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Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel

Book Chapters

During the 1960s, the Warren Court's decisions in the field of criminal procedure were strongly denounced by many prosecutors, police officers, and conservative politicians. Some of these critics were careful in their description of the Warren Court's record. Others let their strong opposition to several of the Court's more highly publicized decisions destroy their perception of the Court's work as a whole.

A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar

Book Chapters

If the several conferences and workshops (and many lunch conversations) on police interrogation and confessions in which I have participated this past summer are any indication, Miranda v. Arizona has evoked much anger and spread much sorrow among judges, lawyers and professors. In the months and years ahead, such reaction is likely to be translated into microscopic analyses and relentless, probing criticism of the majority opinion. During this period of agonizing appraisal and reappraisal, I think it important that various assumptions and assertions in the dissenting opinions do not escape attention.

Inconsistencies In The Federal Circuit Courts' Application Of The Coconspirator Exception

Washington and Lee Law Review

No abstract provided.

Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar

Articles

Twenty years ago, concurring in Mapp v. Ohio (1961), Justice William 0. Douglas looked back on Wolf v. Colorado (1949) (which had held that the Fourth Amendment's substantive protection against "unreasonable search and seizure" was binding on the states through the due process clause, but that the Fourth Amendment exclusionary rule was not) and recalled that the Wolf case had evoked "a storm of controversy which only today finds its end." But, of course, in the twenty years since Justice Douglas made that observation the storm of controversy has only intensified, and it has engulfed the exclusionary rule in federal …

On Recognizing Variations In State Criminal Procedure, Jerold H. Israel

Articles

Everyone recognizes that the laws governing criminal procedure vary somewhat from state to state. There is often a tendency, however, to underestimate the degree of diversity that exists. Even some of the most experienced practitioners believe that aside from variations on some minor matters, such as the number of peremptory challenges granted, and variation on a few major items, such as the use of the grand jury, the basic legal standards governing most procedures are approximately the same in a large majority of states. I have seen varied evidence of this misconception in practitioner discussions of law reform proposals, particularly …

Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag

Publications

No abstract provided.

Confessions And The Court, Stephen J. Schulhofer

Michigan Law Review

A Review of Police Interrogation and Confessions: Essays in Law and Policy by Yale Kamisar

In Memory Of Monrad G. Paulsen, Sanford H. Kadish

Cardozo Law Review

No abstract provided.

Interrogation Without Questions: Rhode Island V. Innis And United States V. Henry, Welsh S. White

Michigan Law Review

In Rhode Island v. Innis, the Court defined "interrogation" within the meaning of Miranda; and in United States v. Henry, it defined "deliberate elicitation" within the meaning of Massiah. This article explores the implications of Innis and Henry, suggests readings of the new tests consistent with their purposes, and applies the tests to several situations where the scope of the fifth and sixth amendment protections remains unclear.

An Application Of Double Jeopardy And Collateral Estoppel Principles To Successive Prison Disciplinary And Criminal Prosecutions, Joseph S. Colussi

Indiana Law Journal

No abstract provided.

Visual Rape: A Look At The Dubious Legality Of Strip Searches, 13 J. Marshall L. Rev. 273 (1980), Paul R. Shuldiner

UIC Law Review

No abstract provided.

Sentencing, The Dilemma Of Discretion, Jerold H. Israel

Book Chapters

[The following excerpts are taken from Professor Jerold Israel's revision of the late Hazel B. Kerper's Introduction to the Criminal Justice System ( West Publishing Co. 1979), with permission of the author and publisher. Footnotes have been omitted.] As we have seen, judges usually have substantial discretion in sentencing. Most states give them considerable leeway in choosing between probation and imprisonment, in setting the term of imprisonment under either an indeterminate or determinate sentencing structure, in deciding whether a young offender will be given the special benefits of a youthful offender statute, and in determining whether to impose consecutive or …

Search And Seizure: A Treatise On The Fourth Amendment, William H. Erickson

Michigan Law Review

A Review of Search and Seizure: A Treatise on the Fourth Amendment by Wayne R. LaFave

The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar

Articles

In the 65 years since the Supreme Court adopted the exclusionary rule, few critics have attacked it with as much vigor and on as many fronts as did Judge Malcolm Wilkey in his recent Judicature article, "The exclusionary rule: why suppress valid evidence?" (November 1978).

Exclusionary Rule: Reasonable Remarks On Unreasonable Search And Seizure, Yale Kamisar

Articles

Can we live with the so-called exclusionary rule, which bars the use of illegally gained evidence in criminal trials? Can the Fourth Amendment live without it? A growing number of lawyers and judges, including Chief Justice Warren Burger, have called for abandonment of the rule, usually on the ground that it has not prevented illegal searches and seizures and on the ground that the rule has contributed significantly to the increase in crime. No one has convincingly demonstrated a causal link between the high rate of crime in America and the exclusionary rule, and I do not believe that any …

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 …

The Right To Counsel In Police Interrogation Cases: Miranda And Williams, Mitchell Leibson Chyette

University of Michigan Journal of Law Reform

This article will consider some of the theoretical and practical ramifications of the Williams decision and compare its protections to the protections offered by Miranda. The article, focussing on the right to counsel, discusses the nature of the police conduct which is prohibited by each decision, the time at which the protections involved become effective, and the standard by which a waiver of the rights will be measured. The article concludes that there may be significant differences in the application of the two cases and that a uniform rule based on the sixth amendment may be superior to the …

The Right To An In Camera Voluntariness Hearing: State V. Sanders, Ellen Carle Lilly

West Virginia Law Review

No abstract provided.

The Interstate Agreement On Detainers: Defining The Federal Role, Janet R. Necessary

Vanderbilt Law Review

In 1970, Congress enacted into law the Interstate Agreement on Detainers Act, making the United States and the District of Columbia parties to the interstate compact already adopted by 37 states.' The purpose of the Agreement is to "encourage the expeditious and orderly disposition" of charges underlying detainers by providing procedures by which prisoners may request disposition of such charges and prosecuting jurisdictions may obtain the presence of prisoners for trial. Recently problems of interpretation have surfaced as the federal courts have endeavored to define the role of the United States under the Agreement. The courts of appeals presently disagree …

The Repressed Issues Of Sentencing: Accountability, Predictability, And Equality In The Era Of The Sentencing Commission, John C. Coffee Jr.

Faculty Scholarship

The existence of disparities in the sentences imposed on equally culpable offenders has long been a subject of jurisprudential concern. The author provides a critique of recent efforts to objectify the sentencing process that rely on a matrix table prescribing guideline sentence lengths on the basis of offense severity and predictions of recidivism. With particular emphasis on the Sentencing Commission authorized by pending federal legislation, he urges the need for political accountability in the body that inevitably makes value judgments in the preparation and administration of such a guideline system. Finally, the author discusses the normative issues that surround the …

Some Impressions And Reflections On Observing Legal Proceedings In The People's Republic Of China, Christina B. Whitman, Sallyanne Payton

Articles

Very few foreign visitors have been allowed an opportunity to observe legal proceedings in the People's Republic of China. We were included in the first American group ever favored with a professional exchange legal tour. During the month of May 1977, we spent three weeks in China with a group of Black American judges and lawyers, headed by the Hon. George C. Crockett, Jr., Judge of the Recorder's Court of Detroit. Since we ourselves would be skeptical of the claim of a visitor to the United States who purported to have "studied" the American legal process during the course of …

Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar

Articles

More than 50 years have passed since the Supreme Court decided the Weeks case, barring the use in federal prosecutions of evidence obtained in violation of the Fourth Amendment, and the Silverthorne case, invoking what has come to be known as the "fruit of the poisonous tree" doctrine. The justices who decided those cases would, I think, be quite surprised to learn that some day the value of the exclusionary rule would be measured by-and the very life of the rule might depend on-an empirical evaluation of its efficacy in deterring police misconduct. These justices were engaged in a less …

Reconsideration Of The Katz Expectation Of Privacy Test, Michigan Law Review

Michigan Law Review

This Note, by modifying certain aspects of the reasonable expectation of privacy test, offers a theory that attempts to identify the minimum content of the fourth amendment. In the first section, the Note examines the reasonable expectation of privacy test and considers whether it has been or can be applied in a manner that fails to protect the right to have certain minimum expectations of privacy. It analyzes both the "actual" and the "reasonable" expectation requirements, identifies weaknesses inherent in the current application of these requirements, and suggests certain ways in which they might be refined. In the second section, …

The Life And Times Of Boyd V. United States (1886-1976), Michigan Law Review

Michigan Law Review

In Boyd v. United States, the Supreme Court held that the fourth and fifth amendments create a zone of privacy encompassing an individual's person and property. The government, according to Boyd, cannot enter this zone, either by compelling an individual to testify against himself or by subpoenaing or seizing his books and papers for use as evidence against him in a criminal or quasi-criminal proceeding. The Court found an "intimate relation" between the two amendments such that the search and seizure of books and papers may be "unreasonable" even if conducted pursuant to a court order.

Over time, …

Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel

Articles

I start in Section I of this Article with an examination of the first major theme of the criminal procedure decisions of the Warren Court, the selective incorporation of Bill of Rights' guarantees into the due process clause of the fourteenth amendment. My conclusion is that the selective incorporation principle, which provided the doctrinal basis for many of the "liberal" decisions of the Warren Court, remains firmly established today under the Burger Court. Section II of the Article then analyzes the theme of equality and the role it played in Warren Court decisions in the criminal procedure area. It is …

Mondale On Mapp, Yale Kamisar

Articles

Any judicial reversal of the Mapp rule threatens to have just the opposite effect. Law enforcement officials are likely to treat a decision that illegally obtained evidence may be admitted into state criminal trials as though that were a practical suspension of the constitutional rules as to lawful arrest, search, and seizure. They are likely to feel that once again "the judiciary is okaying it." With the smell of revelations of FBI "black-bag jobs" and intelligence agency abuses still in the air, is this how we want the Court to contribute to the atmosphere of police practices as we enter …

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 …

Subsequent Use Of Electronic Surveillance Interceptions And The Plain View Doctrine: Fourth Amendment Limitations On The Omnibus Crime Control Act, Raymond R. Kepner

University of Michigan Journal of Law Reform

Despite the critical examination to which many sections of Title III have been subjected, section 2517(5) has received little serious scrutiny from either the courts or the commentators. This note will analyze the constitutionality of the section in terms of the standards which the Supreme Court has articulated, both with respect to the law of search and seizure generally and with respect to electronic surveillance. This examination will reveal that section 2517(5) cannot be sustained under the existing contours of fourth amendment interpretation.

The Street Perspective: A Conversation With The Police, Patrick L. Baude

IUSTITIA

Professor Baude's purpose in this discussion is to elicit police officers' comments on what members of the legal profession ought to know about the influence of the "street perspective" in shaping those officers' attitudes towards the criminal justice system and the role they play in it. It is police insistence on the broad validity of insights which only "the street" can provide that accounts for the considerable gulf between "front-line" enforcement officers and other functionaries in (and students of) that system. Law students (and no doubt lawyers) seem uncomfortable with the notion that our system cannot adequately be understood without …

The Systems Approach To Criminal Justice Administration, John Hartje

Buffalo Law Review

No abstract provided.