Criminal Procedure Commons^™

Acquisition Of Evidence By Search And Seizure, Mary Louise Ramsey

Michigan Law Review

What protection do the Fourth and Fifth Amendments afford against acquisition of evidence by search and seizure, actual or constructive? Does an individual have a constitutional privilege against the disclosure of records he is required by law to keep? May police officers search premises on which an arrest is made and seize contraband which they find there? A series of cases recently decided by a closely divided Supreme Court has enveloped this field in the same deep fog of uncertainty which now hangs over so many other areas of constitutional law. The unstable quality of these precedents is attested by …

Constitutional Law-Search And Seizure As An Incident To Lawful Arrest, Zolman Cavitch

Michigan Law Review

Petitioners, suspected of carrying on an illegal lottery, had been under police observation for several months, during which time one of the petitioners maintained a room in a rooming house in the District of Columbia. On the day of the arrest, a police officer, without a warrant, but believing the unlawful lottery to be in operation, climbed through a window of the landlady's room, and admitted two other officers. They proceeded to the petitioner's room, where one of the officers looked through the transom. Seeing the petitioners working on an illegal lottery, the officers entered the room, arrested the petitioners …

Evidence-Federal Criminal Procedure-Admissibility Of Confession Obtained During Illegal Detention, William F. Snyder S. Ed.

Michigan Law Review

Petitioner was arrested without a warrant on suspicion of larceny. He was held without commitment for a period of thirty hours during which he was intermittently questioned but was not subjected to any form of physical coercion. At the end of this period, he signed a confession which was the basis for his conviction in the district court. On certiorari to the United States Supreme Court, following affirmation in the court of appeals, held, reversed. The detention was unlawful as a violation of rule 5 (a) of the Federal Rules of Criminal Procedure, and the confession thus obtained was …

Federal Courts-Granting Of New Trial On Initiative Of The Court, William F. Snyder S. Ed.

Michigan Law Review

Following conviction for violation of a federal statute, petitioner was granted his release on a writ of habeas corpus by a federal district court, on the basis of uncontroverted testimony that his counsel had not been present when the jury returned its verdict. Within ten days of this release, a motion for rehearing was filed, supported by affidavits that his counsel actually had been present. On subsequent hearing, the court set aside its former order and remanded petitioner to custody, on the theory that his release was obtained by means of a fraud on the Court. The present action was …

Criminal Law-Procedure-Right Of Defendant To Inspect Grand Jury Minutes, L. W. Larson, Jr.

Michigan Law Review

Defendant was indicted for murder by a grand jury. The trial court denied a motion by defendant requesting that the district attorney be ordered to furnish him with a transcript of the evidence offered before the grand jury. On appeal, held, affirmed. It was within the discretion of the trial court to grant or refuse the motion. Commonwealth v. Galvin, (Mass. 1948) 80 N.E. (2d) 825.

Federal Courts-Criminal Procedure-Effect Of Excusing Procedure On Composition Of Jury Panel, Robert P. Griffin

Michigan Law Review

Petitioner was found guilty of violating the Harrison Narcotics Act in the Federal District Court for the District of Columbia by a jury composed wholly of federal employees. During the course of voir dire examination, petitioner moved to strike the entire panel, asserting that it did not represent a proper cross-section of the community. This motion was denied. Petitioner exhausted his ten peremptory challenges, and, upon finding that only government employees remained on the jury, then challenged the jury as impaneled for cause. The challenge was overruled. Conviction was affirmed by the circuit court of appeals. On certiorari to the …

Constitutional Law-Due Process-Federal Right To Counsel In Non-Capital Cases In State Courts, J. D. Mcleod

Michigan Law Review

Petitioner was convicted in Illinois on pleas of guilty to two indictments charging him with a non-capital offense. On writ of error to the Supreme Court of Illinois, petitioner alleged that the trial court had not inquired into his desire or ability to have counsel and that he had been convicted without having had assistance of counsel. His contention that the circumstances alleged constituted a violation of the State and Federal Constitutions was overruled, and the judgments of the lower court affirmed. On certiorari to the United States Supreme Court, held affirmed. The due process clause of the Fourteenth Amendment …

Habeas Corpus-Federal Courts-Exhaustion Of State Remedies, E. W. Rothe, Jr.

Michigan Law Review

Petitioner's writ of habeas corpus, alleging denial of due process of law in violation of the Fourteenth Amendment, was quashed on the merits by an inferior Florida court whose action was affirmed without opinion by the Florida Supreme Court. It was impossible to ascertain whether the affirmance was on the merits or on the ground that, under Florida law, habeas corpus was not the proper procedure to raise the due process issue. A later decision by the Florida Supreme Court clearly established that the prior case had been decided on the merits of the constitutional question, and that habeas corpus …

Constitutional Law-Due Process-Right Of Prisoner Condemned To Death To Hearing On His Sanity, E. Blythe Stason Jr.

Michigan Law Review

Petitioner, sentenced to death in California for murder, obtained a judicial stay of execution on the ground that he had become insane since sentence had been passed. Eighteen days later he was certified as sane by the medical superintendent of the state hospital, who made this determination by an ex parte examination without giving petitioner notice or opportunity of hearing. A new date for execution was then set. The applicable statute provided a procedure, enforceable by mandamus, whereby a sentenced prisoner could obtain a hearing on his sanity. The petitioner, without seeking mandamus to compel the warden to act, applied …

Corporations-Forfeiture Of Charter-Criminal Act As A Ground Therefor, James A. Sprunk S. Ed.

Michigan Law Review

Plaintiff, a private citizen, brought a civil action for forfeiture of defendant's corporate franchise, alleging a violation of the Minnesota anti-trust statute. In addition to penal sanctions, the statute provided that any corporation violating its provisions "shall forfeit all of its corporate franchises," and, further, that any citizen may enforce the statute. Defendant contended that proceedings under this statute, a part of the criminal code, were criminal, and that a private citizen could not conduct a criminal prosecution. Held, forfeiture of a corporate charter is a civil consequence of violating the criminal statute; thus, a criminal conviction is not …

Criminal Law-Withdrawal Of A Plea Of Guilty, Andrew W. Lockton, Iii S.Ed.

Michigan Law Review

Defendant pleaded guilty to a charge of statutory rape. After questioning him the court accepted his plea, and sentence was deferred pending an investigation by the probation and psychopathic departments. Before being sentenced, defendant requested that his plea be changed but did not deny that he was guilty. The court refused his request and sentenced him. Held, defendant should have been allowed to withdraw his plea of guilty. People v. Anderson, 321 Mich. 533, 33 N.W. (2d) 72 (1948).

Constitutional Law-Due Process-Right Of Accused To Writ Of Error Coram Nobis, Bernard L. Trott

Michigan Law Review

Petitioner, a nineteen year old Negro, was convicted of rape in a circuit court of Alabama. The conviction, largely predicated on a confession made by petitioner on July 3, 1946, to the local police, was affirmed on April 24, 1947, by the Supreme Court of Alabama. This petition was subsequently initiated before the Alabama Supreme Court seeking an order granting permission to petition the trial court for a writ of error coram nobis. The request was accompanied by an allegation that petitioner's confession had been induced by mental and physical torture administered by the local police. At no time during …

Constitutional Law-Due Process-Right Of Alien Enemy To Judicial Review Of Deportation Proceeding, Robert P. Griffin

Michigan Law Review

Petitioner, a German alien enemy, had been arrested and interned during the war by virtue of broad summary powers granted the Chief Executive by the Alien Enemy Act of 1798. The act subjects alien enemies to apprehension, detention, and deportation upon order of the President "whenever there is a declared war . . . . " Under authority of the act, the President, on July 14, 1945, ordered the removal of all alien enemies "who shall be deemed by the Attorney General to be dangerous to the public peace . . . . " Though the act makes no provision …

Criminal Law-New Trial-Absence Of Accused From Trial Because Of Attorney's Negligence, Alan Goldstein

Michigan Law Review

Defendant, represented by an attorney, was ordered, under an appearance bond, to appear at the November term of the court of general sessions to answer to an indictment for assault and battery with intent to kill. The indictment was not prepared during the November term, and at the end of the term the court ordered all those whose cases were not called to appear at the next term of court. At the February term defendant's case came up, but his attorney had apparently failed to read the court calendar, as neither the defendant nor the attorney knew that the trial …

Joughin And Morgan: The Legacy Of Sacco And Vanzetti, Michigan Law Review

Michigan Law Review

A Review of THE LEGACY OF SACCO AND VANZETTI. By G. Louis Joughin and Edmund M. Morgan.

Habeas Corpus-Federal Courts-Necessity Of Confinement Of Prisoner Within Territorial Jurisdiction Of The Court, Ralph Jay Isackson S.Ed.

Michigan Law Review

The Attorney General, respondent, after finding that petitioners, one hundred and twenty Germans, endangered the public peace and safety of the United States by their adherence to an enemy government, issued removal orders for their deportation. Petitioners, while confined at Ellis Island, New York, filed petitions for writs of habeas corpus in the District Court for the District of Columbia challenging the removal orders on the basis that they exceeded statutory authority for their issuance. Respondent moved to dismiss because petitioners were not confined in the District of Columbia. The district court granted the motion and the court of appeals …

Constitutional Law--Due Process-Federal Restrictions On The Use Of Confessions In State Criminal Proceedings, F. L. Adamson

Michigan Law Review

Undisputed evidence established that petitioner, a negro boy of fifteen, was arrested at about midnight, October 19, 1945 and taken to police headquarters. He was questioned by the police with no friend or counsel present. He was not informed of his right to counsel or of his right to refuse to answer. At about five in the morning, October 20, he confessed. He was then informed of his rights and his statement taken and transcribed. He was photographed by a newspaper photographer, and then placed in jail. On October 23 he was, for the first time, taken before a magistrate …

Federal Courts-Rule 20 Of Federal Rules Of Criminal Procedure-Constitutionality, William B. Harvey

Michigan Law Review

One of the few real innovations in the Federal Rules of Civil Procedure is incorporated in Rule 20 which provides that a defendant who is arrested in a district other than that in which the indictment has been returned may declare in writing his desire to plead guilty and waive trial in the district of the crime. In this event, with the approval of the United States Attornies for both districts, the clerk of the court to which the indictment was returned is authorized to forward the papers to the clerk of the court for the district in which the …

Federal Courts--Rule 33 Of Rules Of Criminal Procedure--Power To Grant A New Trial After Affirmance, Irving Slifkin S.Ed.

Michigan Law Review

One John Memolo was convicted of tax evasion in the District Court of the United States for the Middle District of Pennsylvania. The defendant's motion for a new trial, on the ground of prejudicial conduct of the trial judge, was denied. He then appealed assigning as error all of the grounds stated in his motion and also the denial of the motion for a new trial. The circuit court of appeals affirmed the conviction. The sentence was executed and the defendant imprisoned in a federal penitentiary. Then the district judge reconsidered, and in the interest of justice directed that the …

Jury-Effect Of Deviation From Statutory Procedure For Excusing Jurors, Jarrett R. Clark

Michigan Law Review

In a prosecution for murder, a special venire was summoned and a list thereof served on the accused. On the day of trial, he learned for the first time that the trial judge had excused twenty-six of the seventy-four veniremen summoned. The excuses out of court violated a statute requiring that all requests for excuse be heard in open court. More than the minimum number of veniremen were present, and when it appeared that the original array might be exhausted thirty additional veniremen were called. Accused's motions to quash the jury panel and for a mistrial were overruled. On appeal …

Habeas Corpus-Use As A Remedy Where The Appeal Process Has Been Exhausted, W. Stirling Maxwell

Michigan Law Review

Kulick, a Jehovah's Witness, registered under the Selective Service Act of 1940 and, though he claimed an exemption as a minister, his local draft board classified him 1-A. After he had exhausted his administrative remedies to have this classification changed, he reported for induction, as ordered, but refused to take the oath. For this refusal he was convicted under the provisions of the act and, on May 7, 1945, sentenced to imprisonment for a term of years. On the ground that under the Supreme Court's decision of Falbo v. United States the local board's classification was not open to attack …

Constitutional Law-Due Process Clause-Right Of An Accused To Have Counsel Appointed By The Court, Frank H. Roberts

Michigan Law Review

On May 16, 1932, petitioner, then seventeen years of age, was arraigned, tried, convicted of murder in the first degree and sentenced to life imprisonment. Petitioner was without legal assistance throughout these proceedings, was never advised of his rights to counsel, was never informed of the consequences of a guilty plea and, as disclosed by the record, was considerably confused as to the effect of such plea. In 1945, he moved for leave to file a delayed motion for new trial in the court in which he was convicted, on the ground that there had been serious impairment of his …

Recent Books, Michigan Law Review

Michigan Law Review

This department undertakes to note or review briefly current books on law and matters closely related thereto.

Constitutional Law-Search And Seizure, Howard A. Jacobs S.Ed.

Michigan Law Review

The most important step in the development of this constitutional provision came in 1886 in the famous case of Boyd v. United States. There the Court gave life to the Fourth Amendment by recognizing its intimate relation to the Fifth Amendment; thus laying the foundation for the federal rule that the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. With the exception of a temporary setback in 1903, this rule, as restated in the Weeks case, has effectively weathered a …

Declaratory Judgment Where Criminal Action Is Pending, Robert E. Walsh S.Ed.

Michigan Law Review

Subsequent to the filing of an information against him before a Justice of the Peace by the Secretary of Agriculture of the State of Iowa for violation of the Iowa Cream Grading Act, plaintiff applied to the District Court for an injunction against the proceeding before the Justice, and requested a declaration that he was not subject to the act. The District Court denied the injunction, but issued a decree declaring that plaintiff was not subject to the Cream Grading Act. On appeal, held, affirmed. Where complicated legal issues cannot be determined with equal facility by a Justice of …

Criminal Law And Procedure-Recent Developments-(A Service For Returning Veterans), John B. Waite

Michigan Law Review

In discussing developments of the criminal law during the war years it is convenient to group them into the three conventional divisions-substantive, procedural, and penal.

Criminal Law And Procedure-Whether Reversible Error For Judge To Give Instructions Relating To Credibility Of Defendant Witness, Edwin Boos

Michigan Law Review

Appellant who was convicted of committing a criminal abortion, moved for a new trial alleging as error an instruction given by the judge to the jury. The instruction singled out the defendant from the other witnesses, pointing to his high degree of interest in a verdict of not guilty, as reason for scrutinizing his testimony. The judge also warned the jury that it need not accept blindly the testimony of the accused. Held, reversed, new trial ordered. Swanson v. State, (Ind. 1944) 52 N.E. (2d) 616.

Federal Rules Of Criminal Procedure--The Various Drafts, Michigan Law Review

Michigan Law Review

In February 1944 the REVIEW carried an article by Dean Harno of the University of Illinois entitled, "Proposed Rules of Criminal Procedure: Final Draft." In a footnote the draft was referred to as "Final Report ( 1943) ." While that issue of the REVIEW was on the press the Advisory Committee distributed a draft of the rules entitled "Federal Rules of Criminal Procedure, Second Preliminary Draft." In July 1944 a third printing of the proposed rules was circulated. This printing, labeled "Report," is, according to Mr. Holtzhoff, secretary of the committee, "the Final Draft of the Rules." It thus appears …

Criminal Justice In Germany: Ii, Hans Julius Wolff

Michigan Law Review

The trial (Hauptverhandlung) is the main and central part of the whole criminal proceeding. All that is brought forward in the trial and only what is brought forward there can furnish the basis for the verdict. Whatever has preceded the trial proper becomes irrelevant as soon as the trial is opened.

The principles governing the trial are publicity, orality, immediateness, and concentration.

The Place Of Trial Of Criminal Cases: Constitutional Vicinage And Venue, William Wirt Blume

Michigan Law Review

In 1909 one Henry G. Connor, presumably Mr. Justice Connor of the Supreme Court of North Carolina, published in the Pennsylvania Law Review an article entitled "The Constitutional Right to a Trial by a Jury of the Vicinage." The question discussed was: May a state constitutionally provide by statute that a crime be tried in a county other than that in which it was committed? Or, putting the question in terms of vicinage as distinguished from venue, may a state constitutionally provide by statute that a crime be tried by jurors summoned from a county other than the county …