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Washington Law Review

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Articles 91 - 120 of 160

Full-Text Articles in Criminal Procedure

Criminal Procedure—Preservation Of Due Process When Evidence Is Destroyed Or Tested—State V. Wright, 87 Wn. 2d 783, 557 P.2d 1 (1976), Maxine Stansell May 1978

Criminal Procedure—Preservation Of Due Process When Evidence Is Destroyed Or Tested—State V. Wright, 87 Wn. 2d 783, 557 P.2d 1 (1976), Maxine Stansell

Washington Law Review

The purpose of this note is to identify uncertainties in the future application of the Wright rule and to predict their probable resolution. Analysis of Wright and the cases on which it relies leads to the conclusion that failure to use the notice-petition procedure before disposition or testing of evidence will result in sanctions only if the defense can show that evidence destroyed, or chemically changed in testing, was potentially material, and only if the state is unable to show that the failure to preserve was reasonable. In addition, the Wright rule implies a defense right to observe or participate …


Procedural Due Process And The Rules Of Evidence—Federal Impeachment Of The Voucher Rules—Welcome V. Vincent, 549 F.2d 853 (2d Cir.), Cert. Denied, 97 S. Ct. 2960 (1977), Bruce D. Garrison Feb 1978

Procedural Due Process And The Rules Of Evidence—Federal Impeachment Of The Voucher Rules—Welcome V. Vincent, 549 F.2d 853 (2d Cir.), Cert. Denied, 97 S. Ct. 2960 (1977), Bruce D. Garrison

Washington Law Review

Appellant, Ernest Welcome, was convicted in a New York state supreme court on charges of murdering two real estate brokers in their Bronx office. Before indicting Welcome, the State tried another party, Albert Cunningham, for the same offenses. Cunningham had admitted his participation in the crimes to police, giving an accurate account of the date, time, and location of the shootings. After a separate evidentiary hearing, the state court held that his confession to police had been voluntary and thus was admissible against him. Nevertheless, the charges against Cunningham were dropped in mid-trial. At his trial, Welcome called Cunningham as …


Evidence—Admissibility Of The Victim's Past Sexual Behavior Under Washington's Rape Evidence Law—Wash. Rev. Code § 9.79.150 (1976), Evelyn Sroufe Oct 1977

Evidence—Admissibility Of The Victim's Past Sexual Behavior Under Washington's Rape Evidence Law—Wash. Rev. Code § 9.79.150 (1976), Evelyn Sroufe

Washington Law Review

Although R.C.W. § 9.79.150 deals with many sex crimes, this note is limited to its application in forcible rape cases. Part I examines various exclusionary rules of evidence in order to develop a framework for analysis of Washington's new law. Part II discusses the relevance of the victim's sexual history to her credibility as a witness; it concludes that the complete exclusion of past sexual history to attack credibility may be unconstitutional under the United States Supreme Court holding in Davis v. Alaska. On the other hand, Part III suggests that R.C.W. § 9.79.150 should be redrafted to limit further …


Criminal Law—Affirmative Defenses In The Washington Criminal Code—The Impact Of Mullaney V. Wilbur, 421 U.S. 684 (1975), Pamela Cowan Oct 1976

Criminal Law—Affirmative Defenses In The Washington Criminal Code—The Impact Of Mullaney V. Wilbur, 421 U.S. 684 (1975), Pamela Cowan

Washington Law Review

A Maine jury found Stillman E. Wilbur, Jr., guilty of murder after the prosecution's proof of two elements: (1) that the homicide was unlawful, and (2) that it was intentional. Wilbur offered no evidence on his behalf to negate or otherwise refute the state's case other than his statement that he attacked the deceased in a frenzy provoked by a homosexual advance. The trial judge instructed the jury that if the prosecution established the above two elements, malice aforethought was to be conclusively inferred, unless the defendant proved by a fair preponderance of the evidence that he had acted in …


Criminal Procedure—Filing By Information: Determination Of Probable Cause Required Before Extended Restraint On Liberty—Gerstein V. Pugh, 420 U.S. 103 (1975), Cynthia B. Whitaker Mar 1976

Criminal Procedure—Filing By Information: Determination Of Probable Cause Required Before Extended Restraint On Liberty—Gerstein V. Pugh, 420 U.S. 103 (1975), Cynthia B. Whitaker

Washington Law Review

Robert Pugh was arrested in Florida without a warrant and charged by prosecutor's information. Pugh and other incarcerated arrestees charged by information without a preliminary hearing brought a class action suit in federal district court challenging the constitutionality of the charging procedure. Plaintiffs maintained that the due process clause of the fourteenth amendment required that accused persons be accorded a determination of probable cause for detention soon after their arrest. They also argued that the prosecuting attorney was not sufficiently neutral or detached to make the necessary determination. The district court accepted the plaintiffs' arguments, and the Court of Appeals …


Criminal Procedure—Personal Search Of Suspect Incident To Custodial Arrest Is Per Se "Reasonable" And Requires No Additional Justification—United States V. Robinson, 414 U.S. 218 (1973); Gustafson V. Florida, 414 U.S. 260 (1973), David C. Anson Aug 1974

Criminal Procedure—Personal Search Of Suspect Incident To Custodial Arrest Is Per Se "Reasonable" And Requires No Additional Justification—United States V. Robinson, 414 U.S. 218 (1973); Gustafson V. Florida, 414 U.S. 260 (1973), David C. Anson

Washington Law Review

Defendant Robinson was stopped by a District of Columbia police officer for driving an automobile after revocation of his operator's permit and for obtaining a substitute permit by false representation. Robinson was placed in custody, advised of his rights and frisked by the arresting officer. During the frisk, the officer felt a bulge in Robinson's overcoat pocket; he reached into the pocket and removed a crumpled cigarette package containing small round objects. The officer opened the package and discovered gelatin capsules, later found to contain heroin. At trial for possession of heroin, the capsules were introduced into evidence over the …


Criminal Procedure—Preaccusation Delay As Violation Of Due Process: Absence Of Statute Of Limitations Is Factor To Be Weighed Against Murder Defendant's Allegations Of Actual Prejudice—State V. Haga, 8 Wn. App .481, 507 P.2d 159 (1973), Review Denied 82 Wn. 2d 1006 (1973), Richard A. Hansen May 1974

Criminal Procedure—Preaccusation Delay As Violation Of Due Process: Absence Of Statute Of Limitations Is Factor To Be Weighed Against Murder Defendant's Allegations Of Actual Prejudice—State V. Haga, 8 Wn. App .481, 507 P.2d 159 (1973), Review Denied 82 Wn. 2d 1006 (1973), Richard A. Hansen

Washington Law Review

On July 6, 1966, the wife and an infant daughter of Eric L. Haga were found strangled to death in the Haga home. Although Haga had slept in the house the night of the murders, no evidence linked him directly to the crime. There was, however, evidence that Haga and his wife had separated the previous summer, that Mrs. Haga had lived with another man during the separation, and that Haga had taken out a family life insurance policy shortly before the murders. The prosecuting attorney chose not to prosecute Haga; more than five years later, however, a newly elected …


Discretion In Felony Sentencing—A Study Of Influencing Factors, Barbara L. Johnston, Nicholas P. Miller, Ronald Schoenberg, Laurence Ross Weatherly Aug 1973

Discretion In Felony Sentencing—A Study Of Influencing Factors, Barbara L. Johnston, Nicholas P. Miller, Ronald Schoenberg, Laurence Ross Weatherly

Washington Law Review

The desirability and constitutionality of discretionary criminal sentencing can be ascertained only if the factors influencing sentencing decisions are known. The authors analyze data generated by a 1971 survey of Washington State superior court trial judges in order to identify the significant factors and to evaluate their relative importance in criminal sentencing. The results indicate that discretionary sentencing is influenced strongly by social biases in no way dependent upon the culpability of the offender, his personal behavior patterns, or circumstances of the crime.


Criminal Procedure—Dismissals In The Futherance Of Justice—State V. Sonneland, 80 Wn. 2d 343, 494 P.2d 469 (1972), K. D. K. May 1973

Criminal Procedure—Dismissals In The Futherance Of Justice—State V. Sonneland, 80 Wn. 2d 343, 494 P.2d 469 (1972), K. D. K.

Washington Law Review

In March 1969, Sonneland was charged with possession of marijuana, then a felony. His offer to plead guilty to a gross misdemeanor was accepted. Subsequently, a second bargain was made whereby Sonneland agreed to furnish information leading to the arrest of three dealers in exchange for a promise to dismiss all the charges against him. A continuance was granted to provide a cover, and in August 1969, Sonneland gave a tip which culminated in the arrest of three men. It was disputed whether all were dealers. In February 1970, the prosecuting attorney concluded that Sonneland would provide no further information …


Criminal Procedure—Immunity: Fifth Amendment Privilege Against Self-Incrimination Eclipsed By Use Immunity—Kastigar V. United States, 406 U.S. 441 (1972), W. J. M. May 1973

Criminal Procedure—Immunity: Fifth Amendment Privilege Against Self-Incrimination Eclipsed By Use Immunity—Kastigar V. United States, 406 U.S. 441 (1972), W. J. M.

Washington Law Review

Kastigar refused to answer questions during federal grand jury proceedings despite an order commanding him to answer and granting him use and derivative use immunity, protecting him from the use of his testimony or any evidence derived from it. Kastigar's refusal to testify was premised on the theory that the grant of immunity extended to him was constitutionally deficient and that only transactional immunity could supplant his fifth amendment privilege. The trial court found Kastigar in civil contempt and ordered him confined pursuant to section 301(a) of the Organized Crime Control Act of 1970. The United States Court of Appeals …


Pretrial Disclosure Of Federal Grand Jury Testimony, William J. Knudsen, Jr. Feb 1973

Pretrial Disclosure Of Federal Grand Jury Testimony, William J. Knudsen, Jr.

Washington Law Review

The scope of this study is limited to what is probably the most criticized aspect of the traditional grand jury system, the restrictions on disclosure of grand jury proceedings, especially the criminal defendant's lack of access to a transcript of the testimony given before the grand jury which indicted him. Examining the history of the grand jury as it relates to the tradition of secrecy, this study discusses the philosophies underlying the practice and analyzes the impact of the Federal Rules of Criminal Procedure, federal statutes, and certain Supreme Court decisions on this tradition. This study concludes that there is …


Criminal Procedure—Right To Counsel In Investigative Grand Jury Proceedings: Washington Criminal Investigatory Act Of 1971—R.C.W. §§ 10.27.120-.140 (1971), Anon May 1972

Criminal Procedure—Right To Counsel In Investigative Grand Jury Proceedings: Washington Criminal Investigatory Act Of 1971—R.C.W. §§ 10.27.120-.140 (1971), Anon

Washington Law Review

The Criminal Investigatory Act's provision for counsel appears justified when one considers the witness' delicate position and recent extensions of the right to counsel at other stages of the criminal process. Washington's statute, however, is a significant departure from grand jury protections provided in other jurisdictions because it provides for the presence of counsel as a matter of right. This note examines the policy basis for Washington's statute and the effect this additional protection for the witness may have on the investigative efficiency of the grand jury.


Criminal Procedure—Juveniles: Retroactive Application Of In Re Gault Denied In Washington—Brumley V. Charles Denny Juvenile Center, 77 Wn.2d 702, 466 P.2d 481 (1970), Anon Oct 1971

Criminal Procedure—Juveniles: Retroactive Application Of In Re Gault Denied In Washington—Brumley V. Charles Denny Juvenile Center, 77 Wn.2d 702, 466 P.2d 481 (1970), Anon

Washington Law Review

Genevieve Fay Brumley was adjudged a delinquent child by the juvenile court of Snohomish County on December 12, 1966 after she admitted telephoning bomb threats to local schools. Present at the adjudicatory hearing were court personnel, her parents, a welfare caseworker, a probation officer, and a policeman. She was not represented by counsel. During her subsequent incarceration, the United States Supreme Court extended the right to counsel to juvenile proceedings in In re Gault. In August of 1968, Miss Brumley petitioned the superior court for a writ of habeas corpus, contending that the Gault decision required a reversal of her …


Indians—Criminal Procedure: Habeas Corpus As An Enforcement Procedure Under The Indian Civil Rights Act Of 1968, 25 U.S.C. §§ 1302-1303, Anon May 1971

Indians—Criminal Procedure: Habeas Corpus As An Enforcement Procedure Under The Indian Civil Rights Act Of 1968, 25 U.S.C. §§ 1302-1303, Anon

Washington Law Review

The Indian Civil Rights Act, Title II of the Civil Rights Act of 1968, extended portions of the Bill of Rights to individual Indians as against their tribal governments and provided federal habeas corpus relief to review alleged violations of these rights. The Indian Bill of Rights marked the culmination of a complete reversal in federal recognition of Indian constitutional rights. Until 1965 federal courts had recognized Indian tribes as quasi-sovereign entities. Individual Indians were guaranteed their constitutional rights in relations with federal and state governments, but not with their tribal governments. The only rights Indian governments recognized when dealing …


Criminal Procedure—Re-Arrest Of Parolees: Washington Legislative Standards And Constitutional Considerations—Ch. 98, Wash. Laws Of 1968, Anon Oct 1970

Criminal Procedure—Re-Arrest Of Parolees: Washington Legislative Standards And Constitutional Considerations—Ch. 98, Wash. Laws Of 1968, Anon

Washington Law Review

During its 1969 Regular Session the Washington Legislature enacted legislation governing parole revocation hearings and re-enacted existing provisions concerning the arrest and initial detention of suspected parole violators. The re-enacted portion of the statute provides that any parole or probation officer may arrest a parolee without a warrant when he has "reason to believe" that a convicted person has violated any state statute or a condition of his parole. The prisoner is not to be released until the board acts to reinstate his parole status


Opinions—Criminal Procedure—Misdemeanant's Right To Counsel: Legislative Inaction Resolves Constitutional Doubts?—Hendrix V. Seattle, 76 Wn. 2d 142, 456 P.2d 696 (1969), Anon Oct 1970

Opinions—Criminal Procedure—Misdemeanant's Right To Counsel: Legislative Inaction Resolves Constitutional Doubts?—Hendrix V. Seattle, 76 Wn. 2d 142, 456 P.2d 696 (1969), Anon

Washington Law Review

Since Gideon v. Wainwright was decided, a major question has been: to what crimes does the indligent's constitutional right to trial counsel at public expense extend? The Washington and Oregon Supreme Courts recently considered the question and reached conflicting results.


Criminal Procedure—Search And Seizure—Electronic Eavesdropping—Abortion: Recording Of Voluntary Conversation Between Police Agent And Defendant Admissible In Evidence.—State V. Wright, 74 Wn. 2d 355, 444 P.2d 867 (1968), Anon Apr 1970

Criminal Procedure—Search And Seizure—Electronic Eavesdropping—Abortion: Recording Of Voluntary Conversation Between Police Agent And Defendant Admissible In Evidence.—State V. Wright, 74 Wn. 2d 355, 444 P.2d 867 (1968), Anon

Washington Law Review

Informed that defendant had committed an abortion in his home, the police hired a female agent who made arrangements with the defendant by telephonic conversations, which were monitored and recorded. The agent, equipped with a hidden transmitter, kept her appointment and transmitted defendant's explanation of the abortion to the police, who again monitored and recorded the conversation. That evening she returned to defendant's home and paid the fee, and, as defendant prepared her for the operation, sent the conversation to monitoring police, who recorded it. All monitoring was done without prior court order. Just before the operation was to occur, …


Criminal Procedure—Lineups—Right To Counsel: "Independence" Of In-Court Identification Of Criminal Defendant From Previous Lineup Identification Inadmissible Due To Absence Of Counsel.—State V. Redmond, 75 Wash. Dec. 2d 64, 448 P.2d 938 (1968, Anon Mar 1970

Criminal Procedure—Lineups—Right To Counsel: "Independence" Of In-Court Identification Of Criminal Defendant From Previous Lineup Identification Inadmissible Due To Absence Of Counsel.—State V. Redmond, 75 Wash. Dec. 2d 64, 448 P.2d 938 (1968, Anon

Washington Law Review

Virginia Rohn, alone in her beverage store, was robbed by an unmasked man who remained in the store for approximately five minutes. At a police lineup, five days later, she identified defendant as the robber. Defendant's counsel filed a pre-trial motion to suppress the lineup identification because defendant had not been afforded prior opportunity to contact counsel and counsel had not been present at the lineup. After a preliminary hearing, the trial judge suppressed the lineup identification but ruled that Virginia Rohn was not legally precluded from making an in-court identification. Upon conviction, defendant appealed assigning error to the admission …


The Right To Counsel In Misdemeanor Cases, John M. Junker Apr 1968

The Right To Counsel In Misdemeanor Cases, John M. Junker

Washington Law Review

These then are the focal tasks of the present inquiry: first, to examine the present status of the misdemeanant's right to counsel under the Constitution; second, to evaluate possible substitutes for the felony standard; and finally, to attempt to explain the longevity of the felony standard in the face of powerful doctrinal and social forces for change. The present status, of the misdemeanant's right to appointed counsel, both in law and in fact, is detailed in the Appendix.


The Right To Counsel In Misdemeanor Cases, John M. Junker Apr 1968

The Right To Counsel In Misdemeanor Cases, John M. Junker

Washington Law Review

These then are the focal tasks of the present inquiry: first, to examine the present status of the misdemeanant's right to counsel under the Constitution; second, to evaluate possible substitutes for the felony standard; and finally, to attempt to explain the longevity of the felony standard in the face of powerful doctrinal and social forces for change. The present status, of the misdemeanant's right to appointed counsel, both in law and in fact, is detailed in the Appendix.


Criminal Insanity, Arval A. Morris Mar 1968

Criminal Insanity, Arval A. Morris

Washington Law Review

Mental capacity becomes relevant to the criminal law as soon as a peace officer apprehends a person who has committed an anti-social act. Policemen, and later prosecutors, must decide whether the offender is "well" (sane), responsible for his acts, and the proper subject of criminal proceedings or whether he is "sick" (insane), not responsible for his acts, and the proper subject of civil commitment or similar process. These are threshhold questions in criminal law enforcement. If criminal processes are used, then the trial stage presents twin questions: whether an accused is capable of standing trial, and whether he was insane …


The Insanity Defense And A "Jury" Experiment, Arval A. Morris Mar 1968

The Insanity Defense And A "Jury" Experiment, Arval A. Morris

Washington Law Review

A book review essay covering The Insanity Defense, by Abraham S. Goldstein (1967) and The Jury and the Defense of Insanity, by Rita James Simon (1967).


The Juvenile At Waiver: Is Counsel Required?, Anon Mar 1968

The Juvenile At Waiver: Is Counsel Required?, Anon

Washington Law Review

The petitioner was before juvenile court on charges of committing a battery. Defendant and his mother were advised of their right to counsel, but not to appointed counsel at certification, a proceeding which determines whether the juvenile court should waive jurisdiction in favor of district court. Neither defendant nor his family was financially able to employ counsel. Counsel was appointed only after the defendant had been transferred to the district court for criminal prosecution. On motion to vacate judgment and sentence on the subsequent criminal conviction, Held: An indigent juvenile offender has no right to appointed counsel in a transfer …


The Juvenile At Waiver: Is Counsel Required?, Anon Mar 1968

The Juvenile At Waiver: Is Counsel Required?, Anon

Washington Law Review

The petitioner was before juvenile court on charges of committing a battery. Defendant and his mother were advised of their right to counsel, but not to appointed counsel at certification, a proceeding which determines whether the juvenile court should waive jurisdiction in favor of district court. Neither defendant nor his family was financially able to employ counsel. Counsel was appointed only after the defendant had been transferred to the district court for criminal prosecution. On motion to vacate judgment and sentence on the subsequent criminal conviction, Held: An indigent juvenile offender has no right to appointed counsel in a transfer …


The Insanity Defense And A "Jury" Experiment, Arval A. Morris Mar 1968

The Insanity Defense And A "Jury" Experiment, Arval A. Morris

Washington Law Review

A book review essay covering The Insanity Defense, by Abraham S. Goldstein (1967) and The Jury and the Defense of Insanity, by Rita James Simon (1967).


Criminal Insanity, Arval A. Morris Mar 1968

Criminal Insanity, Arval A. Morris

Washington Law Review

Mental capacity becomes relevant to the criminal law as soon as a peace officer apprehends a person who has committed an anti-social act. Policemen, and later prosecutors, must decide whether the offender is "well" (sane), responsible for his acts, and the proper subject of criminal proceedings or whether he is "sick" (insane), not responsible for his acts, and the proper subject of civil commitment or similar process. These are threshhold questions in criminal law enforcement. If criminal processes are used, then the trial stage presents twin questions: whether an accused is capable of standing trial, and whether he was insane …


Felony Information: Due Process And Preliminary Hearing On Probable Cause, Anon Apr 1967

Felony Information: Due Process And Preliminary Hearing On Probable Cause, Anon

Washington Law Review

Defendants were charged with manslaughter by an information filed directly in superior court. They made timely motion to dismiss, contending that the information was defective because not found before a grand jury, or alternatively that due process required a determination before either a grand jury or a committing magistrate that probable cause existed to hold the defendants for trial. The motion was granted. On appeal, the Washington Supreme Court reversed. Held: Due process does not require persons charged with an infamous crime to be indicted by a grand jury or afforded a preliminary hearing on the issue of probable cause, …


Felony Information: Due Process And Preliminary Hearing On Probable Cause, Anon Apr 1967

Felony Information: Due Process And Preliminary Hearing On Probable Cause, Anon

Washington Law Review

Defendants were charged with manslaughter by an information filed directly in superior court. They made timely motion to dismiss, contending that the information was defective because not found before a grand jury, or alternatively that due process required a determination before either a grand jury or a committing magistrate that probable cause existed to hold the defendants for trial. The motion was granted. On appeal, the Washington Supreme Court reversed. Held: Due process does not require persons charged with an infamous crime to be indicted by a grand jury or afforded a preliminary hearing on the issue of probable cause, …


Constitutionality Of Conviction Under Narcotics Possession Statute, Anon Jun 1966

Constitutionality Of Conviction Under Narcotics Possession Statute, Anon

Washington Law Review

Defendant was convicted of the felony of possession of a narcotic without a prescription, and was sentenced to serve a maximum term of twenty years. Defendant claimed that, on the same facts, the prosecutor could have charged the defendant with the gross misdemeanor of illegal use of narcotic drugs. Defendant argued that this vests discretion in the prosecutor to charge either a felony or a gross misdemeanor, and that this discretion is violative of the equal protection clauses of the Washington and United States constitutions. On appeal, the Washington Supreme Court affirmed the conviction. Held: The gross misdemeanor of illegal …


Exposure To Unrelated But Inadmissible Evidence Constitutes Reversible Error, Anon Jun 1966

Exposure To Unrelated But Inadmissible Evidence Constitutes Reversible Error, Anon

Washington Law Review

Defendant was charged with unlawful possession of burglary tools, and fraudulent attempt to obtain narcotics. With agreement of defense counsel, the charges were consolidated for trial. At the close of the state's case, the trial court granted defendant's motion to suppress evidence relating to the burglary tools charge because it was obtained by an illegal search, dismissed the charge of unlawful possession of burglary tools, and instructed the jury to disregard all evidence or inferences concerning that charge. The trial court denied defendant's motion for a mistrial, and he was subsequently convicted of fraudulent attempt to obtain narcotics. On appeal, …