The Right to Counsel in Collateral, Post-Conviction Proceedings, 58 Md
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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. -
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 -
The Standards of Criminal Justice in a Nutshell, 32 La
Louisiana Law Review Volume 32 | Number 3 April 1972 The tS andards of Criminal Justice in a Nutshell William H. Erickson Repository Citation William H. Erickson, The Standards of Criminal Justice in a Nutshell, 32 La. L. Rev. (1972) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol32/iss3/2 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. THE STANDARDS OF CRIMINAL JUSTICE IN A NUTSHELL* William H. Erickson** England has been blessed with one court system. The English barrister is burdened with only one set of procedures, and the substantive law is uniform throughout the British Empire. In the United States, we have our English common law heritage complicated by many different procedures. Moreover, variations exist in the substantive law of our fifty states and in the federal law announced in our eleven federal judicial circuits. In the last decade, the federal courts have reviewed state criminal law and procedure to determine whether state criminal practices and procedures measured up to federal constitutional standards. In many instances, the federal courts have declared that the constitutional right in issue was enforceable against the state through the fourteenth amendment.' On March 11, 1971, the President and the Chief Justice of the United States presented historic addresses at The First Conference of the Judiciary at Williamsburg, Virginia. President Nixon said: "We all know how urgent the need is for that improve- Adapted from an address delivered by Justice Erickson at the National Judicial Conference on Standards for the Administration of Criminal Justice, Louisiana State University Law Center, Baton Rouge, Louisiana, February 11, 1972. -
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. -
FEDERAL DEFENDER APPEALS and OTHER POST-CONVICTION RELIEF RIGHT to APPEAL: in General, You Have a Right to Appeal Your Convictio
FEDERAL DEFENDER APPEALS AND OTHER POST-CONVICTION RELIEF RIGHT TO APPEAL: In general, you have a right to appeal your conviction and/or your sentence. You need to file a notice of appeal within 14 days of the judgment against you. Your appeal will be decided by the Tenth Circuit Court of Appeals in Denver, Colorado. You have the right to an attorney on appeal. If the Federal Defender's Office represented you in district court, we will also handle your appeal unless we have a conflict. (In that case, if you cannot afford a lawyer, the court will appoint an attorney from outside this office.) If you had a private lawyer before but have run out of money, you may ask to have counsel appointed for your appeal. REMEMBER: The reason for an appeal is to correct legal errors. The appeals court will not decide whether the jury was right, or whether the sentence is fair. Being unhappy with the outcome of your case is not grounds for appeal. You will win your appeal only if the appeals court decides that the judge made a serious legal error in your case. Also, appeals are limited to the evidence that was presented in district court. You can't add new evidence in an appeal. PLEA BARGAINS AND APPEALS: If you pled guilty, you gave up the right to appeal any rulings that the judge made before your plea. If you lost a motion to suppress evidence, for example, you can only appeal the judge's ruling if you have a special "conditional plea agreement" that allows you to appeal that issue. -
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. -
Petition for Relief from a Conviction Or Sentence by a Person in State Custody
Page 1 AO 241 (Rev. 01/15) Petition for Relief From a Conviction or Sentence By a Person in State Custody (Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus) Instructions 1. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence. This form is your petition for relief. 2. You may also use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file a motion under 28 U.S.C. § 2255 in the federal court that entered the judgment. 3. Make sure the form is typed or neatly written. 4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury. 5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum. 6. You must pay a fee of $5. If the fee is paid, your petition will be filed. -
Advocating for Mandated Publicly Appointed Counsel at Bail Hearings
NOTES YOU MADE GIDEON A PROMISE, EH?: ADVOCATING FOR MANDATED PUBLICLY APPOINTED COUNSEL AT BAIL HEARINGS IN THE UNITED STATES THROUGH DOMESTIC COMPARISONS WITH CANADIAN PRACTICES AND LEGAL CONSIDERATIONS Lauren Elizabeth Lisauskas* TABLE OF CONTENTS I. INTRODUCTION ................................................................................ 159 II. BACKGROUND .................................................................................. 162 A. The History of Bail .............................................................. 162 i. United States of America ................................................ 163 ii. Canada ........................................................................... 165 B. Criminal Justice Systems and Indigent Counsel ................. 166 i. United States of America ................................................ 166 ii. Canada ........................................................................... 167 III. ANALYSIS ......................................................................................... 169 A. American Practices .............................................................. 169 i. Sources of Law ................................................................ 169 ii. Open Questions of Law ................................................. 171 a. What is a “Critical Stage”? .................................... 171 b. Is There a Non-Constitutional Remedy? ................. 174 B. Canadian Practices ............................................................. 175 i. Sources of -
Limitations on an Accused's Right to Counsel John W
Journal of Criminal Law and Criminology Volume 38 | Issue 4 Article 7 1948 Limitations on an Accused's Right to Counsel John W. Kerrigan 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 John W. Kerrigan, Limitations on an Accused's Right to Counsel, 38 J. Crim. L. & Criminology 375 (1947-1948) This Criminal Law 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. 1947] CRIMINAL LAW COMMENTS or social or economic status4 6 a member of the excluded class may cog- ently attack his conviction by such a jury on the grounds that he was denied equal protection of the laws as guaranteed by the Fourteenth Amendment.47 Furthermore, when the administration of any jury selec- tion procedure has resulted in the exclusion of such a class for similar reasons it is open to attack as violative of the due process clause. Finally, where the state prescribes a dual jury system, clear and con- vincing evidence showing a greatly disparate ratio of conviction by the special as compared with the general jury for a substantial length of time prior to trial may be used to prove the procedure violative of the equal protection clause and unconstitutional. DAVID W. KETLEa* Limitations on an Accused's Right to Counsel In the recent case of Foster v. -
The Implications of Incorporating the Eighth Amendment Prohibition on Excessive Bail
Hofstra Law Review Volume 43 | Issue 4 Article 4 1-1-2015 The mplicI ations of Incorporating the Eighth Amendment Prohibition on Excessive Bail Scott .W Howe Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Howe, Scott .W (2015) "The mpI lications of Incorporating the Eighth Amendment Prohibition on Excessive Bail," Hofstra Law Review: Vol. 43: Iss. 4, Article 4. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol43/iss4/4 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Howe: The Implications of Incorporating the Eighth Amendment Prohibitio THE IMPLICATIONS OF INCORPORATING THE EIGHTH AMENDMENT PROHIBITION ON EXCESSIVE BAIL Scott W.Howe* I. INTRODUCTION The Eighth Amendment prohibition on "excessive bail"' is perhaps the least developed of the criminal clauses in the Bill of Rights.2 The reasons have nothing to do with a scarcity of complaints about excessive bail in the trial courts. At any given time, about 500,000 criminally accused persons languish in jail in the United States,4 and not only defense lawyers in individual cases, but legal scholars who have studied the broader spectrum of cases regularly contend that many of these detentions are unnecessary.' Yet, claims of excessive bail virtually never receive an airing in the Supreme Court,6 unlike claims, for example, about unreasonable police invasions of privacy, 7 improper police interrogations,8 or cruel and unusual punishments. -
50 State Survey on Postconviction Relief Petitions and Conviction
THE SUPREME COURT of OHIO TASK FORCE ON CONVICTION INTEGRITY AND POSTCONVICTION REVIEW Postconviction Relief Petitions and Conviction Integrity 50 State Survey Summary Post-Conviction Relief Petitions This survey of the states’ PCR mechanisms is a cursory overview relying mostly upon the plain language of statutes and court rules. States with particularly robust, well-organized, or unique statutes are indicated in the “Notes” section for each state below. All states have some form of post-conviction remedy. Some states allow only such narrow grounds for relief that for purposes of this survey, 8 states are considered not to have a PCR petition statute. 42/50 states have PCR petition statutes or rules similar to Ohio’s PCR statutes, though the states vary greatly in the breadth and depth of relief mechanisms. Of the 8 states which have very narrow PCR statutes (CA, CT, GA, NV, NH, SD, TX, VT), most had a combination of habeas corpus statutes with limited factual innocence statutes or various motions for relief from judgment. Time Requirement for Ruling on Post-Conviction Relief Petition 8/50 Time requirement for death penalty PCR petition AL, AR, DE, FL, MT, NV, SC, TN 7/50 Time requirement for general PCR petition AZ, CO, NE, NH, NJ, OH, TN 30/50 states had some sort of time guidelines mentioned in their rule or statute regarding pleading deadlines, usually specifying how long the prosecutor had to respond to a petition. AL, AK, AZ, AR, CA, CO, DE, FL, GA, ID, IL, IN, IA, KY, MD, MA, MI, MN, NV, NM, NC, ND, OK, OR, RI, SD, TX, UT, VA, WY 10/50 No time requirements found CT, HI, ME, MS, MO, NY, PA, VT, WA, WV, WI Findings of Fact and Conclusions of Law 43/50 states specifically mention that findings of fact and conclusions of law are required 1/50 states does not require findings of fact and conclusions of law 6/50 states make no mention of findings of fact and conclusions of law Hearings The question of whether or not an evidentiary hearing is required during a post-conviction relief proceeding is complicated. -
Post-Conviction DNA Testing and Wrongful Conviction
F RESEARCH REPORT Post-Conviction DNA Testing and Wrongful Conviction John Roman, Ph.D. (202) 261-5774 [email protected] June 2012 Kelly Walsh, Ph.D. (202) 261-5434 [email protected] Pamela Lachman (202) 261-5514 [email protected] Jennifer Yahner [email protected] Urban Institute Justice Policy Center 2100 M St. NW Washington, DC 20037 This project was supported by Contract No. 2008F-08165 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. URBAN INSTITUTE research for safer communities Justice Policy Center POST-CONVICTION DNA TESTING & WRONGFUL CONVICTION URBAN INSTITUTE URBAN INSTITUTE Justice Policy Center 2100 M Street NW Washington, DC 20037 www.urban.org © 2012 Urban Institute This project was supported by Contract No. 2008F-08165 awarded by the National Institute of Justice. The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the Bureau of Justice Assistance, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the official position or policies of the United States Department of Justice, the Urban Institute, its trustees, or its funders. i POST-CONVICTION DNA TESTING & WRONGFUL CONVICTION URBAN INSTITUTE Acknowledgements The Post-Conviction DNA and Wrongful Conviction Project was funded by the National Institute of Justice, Office of Justice Programs, U.S.