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Articles 61 - 90 of 160
Full-Text Articles in Criminal Procedure
Miranda'S Poisoned Fruit Tree: The Admissibility Of Physicial Evidence Derived From An Unwarned Statement, Kirsten Lela Ambach
Miranda'S Poisoned Fruit Tree: The Admissibility Of Physicial Evidence Derived From An Unwarned Statement, Kirsten Lela Ambach
Washington Law Review
Miranda v. Arizona created an exclusionary rule that prohibits using, as part of the prosecution's case in chief, evidence that is obtained as the result of unwarned custodial interrogation. In Michigan v. Tucker and Oregon v. Elstad, the United States Supreme Court narrowed the scope of this rule in relation to the "fruit of the poisonous tree" doctrine that excludes all evidence derived from constitutional violations. The Tucker Court held that the testimony of a witness identified from an unwarned statement should be admitted, and the Elstad Court held that a warned statement following an unwarned statement should also …
A Is Not A: Washington's Unconstitutional Law Of Single-Count, Single-Defendant Inconsistent Verdicts In State V. Goins, Natasha Shekdar Black
A Is Not A: Washington's Unconstitutional Law Of Single-Count, Single-Defendant Inconsistent Verdicts In State V. Goins, Natasha Shekdar Black
Washington Law Review
In State v. Goins, Division I of the Washington State Court of Appeals upheld inconsistent general and special verdicts on the same charge, even though the special verdict finding negated an element of the crime. The Goins court reasoned that the United States Supreme Court and the Washington State Supreme Court had previously upheld inconsistent verdicts in various contexts because the verdicts could have been the result of jury lenity. Therefore, overruling existing precedent, the Goins court upheld the inconsistent verdicts on the ground that distinguishing the Goins context would be elevating form over substance. This Note argues that …
Disobedience And Contempt, Margit Livingston
Disobedience And Contempt, Margit Livingston
Washington Law Review
A court's power to impose contempt sanctions on recalcitrant individuals is essential to ensure orderly judicial proceedings and obedience of judicial decrees. Despite repeated efforts to distinguish between civil and criminal contempt and the procedures required for each, the U.S. Supreme Court arguably has failed to delineate a precise demarcation between the two that considers both the due process interests of alleged contemnors and the remedial needs of party plaintiffs. This Article suggests that the Court's latest major decision on the differences between civil and criminal contempt, International Union, United Mine Workers v. Bagwell, represents the high water mark …
Justice At The Margins: Equitable Tolling Of Washington's Deadline For Filing Collateral Attacks On Criminal Judgments, Mark A. Wilner
Justice At The Margins: Equitable Tolling Of Washington's Deadline For Filing Collateral Attacks On Criminal Judgments, Mark A. Wilner
Washington Law Review
RCW 10.73.090 establishes a one-year deadline for appealing a final criminal judgment in Washington State. This Comment argues that this one-year deadline should be subject to the doctrine of equitable tolling, which can prevent a statute of limitation from expiring when extraordinary circumstances preclude timely filing. After examining the text, legislative history, structure, purpose, and policy implications of RCW 10.73.090, this Comment demonstrates that the one-year deadline does not operate as a jurisdictional bar, which would revoke judicial power to hear a postconviction appeal after one year under any circumstances, but instead acts as a statute of limitation subject to …
Born To Run: The Supreme Court Of Washington's Misapplication Of The Doctrine Of Specialty In State V. Pang, Timothy Mcmichael
Born To Run: The Supreme Court Of Washington's Misapplication Of The Doctrine Of Specialty In State V. Pang, Timothy Mcmichael
Washington Law Review
The Supreme Court of Washington's decision in State v. Pang that Martin Pang could not be tried for murder involved an erroneous application of the doctrine of specialty. This Note contends that this decision was based upon the court's overly broad reading of the U.S. Supreme Court's decision in United States v. Rauscher. The Supreme Court of Washington implied terms into the extradition treaty because of the court's incorrect interpretation of Rauscher, which prevented Washington from prosecuting Pang for murder. In addition, the court failed to take into account the policy rationales behind the doctrine of specialty, which …
A Matter Of Life And Death: Revising The Harmless Error Standard For Habeas Corpus Proceedings, David M. Bowman
A Matter Of Life And Death: Revising The Harmless Error Standard For Habeas Corpus Proceedings, David M. Bowman
Washington Law Review
Since 1967, federal courts have conducted harmless error analysis to determine whether to uphold a prisoner's conviction notwithstanding a constitutional error committed at the prisoner's trial. A review of the development of the harmless error doctrine reveals how the U.S. Supreme Court and federal courts have solidified a rational impact test to determine harmlessness. More recently, the U.S. Supreme Court has moved away from a clearly defined test with respect to errors alleged by habeas corpus petitioners. This Comment analyzes the obstacles faced by habeas petitioners in establishing a magnitude of error sufficient for reversal under the newer doctrine. It …
Keeping Files On The File Keepers: When Prosecutors Are Forced To Turn Over The Personnel Files Of Federal Agents To Defense Lawyers, Lis Wiehl
Washington Law Review
The issue of whether criminal defense lawyers can compel federal prosecutors during pre-trial discovery to examine and turn over information in the personnel files of federal agents who will testify at trial has profoundly affected federal prosecutors, law enforcement agents, and defense lawyers alike. Demands for discovery of these files have risen steadily in recent years. In the hands of skilled defense counsel, information in a personnel file can be used to impeach an agent on the witness stand. For agents and prosecutors, much more is at stake than the way this information may be used at trial. Professional reputations …
Exceptional Sentencing In Washington After State V. Freitag: Pushing The Limits Of The Sentencing Reform Act, Lisa K. Strom
Exceptional Sentencing In Washington After State V. Freitag: Pushing The Limits Of The Sentencing Reform Act, Lisa K. Strom
Washington Law Review
In 1981 the Washington state legislature enacted the Sentencing Reform Act (SRA) with the intent of reducing disparity in sentencing through the implementation of presumptive sentencing ranges. The SRA authorizes judges to depart from the presumptive range by imposing an exceptional sentence if appropriate mitigating or aggravating factors exist. Since 1981, virtually all courts have determined a factor's appropriateness by considering its relation to the factual nature of the crime itself. In State v. Freitag, however, the Washington Court of Appeals recently held that a trial court may rely on factors which do not directly relate to the nature …
The Rhetoric Of Innocence, William S. Laufer
The Rhetoric Of Innocence, William S. Laufer
Washington Law Review
This Article promotes the serious consideration of innocence in the criminal process, and gives meaning to the rhetoric surrounding the presumption of innocence. The first part illustrates the near irrelevance of innocence in an accusatorial system of justice where burdens of proof require proof of guilt The second and third parts of the Article discuss the meaning of the presumption of innocence. It is argued that legislatures and courts have ignored the tension between the conflicting goals of the criminal process by thinking of the presumption of innocence as a legal presumption. As a legal presumption, its effects are indistinguishable …
When Actual Innocence Is Irrelevant: Federal Habeas Relief For State Prisoners After Herrera V. Collins, Jill Hanson Reinmuth
When Actual Innocence Is Irrelevant: Federal Habeas Relief For State Prisoners After Herrera V. Collins, Jill Hanson Reinmuth
Washington Law Review
In Herrera v. Collins, the United States Supreme Court held that federal habeas courts lack jurisdiction over claims of actual innocence based on newly discovered evidence because federal habeas courts ensure only that state prisoners are not held in violation of the United States Constitution. This Note argues that state prisoners are held in violation of the Constitution when state procedural rules constructively bar presentations of newly discovered evidence of innocence. This Note proposes that federal habeas courts should grant 1) an evidentiary hearing when a petitioner makes a substantial allegation of newly discovered evidence of innocence, and 2) relief …
Death Wish: What Washington Court Should Do When A Capital Defendant Wants To Die, Laura A. Rosenwald
Death Wish: What Washington Court Should Do When A Capital Defendant Wants To Die, Laura A. Rosenwald
Washington Law Review
The Washington Supreme Court held in State v. Dodd that a capital defendant may waive general review of conviction and sentence, and failed to determine whether a defendant may also withhold all mitigating evidence from the sentencing proceeding. The holding limits appellate oversight of death sentences to a degree that fails to ensure Washington's interest in reliable capital punishment. The court should have required general review of both conviction and sentencing in all capital cases. It also should have established a procedure for third-party presentation of mitigating evidence on behalf of capital defendants who insist on withholding such evidence.
Proportionality And Punishment: Double Counting Under The Federal Sentencing Guidelines, Gary Swearingen
Proportionality And Punishment: Double Counting Under The Federal Sentencing Guidelines, Gary Swearingen
Washington Law Review
The Federal Sentencing Guidelines enhance sentences when the commission of a crime includes certain kinds of egregious conduct. The guidelines define such egregious conduct in a way that allows the sentencing judge to enhance the defendant's sentence twice for the same conduct—once as a "characteristic" of the specific offense for which the defendant is convicted and again under a general "adjustments" section. The federal circuit courts are divided concerning whether the guidelines permit double counting. This Comment examines the courts' differing interpretations of the governing statutes and concludes that the guidelines do not permit double counting unless explicitly stated in …
Speak Of The Missing Witness, And Surely He Shall Appear: The Missing Witness Doctrine And The Constitutional Rights Of Criminal Defendants—State V. Blair, 117 Wash. 2d 479, 816 P.2d 718 (1991), Carl T. Edwards
Washington Law Review
In State v. Blair, the Washington Supreme Court held for the first time that the state may use the missing witness doctrine against criminal defendants. Under the missing witness doctrine, which provides a permissive inference based on a defendant's failure to present available witnesses, prosecutors may now argue that a defendant failed to call certain witnesses because the defendant feared that their testimony would have been incriminating. This Note examines the court's decision in State v. Blair, the formulation of the missing witness doctrine adopted by the court, and the common law origins of the missing witness doctrine. This Note …
Applying Washington's Sentencing Reform Act To Mandatory Life Prisoners: An Ex Post Facto Violation, Steven J. Samario
Applying Washington's Sentencing Reform Act To Mandatory Life Prisoners: An Ex Post Facto Violation, Steven J. Samario
Washington Law Review
Following the 1989 session of the Washington Legislature, the Indeterminate Sentence Review Board (Board) began redetermining the minimum terms of prisoners serving a mandatory life sentence for crimes committed before July 1984. To calculate these new minimum terms, the legislature directed the Board to apply the same sentencing ranges enacted in the Washington Sentencing Reform Act, which took effect July 1, 1984. This Comment analyzes whether the state violated the United States Constitution when it ordered that these minimum terms be redetermined. It concludes that Washington courts should void the state's action because it violates the constitutional prohibition against ex …
The "Same Criminal Conduct" Exception Of The Washington Sentencing Reform Act: Making The Punishment Fit The Crimes—State V. Collicott, 112 Wash. 2d 399, 771 P.2d 1137 (1989), Joseph P. Bennett
Washington Law Review
Under the Washington Sentencing Reform Act (SRA), two or more offenses committed in one transaction count as criminal history for the purpose of enhancing the sentence for each offense, unless the offenses encompass the "same criminal conduct." In State v. Collicott, the Washington Supreme Court held that offenses that share statutory elements constitute the same criminal conduct. The court's previous approach in State v. Dunaway focused on whether one crime furthered another. Analysis demonstrates that Dunaway better provides for proportionate sentences, and coupled with the merger doctrine, adequately prevents double punishment. Thus, the Washington Legislature should amend the SRA to …
"The Judge Would Then Be The Legislator": Dismantling Separation Of Powers In The Name Of Sentencing Reform—Mistretta V. United States, 109 S. Ct. 647 (1989), Kristin L. Timm
Washington Law Review
In the Sentencing Reform Act of 1984 Congress created the United States Sentencing Commission, an independent agency in the judicial branch charged with promulgating binding sentencing guidelines for federal crimes. In Mistretta v. United States, the Supreme Court held that the Sentencing Reform Act does not violate separation of powers principles. This Note asserts that the Court misapplied separation of powers theory, and that the Sentencing Commission violates separation of powers in two ways. First, by delegating to the judicial branch the authority to create sentencing guidelines which have the effect of law, Congress impermissibly aggrandized the core function of …
Proof And Prejudice: A Constitutional Challenge To The Treatment Of Prejudicial Evidence In Federal Criminal Cases, D. Craig Lewis
Proof And Prejudice: A Constitutional Challenge To The Treatment Of Prejudicial Evidence In Federal Criminal Cases, D. Craig Lewis
Washington Law Review
The United States Supreme Court held its 1970 decision In re Winship that in criminal prosecutions the Constitution requires proof of guilt beyond a reasonable doubt. Professor Lewis argues that Winship governs the validity of evidence rules in criminal cases and requires that rules of evidence do not impair the reliability of criminal convictions. The author concludes that Federal Rule of Evidence 403, which permits the admission of prejudicial evidence unless the danger of unfair prejudice substantially outweighs probative value, violates this requirement. Rule 403 substantially increases the risk of erroneous decisionmaking and prescribes a balancing test that unconstitutionally places …
Washington's Comparative Proportionality Review: Toward Effective Appellate Review Of Death Penalty Cases Under The Washington State Constitution, W. Ward Morrison Jr.
Washington's Comparative Proportionality Review: Toward Effective Appellate Review Of Death Penalty Cases Under The Washington State Constitution, W. Ward Morrison Jr.
Washington Law Review
In conducting mandatory comparative proportionality review of all cases in which the death penalty is imposed, the Washington Supreme Court compares the defendant's case with similar cases to ensure that the penalty is being applied consistently. In theory, the review promotes rational and non-arbitrary capital sentencing. In practice, the review has not been effectively applied. Continued use of ineffective appellate review for death sentences violates the Washington Constitution. This Comment explores the various problems associated with the review process, and proposes possible solutions.
Dna Identification Tests And The Courts, Laurel Beeler, William R. Wiebe
Dna Identification Tests And The Courts, Laurel Beeler, William R. Wiebe
Washington Law Review
This Comment assesses the current state of forensic DNA tests and analyzes whether courts should admit the results of these tests as evidence. Section I provides a background discussion of how DNA tests work. This knowledge is essential for attorneys and courts seeking to evaluate expert testimony and analyze important issues concerning the reliability and admissibility of DNA test results. Section I also proposes safeguards and standards to facilitate the judicial acceptance of forensic DNA tests. Section II discusses judicial approaches to the admissibility of novel scientific techniques such as DNA tests, and concludes that courts should admit the results …
Dna Identification Tests And The Courts, Laurel Beeler, William R. Wiebe
Dna Identification Tests And The Courts, Laurel Beeler, William R. Wiebe
Washington Law Review
This Comment assesses the current state of forensic DNA tests and analyzes whether courts should admit the results of these tests as evidence. Section I provides a background discussion of how DNA tests work. This knowledge is essential for attorneys and courts seeking to evaluate expert testimony and analyze important issues concerning the reliability and admissibility of DNA test results. Section I also proposes safeguards and standards to facilitate the judicial acceptance of forensic DNA tests. Section II discusses judicial approaches to the admissibility of novel scientific techniques such as DNA tests, and concludes that courts should admit the results …
The Testimony Of Child Witnesses: Fact, Fantasy, And The Influence Of Pretrial Interviews, John R. Christiansen
The Testimony Of Child Witnesses: Fact, Fantasy, And The Influence Of Pretrial Interviews, John R. Christiansen
Washington Law Review
Youth alone does not make a child witness' statements unreliable. Generally speaking, children are about as reliable as adults in reporting events they have actually perceived or experienced. However, a young child is, in certain respects, more vulnerable to suggestion than an adult and more liable to confuse memory of fact with memory of fantasy. The danger is that pretrial interviewing and preparation procedures will suggest facts and stimulate fantasies the child will thereafter report and recall as truth. Falsification of memory is far from inevitable and can be prevented by careful handling of the pretrial child witness procedures. But …
Court-Ordered Criminal Restitution In Washington, Scott Peterson
Court-Ordered Criminal Restitution In Washington, Scott Peterson
Washington Law Review
This survey is an overview of court-ordered restitution in Washington. It reconciles the case law interpreting the restitution statutes currently in effect in Washington. It compares and contrasts the statutes. Finally, it is an effort to identify areas of the law that need additional judicial or legislative clarification.
Entry To Arrest A Suspect In A Third Party's Home: Ninth Circuit Opens The Door—United States V. Underwood, 717 F.2d 482 (1983), Cert. Denied, 104 S. Ct. 1309 (1984), Sarah L. Klevit
Washington Law Review
This Note examines the Supreme Court's conflicting policies and how the Underwood court resolved them. To set a framework for analyzing the case, it discusses the Supreme Court's protection of privacy rights in the home and the Court's recent limitations on the standing doctrine. The Note reviews the facts and holding of Underwood, then illustrates both the problems with the court's reasoning and those created by its decision to uphold the search. Finally, this Note suggests that the Ninth Circuit's approach in Underwood was wrong and proposes, instead, a two-step test for analyzing similar search and seizure cases. Not only …
Informants' Tips And Probable Cause: The Demise Of Aguilar-Spinelli—Illinois V. Gates, 103 S. Ct. 2317 (1983), Laura J. Buckland
Informants' Tips And Probable Cause: The Demise Of Aguilar-Spinelli—Illinois V. Gates, 103 S. Ct. 2317 (1983), Laura J. Buckland
Washington Law Review
The Supreme Court was expected to announce a decision in Illinois v. Gates modifying the exclusionary rule to include a "good-faith" exception. "[W]ith apologies to all," however, the Court declined to rule on that issue. The Supreme Court instead abandoned the Aguilar-Spinelli test for assessing probable cause based on information derived from informants. The Court replaced the Aguilar-Spinelli test with a "totality of the circumstances" approach, and upheld the search warrant in Gates. Gates is the first Supreme Court decision to specifically address the use of anonymous informants' tips as the probable cause basis for securing a search warrant. Gates …
Excessive Sanctions For Governmental Misconduct In Criminal Cases, Richard A. Posner
Excessive Sanctions For Governmental Misconduct In Criminal Cases, Richard A. Posner
Washington Law Review
The fourth amendment, as is well known, forbids unreasonable searches and seizures by government officers; if the government tries to introduce evidence in a criminal trial that was seized in violation of the fourth amendment, the defendant can get the evidence suppressed. If the evidence is vital to conviction, this means that the defendant will be acquitted simply because the evidence was obtained illegally. This is the famous exclusionary rule of the law of search and seizure. The exclusionary rule is one example of a sanction for governmental miconduct: evidence that may be essential to convicting a dangerous criminal is …
The Exclusionary Rule, Deterrence And Posner's Economic Analysis Of Law, Arval A. Morris
The Exclusionary Rule, Deterrence And Posner's Economic Analysis Of Law, Arval A. Morris
Washington Law Review
Judge Posner holds economic theory demonstrates that the fourth amendment's exclusionary rule and other judicially developed doctrines implementing the Constitution impose excessive sanctions for governmental misconduct in criminal cases. This Article, focusing on the exclusionary rule, aims to place his economic argument in historical context and to assess it.
Recidivist Statutes—Application Of Proportionality And Overbreadth Doctrines To Repeat Offenders—Wanstreet V. Bordenkircher, 276 S.E.2d 205 (W. Va. 1981), Marc G. Wilhelm
Recidivist Statutes—Application Of Proportionality And Overbreadth Doctrines To Repeat Offenders—Wanstreet V. Bordenkircher, 276 S.E.2d 205 (W. Va. 1981), Marc G. Wilhelm
Washington Law Review
In 1967 George Wanstreet was convicted of forging a forty-three dollar check and received a life sentence under West Virginia's recidivist statute. This statute, one of the two harshest in the nation, requires life imprisonment for persons convicted of three felonies. Wanstreet had been convicted in 1951 for forging an eighteen dollar check and in 1955 for arson of a barn valued at $490. He had been in prison more than ten years for the 1967 conviction when the West Virginia Supreme Court of Appeals held, in Wanstreet v. Bordenkircher, that his sentence violated the proportionality clause of the West …
The Death Penalty In Washington: An Historical Perspective, Leonie G. Hellwig
The Death Penalty In Washington: An Historical Perspective, Leonie G. Hellwig
Washington Law Review
This Comment follows the evolution of Washington's capital punishment law through the 1981 legislation and analyzes the two cases that invalidated the 1977 death penalty statute. The Comment favors the reasoning behind the dissenting opinions of Martin and Frampton as more consistent with established principles of statutory construction. The Comment concludes with a discussion of Washington's new capital punishment legislation enacted in response to the supreme court's decisions.
Proposed Rule Of Evidence 609: Impeachment Of Criminal Defendants By Prior Convictions, D. Joseph Hurson
Proposed Rule Of Evidence 609: Impeachment Of Criminal Defendants By Prior Convictions, D. Joseph Hurson
Washington Law Review
This comment describes current Washington law on the use of criminal convictions to impeach the testimony of criminal defendants and examines the factors which are relevant to the formation of a more acceptable rule. Adoption of the proposed rule would also affect the rules for impeaching nondefendant witnesses. Only a criminal defendant, however, is in jeopardy of actually being convicted as a result of a jury's misuse of evidence of prior convictions. Because the interests of the criminal defendant witness will be so drastically affected by the prior conviction rule which the Washington Supreme Court ultimately adopts, this comment will …
Women's Self-Defense Under Washington Law—State V. Wanrow, 88 Wn. 2d 221, 559 P.2d 548 (1977), Jennifer Marsh
Women's Self-Defense Under Washington Law—State V. Wanrow, 88 Wn. 2d 221, 559 P.2d 548 (1977), Jennifer Marsh
Washington Law Review
The Washington Supreme Court, in State v. Wanrow, examined the issue of self-defense for women under Washington law and held that the application of traditional self-defense rules resulted in prejudicial treatment of women defendants. This note will examine the meaning of the Wanrow decision and offer support for its holding in light of available psychological and sociological data. Additionally, this note will suggest a special analytical framework utilizing social science data to test accepted legal doctrines for latent sex discrimination. The importance of these data in exposing such discrimination will be shown by examining related cases in the area of …