Criminal Procedure Commons^™

Criminal Procedure—Charge Of Rape By Sexual Intercourse Sufficient To Convict Of Rape By Deviate Sexual Activity Under The Arkansas Rape Statute, Vickie A. Warner

University of Arkansas at Little Rock Law Review

No abstract provided.

Compulsory Process, Right To, Peter K. Westen

Book Chapters

The first state to adopt a constitution following the Declaration of Independence (New Jersey, 1776) guaranteed all criminal defendants the same ‘‘privileges of witnesses’’ as their prosecutors. Fifteen years later, in enumerating the constitutional rights of accused persons, the framers of the federal Bill of Rights bifurcated what New Jersey called the ‘‘privileges of witnesses’’ into two distinct but related rights: the Sixth Amendment right of the accused ‘‘to be confronted with the witnesses against him,’’ and his companion Sixth Amendment right to ‘‘compulsory process for obtaining witnesses in his favor.’’ The distinction between witnesses ‘‘against’’ the accused and witnesses …

Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part Ii)-Aggressive Majoritarianism, Willful Deafness, And The New Exception To The Exclusionary Rule, Joel J. Finer

Law Faculty Articles and Essays

This Article will offer an elaboration of the idea of judicial "aggressiveness" (which Professor Stone, by and large, leaves undefined) through examination of the majority opinion in United States v. Leon and its application in Massachusetts v. Sheppard. It will also advance the thesis that the majority in Leon exhibited a particular kind of aggressiveness--willful deafness.

Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part I)-A Dialogue On Prejudicial Concurrences, Joel J. Finer

Law Faculty Articles and Essays

On July 5, 1984, the Supreme Court in Leon v. United States held that where law enforcement officials execute a search warrant issued in violation of the dictates of the fourth amendment but act in the "good faith," "objectively-reasonable" belief that the warrant was constitutionally valid, the fruits of the search should not (with a few exceptions) be excluded from evidence under the exclusionary rule. On June 8, 1983, in Illinois v. Gates, the Supreme Court, after calling for and receiving briefs and arguments on the same issue of whether the exclusionary rule should be modified, concluded, for reasons of …

Cross-Racial Identification Errors In Criminal Cases, Sheri Johnson

Cornell Law Faculty Publications

No abstract provided.

Criminal Procedure—Miranda Warnings—Waiver Of Right To Counsel At Polygraph Test, Scott J. Lancaster

University of Arkansas at Little Rock Law Review

No abstract provided.

Prosecutorial Vindictiveness In The Criminal Appellate Process: Due Process Protection After United States V. Goodwin, Michigan Law Review

Michigan Law Review

This Note reformulates the doctrine of prosecutorial vindictiveness in light of the distinction drawn in Goodwin between pretrial and posttrial charging decisions. Part I recounts the development of the vindictiveness concept, and argues that in extending the doctrine beyond the factual settings which moved the Supreme Court to fashion its original prophylactic rule, the circuit courts have seriously eroded an essential due process safeguard. Part II critically examines the distinction between pretrial and posttrial charging decisions relied upon in Goodwin. Developing the logical corollary of the Goodwin holding, this Part argues that just as the pretrial situation does not …

Summer V. Mata: Twilight's Last Gleaming For Federal Habeas Corpus Review Of State Court Convictions - Speculations On The Future Of The Great Writ, Jason G. Reynolds

University of Arkansas at Little Rock Law Review

No abstract provided.

Havens, Jenkins, And Salvucci, And The Defendant's "Right" To Testify, Craig M. Bradley

Articles by Maurer Faculty

Three recent Supreme Court opinions that enlarge the scope of permissible impeachment may substantially influence the criminal defendant's decision whether to take the stand. In this article, Professor Bradley evaluates the current status of the defendant's "right" to testify, assesses the impact of these cases on that right, and offers cogent advice on effective strategies for practitioners.

Criminal Procedure–Juvenile Confessions In Arkansas, Ann Kristen Kilgore

University of Arkansas at Little Rock Law Review

No abstract provided.

Determinate Sentencing: The Promises And Perils Of Sentence Guidelines, David Crump

Kentucky Law Journal

No abstract provided.

Due Process And Parole Revocation, Michigan Law Review

Michigan Law Review

In Morrissey, the Court set the level of due process needed in parole revocations. Specifically, it held that the parolee facing •revocation has a right (a) to receive written notice of the claimed parole violations; (b) to hear the evidence against him; (c) to be heard in person and to present witnesses and documentary evidence; (d) to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing the confrontation); (e) to have a neutral and detached hearing body, members of which need not be judicial officers or lawyers; and (f) to be given …

Competency To Stand Trial In Federal Courts: Conceptual And Constitutional Problems, William T. Pizzi

Publications

No abstract provided.

Judicial Review Of Parole Release Decisionmaking, Thomas B. Grier

IUSTITIA

An inmate at a federal penal institution "is entitled only to be released after full service of his sentence less good time earned during incarceration." He or she is not entitled to parole, for parole is not a right but a privilege, a matter of "legislative grace". The United States Board of Parole has "absolute discretion" in deciding whether and when to grant parole. The judiciary will not interfere with the Board, as "courts are without power to grant a parole or to determine judicially eligibility for parole." And since the Board is statutorily authorized to exercise broad discretion, and …

Impeaching A Defendant's Testimony By Proof Of Post-Arrest Silence: Doyle V. Ohio, F. Ronald O'Keefe

Cleveland State Law Review

This Note will attempt to outline the genesis of the issue of impeachment by post-arrest silence by first discussing the various inquiries into the probative value of silence which had been undertaken by courts on the federal level before Hale (United States v. Hale, 422 U.S. 171 (1975)) . The focus will then shift to the Hale Court's treatment of this issue. The constitutional aspects of the issue will then be discussed, and the pronouncement of the Doyle Court (Doyle v. Ohio, 96 S. Ct. 2240 (1976)) will be analyzed with an emphasis on the continuity between the Hale and …

Juvenile Delinquent And Unruly Proceedings In Ohio: Unconstitutional Adjudications, Patricia Simia Kleri

Cleveland State Law Review

This article will focus on the constitutional defects of juvenile court adjudications under Ohio juvenile law. The arguments presented, however, are equally applicable in other jurisdictions since every state has some type of legislation granting juvenile court jurisdiction over both criminals and noncriminal misconduct of children.

Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar

Articles

For a long time before Professor Paul Kauper wrote "Judicial Examination of the Accused" in 1932, and for a long time thereafter, the "legal mind" shut out the de facto inquisitorial system that characterized American criminal procedure. Paul Kauper could not look away. He recognized the "naked, ugly facts" (p. 1224) and was determined to do something about them -more than thirty years before Escobedo v. Illinois' or Miranda v. Arizona.2

Kirby, Biggers, And Ash: Do Any Constitutional Safeguards Remain Against The Danger Of Convicting The Innocent?, Joseph D. Grano

Michigan Law Review

Even recognizing the danger of misidentification, procedural safeguards, especially constitutional ones, are not readily apparent. Some judges, such as Justice Stewart, find less need for counsel at photographic displays than at lineups; others find an equivalent or even greater need for counsel. Some judges, in approving on-the-scene identifications without counsel, find a guarantee of accuracy in the short interval between the crime and the identification; other judges decry such procedures and find them inherently suggestive. The problem stems directly from the lack of scientific knowledge and inquiry. Therefore, in analyzing the recent identification cases, this Article will draw upon experimental …

The Effect Of Due Process On Criminal Defense Discovery, Barry Nakell

Kentucky Law Journal

No abstract provided.

The Degree Of Nondisclosed Evidence Sufficiently Exculpatory To Constitute A Denial Of Due Process - State V. Giles

Maryland Law Review

No abstract provided.

Right To Counsel In Criminal Cases, Edward T. Haggins

Cleveland State Law Review

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law... He requires the guiding hand of counsel at every step of the proceedings against him." These words, written in 1932 by Mr. Justice Sutherland for the majority in the famous case of Powell v. Alabama underline the fundamental right of a defendant in American criminal proceeding to have the assistance of counsel.

Criminal Law And Procedure, Henry Paul Monaghan

Faculty Scholarship

§12.1 Introduction. The recent decisions of the United States Supreme Court in the area of criminal procedure have begun to have a considerable impact upon litigation in the Massachusetts courts; indeed, for at least the second successive year the major emphasis of the Supreme Judicial Court's criminal law opinions centered upon considerations of "criminal due process." On the whole, the Court demonstrated an admirable concern for protecting the requirements of a fair trial. However, in at least two significant areas its decisions are open to considerable question: (1) in a series of opinions the Court confined the admittedly unclear …

Gideon's Army: Student Soldiers, Henry Paul Monaghan

Faculty Scholarship

Ours is a nation that takes great pride in the manner in which it administers justice to its citizens. To us, "equal justice under law" is not simply hollow rhetoric; it gives expression to some of our most fundamental values, and it proclaims that every man should be treated fairly and equally in the administration of the laws. It is, of course, of no small moment that we hold such an ideal, for a nation invites judgment on how well its performance comports with its professions of faith.

In the administration of our laws there is much to which we …

The Role Of A Trial Jury In Determining The Voluntariness Of A Confession, Michigan Law Review

Michigan Law Review

The Supreme Court of the United States has vigorously implemented the principle that criminal prosecution is an investigative, not an inquisitorial, process. Evidence of guilt must be obtained by methods free from physical or psychological coercion. Protections in the Bill of Rights against illegal search and seizure, self-incrimination, and trial without counsel have been extended to the states through the due process clause of the fourteenth amendment. Safeguards against the admissibility of coerced confessions into evidence have also been instituted. Because a confession practically determines the ultimate question of guilt, the critical standards for· admissibility are frequently challenged on appeal. …

Admissibility Of Fingerprint Evidence And Constitutional Objections To Fingerprinting Raised In Criminal And Civil Cases, Andre A. Moenssens

Chicago-Kent Law Review

No abstract provided.

Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel

Articles

During the 1962 Term, the Supreme Court, on a single Monday, announced six decisions concerned with constitutional limitations upon state criminal procedure. The most publicized of these, though probably not the most important in terms of legal theory or practical effect, was Gideon v. Wainwright. In an era of constantly expanding federal restrictions on state criminal processes, the holding of Gideon-that an indigent defendant in a state criminal prosecution has an unqualified right to the appointment of counsel-was hardly startling. And while Gideon will obviously have an important effect in the handful of states that still fail to appoint counsel …

Constitutional Law - Due Process - Right Of Second Offender To Pre-Sentence Hearing Regarding Prior Conviction, John Edward Porter S.Ed.

Michigan Law Review

Relator was convicted of burglary in 1953 and of voluntary manslaughter in 1954. While passing sentence after the latter conviction, the court declared that it was exercising its discretion under the Habitual Criminal Act by imposing a double penalty on the relator. Neither relator nor his counsel objected to the procedure or demanded a hearing regarding the prior conviction. On petition for writ of habeas corpus, which was denied by the lower court, relator admitted the fact of his prior conviction. He asserted, however, that although the habitual criminal statute in terms contains no provision granting alleged second offenders notice …

The Supreme Court - October 1958 Term, Bernard Schwartz

Michigan Law Review

The Supreme Court, reads a famous passage by Bryce, "feels the touch of public opinion. Opinion is stronger in America than anywhere else in the world, and judges are only men. To yield a little may be prudent, for the tree that cannot bend to the blast may be broken."

The history of the highest Court bears constant witness to the truth of Bryce's statement. Supreme Court action which has moved too far in one direction has always ultimately provoked an equivalent reaction in the opposite direction. Even an institution as august as the high tribunal cannot escape the law …

Constitutional Law - Criminal Procedure - Successive State Prosecutions For Same Activity, Robert L. Bombaugh

Michigan Law Review

Petitioner suspected of having robbed five persons on a single occasion. was indicted and tried for the robbery of three of them. His sole defense was alibi and he was acquitted when only one of the five victims identified him as the robber. Petitioner was then tried under an indictment for the robbery of a fourth victim. Petitioner interposed the same defense but was convicted at this second trial. The New Jersey Supreme Court affirmed. On certiorari to the United States Supreme Court, held, affirmed, three justices dissenting. Neither the successive trials nor the failure of the court to …

Constitutional Law - Due Process -Knowledge Of The Law Required For Conviction Under Criminal Registration Ordinance, David C. Berg

Michigan Law Review

Defendant-appellant was charged with violation of a Los Angeles municipal ordinance which required all persons convicted of a felony in California, or of a crime committed elsewhere which would have been punishable as a felony in California, subsequent to January 1, 1921, to register with the Chief of Police upon remaining in the city longer than five days, or upon making more than five visits to the city within a thirty-day period. At the time of her arrest, appellant had been a resident of Los Angeles for seven years. Within that period she had been convicted (in Los Angeles) of …