- 50th Anniversary
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- Donahue Lecture Series
The Double Jeopardy Clause of the Fifth Amendment embodies a historic constitutional protection for criminal defendants that provides finality to criminal proceedings. The Clause provides in pertinent part: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Controversy arises when the court must determine whether the Clause applies only to mistrials or also to successful reversals of conviction, specifically those caused by prosecutorial misconduct. For the past twenty years, the United States Supreme Court and state courts have disagreed on the applicable standard to apply to such Double Jeopardy claims regarding prosecutorial misconduct. As a result, although several state courts embrace the federal standard, many have constructed their own standards when determining the protections provided by their own constitutions. . . .
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the assistance of counsel. Initially, the right to counsel extended only to felony cases but gradually expanded to include misdemeanor cases that result in imprisonment. In Alabama v. Shelton, the United States Supreme Court considered whether the Sixth Amendment right to counsel applied to an indigent defendant’s suspended sentence in a misdemeanor case. The Court concluded that failure to appoint counsel to such a defendant violated the Sixth Amendment. . . .
The Sixth Amendment to the United States Constitution states that in all criminal cases the defendant ”shall enjoy . . . the Assistance of Counsel.” The United States Supreme Court has extended this guarantee to include the right to the effective assistance of counsel. Further, it is clearly established that this right includes representation that is free from conflicts of interest. Lawyers owe their clients a duty of loyalty, including the duty to avoid conflicts of interest. The United States Supreme Court has emphasized that a lawyer who is ”burdened by an actual conflict of interest . . . breaches the duty of loyalty, perhaps the most basic of counsels duties.”
The United States Supreme Court, however, has not been clear about the consequences when the right to conflict-free counsel is violated. The Court’s landmark decision in Cuyler v. Sullivan addressed the constitutional ramifications surrounding an individual’s right to conflict-free counsel. In Cuyler, the Court created a conflict of interest standard whereby a defendant must show that defense counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.” The United States Supreme Court commented that the ”adverse effect” standard was a lower threshold of proof than a showing of prejudice, but neglected to define the meaning of “adverse effect” . . . .
The Federal Food, Drug, and Cosmetic Act of 1938 sets forth regulations for prescription drug manufacturing, marketing, and distribution. In Thompson v. Western States Medical Center, the United States Supreme Court considered whether the Food and Drug Administration Modernization Act of 1997 (FDAMA) contained advertising and solicitation provisions that violated the First Amendment’s free speech guarantee. The Court held that under the test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, the advertising provisions violated the First Amendment because they were overly restrictive on commercial speech. . . .
Examples of child abuse are shocking when they are revealed in the popular media. Expert testimony has profound implications in child abuse cases. This note will trace the Massachusetts standard set forth in Commonwealth v. Lanigan and outline recent developments in Massachusetts for the admission of scientific evidence in child abuse cases. It will also highlight an alternative view in Minnesota. Finally, this note will also discuss the recent development in Commonwealth v. Frangipane that impacts the admission of repressed or dissociative memories in child abuse cases.
As a result of caselaw developments, Massachusetts is allowing greater opportunities to use expert evidence in child abuse cases. The utility of such evidence has also greatly increased as abused victims use expert evidence to toll the statute of limitations and admit evidence about repressed memories. Furthermore, if the proponents of expert evidence succeed at trial, their opponents will face a tougher standard on appeal to demonstrate the evidence should not have been admitted. The result of all these developments is to move Massachusetts towards a greater use of expert evidence in child abuse cases. . .
There has long been heated debate, extending through the judicial and legislative bodies of numerous states, over the applicability of unauthorized practice of law regulations to real estate transactions. Most of this debate has focused on the rights and protections of the consumer, or the client. Thus, determining whether conveying real estate should be restricted to those licensed to practice law begs the analysis of how such a restriction benefits or protects the consumer, including analysis of whether protections offered by such a restriction outweigh any benefits such a restriction would remove.
This note analyzes the practice of non-lawyers conducting real estate transactions and whether this constitutes unauthorized practice of law, focusing specifically on the question of whether the American Bar Association-enforced canons of professional responsibility or the Model Rules of Professional Conduct sufficiently protect consumers to give rise to the prohibition of conveyancing by non-lawyers. This note will argue that non-lawyer conveyancers are more likely to conduct real estate transactions with solely their own interests in mind, and are less likely to adequately consider and represent the interests of their clients. Therefore, to the end of protecting the public’s interest, the practice of conveyancing should be limited to attorneys. . . .
The Fifth Amendment secures a defendants right against compelled self-incrimination at trial. The United States Supreme Court expanded that protection to include custodial interrogations, which are presumed to be inherently coercive in nature. When faced with the pre-arrest, pre-Miranda context, however, the Court has limited its rulings to certain contexts, allowing comment on a defendant’s silence for impeachment purposes. The Court’s reservation on the issue has led to a split among the circuit courts as to whether the prosecution may use pre-arrest silence to show substantive evidence of a defendant’s guilt. The split among the circuits has provided little guidance to lower courts, resulting in scattered state law decisions regarding the use of pre-arrest silence in the prosecution’s case-in-chief.
This Note takes the position that the current Court should rule that the use of pre-arrest, pre-Miranda silence in the prosecution’s case-in-chief as substantive evidence of a defendant’s guilt is not a violation of the Fifth Amendment and should be admissible. Part II.A of this Note outlines the evolution of the privilege including a discussion of the drafters’ intentions behind the Fifth Amendment’s self-incrimination clause. This discussion briefly outlines the history behind the colonists’ adoption of the self-incrimination privilege. Additionally, the Note will focus upon the Supreme Court’s treatment of Fifth Amendment case law surrounding the self-incrimination clause. Part II.A also addresses the policy concerns underlying the privilege. . . .
The horrific events of September 11, 2001 shook the foundations of many of the most basic assumptions of American life. These include our confidence in relative isolation from the trouble spots of the world; our belief, and need to believe, that our culture is recognized on some level worldwide as an advanced and superior one; and, perhaps most fundamental, the assumption that a common instinct for self-preservation motivates and constrains even aggressive behavior.
It was not that America had never experienced terrorism, even at home and on a fairly large scale, beforein the 1990s alone New York City and Oklahoma City had experienced massive bombings characterized as terrorist acts, two American embassies in Africa had been bombed, with enormous loss of life, and at least one plot to destroy major New York City landmarks had been foiled. Rather, we were shaken, as individuals and as a nation, by the realization that the September 11th attacks were part of a long-term, sophisticated plan whose chief architect had invoked religious teaching, obligation, and duty in his followers in aid of focusing sustained hostility and destruction on the United States, and that the plan included suicide attacks. That these hostile actors apparently are not under the authority of any recognized government, nor identified with the interests of any particular state, makes it difficult for our governmental agencies to investigate their plans, places current and future preventive and enforcement efforts at the awkward junction of criminal law, foreign affairs, and war, and makes us feel very insecure indeed. . . .
For more information about Judge Swain’s Donahue Lecture (which served as the basis for this article) please click here.
This essay presents an extended legal analogy. It proceeds by examining two broad areas of law; extracting some salient underlying principles that have been created in those disciplines over the years for important, context-specific reasons; and then considering whether those international and domestic law teachings can usefully be introduced, if not truly applied, in a very different sector—field in which there currently reposes very little law, but from which ongoing events urgently press us for some answers. This sort of logical reasoning exercise can be treacherous. I do not contend that borrowing law in this way can cede us any reliable, dispositive answers, or that it will tell us what we must do with the novel topic to be explored. Still, I am hopeful that presentation of the animating spirit of some second-hand jurisprudence, and exploration of its motivations and its rhetoric, may yet shed some light on what we should responsibly consider doing in the admittedly quite different milieu. . . .
For more information about Professor Koplow’s Donahue Lecture (which served as the basis for this article) please click here.
The Fifth Amendment to the United States Constitution guarantees an individual the right against self-incrimination. The compulsion component protects individuals from particular coercive threats or penalties that the State imposes upon an individual refusing to testify against himself. In McKune v. Lile, the Court considered whether an inmate, who refused based on his privilege against self-incrimination to participate in a required rehabilitation program, was unconstitutionally compelled when the prison threatened to transfer him to a maximum security facility. The Court concluded that the rehabilitation program requirements and consequences for nonparticipation did not amount to a prohibited compulsion under the Fifth Amendment. . . .