Criminal Procedure Commons^™

Federal Sentencing Guidelines, Andrea Wilson

Mercer Law Review

Appeals attempting to resolve issues concerning the United States Sentencing Guidelines ("U.S.S.G.") continue to require much of the resources of the Eleventh Circuit Court of Appeals. The sentencing guidelines are the driving force behind thousands of prosecutions and appeals each year. However, the number of amendments to the guidelines has diminished in recent years, and the court seems to be free to do more fine-tuning than in the past.

Smith V. State: The Georgia Supreme Court Mandated Jury Instructions In Battered Person Syndrome Cases, Sherry M. Hall

Mercer Law Review

After a recent Georgia Supreme Court ruling, battered person syndrome is entitled to separate jury charges when the defendant properly establishes the battered person syndrome self-defense claim.

Old Chief V. United States: Radical Change Or Minor Departure? How Much Further Will Courts Go In Limiting The Prosecution's Ability To Try Its Case?, Scott Patterson

Mercer Law Review

In Old Chief v. United States, the United States Supreme Court held that a district court abused its discretion under rule 403 of the Federal Rules of Evidence ("Rule 403") when it refused a defendant's offer to stipulate to a prior assault conviction, and instead admitted the full record of the conviction, when the sole purpose of the evidence was to prove the prior conviction element of a felon in possession of a firearm charge. The holding marks the first time the Supreme Court has limited the time-honored principal of allowing the prosecution the freedom to refuse offers to …

Federal Sentencing Guidelines, Deborah R. Jordan

Mercer Law Review

The rule of law governing sentencing in the federal courts is becoming more and more of an intellectual exercise; one that may be interesting to the academics, but is confusing and frustrating to the individuals affected by the process. A review of the decisions issued in 1996 by the Court of Appeals for the Eleventh Circuit, as well as those of the United States Supreme Court, confirms this trend to intellectualize the sentencing process.

Most people who are confronted by the criminal justice system have strong emotions attached to the experience. Crime victims have suffered unjustly and want to see …

Mccabe V. Life-Line Ambulance Service: Another Extension Of The Over-Extended Administrative Search Exception, Anne Tunnessen

Mercer Law Review

In McCabe v. Life-Line Ambulance Service, the United States Court of Appeals for the First Circuit extended the administrative search exception to the Fourth Amendment ban on unreasonable searches. The suit alleged a novel violation of the ban in the form of a warrantless involuntary commitment procedure. However, the court found that the procedure fit neatly within the exception and declined to extend Fourth Amendment protection to involuntary commitments.

United States V. Armstrong: Permissible Prosecutorial Discretion?, Robert C. Brand

Mercer Law Review

In United States v. Armstrong, the Supreme Court explicitly set forth the threshold requirement the defendant must meet in order to be entitled to discovery on a selective prosecution claim. There must be a credible showing that similarly situated persons of other races could have been prosecuted, but were not.

Bennis V. Michigan: The Supreme Court Clings To Precedent And Denies Innocent Owners A Defense To Forfeiture, Mark E. Beatty

Mercer Law Review

In Bennis v. Michigan, the Supreme Court decided the constitutionality of a Michigan statute authorizing the forfeiture of an innocent owner's interest in property under the guise of a statutory nuisance abatement scheme.

Criminal Law And Procedure: A Two-Year Survey, James P. Fleissner

Mercer Law Review

During the two-year survey period, the Georgia Court of Appeals and the Georgia Supreme Court issued well over a thousand published opinions addressing issues of criminal law and procedure.' The primary purpose of this Article is to summarize judicial decisions constituting noteworthy developments in the law. Given the scope of survey, the constraint of limited space imposed difficult choices concerning what to include. As in past years, this survey will focus on highlights, such as cases of first impression and cases presenting close or controversial issues. The Author hopes this Article will provide useful information for busy practitioners seeking to …

Arizona V. Evans: Carving Out Another Good-Faith Exception To The Exclusionary Rule, Sara Gilbert

Mercer Law Review

In Arizona v. Evans, the United States Supreme Court considered whether the exclusionary rule requires suppression of evidence seized incident to an arrest, when the arrest resulted from inaccurate computer data created by court personnel. In January 1991, police arrested Isaac Evans during a routine traffic stop because the patrol car's computer indicated he was the subject of an outstanding misdemeanor warrant. While being handcuffed, Evans dropped a marijuana cigarette. A subsequent search of the vehicle revealed a bag of marijuana hidden under the passenger seat, and Evans was charged with possession. Upon notifying the justice court of the …

Federal Sentencing Guidelines, Andrea Wilson

Mercer Law Review

Whether the sentencing guidelines have finally become familiar enough for consistent application or because there were so few amendments last year,' there seem to be fewer dramatic and controversial Eleventh Circuit decisions regarding sentencing this year than in years past. The court took the opportunity to focus more closely on the process of sentencing itself rather than on the precise application of the guidelines.

The Court wrote extensively about the district courts' frequent failure to create a fully articulated record on which appellate review can be had. Expanding on its earlier requirement that district courts elicit and respond to objections …

Constitutional Criminal Procedure, James P. Fleissner

Mercer Law Review

This Article surveys significant 1995 decisions of the United States Court of Appeals for the Eleventh Circuit in the field commonly referred to as "Constitutional Criminal Procedure." The primary focus of this branch of criminal procedure is on the interpretation of the Fourth, Fifth, and Sixth Amendments to the Constitution. In selecting notable cases from 1995, the author looked for important interpretations of legal tests, rulings in cases of first impression, and opinions on close or controversial questions. I have endeavored to provide criminal practitioners with a useful "briefing" on recent significant developments in the Eleventh Circuit. Furthermore, I hope …

Federal Sentencing Guidelines, Andrea Wilson

Mercer Law Review

In 1984, Congress mandated the creation of the United States Sentencing Commission composed of presidential appointees to create guidelines for a comprehensive sentencing scheme. As a result, the United States Sentencing Guidelines ("U.S.S.G.") have been in effect since November 1, 1987, and apply to all federal criminal offenses committed since that date.

In principle, guideline sentencing should be simple. Courts should arrive at a sentencing range using calculations that first consider the criminal conduct being sentenced and then the criminal history of the offender. In practice, however, the guidelines are difficult to understand, impossible to apply evenhandedly, and frequently difficult …

Davis V. State: Too Young To Consent?, Judson Robert Jahn

Mercer Law Review

In Davis v. State, the Supreme Court of Georgia held that a ten-year-old child could not give valid consent to a search of his parents' home. In determining the validity of a minor's consent, the supreme court considered those factors that the court of appeals deemed relevant in Atkins v. State. Applying the Atkins factors, the supreme court held that ten-year- old Darrin Davis ("Darrin") "lacked that degree of mental discretion necessary for a minor to give valid consent to the search of his, and his parents', home." According to Justice Sears-Collins, "[m]ost ten-year-old children are incapable of …

Morgan V. Illinois: The Defense Gets The Reverse- Witherspoon Question, Thomas Joshua R. Archer

Mercer Law Review

In Morgan v. Illinois the United States Supreme Court settled the "reverse- Witherspoon" question. The Court held that a trial court in a capital case must, upon the defendant's request, specifically inquire into a prospective juror's views on capital punishment and that a potential juror who would always vote for a sentence of death, regardless of the facts, must be struck for cause. Further, the Court stated that the presence of even one partial juror on a defendant's panel offends the defendant's Fourteenth Amendment right to a fair and impartial jury and the sentence may not stand.

Before Morgan …

Edge V. State: The Modified Merger Rule Comes Up Short, Mark Kenneth Delegal

Mercer Law Review

In Edge v. State, the Supreme Court of Georgia held that a verdict convicting a defendant of voluntary manslaughter and felony murder based in the underlying felony of aggravated assault was improper. The court reasoned that because the jury found Edge guilty of voluntary manslaughter, malice did not exist and therefore, could not be transferred to support a felony murder conviction. Regrettably, the supreme court failed to adopt the merger rule. However, the court adopted a modified merger rule that precludes a conviction for felony murder when a conviction would prevent the jury from an otherwise proper finding of …

The Peremptory Challenge: A Lost Cause?, Robert T. Prior

Mercer Law Review

The recent Supreme Court decision of Georgia v. McCollum marked the culmination of a series of cases dealing with racially discriminatory peremptory challenges in jury selection. In holding that the equal protection clause of the Fourteenth Amendment requires a criminal defendant to articulate a racially neutral explanation for peremptory challenges before striking jury members of a different race, the Court has significantly undermined the role of the peremptory challenge in American jurisprudence. Beginning with Batson v. Kentucky six years ago, the Court has progressively ruled that under no circumstance will a party on either side of a criminal trial or …

Resources And Rights: Towards A New Prototype Of Criminal Representation, Laura Gardner Webster

Mercer Law Review

A comprehensive concern in recent criminal procedure decisions in the United States Supreme Court has been the apprehension that certain rights afforded to the accused detract from efficient law enforcement. Efficiency in controlling crime and obtaining accurate verdicts is preferred over the recognition of rights which impede that process. This model of the purposes of the criminal justice system has its origins in the judicial reluctance to apply the Fourth Amendment exclusionary rule as a means of excluding otherwise probative evidence simply because "the constable blundered."' The problems in Fourth Amendment jurisprudence are well known. As two commentators have observed, …

Criminal Law And Procedure, John O. Cole

Mercer Law Review

The Georgia appellate courts wrote opinions in over 500 cases during the year of the survey period, most of which were in the court of appeals. The volumes in question in this survey are positively bloated with criminal appeals. Reading through them is a depressing experience for two reasons. First, something seems amiss in a system in which so many attorneys, judges, law clerks, other officials, printers, and trees participate in an appellate process that for the most part changes nothing and has no effect on the litigants. Second, while some of the appeals are meritless to the point of …

Criminal Law, Frank C. Mills Iii

Mercer Law Review

In the hundreds of cases reviewed for this survey, there were few earthshaking decisions. DNA evidence has arrived in Georgia, and the year and- a-day rule has left. Nevertheless, there are more noteworthy cases than can be adequately addressed in this survey. There are plenty of pitfalls for the unwary. In fact the most notable trend is the ever-increasing number of challenges to former counsel. Prosecutors, defense counsel, and courts are well-advised to use the Checklist for Unified Appeals as a guide in any criminal case.

Due to the significance of the Checklist for Unified Appeal, the author uses a …

Minnick V. Mississippi: Additional Protection For The Criminal Defendant, Gabe Hotard Jr.

Mercer Law Review

In Minnick v. Mississippi, the United States Supreme Court held that when counsel is requested by an accused in custody, interrogation of the accused must cease, and officials may not re-initiate interrogation without counsel present, whether or not the accused has consulted with his attorney. The privilege against self-incrimination as guaranteed by the fifth amendment and as developed into its modern form nearly a quarter-century ago in Miranda v. Arizona provided the backbone of the Supreme Court's decision. The Court's holding clarifies the previously unclear issue of whether counsel's presence on behalf of an accused is required at any interrogation …

Constitutional Criminal Procedure, John L. Carroll

Mercer Law Review

In 1990 the United States Court of Appeals for the Eleventh Circuit was a court in transition. In the Fall of 1989, Judges Roney and Hill took senior status. Then in December of 1989, Judge Vance fell victim to a mail bomb which had been sent to his house. The court then entered 1990 with three vacancies and a tremendous workload. President Bush made appointments to fill two of those vacancies. Judge Birch joined the court on June 12, 1990, and Judge Dubina moved up from the district court of the Middle District of Alabama on October 5, 1990. Despite …

And God Created Woman. . . . But To Be A Criminal Defense Attorney?, Ellen S. Podgor, Leonard D. Pertnoy

Mercer Law Review

The focus of this Article is to discuss how different stereotypes affect the court presentation by a male and female defense attorney. The authors believe actual differences predicated upon a feminist methodology or approach are gender neutral. An awareness by an individual of what has been termed "feminist" controls actual methodology. For a more comprehensive discussion of feminist legal method or methodology, see generally Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990); C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987).

Closing Argument: Tapping The Human Experience, Drew Findling

Mercer Law Review

To every criminal defense attorney there comes the inevitable daydream. That time when you imagine yourself in front of the jury passionately proclaiming your client's innocence. It is a fantasy dominated by your emotion and shared with an imaginary jury. You can sense the jury move with every word you utter. You expect the jury to applaud you at any moment. Finally, at the end of this reverie, you receive the ultimate ovation, a verdict of not guilty. It is your responsibility to convert that daydream into reality. Your closing argument should be that segment of the trial in which …

Building The Powerfully Persuasive Criminal Defense, Stephen C. Rench

Mercer Law Review

The persuasive case remains the foundation and sine qua non of trial advocacy. The importance of building the persuasive case first cannot be overestimated, for everything else flows 'from the thoroughly prepared and developed case. It furnishes the essential solid foundation from which the lawyer works in evaluating, negotiating, and when necessary, preparing the individual phases of the trial; The purpose of this Article is to describe the persuasive case and then to set forth a system and process for the building of that persuasive criminal defense case.

Literature, History, And Quotations: A New Perspective On An Old Technique, Peter A. Chang Jr., Elton B. Richey Jr.

Mercer Law Review

It was getting late. Outside, the sounds of the five o'clock traffic died down, and the grey twilight of a cold winter's day descended across empty streets and sidewalks. Across the square, the clock on the old church rang out the half-hour. Darkness was taking over inside as well. The grey twilight slipped through the windows and rolled like fog down the stairs and hallways of the aged building on Liberty Street, making the orange glow spilling out of the office at the end of the hall seem warmer still. Exasperated, the apprentice turned to the advocate.

Defending The Death Penalty Case: What Makes Death Different?, Andrea D. Lyon

Mercer Law Review

The United States Supreme Court has said time and again that "death is different." Lately, reading the Court's decisions makes the death penalty defense attorney wonder why, in those cases in which the imposition of the death penalty is the greatest, it is seemingly all right to have the most conviction-prone jury, a racially biased history of the death penalty's imposition, and fewer procedural safeguards.

Handling Client Perjury After Nix V. Whiteside: A Criminal Defense Lawyer's View, John Wesley Hall Jr.

Mercer Law Review

The law of client perjury remains a paradox,. notwithstanding the United States Supreme Court's vaunted, yet seemingly failed, effort to resolve some of the issues by dicta in Nix v. Whiteside. Where we have come from is still confusing, and even five years after Whiteside, where we are going remains a mystery.

Cross-Examination, David L. Lewis

Mercer Law Review

Cross-examination is a force of nature, an unswept intangible force of the universe harnessed in a small space for a very short time at best. It is akin to a newly created element seeking a place on the periodic table. Cross-examination is also the hunger of the wolf and the thirst for justice. It does not admit to being tied to a theory but only to being capable of absorbing life's breath. Good cross-examination begins with the very breath of life, complete with passion and righteousness. It is a terrible, swift sword.

Admissibility Of Video-Taped Testimony: What Is The Standard After Maryland V. Craig And How Will The Practicing Defense Attorney Be Affected?, Christopher A. Whitlock

Mercer Law Review

In Maryland v. Craig, the Supreme Court addressed "whether the [c]onfrontation [c]lause of the [s]ixth [a]mendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television." The majority, in an opinion written by Justice O'Connor, held that provided the trial court makes a case-specific finding of necessity, the confrontation clause does not prohibit a state from using a one-way closed-circuit. television procedure for receiving testimony by a child witness in a child sexual abuse case.

Telling Stories: The Spoken Narrative Tradition In Criminal Defense Discourse, Laura Gardner Webster

Mercer Law Review

Near the end of the Criminal Procedure course that I teach, I assigned the case of Cuyler v. Sullivan, a treacherously complex decision grounded in the sixth amendment right to conflict-free counsel in criminal trials. While the case demonstrates the intricacies of federal habeas corpus review of state criminal convictions, I do not find it absorbing for that reason. I assign it because the respondent, John Sullivan, having successfully urged his claim before the United States Supreme Court, died in the jail in which he had spent most of the previous twenty years of his life.