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- Donahue Lecture Series
Since the 1930s, federal courts have expressed great reluctance toward allowing cameras into courtrooms for the purpose of recording or broadcasting proceedings. Although the Federal Rules of Criminal Procedure ban the use of cameras in criminal proceedings, there is no such rule of practice governing civil proceedings. In In re Sony BMG Music Entertainment, the United States Court of Appeals for the First Circuit, addressing a matter of first impression, considered whether a federal district judge had authority to permit “gavel-togavel” webcasting of a hearing in a civil case. Forbidding enforcement of the district court’s order, the First Circuit determined that the district court abused its discretion by interpreting Local Rule 83.3 to include a “discretionary catchall” exception to the rule’s general prohibition against the simultaneous broadcast of court proceedings. . .
The Sixth Amendment of the United States Constitution guarantees the fundamental right that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Nevertheless, indigent defendants may relinquish their court-appointed counsel by three methods: voluntary waiver, waiver by conduct, and forfeiture. In Commonwealth v. Means, the Massachusetts Supreme Judicial Court (SJC) considered whether the trial court’s application of the doctrine of forfeiture, a novel matter in Massachusetts, was constitutional and appropriate in comparison to well-founded guidelines set forth by other federal and state jurisdictions. The SJC, taking into account its own precedent, further examined the impact of a defendant’s mental incapacity on the applicability of the forfeiture doctrine. In determining that employment of forfeiture was incorrect, the SJC held that the trial court unconstitutionally infringed upon a defendant’s Sixth Amendment rights by denying the defendant a proper hearing prior to the exercise of the forfeiture doctrine. . .
Congress strictly regulates telephone surveillance—or “wiretapping”—through the comprehensive Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III). One of Title III’s primary enforcement mechanisms is § 2515, an exclusionary rule that calls for suppression of any evidence derived from unauthorized wiretaps. In United States v. Crabtree, the United States Court of Appeals for the Fourth Circuit considered whether § 2515 prohibits the government from introducing evidence derived from illegal private wiretaps in a criminal proceeding. The court held that § 2515 requires suppression of all illegally intercepted communications, even where the government was not the interceptor but rather a mere passive recipient of privately intercepted communications. . .
The Federal Rules of Criminal Procedure, protecting the secrecy of federal grand jury proceedings, permit limited disclosure of grand jury materials. Courts have differed on the standard of need grand jury witnesses must show to access prior testimony transcripts. In In re Grand Jury, the United States Court of Appeals for the First Circuit considered whether a strong showing of particularized need standard should apply to grand jury witnesses seeking access to, not copies of, prior testimony transcripts. The First Circuit, following a United States District Court for the District of Columbia decision, established a less demanding particularized need requirement for grand jury witnesses seeking only access and not a copy of prior testimony transcripts.
In May 2008, the government subpoenaed the appellant, a non-target witness, to testify before a Massachusetts federal grand jury. Responding to the appellant’s indication that he would assert his constitutional right against self-incrimination, the government granted him use immunity under 18 U.S.C. §§ 6002 & 6003, requiring the appellant to testify. Appearing before the grand jury in June 2008, the appellant testified for approximately three hours and fifteen minutes on “highly technical and ancient subject matter.” Three assistant U.S. attorneys questioned the appellant, sometimes repetitively, and the prosecutors warned him on several occasions not to testify falsely. The government did not complete the examination, and ordered the appellant to return to complete his testimony. . .
Although Congress may, as a general matter, extensively regulate interstate commerce, the federal government’s authority to legislate in areas of traditional state concern is limited. Courts, spurred by a renewed interest in federalism, have begun scrutinizing federal criminal laws that regulate noncommercial intrastate behavior by means of de minimus jurisdictional elements—statutory provisions that purport to ensure legislation’s constitutionality by limiting its applicability to conduct involving items that have previously traveled in interstate commerce. In United States v. Alderman, the United States Court of Appeals for the Ninth Circuit, in a case of first impression, considered whether 18 U.S.C. § 931 constitutionally prohibits a felon from possessing body armor where the sole link to commerce is the body armor’s prior interstate movement. The court deemed § 931’s jurisdictional element sufficient to render the statute an appropriate exercise of congressional power under the Commerce Clause. . .
On March 29th, 2008, the residents of Montville, Maine voted to ban the cultivation of genetically modified organisms (GMOs) within the town’s borders. They did so because, among other things, the town’s residents were concerned about the potential for genetic contamination from farms growing genetically modified crops (GM crops). In enacting its ordinance, Montville became the first local government outside of California to ban the cultivation of GM crops. . .
Using Montville’s ordinance for illustrative purposes, this Note will focus on the threats that state law poses to local governments that seek to regulate GM crops. As background, the Note will begin with a summary of the federal regulatory regime with respect to GM crops. Then, the Note will provide a brief discussion of the Supremacy and Dormant Commerce Clauses. Next, the Note will examine the two primary approaches to granting and construing municipal power: Home Rule and Dillon’s Rule. This Note shall refer to states that grant broad and liberally construed authority to local governments (at least with respect to local issues) either by statute or by constitutional provision as “Home Rule” states. Those states that require express authorizing legislation for areas in which local governments seek to regulate, and whose courts strictly construe local authority shall be referred to as “Dillon’s Rule” states. This Note will use Maine and California as examples of Home Rule states and Vermont will illustrate a Dillon’s Rule state. This exercise will aid in the determination of whether a town in these states would have the constitutional authority to enact a Montville-style ordinance. Next, the Note will examine the issue of state preemption, using the socalled “Right to Farm” laws of Maine, California, and Vermont as examples of potential preemptive statutes. Finally, the Note will apply the state’s right to farm law to see if it preempts a Montville-style ordinance. . .
Part II of this Note discusses the current state of attorney-client privilege law with respect to corporate communications. It first provides a brief overview of privilege law and introduces the public policy argument that the pursuit of truth in litigation demands restriction of attorney-client privilege rather than expansion to cover more communications, especially within the corporate context. It then outlines the development of the two basic tests for determining the scope of corporate privilege and discusses the Upjohn decision and its effect on the approaches of various states. Part II goes on to explain Massachusetts’s approach to an analogous issue and introduces Commissioner of Revenue v. Comcast Corp., a case the Massachusetts Supreme Judicial Court (SJC) recently decided that involved questions of privilege with respect to corporate communications involving third-party consultants. While the SJC did not specifically address the scope of attorney-client privilege within the corporate structure in this case, its discussion demonstrates that determining the boundaries of corporate privilege is an unresolved issue in Massachusetts. . .
Nulla poena sine lege is a fundamental principle of criminal law. Its application is closely related to a basic understanding of criminal justice and separation of powers. The 1997 Chinese Criminal Law adopts a modified version of this principle. This modified version includes a negative and a positive dimension, and appears to be more rigid on the surface than the classic conception of the doctrine. However, in view of China’s penal statutes, the rigidity of the Chinese nulla poena doctrine has been offset by broad sentence ranges, vague criteria for offense classes, unconstrained sentence mitigation and multi-functional sentencing circumstances. . .
A general perception exists that constitutional review is not a part of modern Chinese jurisprudence. That view is mistaken. The aim of this essay is to show that, while substantial constitutional change has not yet been established, it is arguable that a unique Chinese brand of constitutionalism has taken root and is evolving. A classic understanding of the concept of judicial review is “a court’s power to review the actions of other branches or levels of government,” including a court’s “power to invalidate legislative and executive actions as being unconstitutional.” Judicial review has become an established part of contemporary constitutionalism in Western jurisprudence.
Constitutional review, another expression of judicial review closely associated with the discussion of constitutional law, is the power of courts to examine whether legislation enacted by the parliament or acts of the executive authorities are consistent with the written constitution and, within this query, to determine their validity. This system commands a primordial condition: courts receive jurisdiction through the constitution and use that jurisdiction to determine constitutionality. Needless to say, constitutional review is an innovation derived from the American constitutional case Marbury v. Madison, which has become the standard for democratic constitution-making, and a reference for other countries looking to modernize their constitutional regime. . .
There are great shifts in constitutional thinking taking place today in China among elite Chinese constitutional scholars. Among this group of influential constitutional law scholars, Hu Jintao’s concept of scientific development (科学发展观) has taken a concrete turn in the advancement of theories of Chinese constitutionalism under its current normative framework. One of the more highly debated issues within Chinese constitutional law circles is constitutional review. The debate centers on the viability of transposing some version of the current parliamentary model of constitutional review into the Chinese constitutional system. Western models of constitutional review seem to insist on the necessity of an independent judiciary with a constitutionally sanctioned supervisory role over administrative and political organs as a condition precedent to constitutional legitimacy. The Chinese constitutional system is criticized for its lack of such a robust system of judicial review. As one commentator recently noted:
As for judicial review powers, Amended Article 5 of the 1982 Constitution reads, “the People’s Republic of China governs the country according to law and makes it a socialist country ruled by law,” and Article 127 provides that the Supreme People’s Court is the highest judicial organ. However, constitutionalism in action and text reduced a potential for a rule of law rubric to a non-rule of law rubric, reduced a potential for legal accountability to political accountability. This left China’s judicial system without a positive discursive machinery for judicial review: neither constitutional review or constitutional court, nor decentralized (or diffused) or centralized (or concentrated) constitutional review.
For Western observers of Chinese constitutionalism, the conclusion to be drawn is that there is no proper form of constitutional (or judicial) review. The remedy for such a deficiency—and thus for notions of constitutional illegitimacy within the Chinese systems—might be found by implementing any one of a number of possible changes that would produce an appropriate institutional mechanism for the exercise of review authority. That authority would be exercised by some organ of state power that is either housed within the judicial power or otherwise in a properly constituted body within the organs of state power yet separate from the legislative organs of the National People’s Congress. . .