Criminal Procedure
Original Article:
On Silence:
A Reply to Professors Cribari and Judges
by
Ted Sampsell-Jones†
In this Reply, Professor Sampsell-Jones responds to Professors Cribari and Judges. He argues that their theory of the Self-Incrimination Clause, which relies on intuition to determine which practices are necessary to “test the prosecution” in criminal cases, is lacking in both textual support and practical utility. As a result, he concludes that their defense of Griffin v. California is unconvincing.
Speaking of Silence: A Reply to "Making Defendants Speak"
by
Donald P. Judges and Stephen J. Cribari
94 Minn. L. Rev. 800 (2010)
Original Article:
Speaking of Silence
A Response to "Making Defendants Speak"
In this Response, Professors Judges and Cribari concentrate on explaining why they do not share Professor Sampsell-Jones's underlying antipathy to the Fifth Amendment right to silence at trial. That antipathy, also frequently expressed by other commentators, is reflected in the article’s proposed rejection of Griffin v. California’s prohibition regarding adverse inferences from the defendant’s assertion of that right. The modern right to silence at trial, while perhaps more robust than framing-era practice, has emerged in a criminal justice system the scope and intrusiveness of which itself greatly exceeds framing-era experience. Griffin’s no-adverse-inference rule, and the right to silence at trial it helps to effectuate, are components of an interrelated cluster of protections, the centerpiece of which is the right to counsel, that reinforce the “test the prosecution” and “anti-inquisitorial” nature of today’s system. While neither theoretically tidy nor practically perfect, those protections at least offer a modicum of dignity which the authors believe many persons would want to have when faced with a powerful adversary in a dehumanizing process. Finally, the authors briefly note why they believe the purported benefits from the reforms proposed in "Making Defendants Speak" are illusory.
Note, Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing
by
David A. Couillard
93 Minn. L. Rev. 2205 (2009)
Presuming Innocence: Expanding the Confrontation Clause Analysis to Protect Children and Defendants in Child Sexual Abuse Prosecutions
by
Anna Richey-Allen
93 Minn. L. Rev. 1090 (2009)
Prosecutorial Use of Forensic Science at Trial: When Is a Lab Report Testimonial?
by
Joe Bourne
93 Minn. L. Rev. 1058 (2009)
