Sixth Amendment

2 2005] BOOK REVIEWS 199 trine 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 the criminal process" (p. xiv). 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 and thoughtful critique of the Court's criminal procedure jurisprudence. While Dripps surveys the entire field of constitutional criminal procedure, the book pays close attention to the Court's Fourth, Fifth and Sixth Amendment cases. Topics such as search and seizure, the exclusionary rule, police interrogation and the right to counsel receive scrupulous analysis by Dripps. This book is not casual or beach reading. Dripps' legal analysis is meticulously researched. Parts of the book discuss constitutional law cases and theories that are rarely taught (or even mentioned) in a standard criminal procedure course. A firm knowledge of constitutional law is essential to understand many of Dripps' arguments. 6 Although the book is intellectually rigorous, it is not a book that should be confined to the bookshelves of law professors. The Justices of the Supreme Court should read this book. The issues discussed by Dripps are addressed by judges-both federal and state-on a regular basis. Moreover, the impact and meaning of many of the rulings discussed in the book-Terry v. Ohio, 7 Miranda v. Arizona 8 and Strickland v. Washington 9 -remain highly controversial among marijuana and cocaine are roughly comparable, blacks are five times more likely than whites to be convicted of these offenses. Police decisions to stop, search and arrest, and prosecutorial decisions to charge, clearly have a massively disproportionate impact on black Americans" (p. xiv). For two thoughtful views on the role of race in the criminal process and the inequalities inherent in the criminal justice system, see RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1997) and MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN AMERICA (1995). 6. The only frustrating part of the book was the endnotes. Professor George Thomas is right about the use of endnotes, particularly in a book like this one, where the endnotes often contain a large amount of useful information. See George C. Thomas III, An Assault on the Temple of Miranda, 85 J. CRIM. L. & CRIMINOLOGY 807, 808 n.4 (1995) ("Is it not late in the day for endnotes? Having become accustomed to footnotes in this computer age, the endnotes were quite frustrating, all the more so because readers will want to examine [the author's] notes carefully."). Of course, Professor Thomas' own book on Double Jeopardy, a fine piece of legal scholarship, also has endnotes.

In Alvarado v. State, the Alaska Supreme Court declared that an impartial jury is a cross section of the community and that the community where the events at issue transpired must be represented in the jury. This decision spurred changes to jury selection procedures and the creation of Criminal Rule 18, an effort to ensure defendants from remote villages are judged by a jury representative of these rural areas. The Alaska Court of Appeals recently addressed an issue of first impression regarding the application of Criminal Rule 18. In Joseph v. State, the defendant was convicted of murdering his girlfriend in the tiny Native village of Rampart. His trial was conducted in Fairbanks by a jury selected from an area that does not include Rampart or any other similar Native village. Criminal Rule 18 allowed the defendant a limited time to transfer his trial to Nenana, which more closely resembles the characteristics of Rampart. However, the defendant was never informed of this right. His...

RoPER: So now you'd give the Devil the benifzt of law! MoRE: Yes. What would you do? Cut a great road through the law to get after the Devil? RoPER: I'd cut down every law in England to do that! MoRE: (Roused and Excited) Oh? (Advances on RoPER) And when the last law was down, and the Devil turned mund on you-where would you hide, Roper, the laws all being flat. (He leaves him). This country 's planted thick with laws from coast to coast-man 's laws, not God 's-and if you cut them down-and you're just the man to do itd'you really think you could stand upright in the winds that would

Criminal law and procedure tell us a criminal defendant is presumed innocent. Jurors in criminal trials receive a specific instruction on the presumption of innocence prior to beginning deliberations in trial. But the instructions given to the jury in a number of jurisdictions when a defendant testifies is a significant legal obstacle standing in the way of the presumption of innocence. Jurors in a few states and federal courts all over the country receive instructions that a defendant's testimony should be viewed with caution because of his interest in the outcome of the case. In other states the general instructions about assessing credibility of all witnesses asks courts to consider the witnesses "interest in the outcome of the case." Since no one has a clearer or more apparent interest in the outcome of the case than the defendant, any type of instructions that highlights an interest in the outcome of the case undermines the presumption of the innocence is a significant infringement on his constitutional right. Despite the presumption of innocence, jurors are told when a person accused of a crime proclaims his innocence in the courtroom, that testimony should be viewed with skepticism. This Article shows how these types of instructions work to silence defendants. The Article proposes a new jury instruction that should be given whenever an accused person testifies.

This Note examines the right to effective assistance of counsel during guilty pleas through the lens of the pending Second Circuit case Farhane v. United States. This case will have significant implications for the right to effective legal representation, particularly in terms of defense attorneys’ duty to warn clients of the potential risk of denaturalization as a consequence of pleading guilty. In May 2024, the court reheard Farhane en banc and will issue a decision later this year. If this opinion aligns with the court’s initial decision, it will severely limit the rights of all defendants in criminal proceedings in the Second Circuit. This Note traces the development of the right to effective assistance of counsel to contextualize Farhane. This Note then critiques the initial Farhane decision, highlighting its incongruity with historical approaches to ineffective assistance of counsel (IAC) claims. This Note then argues for a shift toward a client-centric and circumstance-specific approach to IAC claims. Such an approach would be grounded in evolving professional norms and acknowledge the severe nature of certain consequences to ensure defendants receive comprehensive legal counsel during plea negotiations. This Note contends that courts should demand more “competent” counsel to protect the fairness of plea bargaining and the overall integrity of the criminal justice system.

We conduct a detailed doctrinal and empirical study of the adverse effects of parole on the constitutional rights of both individual parolees and the communities in which they live. We show that parolees' Fourth, Fifth and Sixth Amendment rights have been eroded by a multitude of punitive conditions endorsed by the courts. Punitive parole conditions actually increase parolees' vulnerability to criminal elements, and thus likely worsen recidivism. Simultaneously, the parole system broadly undermines the rights of nonparolees, including family members, cotenants, and

In many countries, the law permits state authorities to detain noncitizens before deportation. Typically judicial decisions about preremoval detention must be made within a short period of time during which deportable noncitizens are held in police premises, and depending on the country detention may last just one month (e.g., France) or up to 18 months (the Netherlands). While previous research has explored various dimensions of noncitizen detention including the legal procedure, health consequences, the condition of detention centers, and the lives of deportable noncitizens, the empirical assessment of the determinants of decisions on preremoval detention are largely unexplored. Using data from court proceedings of police petitions of detention in Spain and a quantitative strategy, in this article we undertake an empirical analysis of noncitizen detention combining personal background of deportable noncitizens, legal factors of the case, and the behavior of different actors involved in the procedure. To do it, we fit models that take into account variation occurred at judicial district levels. Results indicate, on the one hand, that relevant actors involved in the procedure use different informational cues to decide on cases. On the other hand, the role of prosecutors and attorneys during hearings proves also relevant to predict detention.

In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizen clients of the “clear” immigration consequences of a proposed plea agreement. This Article argues that the Court’s reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation rules would greatly facilitate the implementation of Padilla, enhance the legitimacy of immigration law, and conserve judicial and administrative resources. However, pro-immigrant reformers hesitate to push for simple deportation rules because legislative reform in the area of immigration and crimes would likely widen the deportation net. Assumi...

This paper aims to salvage the adversarial system in response to Simon's criticism in his Ideology of Advocacy. He has constructed three sophisticated justifications for the adversarial system: Positivism, Purposivism and Ritualism. All three theories are formidable attempts to "rationalize" the adversarial system against a host of moral criticisms. (Simon 11) These criticisms target the lawyers' professional ethics, such as partisan advocacy, which is necessary to uphold the adversarial system. Simon addresses the three theories separately, and he promptly rejects all of them. Then, he identifies one unity among their respective shortcomings: discontinuity. Simon demonstrates that all three theories have been evading this problematic discontinuity of the adversarial system. This unbridgeable discontinuity is between the law as the means and as the ends, and it is also between the law's procedure and substance.

MISSOURI LA WREVIEW way intend to participate in the trial of this matter."' 9 Walsh again asserted that he was "unprepared due to his involvement in an earlier capital murder case [Mose Young], and physically exhausted. 10 Walsh attended the trial but did not make opening statements, cross-examine any witnesses, object to or present any evidence, submit proposed jury instructions, or make closing arguments on Harvey's behalf.II He submitted no evidence or argument in mitigation of punishment.1 2 Harvey was convicted and sentenced to death.13 Although the prosecution conceded on appeal that Walsh "effectively boycotted the trial proceedings," it urged that Harvey's death sentence be carried out because Walsh's lack of defense was "a matter of trial strategy."'14 The Supreme Court of Missouri granted Harvey a new trial because he was deprived of his Sixth Amendment right to counsel. 15 As for Walsh, the court pointedly noted that "the court's contempt power or the attorney disciplinary mechanism may be invoked." 6 Indeed, the court wasted no time initiating disciplinary proceedings against Walsh, permanently ending his legal career. Walsh's supervising attorney described him as a tragic hero who failed miserably and collapsed under the weight of an oppressive system. Because of the high turnover in the defender system, Walsh had inherited a heavy docket of aging cases involving serious charges. Years later, as my cocounsel Joseph Margulies' 9 and I worked on Young's last appeal, Walsh told us that he regretted that his moment of clarity came a week too late to save Mose Young. Young was executed just after midnight on April 25, 2001.20 Walsh and Young are both victims of Missouri's unrelenting refusal to address the problems of its indigent defense system. Unfortunately, they are not alone. Their cases are not even rare. University of Missouri-Kansas City Sociology Professor Cathleen Burnett examined the first fifty post-Furman 9. Harvey, 692 S.W.2d at 291. 10. Id. 11. Id. 12. Id 13. Id. at 292-93. 14. Id. 15. Id. at 293. 16. Id 17. Application for Stay, supra note 2, at 15. 18. Id at 12. 19. Now a professor at Northwestern University School of Law, Joseph Margulies was a lawyer in private practice in Minneapolis, Minnesota who volunteered to represent Mr. Young on his final appeals.

Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our system of constitutional criminal procedure. Much has been written about Gideon's broken promise to our poor; this Essay is about Gideon's broken promise to our system. With its army of zealous public defenders, Gideon should have produced litigation that vigorously protected the core structures of our adversary trial system. Instead, courts have converted Gideon representation into a Gideon defendant's de facto relinquishment of important Sixth Amendment rights. As a result, counsel-not client-controls the invocation and exercise of the adversary procedures. And, even as to those Sixth Amendment rights still within a defendant's exclusive control, Strickland eviscerates a defendant's capacity to seek redress when counsel precludes the exercise of a fundamental right. As a result, Gideon has increasingly become an enforcer of the status quo-a cog in the systemic machine that grinds continually toward under-enforcement of Sixth Amendment adversary rights. author. Associate Professor of Law, Tulane University Law School. The author gratefully acknowledges the research support of Tulane Law School. The author also wishes to thank Professors Jancy Hoeffel, Joe Thorp, and Keith Werhan for their extraordinary assistance. fear of adversariness 2551 essay contents introduction i. the regulation of defendant-driven adversariness through gideon and strickland A. The Court's General Preference for Nonadversarial Case Resolution B. The Court's Efforts To Regulate Defendant-Driven Adversariness at Trial ii. direct regulation of defendant adversariness over the sixth amendment A. Direct Regulation: Relying on Counsel To Constrain the Invocation of "Tactical" Sixth Amendment Rights B. The Judicial Reliance on Gideon To Justify Direct Regulation of Defendants' Control over "Tactical" Sixth Amendment Rights iii. indirectly regulating defendant-driven adversariness by applying strickland to deprivations of fundamental rights iv. some observations about the consequences of regulating defendant-driven adversariness A. Gideon-Agency and Strickland Analysis Skew Behavior by Institutional Participants in the Criminal Justice System 1. Skewing the Behavior of Lawyers and Professional Witnesses 2. Skewing Judicial Behavior 3. Minimizing the Significance of Appellate Opinions B. Gideon-Agency and Strickland Review Produce Perverse Outcomes conclusion the yale law journal

NORTHWESTERN UNIVERSITY LAW REVIEW to the layperson's need for assistance of counsel in court proceedings.' Rather, during the mid to late 1700's, English law forbade the assistance of counsel in nearly all criminal cases.' The law required each defendant "to appear before the court in his own person and conduct his own cause in his own words." 6 Scholars and historians offer various explanations of this prohibition on counsel. 7 Some point out that criminal prosecutions were initiated by private parties, who represented themselves; accordingly, selfrepresentation by defendants was not thought to be unfair.' Others suggest that a 'level playing field' was enforced by a neutral judge who "viewed indictors, prosecutors, jury, and prisoner with impartial distrust." 9 Still others suggest that the English government banned counsel because the monarchy was too weak and too unstable to risk the possibility that defense counsel would achieve the acquittal of accused felons." In contrast, the colonists rejected the English "private party" prosecutions and adopted a strong public prosecutor system. In that system, a professional prosecutor confronted the private citizen. The colonial prosecutor knew the law, the jury system, and the judge more intimately than could any individual defendant. This gave the prosecutor an unfair advantage that colonial lawmakers could not justify." The American impulse to determine legal rights by reference to the "settled usages and modes of proceeding" of English law gave way to the realities of an American society that demanded different protections. 2 Although the early American counsel guarantee was 4 Powell v. Alabama, 287 U.S. 45, 60 (1932) (stating that "[i]f recognition of the right of a defendant.., to have the aid of counsel depended upon the existence of a similar right at common law as it existed in England when our Constitution was adopted," the right to counsel could not be justified as a necessary component of due process), 5 Faretta v. California, 422 U.S. 806, 823 (1974). 6 Id. (quoting 1 POLLACK & MAITLAND, THE HISTORY OF ENGLISH LAW 211 (2d ed. 1909)). The sole exceptions were at the outer edges of criminal procedure-counsel was permitted both in misdomeanor and treason cases. Scholars have posited that this distinction arose precisely because those accused of misdemeanors and treason were prosecuted by England's only public prosecutor-the Crown. This ban on counsel in felony cases persisted until 1836 when Parliament gave criminal defendants the right to appear through counsel.

Interpreters have an ethical and linguistic responsibility to maintain the legal equivalence of the source language (SL) in the target language (TL), which means respecting the speaker's language level, style, tone, and intent in the target language. Berk-Seligson (1999), Morris (1999), Alvarez and Vidal (1996), and Hale (1999) assert that good interpreting hinges not only on linguistic content, but also on social, cultural, and psychological variables. Accurate interpreting must reflect both a semantic and a pragmatic view of an utterance if it is to convey the intended meaning of a speaker's speech act (Yule, 1996). Therefore, interpreters need to pay attention to the context, culture, and situation of witnesses and defendants in order to make sense of their linguistic accounts, maintain legal equivalence, and avoid putting witnesses and defendants at a linguistic disadvantage. Immigration and Naturalization 1 (INS) hearings differ from regular civil court proceedings. First, plaintiffs (who are addressed as defendants) normally seek an avenue of relief such as political asylum, cancellation of removal (i.e., deportation), or residency to be able to remain in the United States legally. Second, INS court proceedings are conducted orally in English and recorded in English. Due to the growing consciousness of language rights during the 1960s and the 1970s, laws were passed to ensure equal access of linguistic minority groups to political, legal, educational, and employment institutions in the United States (Dueñas González, Vásquez, & Mikkelson, 1991). Therefore, an interpreter is often needed to protect the linguistic rights of all the parties. The role of the interpreter is consequential, as it represents a linguistic bridge between the defendant, the witnesses, the immigration judge, and the attorneys. Interpreters are constantly confronted with both linguistic and pragmatic challenges to quality interpreting. These challenges give rise to a number of questions: How much do interpreters actually change the original testimony? What linguistic features do they tend to add or delete and, most importantly, why? What sociolinguistic factors come into play as an interpreter engages in bilingual legal interpreting (Zambrano-Paff, 2009)? Analysis of the immigration hearings selected for this research show that interpreters altered the courtroom reality through a variety of linguistic mechanisms: inaccurate lexical choice, the use of definitions rather than equivalent words and phrases, the use of repetition, and the insertion of queries and interruptions. Despite their best efforts to interpret lexicon or expressions that were unfamiliar to them due to the defendant's register or Spanish variant, interpreters failed to maintain the legal and linguistic equivalence of the source language in the target language. Their inaccurate lexical choices changed the pragmatic force intended by the speakers and changed the content of the original testimony, thereby violating the ethical standards for interpreters set by the Federal Judicial Center. 1. Objectives This paper brings to light some of the linguistic repair mechanisms immigration interpreters use when confronted with unfamiliar dialectal or regional lexicon and unfamiliar phrases in the testimony. 1 The INS has been renamed the Bureau of Citizenship and Immigration Services, or BCIS, and has become part of the U.S. Department of Homeland Security.

course, these two classes of persons are not the same from a risk-assessment perspective. The Third Circuit said that there is no historical justification for restoration of Second Amendment rights. Whether one forfeits the Second Amendment right because of a felony conviction or because one has been deemed a danger to himself or others and involuntarily hospitalized, the forfeiture cannot be overturned by “rehabilitation.” It also noted that “federal courts are ill-equipped to determine whether any particular individual who was previously deemed mentally ill should have his or her firearm rights restored” (Beers, p 159). The Beers decision concludes that the irrelevance of rehabilitation for felons regarding forfeiture of Second Amendment rights is equally applied to those adjudicated as mentally ill. This conclusion supports the very stigmatization so many have worked to reverse. Interestingly, the court found it necessary to comment on the topic of further stigmatization. In resp...

This article analyzed 32 empirical studies on the impact of the lawyer's performance on the outcome of the judicial decision. The findings were: the concentration of research in the United States (81.25 percent), civil jurisdiction (62.5 percent), the year of publication in general in the 2010 decade (56.25 percent) and the predominant use of the observational method (75 percent). The great methodological difficulty of these researches is to identify with precision if the impact in the judicial decision stems from the lawyer's performance or if it is only a consequence of the characteristics of the processes that are being judged, which can be achieved through experiments with research design with distribution cases to balance hidden variables.

Does legal representation affect critical judicial decisions? This article highlights a paradox at the heart of court sentencing of death-eligible drug offenders in China. On the one hand, lawyers are regarded as a staple of due process. On the other, court decisions are insensitive to the availability (whether drug offenders have access to legal assistance) and the quality (the varieties and conditions of legal services provided by private vs court-appointed attorneys) of legal representation. I argue that this perplexing contradiction derives from the institutional alienation of criminal lawyers in China, a theory containing three main dimensions: power deficit, identity confliction, and procedural-based legitimacy. The defense lawyer has little control over or power to determine capital drug sentencing decisions; at the same time, criminal defense lawyers are unable to fully realize themselves in their professional activities; they are used as instruments to advance bureaucratic and political interests and are therefore exposed to impoverished and instrumental relations with judicial institutions and their own activities. This paradox-the insignificance of differences-takes place in China's non-adversarial judicial settings and its authoritarian political environment. It is differentiated but connected with a paradox between eradicating inequality and providing adequate assistance to the most marginalized defendants in adversarial criminal justice systems. This article adopts mixed research methods, including qualitative interviews of legal professionals across China and quantitative analysis based on a regression analysis of national-level (N=10,132) and provincial-specific (N=3,955) samples of court judgments.

Does legal representation affect critical judicial decisions? This article highlights a paradox at the heart of court sentencing of death-eligible drug offenders in China. On the one hand, lawyers are regarded as a staple of due process. On the other, court decisions are insensitive to the availability (whether drug offenders have access to legal assistance) and the quality (the varieties and conditions of legal services provided by private vs court-appointed attorneys) of legal representation. I argue that this perplexing contradiction derives from the institutional alienation of criminal lawyers in China, a theory containing three main dimensions: power deficit, identity confliction, and procedural-based legitimacy. The defense lawyer has little control over or power to determine capital drug sentencing decisions; at the same time, criminal defense lawyers are unable to fully realize themselves in their professional activities; they are used as instruments to advance bureaucratic and political interests and are therefore exposed to impoverished and instrumental relations with judicial institutions and their own activities. This paradox-the insignificance of differences-takes place in China's non-adversarial judicial settings and its authoritarian political environment. It is differentiated but connected with a paradox between eradicating inequality and providing adequate assistance to the most marginalized defendants in adversarial criminal justice systems. This article adopts mixed research methods, including qualitative interviews of legal professionals across China and quantitative analysis based on a regression analysis of national-level (N=10,132) and provincial-specific (N=3,955) samples of court judgments.

Contemporary criminal law aims to balance the public's need to punish harmful behavior with the moral choice of the individual agent who causes harm. The principle of individual criminal responsibility in criminal law focuses on human actions and omissions as the foundations of guilt. Although the debate on free will and agency continues to play a role in contemporary criminal law, criminal responsibility is based on a normative understanding of these notions. This understanding presupposes human agency and the capacity to appreciate the wrongfulness of one's actions and the ability to conduct one's behavior accordingly. However, when this capacity is affected by internal or external circumstances, criminal responsibility can be excluded or diminished. This chapter focuses on the different ways of understanding criminal responsibility among various legal systems by comparing the definition and scope of individual criminal responsibility, culpability, and the place of strict responsibility within criminal law and later compares some of the more common defenses affecting the criminal capacity of the defendant: insanity, diminished responsibility, intoxication, and infancy. These defenses shall be compared according to various common law and civil law systems according to their definitions, fields of application, and legal consequences.

Courts are experimenting with new technologies in response to increasingly crowded dockets. Videoconferencing is being increasingly employed to streamline legal proceedings and provide the accused greater access to justice. The use of videoconferencing has spread through the federal and state court systems. While no criminal trial has been conducted entirely by videoconferencing, it has been used in arraignments, bail, sentencing, and post-conviction hearings. The impact of videoconferencing technology on the legal process, however, has yet to be measured in any systematic way. Of prime concern is the impact of this technology on the attorney/client relationship and their private communications. Critics argue the use of videoconferencing calls into question the ability of attorneys and clients to communicate effectively, undermining effective representation by counsel. In this first of its kind study, this article examines the impact of videoconferencing on private communications and the wider implications of the impacts of technology on civil liberties. Through a marriage of social scientific and legal analysis, videoconference private communications are analysed with empirical data and conclude with a discussion of how the negative aspects of videoconferencing can be lessened, avoided, and/or remedied.

The U.S. Supreme Court’s pathbreaking decision in Padilla v. Kentucky seems reasonably simple and exact: Sixth Amendment norms were applied to noncitizen Jose Padilla’s claim that his criminal defense counsel was ineffective due to allegedly incorrect advice concerning the risk of deportation. This was a very significant move with virtues of both logic and justice. It will likely prevent many avoidable and wrongful deportations. It may also help some deportees who have been wrongly or unjustly deported in the past. However, the apparent exactness of the case, as a Sixth Amendment decision, raises fundamental constitutional questions. For more than a century, courts have formalistically distinguished between two consequences of criminal convictions: the punishment meted out in criminal courts and deportation. The former is, of course, a criminal sanction, while the latter is said to be civil or, at most, quasi-criminal. This Article suggests that Padilla has implicitly challenged thi...

Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The Court’s choice to rely upon the Sixth Amendment is understandable and in many respects salutary. However, this choice is also in tension with the civil/criminal distinction, and it raises complex questions about the process that might be due deportees both in criminal courts and immigration proc...

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a "fictional plea"), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to extract greater punishments and defendants can avoid consequences they view as particularly burdensome. But these benefits can come at a cost to others who are not at the bargaining table. We contend that "collusive prosecution" of this sort can be pernicious, as may be the case when sex-offender registration and notification laws are in play, but it also has potential to be socially attractive. Accordingly, we sketch a normative framework for evaluating collusive prosecution as a matter of prosecutorial ethics. We draw on the emerging field of public fiduciary theory to characterize prosecutors' ethical duties to varied-and often conflicting-beneficiaries. We suggest that programmatic uses of collusive prosecution may be fair and reasonable in a common immigration context, but collusive prosecution designed to relocate sex-offense registrants likely fail these conditions. Ultimately, we offer a suite of reforms that may be useful for policing collusive prosecution without banning the practice outright.

This study examined effects of having a minor child(ren) on the probability of being prosecuted, convicted, and if convicted, the sanctions that were imposed. Data were statewide court and birth records of criminally-charged women in North Carolina, a state with sentencing guidelines. We hypothesized that (a) prosecutors would be less likely to prosecute and more likely to lower an offense class and (b) judges (when they had discretion) would be more lenient for women in sentencing with minor children than without. Having a minor child(ren) reduced the probability of prosecution; given prosecution, conviction rates fell. When the judge had discretion, having minor children reduced the probability of an active sentence. Having a minor child had no effect on minimum sentence length for women with active sentences. Presence of a minor child affects prosecutorial and judicial decisions affecting women charged with a criminal offense.

The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmateattorney email. This Note explores the cases that address whether federal prosecutors may read inmates' legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all their email, their legal email is unprivileged. In addition, all courts have rejected the argument that prosecutors reading inmates' legal email impermissibly restricts inmates' Sixth Amendment right of access to counsel. Accordingly, despite questioning the practice's propriety, four courts have ruled that there is no legal basis to prevent prosecutors from reading inmate-attorney email. Two courts, however, pursuant to no clear authority, prevented the prosecutors from doing so. This Note argues that prosecutors should abstain from reading inmateattorney email as a matter of self-regulation because this behavior unjustifiably chills inmate-attorney communication. In addition, this Note asserts that BOP's email monitoring policy unconstitutionally restricts inmates' Sixth Amendment right of access to counsel, a challenge prisoners' rights advocates have yet to bring. In cases where BOP's email monitoring policy is not at issue, or where a court seeks to avoid a constitutional decision, this Note concludes that courts should prevent prosecutors from reading inmates' legal email by exercising their delegated authority to enforce Rules of Professional Conduct. Specifically, courts

The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmateattorney email. This Note explores the cases that address whether federal prosecutors may read inmates' legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all their email, their legal email is unprivileged. In addition, all courts have rejected the argument that prosecutors reading inmates' legal email impermissibly restricts inmates' Sixth Amendment right of access to counsel. Accordingly, despite questioning the practice's propriety, four courts have ruled that there is no legal basis to prevent prosecutors from reading inmate-attorney email. Two courts, however, pursuant to no clear authority, prevented the prosecutors from doing so. This Note argues that prosecutors should abstain from reading inmateattorney email as a matter of self-regulation because this behavior unjustifiably chills inmate-attorney communication. In addition, this Note asserts that BOP's email monitoring policy unconstitutionally restricts inmates' Sixth Amendment right of access to counsel, a challenge prisoners' rights advocates have yet to bring. In cases where BOP's email monitoring policy is not at issue, or where a court seeks to avoid a constitutional decision, this Note concludes that courts should prevent prosecutors from reading inmates' legal email by exercising their delegated authority to enforce Rules of Professional Conduct. Specifically, courts

Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our system of constitutional criminal procedure. Much has been written about Gideon's broken promise to our poor; this Essay is about Gideon's broken promise to our system. With its army of zealous public defenders, Gideon should have produced litigation that vigorously protected the core structures of our adversary trial system. Instead, courts have converted Gideon representation into a Gideon defendant's de facto relinquishment of important Sixth Amendment rights. As a result, counsel-not client-controls the invocation and exercise of the adversary procedures. And, even as to those Sixth Amendment rights still within a defendant's exclusive control, Strickland eviscerates a defendant's capacity to seek redress when counsel precludes the exercise of a fundamental right. As a result, Gideon has increasingly become an enforcer of the status quo-a cog in the systemic machine that grinds continually toward under-enforcement of Sixth Amendment adversary rights. author. Associate Professor of Law, Tulane University Law School. The author gratefully acknowledges the research support of Tulane Law School. The author also wishes to thank Professors Jancy Hoeffel, Joe Thorp, and Keith Werhan for their extraordinary assistance. fear of adversariness 2551 essay contents introduction i. the regulation of defendant-driven adversariness through gideon and strickland A. The Court's General Preference for Nonadversarial Case Resolution B. The Court's Efforts To Regulate Defendant-Driven Adversariness at Trial ii. direct regulation of defendant adversariness over the sixth amendment A. Direct Regulation: Relying on Counsel To Constrain the Invocation of "Tactical" Sixth Amendment Rights B. The Judicial Reliance on Gideon To Justify Direct Regulation of Defendants' Control over "Tactical" Sixth Amendment Rights iii. indirectly regulating defendant-driven adversariness by applying strickland to deprivations of fundamental rights iv. some observations about the consequences of regulating defendant-driven adversariness A. Gideon-Agency and Strickland Analysis Skew Behavior by Institutional Participants in the Criminal Justice System 1. Skewing the Behavior of Lawyers and Professional Witnesses 2. Skewing Judicial Behavior 3. Minimizing the Significance of Appellate Opinions B. Gideon-Agency and Strickland Review Produce Perverse Outcomes conclusion the yale law journal

The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors rely on race to determine the defendant’s innocence, the victim’s propensity for violence, and the witnesses’ credibility. This Article delineates the ways in which juror racial bias is utilized to take on evidentiary value at trial and constructs evidence law solutions to increase racial equality in the courtroom.

Double Jeopardy Clause, see U.S. CONST. amend. V ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ....), and speedy trial guarantees, see U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial... ."), For discussion of these considerations in the context of reopening civil rights era cases, see infra notes 121-139. 7. Richly detailed accounts of this era include: JACK BASS, UNLIKELY HEROES (1981);

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate. This article looks into the bargaining part of plea bargaining. It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations. The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.” This is a theory that some defenders embrace and others reject. Describing the factors they believe to be important in plea negotiations, some public defenders – those who emphasize the importance of collateral consequences or the pre-trial custody of their clients – do not stress the likely outcome at trial. Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction fr...

Professor Nesson: In my talk,1 Richy—which you listened to—I left out a step that’s a crucial point on the relationship of empowerment and disempowerment to the hearsay issue. In Davis,2 I think you feel that Justice Scalia was, in a sense, up against a sensibility represented by Justice Ginsburg in the direction of admitting the testimony, and that sensibility prevails in effect in Davis. I’m assuming that the reason Justice Ginsburg would advance that position is based on a premise that she thought she was helping the victims of domestic abuse because she was guarding them against the possibility of intimidation that would lead them not to testify. On that basis, she thinks she’s protecting them by, by my lights, disempowering them—leaving them with no ability to call 911 for help without, at the same time, bringing along the full force of prosecution. That seems a very odd position to me. It seems like one that has a rhetorical appeal, that somehow the law is coming to the aid of...

A diversity of opinion surrounds the institution of plea bargaining. In large metropolitan areas many participants in the criminal justice system would agree that plea bargaining is a result of circumstance rather than choice. In some cities, criminal caseload has doubled in the last ten years while available judicial resources have remained constant.1 In the face of this administrative crisis, increasing reliance on plea bargaining, often referred to as plea negotiation, has enabled the system to remain functional. 2 Indeed, statistics suggest a complete dependence. Roughly ninety percent of all defendants convicted of crime in state and federal courts plead guilty rather than go to trial.3 While this figure does not specify the number of guilty pleas that were in fact negotiated, the prevalence of the plea bargaining process is apparent. Even the American Bar Association, by attempting to improve the procedural safeguards in plea bargaining,4 has implicitly conceded its necessity....

In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizen clients of the “clear” immigration consequences of a proposed plea agreement. This Article argues that the Court’s reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation rules would greatly facilitate the implementation of Padilla, enhance the legitimacy of immigration law, and conserve judicial and administrative resources. However, pro-immigrant reformers hesitate to push for simple deportation rules because legislative reform in the area of immigration and crimes would likely widen the deportation net. Assumi...

This article provides a discussion about criminal insanity regulation in Norway, Sweden and the Netherlands, with a focus on the roles of legislators, judges and experts in the concretisation of the legal meaning of criminal insanity. The authors recognise that these three countries reflect different ideal type rule constructions that are interesting to study comparatively. The article addresses the following overall questions: To what extent and in what way do the different rule constructions also involve different views on the roles of legislators, judges and experts? And in case of competing models, which is the better solution? To investigate and eventually answer these questions, the authors analyse the content and legislative considerations of the relevant rules, how these rules are applied and understood by judges and experts, and how different understandings of insanity, of legislators, judges and experts, depend on each other. The authors show how the different rule constru...