the most common factual scenarios. Because the cases deal with factually specific police practices, this method constitutes the most useful way to …

Police-Obtained Evidence And The Constitution: Distinguishing Unconstitutionally Obtained Evidence From Unconstitutionally Used Evidence, Arnold H. Loewy

Michigan Law Review

The article will consider four different types of police-obtained evidence: evidence obtained from an unconstitutional search and seizure, evidence obtained from a Miranda violation, confessions and lineup identifications obtained in violation of the sixth amendment right to counsel, and coerced confessions. My conclusions are that evidence obtained from an unconstitutional search and seizure is excluded because of the police misconduct by which it was obtained. On the other hand, evidence obtained from a Miranda violation is (or ought to be) excluded because use of that evidence compromises the defendant's procedural right not to be compelled to be a witness against …

An Introduction To The American Criminal Justice Process, Jerold H. Israel

Book Chapters

A useful description of the American criminal justice process must begin by acknowledging that there is no single set of criminal justice procedures applied uniformly throughout this country. Variations exist both from jurisdiction to jurisdiction and from one type of case to another within the same jurisdiction. In our overview, we will take note of a few of the more significant variations, but our primary focus will be on the procedural pattern followed for most cases in most jurisdictions. In this section, we will briefly examine three structural elements that account for many of the variations in the process. If …

Double Jeopardy And Government Appeals Of Acquittals, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

As part of a continuing series of papers on impediments to the search for truth in criminal investigation and adjudication, the Office of Legal Policy has carried out a review of the law governing double jeopardy prohibitions on federal government appeals of criminal acquittals. These prohibitions undermine the search for truth in criminal adjudication by allowing some wrongly acquitted, culpable individuals to go unpunished. The results of our review are set out in this Report.

Are Twelve Heads Better Than One?, Phoebe C. Ellsworth

Articles

Few advocates of the jury system would argue that the average juror is as competent a tribunal as the averagejudge. Whatever competence the jury has is a function of two of its attributes: its number and its interaction. The fact that a jury must be composed of at least six people,' with different backgrounds, experiences, and perspectives, provides some protection against decisions based on an idiosyncratic view of the facts. Not only must the jury include at least six people, but they must be chosen in a manner that conforms to the ideal of the jury as representative of community …

Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar

Articles

Professor Yale Kamisar, the country's foremost scholar of Miranda and police interrogation, presents an analysis and critique of the Supreme Court's latest interpretation of Miranda. In Duckworth, a 5-4 Court upheld the "if and when" language systematically used by the Hammond, Indiana, Police Department: "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." The real issue was whether the police effectively conveyed the substance of a vital part of Miranda: the right to have a lawyer appointed prior to any questioning. Professor Kamisar …