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.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association.F The Court overturned the D.C. [...]