I’d like to thank Eugene and his fellow co-conspirators for graciously letting me guest-blog this week about my new book, The Machinery of Criminal Justice, which was just published by Oxford University press and is available here. In a nutshell, the book is about: 1) how America moved from a populist system of public jury […]
Archive | Criminal Procedure
Yale Kamisar on the Rise and Fall of Miranda
My co-author Yale Kamisar helped found the field of constitutional criminal procedure in the 1960s, and his articles have been cited in dozens of Supreme Court cases as early as 1960 and as recently as 2009. He’s now in his 80s and remains active. Yale lectured on the law of police interrogations at the University […]
Thoughts on The Collapse of American Criminal Justice (Part 1 of 2)
I recently finished the new book by the late Bill Stuntz, The Collapse of American Criminal Justice. My co-blogger Paul Cassell reviewed it here in the Wall Street Journal, and I wanted to blog my own thoughts about the book. My basic take is that it’s a great book, with many important insights. It’s the […]
LAT on Justice Scalia and Criminal Defendants
David Savage of the LA Times reports that many criminal defendants should be thankful for Justice Scalia. In recent years he has led the charge for more strict enforcement of the Sixth Amendment‘s confrontation clause. This is but one example of how originalist approaches to constitutional interpretation do not always produce “conservative” results. Justice Scalia’s […]
Protecting (the Government’s) Right to a Jury Trial
State legislators in Ohio are considering legislation that would enable criminal prosecutors to insist on a jury trial even when a criminal defendant waives that rate and asks for a bench trial. The Cleveland Plain Dealer reports: Ohio prosecutors want to change the law to give themselves veto power when a criminal defendant chooses to […]
E-Mail Accounts, The Warrant Requirement, and the Territorial Limits of Court Orders
My friend Jennifer Granick points me to an interesting new case, Hubbard v. Myspace (S.D.N.Y. June 1, 2011), that touches on a fascinating Fourth Amendment question: What are the territorial limits of search warrants for Fourth Amendment purposes? To be clear, the Hubbard case itself involved a statutory challenge, not a constitutional one. The plaintiff […]
Dismissing a Holdout Juror in the Middle of Deliberations Because “His Mind Is Bent . . . Against the Prosecution”
That’s unconstitutional, says a Ninth Circuit panel in yesterday’s Williams v. Cavazos decision (which seems correct to me). An excerpt: As a general matter, the Sixth Amendment does not prohibit the mid-deliberation dismissal of jurors who are unable to serve or who engage in misconduct. In Miller, for example, we found no constitutional violation in […]
Text of the FBI Memo on Miranda and Questioning of Terror Suspects:
Following up on my post from yesterday about the FBI’s new policy of using the “public safety” exception to Miranda to question terrorism suspects — The NY Times has the text of the FBI’s memo, found here. The larger interesting question is why should the new policy be limited to suspected terrorists. Presumably FBI agents […]
Justice Department Guidelines Cut Back on Miranda Rights For Terror Suspects:
The Justice Department has just announced new guidelines, apparently expanding the “public safety” exception to Miranda to allow extended questioning of terror suspects. The WSJ has the story here. Such extended questioning will require approval of Justice Department lawyers. How does Eric Holder reconcile these new guidelines with the position that he supported in Dickerson […]
State-Law Journalist’s Privileges vs. Defendant’s Sixth Amendment Rights
People v. Diaz (N.Y. Sup. Ct. Jan. 11, 2011), has an interesting discussion of this issue (some paragraph breaks added): Defendant Angelo Diaz stands charged with a number of felonies, including Attempted Murder in the Second Degree, on the theory that he was an accomplice in an attempt to shoot a police officer. The People […]
Federalist Society Debate about Miranda and Questioning Suspected Terrorists
By Paul Cassell on February 9, 2011 9:58 am in Counter-Terrorism Policy, Criminal Law, Criminal Procedure
Professor Guiora (a colleague of mine at Utah) and I recently debate the appropriateness of Miranda warnings in the context of terrorism investigations. Here’s a link to the Federalist Society’s podcast of the debate, which revolves around whether or not the “public safety” exception to Miranda should apply in the context of questioning suspected terrorists. I argue that, under […]
Time to Codify a Miranda Exception for Terrorists?
By Paul Cassell on October 21, 2010 10:27 am in Counter-Terrorism Policy, Criminal Law, Criminal Procedure, Terrorism, Uncategorized
Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists. I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings. […]
When the Innocent Confess
Do innocent suspects ever confess to crimes? Yes, and sometimes with extensive detail about the crime. How could this happen, short of police coercion? The NYT reports on research by UVa law professor Brandon Garrett on the question. New research shows how people who were apparently uninvolved in a crime could provide such a detailed […]
Iowa Constitution’s Due Process Clause Bars Propensity-to-Commit-Crime Evidence
State and federal evidence rules generally bar the prosecution from introducing evidence of defendant’s past crimes to show a propensity on the defendant’s part to commit similar crimes. If, for instance, the defendant is charged with child molestation, the prosecution can’t introduce evidence that defendant had molested other children to show that defendant likes molesting […]
Is a Shoebox Like a Suitcase?
This morning the U.S. Court of Appeals for the Sixth Circuit issued an opinion in United States v. Taylor, affirming the district court’s suppression of evidence (a handgun and ammunition) found in a shoebox. Judge Gilman wrote the opinion for the court, joined by Judge Daughtrey. Judge Kethledge dissented. His dissenting opinion begins: The majority […]