Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (184)
- Criminal Law (105)
- Courts (81)
- Supreme Court of the United States (80)
- Evidence (77)
-
- Civil Rights and Discrimination (18)
- Fourteenth Amendment (18)
- Fourth Amendment (18)
- Law Enforcement and Corrections (18)
- Legal Ethics and Professional Responsibility (16)
- Jurisprudence (13)
- Law and Society (13)
- State and Local Government Law (13)
- Legal History (12)
- Legal Profession (11)
- Judges (10)
- Law and Race (9)
- Litigation (9)
- Juvenile Law (8)
- Common Law (7)
- Legal Remedies (7)
- Social and Behavioral Sciences (6)
- Indigenous, Indian, and Aboriginal Law (5)
- Legal Studies (5)
- Civil Procedure (4)
- First Amendment (4)
- Health Law and Policy (4)
- Immigration Law (4)
- Institution
-
- University of Michigan Law School (106)
- Touro University Jacob D. Fuchsberg Law Center (36)
- Pepperdine University (8)
- Washington and Lee University School of Law (8)
- University of Arkansas Little Rock (7)
-
- University of Colorado Law School (7)
- Maurer School of Law: Indiana University (6)
- University of Richmond (6)
- Southern Methodist University (5)
- St. Mary's University (5)
- University of Georgia School of Law (5)
- University of Missouri School of Law (4)
- Yeshiva University, Cardozo School of Law (4)
- Cornell University Law School (3)
- Penn State Dickinson Law (3)
- University of Cincinnati College of Law (3)
- Vanderbilt University Law School (3)
- Chicago-Kent College of Law (2)
- Cleveland State University (2)
- Columbia Law School (2)
- Emory University School of Law (2)
- Florida State University College of Law (2)
- Fordham Law School (2)
- Georgetown University Law Center (2)
- Georgia State University College of Law (2)
- Seattle University School of Law (2)
- The Catholic University of America, Columbus School of Law (2)
- University of Baltimore Law (2)
- University of Florida Levin College of Law (2)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
- Publication Year
- Publication
-
- Articles (52)
- Michigan Law Review (35)
- Touro Law Review (34)
- Faculty Scholarship (8)
- Pepperdine Law Review (8)
-
- Publications (7)
- Michigan Law Review First Impressions (6)
- Scholarly Works (6)
- University of Michigan Journal of Law Reform (6)
- Faculty Journal Articles and Book Chapters (5)
- Law Faculty Publications (5)
- Faculty Publications (4)
- Law Faculty Scholarship (4)
- St. Mary's Law Journal (4)
- University of Arkansas at Little Rock Law Review (4)
- Articles by Maurer Faculty (3)
- Cornell Law Faculty Publications (3)
- Faculty Articles (3)
- Faculty Articles and Other Publications (3)
- Indiana Law Journal (3)
- Vanderbilt Law School Faculty Publications (3)
- Washington and Lee Law Review Online (3)
- Appellate Briefs (2)
- Book Chapters (2)
- Catholic University Law Review (2)
- Chicago-Kent Law Review (2)
- Cleveland State Law Review (2)
- Dickinson Law Review (2017-Present) (2)
- Florida State University Law Review (2)
- Georgetown Law Faculty Publications and Other Works (2)
- Publication Type
Articles 151 - 180 of 270
Full-Text Articles in Criminal Procedure
Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus
Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus
Articles
Ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal postconviction petitions. This is hardly surprising given reports of trial attorneys who refuse to investigate their cases before trial, never meet with their clients before the day of trial, and fail to file any motions or object to inadmissible evidence offered at trial. Unfortunately, the current structure of indigent defense funding makes it impossible for many public defenders to provide effective representation to their clients.
Giles V. California: A Personal Reflection, Richard D. Friedman
Giles V. California: A Personal Reflection, Richard D. Friedman
Articles
In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …
Crawford, Retroactivity, And The Importance Of Being Earnest, J. Thomas Sullivan
Crawford, Retroactivity, And The Importance Of Being Earnest, J. Thomas Sullivan
Law Faculty Scholarship
In this article Professor Sullivan examines the Supreme Court's evolving Confrontation Clause jurisprudence through its dramatic return to pre-Sixth Amendment appreciation of the role of cross-examination in the criminal trial reflected in its 2004 decision in Crawford v. Washington. He discusses the past quarter century of the Court's confrontation decisions and their impact on his client, Ralph Rodney Earnest, recounting the defendant's conviction and twenty-four-year litigation journey through state and federal courts to his eventual release from prison in the only successful attempt to use Crawford retroactively known to date.
Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman
Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman
Articles
Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Articles
If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?
Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller
Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller
Publications
No abstract provided.
Crawford And Davis: A Personal Reflection, Richard D. Friedman
Crawford And Davis: A Personal Reflection, Richard D. Friedman
Articles
I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Articles
Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …
Crawford, Davis, And Way Beyond, Richard D. Friedman
Crawford, Davis, And Way Beyond, Richard D. Friedman
Articles
Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.
Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus
Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus
Articles
This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …
Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman
Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman
Articles
So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …
Criminal Law—The Sixth Amendment And The Right To Trial By Jury—Where Do We Go From Here?: The United States Supreme Court Examines The Federal Sentencing Guidelines. United States V. Booker, 543 U.S. 220 (2005)., Brian M. Clary
University of Arkansas at Little Rock Law Review
No abstract provided.
American Indians, Crime, And The Law, Kevin K. Washburn
American Indians, Crime, And The Law, Kevin K. Washburn
Michigan Law Review
This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Michigan Law Review First Impressions
The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. …
Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine
Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine
Michigan Law Review First Impressions
Clarification of the Supreme Court’s newly minted interpretation of the Confrontation Clause was desperately needed, and Davis v. Washington and Hammon v. Indiana promised to provide it. Two terms earlier, in Crawford v. Washington, the Supreme Court had worked a revolutionary transformation of Confrontation Clause analysis by overruling Ohio v. Roberts and severing the link between hearsay jurisprudence and the Clause. Crawford was hailed by the criminal defense bar, since it seemed to presage a sharp reduction in the frequency of so-called “victimless” trials by holding that “testimonial” hearsay, no matter how reliable, was constitutionally inadmissible in the absence of …
Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger
Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger
Michigan Law Review First Impressions
Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court’s ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic. The Davis ruling could not possibly clear up all the confusion that followed Crawford v. Washington, the landmark 2004 case in which the Court strengthened the right of the accused to confront declarants of testimonial hearsay. In Davis, the Court focused on the facts under review and developed a taxonomy that will be useful in similar cases, but …
Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles
Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles
Michigan Law Review First Impressions
In his concurring opinion in Crawford v. Washington, Chief Justice Rehnquist criticized the majority for holding that the Confrontation Clause applies to “testimonial” statements but leaving for “another day” any effort to define sufficiently what “testimonial” means. Prosecutors and defendants, he said, “should not be left in the dark in this manner.” Over the next two years, both sides grappled with the meaning of testimonial, each gleaning import from sections of Crawford that seemingly proved their test was the right one. When the Court granted certiorari in Davis v. Washington and Hammon v. Indiana (hereinafter Davis), hopes were high that …
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Michigan Law Review First Impressions
The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …
Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller
Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller
Michigan Law Review First Impressions
I begin with a question of effectiveness: does the new Confrontation Clause doctrine effectively protect defendants with respect to the most im-portant types of problematic out-of-court statements? Although they leave much room for the introduction of hearsay in the immediate aftermath of crime generally, Davis v. Washington and Hammon v. Indiana (together hereinafter Davis) are better opinions from that broad perspective than I had feared. The new doctrine now covers and provides substantial procedural protection for a very important class of problematic hearsay—statements made to government agents investigating past crime.
The Story Of Crawford, Richard D. Friedman
The Story Of Crawford, Richard D. Friedman
Book Chapters
Michael Crawford had been charged with assault. At his trial, the prosecution offered a statement made in the police station on the night of the incident by Crawford's wife Sylvia, who did not testify at trial. He objected, in part on the ground that this violated his right under the Confrontation Clause. The trial court nevertheless admitted the statement, and Crawford was convicted. The Washington Supreme Court ultimately affirmed the judgment. In rejecting the Confrontation Clause challenge, that court purported to apply the then governing doctrine of Ohio v. Roberts, under which the Clause posed no obstacle to admissibility if …
We Really (For The Most Part) Mean It!, Richard D. Friedman
We Really (For The Most Part) Mean It!, Richard D. Friedman
Articles
I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …
Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman
Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman
Publications
This article addresses the response of Colorado courts, and that of certain other jurisdictions, to the 2004 U.S. Supreme Court decision in Crawford v. Washington.
Expanding Forfeiture Without Sacrificing Confrontation After Crawford, Joshua Deahl
Expanding Forfeiture Without Sacrificing Confrontation After Crawford, Joshua Deahl
Michigan Law Review
The central holding of Crawford v. Washington is fairly straightforward: The Confrontation Clause bars the admission of out-of-court testimonial statements unless the defendant had a prior opportunity to cross-examine the witness. Crawford, however, has an often overlooked caveat. In renouncing numerous exceptions to the confrontation right, the Court rejected only those that purport to test the reliability of testimonial statements. It left equitable exceptions undisturbed. As the Court pointed out, "[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds." The parameters of the rule of forfeiture are a matter of some dispute. …
Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass
Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass
Law Faculty Publications
The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …
Mr. Madison Meets A Time Machine: The Political Science Of Federal Sentencing Reform, Frank O. Bowman Iii
Mr. Madison Meets A Time Machine: The Political Science Of Federal Sentencing Reform, Frank O. Bowman Iii
Faculty Publications
This is the third in a series of articles analyzing the current turmoil in federal criminal sentencing and offering suggestions for improvements in the federal sentencing system. The first article, "The Failure of the Federal Sentencing Guidelines: A Structural Analysis," 105 COLUMBIA L. REV. 1315 (2005), analyzed the structural failures of the complex federal sentencing guidelines system, particularly those arising from imbalances among the primary institutional sentencing actors - Congress, the judiciary, the Justice Department, and the U.S. Sentencing Commission. The second, "Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker," 2005 U. OF CHICAGO LEGAL FORUM 149 (2005), …
Criminal Law—The Sixth Amendment Right To Counsel—The Supreme Court Minimizes The Right To Effective Assistance Of Counsel By Maximizing The Deference Awarded To Barely Competent Defense Attorneys. Florida V. Nixon, 125 S. Ct. 551 (2004)., Jennifer Williams
University of Arkansas at Little Rock Law Review
No abstract provided.
The Lessons Of People V. Moscat: Confronting Judicial Bias In Domestic Violence Cases Interpreting Crawford V. Washington, David Jaros
All Faculty Scholarship
Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases 911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors -- combine to make the introduction of "out-of-comment statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set …
The Invisible Pillar Of Gideon, Adam M. Gershowitz
The Invisible Pillar Of Gideon, Adam M. Gershowitz
Indiana Law Journal
In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay's requestfor appointed counsel. ' Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …
A Criminal Procedure Regime Based On Instrumental Values: A Review Of 'About Guilt And Innocence: The Origins, Development, And Future Of Constitutional Criminal Procedure,' By Donald A. Dripps (Prager Publishers, 2003), Tracey Maclin
UF Law Faculty Publications
Like many legal academics, Professor Donald Dripps believes that the Supreme Court's criminal procedure doctrine is a mess. Dripps believes that the Court's doctrine "is in large measure responsible for the failure of the criminal-procedure revolution" and contends that "current doctrine does not reflect prevailing (and justified) values about criminal process." To prove his claim, Dripps has written a book that expertly identifies the flaws, inconsistencies and missteps of the Court's constitutional criminal procedure cases dating back to the adoption of the Fourteenth Amendment. "About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure" is a comprehensive …
Evidence—Sixth Amendment And The Confrontation Clause—Testimonial Trumps Reliable: The United States Supreme Court Reconsiders Its Approach To The Confrontation Clause. Crawford V. Washington, 541 U.S. 36 (2004)., Kristen Sluyter
University of Arkansas at Little Rock Law Review
No abstract provided.