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Restoring the Confrontation Clause to the Sixth Amendment Randolph N
digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1988 Restoring the Confrontation Clause to the Sixth Amendment Randolph N. Jonakait New York Law School, [email protected] Follow this and additional works at: https://digitalcommons.nyls.edu/fac_articles_chapters Part of the Constitutional Law Commons, and the Criminal Law Commons Recommended Citation UCLA Law Review, Vol. 35, Issue 4 (April 1988), pp. 557-622 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. ARTICLES RESTORING THE CONFRONTATION CLAUSE TO THE SIXTH AMENDMENT Randolph N. Jonakait* INTRODUCTION The relationship between the sixth amendment's con- frontation clause' and out-of-court statements by absent de- clarants is a difficult one.2 Before 1980, the Supreme Court * Professor of Law and Associate Dean, New York Law School. A.B., Princeton University, 1967;J.D., University of Chicago Law School, 1970; LL.M., New York University Law School, 1971. The author wishes to thank his colleague Professor Donald Hazen Zeigler for his helpful comments. 1. The sixth amendment states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the wit- nesses against him; to have compulsory process for obtaining wit- nesses in his favor, and to have the Assistance of Counsel for his defense. -
The Right to Counsel in Collateral, Post-Conviction Proceedings, 58 Md
Maryland Law Review Volume 58 | Issue 4 Article 4 The Right to Counsel in Collateral, Post- Conviction Proceedings Daniel Givelber Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Constitutional Law Commons Recommended Citation Daniel Givelber, The Right to Counsel in Collateral, Post-Conviction Proceedings, 58 Md. L. Rev. 1393 (1999) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol58/iss4/4 This Conference is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. THE RIGHT TO COUNSEL IN COLLATERAL, POST- CONVICTION PROCEEDINGS DANIEL GIVELBER* I. INTRODUCTION Hornbook constitutional law tells us that the state has no obliga- tion to provide counsel to a defendant beyond his first appeal as of right.1 The Supreme Court has rejected arguments that either the Due Process Clause or the Equal Protection Clause require that the right to counsel apply to collateral, post-conviction proceedings.2 The Court also has rejected the argument that the Eighth Amendment re- quires that the right to an attorney attach to post-conviction proceed- ings specifically in capital cases.' Without resolving the issue, the Court has acknowledged the possibility that there may be a limited right to counsel if a particular constitutional claim can be raised only in post-conviction proceedings.4 Despite their apparently definitive quality, none of the three cases addressing these issues involved a de- fendant who actually had gone through a post-conviction collateral proceeding unrepresented.5 * Interim Dean and Professor of Law, Northeastern University School of Law. -
Disentangling the Sixth Amendment
ARTICLES * DISENTANGLING THE SIXTH AMENDMENT Sanjay Chhablani** TABLE OF CONTENTS INTRODUCTION.............................................................................488 I. THE PATH TRAVELLED: A HISTORICAL ACCOUNT OF THE COURT’S SIXTH AMENDMENT JURISPRUDENCE......................492 II. AT A CROSSROADS: THE RECENT DISENTANGLEMENT OF THE SIXTH AMENDMENT .......................................................505 A. The “All Criminal Prosecutions” Predicate....................505 B. Right of Confrontation ...................................................512 III. THE ROAD AHEAD: ENTANGLEMENTS YET TO BE UNDONE.................................................................................516 A. The “All Criminal Prosecutions” Predicate....................516 B. The Right to Compulsory Process ..................................523 C. The Right to a Public Trial .............................................528 D. The Right to a Speedy Trial............................................533 E. The Right to Confrontation............................................538 F. The Right to Assistance of Counsel ................................541 CONCLUSION.................................................................................548 APPENDIX A: FEDERAL CRIMES AT THE TIME THE SIXTH AMENDMENT WAS RATIFIED...................................................549 * © 2008 Sanjay Chhablani. All rights reserved. ** Assistant Professor, Syracuse University College of Law. I owe a debt of gratitude to Akhil Amar, David Driesen, Keith Bybee, and Gregory -
Life Imprisonment and Conditions of Serving the Sentence in the South Caucasus Countries
Life Imprisonment and Conditions of Serving the Sentence in the South Caucasus Countries Project “Global Action to Abolish the Death Penalty” DDH/2006/119763 2009 2 The list of content The list of content ..........................................................................................................3 Foreword ........................................................................................................................5 The summary of the project ..........................................................................................7 A R M E N I A .............................................................................................................. 13 General Information ................................................................................................... 14 Methodology............................................................................................................... 14 The conditions of imprisonment for life sentenced prisoners .................................... 16 Local legislation and international standards ............................................................. 26 Conclusion ................................................................................................................... 33 Recommendations ...................................................................................................... 36 A Z E R B A I J A N ........................................................................................................ 39 General Information .................................................................................................. -
Indeterminate Sentence Release on Parole and Pardon Edward Lindsey
Journal of Criminal Law and Criminology Volume 8 | Issue 4 Article 3 1918 Indeterminate Sentence Release on Parole and Pardon Edward Lindsey Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Edward Lindsey, Indeterminate Sentence Release on Parole and Pardon, 8 J. Am. Inst. Crim. L. & Criminology 491 (May 1917 to March 1918) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. INDETERIMlNATE SENTENCE, RELEASE ON PAROLE AN) PARDON (REPORT OF THE COMMITTEE OF THE INSTITUTE.') EDWARD LINDSEY, 2 Chairman. The only new state to adopt the indeterminate sentence the past year is North Carolina. In that state, by act of March 7, 1917, entitled, "An act to regulate the treatment, handling and work of prisoners," it is provided that all persons convicted of crime in any of the courts of the state whose sentence shall be for five years or more shall be -sent to the State Prison and the Board of Directors of the State Prison "is herewith authorized and directed to establish such rules and regulations as may be necessary for developing a system for paroling prisoners." The provisions for indeterminate .sentences are as follows: "The various judges of the Superior Court -
Sixth Amendment and the Right to Counsel
THE SIXTH AMENDMENT AND THE RIGHT TO COUNSEL RHEA KEMBLE BRECHERt The sixth amendment is vitally important and necessary, but I be- lieve that it contains a limited privilege. Attempts to extend the sixth amendment from beyond this limited sphere have generated difficulties and controversies. The sixth amendment reads: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.1 The first phrase, "[i]n all criminal prosecutions," indicates that sixth amendment rights commence only at the initiation of an adversary pro- ceeding, be it by indictment, arraignment, or criminal complaint. They are not implicated in the investigatory or the grand jury phase.' The sixth amendment guarantees that the defendant will have someone with her who understands the procedural rules, the rules of evidence, and who can give her other professional assistance. No language in the sixth amendment refers to the defendant's right to counsel of choice. Some courts of appeal, however, have found some kind of qualified right, or limited right, to counsel of choice.' The t Executive Assistant United States Attorney for the Southern District of New York. This Article is adapted from a presentation given at the Symposium on Right to Counsel, March 1, 1988. -
Case Law Update, March 2019
Sex Offender Registration and Notification in the United States Current Case Law and Issues March 2019 Sex Offender Registration and Notification in the United States: Current Case Law and Issues March 2019 Contents I. Overview of U.S. Sex Offender Registration ......................................................................... 1 Registration is a Local Activity ................................................................................................. 1 Federal Minimum Standards ................................................................................................... 1 National Sex Offender Public Website ..................................................................................... 1 Federal Law Enforcement Databases ...................................................................................... 2 Federal Corrections ................................................................................................................. 3 Federal Law Enforcement and Investigations......................................................................... 3 II. Who Is Required to Register? .......................................................................................... 3 ‘Conviction’ .............................................................................................................................. 3 ‘Sex Offenders’ ......................................................................................................................... 4 ‘Catch-All’ Provisions ............................................................................................................. -
The Myth of the Presumption of Innocence
Texas Law Review See Also Volume 94 Response The Myth of the Presumption of Innocence Brandon L. Garrett* I. Introduction Do we have a presumption of innocence in this country? Of course we do. After all, we instruct criminal juries on it, often during jury selection, and then at the outset of the case and during final instructions before deliberations. Take this example, delivered by a judge at a criminal trial in Illinois: "Under the law, the Defendant is presumed to be innocent of the charges against him. This presumption remains with the Defendant throughout the case and is not overcome until in your deliberations you are convinced beyond a reasonable doubt that the Defendant is guilty."' Perhaps the presumption also reflects something more even, a larger commitment enshrined in a range of due process and other constitutional rulings designed to protect against wrongful convictions. The defense lawyer in the same trial quoted above said in his closings: [A]s [the defendant] sits here right now, he is presumed innocent of these charges. That is the corner stone of our system of justice. The best system in the world. That is a presumption that remains with him unless and until the State can prove him guilty beyond2 a reasonable doubt. That's the lynchpin in the system ofjustice. Our constitutional criminal procedure is animated by that commitment, * Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. 1. Transcript of Record at 13, People v. Gonzalez, No. 94 CF 1365 (Ill.Cir. Ct. June 12, 1995). 2. -
Brf-01-2007-Life-Imprisonment-En 0
Penal Reform International Penal Reform Briefing No 1 • 2007(1) ISSN: 1993-0526 ‘Many countries have replaced the death penalty with the sentence of life imprisonment. In many countries that does not mean life in prison. It means time in prison, usually in regular prisons with other prisoners and moving to lower security prisons as the years go by. Release comes after a complex and I must say expensive process of risk assessment – psychiatric reports, probation reports, sometimes the views of the victim’s family are taken into account – and when release comes the person is let out of prison but is still not free. The person comes out with an identity as a life-sentence prisoner. That lasts for the length of his or her life. It can mean reporting to the authorities, the possibility of being returned to prison, telling employers and the local police, always being known as someone who committed the worst crime.’ Baroness Vivien Stern, speech to the Second World Congress against the Death Penalty, Montreal, 6 October 2004. Alternatives to the death penalty: the problems with life imprisonment This briefing examines the use of life imprisonment worldwide, including the increasing trend of life imprisonment without the possibility of release, or life without parole (LWOP). Emerging trends indicate an increase in the number of offences carrying the sanction of life imprisonment, a greater prevalence of indeterminate sentencing, a reduction in the use of parole, and the lengthening of prison terms as a whole. The abolition of the death penalty has played a significant role in the increased use of life imprisonment sentences, and LWOP in particular. -
Jury Trial Primer in Civil District Court
Jury Trials in Civil District Court-- Perspectives from the bench & bar 2018 NCDCJ Summer Conference Presenters: District Court Judge Becky Tin, Attorney Walter Burton and Attorney William Corbett Right to Jury Trial—Constitutional • N.C. Constitution, Article I Section 25: In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable. • This Constitutional provision preserves the right to trial by jury in civil cases where the prerogative for trial by jury existed at common law or by statute at the time the NC Constitution was adopted in 1868. Statutory Right to • The legislature has expanded the right to jury trial to other causes of action by statute, beyond what is protected by the Constitution • For example, parties have a statutory right to trial by jury in actions determining incompetence; allegations of marital misconduct in an alimony claim; summary ejectment actions on appeal from the magistrate; and to establish the contents of a will where the original was destroyed. If in doubt as to whether party has right to a jury trial… • Look through the pattern jury instructions; if instructions are included for the cause of action(s) alleged, then the party is entitled to trial by jury; • If you can’t find it in the pattern instructions, do further case law and statutory research; • Refer to DC Judge Rebecca Knight’s manuscript, The Right to a Jury Trial in Civil Actions in N.C., found on the SOG website that deals with whether a particular cause of action entitles a party to trial by jury; • If all else fails, ask Cheryl Howell or Dona Lewandowski. -
Mandatory Minimum Penalties and Statutory Relief Mechanisms
Chapter 2 HISTORY OF MANDATORY MINIMUM PENALTIES AND STATUTORY RELIEF MECHANISMS A. INTRODUCTION This chapter provides a detailed historical account of the development and evolution of federal mandatory minimum penalties. It then describes the development of the two statutory mechanisms for obtaining relief from mandatory minimum penalties. B. MANDATORY MINIMUM PENALTIES IN THE EARLY REPUBLIC Congress has used mandatory minimum penalties since it enacted the first federal penal laws in the late 18th century. Mandatory minimum penalties have always been prescribed for a core set of serious offenses, such as murder and treason, and also have been enacted to address immediate problems and exigencies. The Constitution authorizes Congress to establish criminal offenses and to set the punishments for those offenses,17 but there were no federal crimes when the First Congress convened in New York in March 1789.18 Congress created the first comprehensive series of federal offenses with the passage of the 1790 Crimes Act, which specified 23 federal crimes.19 Seven of the offenses in the 1790 Crimes Act carried a mandatory death penalty: treason, murder, three offenses relating to piracy, forgery of a public security of the United States, and the rescue of a person convicted of a capital crime.20 One of the piracy offenses specified four different forms of criminal conduct, arguably increasing to 10 the number of offenses carrying a mandatory minimum penalty.21 Treason, 17 See U.S. Const. art. I, §8 (enumerating powers to “provide for the Punishment of counterfeiting the Securities and current Coin of the United States” and to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations”); U.S. -
The Jury and the Exclusionary Rules of Evidence
THE JURY AND THE EXCLUSIONARY RULES OF EVIDENCE EDMuND M. MORGAN* "The English law of evidence, which is the child of the jury." James Bradley Thayer "The fallacy that whatever is morally convincing and whatever rea- sonable beings would form their idgments and act upon, nay be submitted to a jury." Mr. Justice Coleridge THE Anglo-Saxon trial by ordeal and trial by compurgation and the Anglo-Norman trial by battle were essentially adversary pro- ceedings, conducted under public supervision, by which the liti- gants appealed to the Deity for a decision. The institution of trial by inquest or recognition, from which trial by jury soon evolved, not only substituted a resort to reason for reliance on superstition, but also re- moved the proceeding completely from the control of the adversaries. It compelled them to submit to "the test of what a set of strangers might say, witnesses selected by a public officer."' This set of strangers was originally an investigative body chosen for the supposed capacity of its members to answer the disputed question without help from the court and without aid or hindrance from the parties. The parties were per- mitted to state what they respectively asserted to be the facts. Later they secured the privilege of presenting additional information through witnesses. By the middle of the Sixteenth Century this had become a common practice. The jury came to rely more and more upon what the parties presented in open court and less and less upon what its individual members knew or learned from other sources, so that at the beginning of the Seventeenth Century Coke could truly say that "most commonly juries are led by deposition of witnesses.' '2 Less than a century and a half later it had become established that the jury must base its verdict not upon the private knowledge or information of its members but solely upon the evidence given in open court.