The Presumption of Guilt: Systemic Factors that Contribute to Ineffective Assistance of Counsel in California

Our adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will best promote the ultimate objective that the guilty be convicted and the innocent go free. The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise of effective representation by a well-prepared and experienced defense counsel, supported by defense investigators, experts, and other resources needed to mount an effective defense. Yet recent empirical research undertaken by the author for the California Commission on the Fair Administration of Justice (Fair Commission) portrays a discouraging reality that is often far different from this theoretical model. Part II of this article describes the methodology used to collect the data reported in this article, and Part III gives an overview of some of the most significant findings arising from the research conducted for the Fair Commission. Parts IV through VI report details of our survey of California\u27s institutional public defender, contract defender, and assigned counsel systems. Part VII examines the funding for indigent defense services, revealing the disparity between counties and the disparity in resources between prosecution and defense. Part VIII discusses California judicial decisions that found ineffective assistance of counsel and looks at the types of errors that are most frequently made. These cases are individually detailed in Appendix II. Part IX presents a number of solutions to help alleviate some of the systemic problems that contribute to the ineffective assistance of counsel in California. Part X concludes by listening to the voices of those public defenders and private criminal defense attorneys who responded with comments about the system they live, breathe, and work in on a daily basis

Requiem for Miranda: The Rehnquist Court\u27s Voluntariness Doctrine in Historical Perspective

This Article retraces the path of history back to the origins of the privilege against self-incrimination and rediscovers a cluster of rights, embraced by the historical privilege, which are today no longer associated with the fifth amendment. The central thesis of this Article is that, because of our ignorance of history, we have failed to distinguish analytically between the historical privilege against self-incrimination and the relatively more recent right against compulsory self-incrimination. This failure has led to a one-dimensional analysis of self-incrimination issues (focusing solely upon compulsion) which has obfuscated fundamental values underlying once protected by the privilege, engendered muddled thinking, and given rise to a confused doctrine riddled with anomalies

Social-Network Theory and the Diffusion of the Search-and-Seizure Exclusionary Rule Among State Courts Between Weeks and Wolf

In light of the Supreme Court’s recent narrowing of the Fourth Amendment exclusionary rule in cases like Herring v. United States and Davis v. United States, there is renewed interest in whether state supreme courts will maintain or similarly narrow the search and seizure exclusionary rule for violations of their own state constitutions. The pattern of early adoptions of the exclusionary rule as a matter of state law before it was mandated by the federal Constitution may provide interesting insights into how the state supreme courts will respond to cases such as Herring and Davis. This article uses social-network theory to evaluate the patterns of communication and influence across state courts in the diffusion of the search and seizure exclusionary rule as a matter of state constitutional law. During the period studied, the Supreme Court made the exclusionary rule mandatory in federal criminal prosecutions for violations of the Fourth Amendment, but had not yet ruled that the Fourth Amendment applied to the states. We conceptualize the diffusion of the exclusionary rule in state courts as a matter of state law as a two-stage process. The first stage concerns whether the issue of exclusion of evidence obtained through illegal searches and seizures in violation of state constitutional law was presented to state supreme courts following adoption of the federal exclusionary rule in Weeks v. United States. The second stage concerns whether the state courts adopted the exclusionary rule as a matter of state law, before Wolf v. Colorado, when the Fourth Amendment was made applicable to the states. This article uses logistic regressions to evaluate the pattern of communication and influence among state courts in the diffusion of the exclusionary rule at each stage in the process. The results are striking. They suggest that precedents by other state supreme courts in the same West legal reporting regions were more influential in determining whether the question would arise in a particular state than precedents by state supreme courts in neighboring states, or the same federal circuit regions, or the same census regions. But precedents by other state supreme courts in the same federal circuit regions appear to have been more influential in determining whether the exclusionary rule would be adopted than precedents in neighboring states, the same West reporting regions, or the same census regions. These results both corroborate and extend those of previous studies

Social-Network Theory and the Diffusion of the Search-and-Seizure Exclusionary Rule Among State Courts Between Weeks and Wolf

In light of the Supreme Court’s recent narrowing of the Fourth Amendment exclusionary rule in cases like Herring v. United States and Davis v. United States, there is renewed interest in whether state supreme courts will maintain or similarly narrow the search and seizure exclusionary rule for violations of their own state constitutions. The pattern of early adoptions of the exclusionary rule as a matter of state law before it was mandated by the federal Constitution may provide interesting insights into how the state supreme courts will respond to cases such as Herring and Davis. This article uses social-network theory to evaluate the patterns of communication and influence across state courts in the diffusion of the search and seizure exclusionary rule as a matter of state constitutional law. During the period studied, the Supreme Court made the exclusionary rule mandatory in federal criminal prosecutions for violations of the Fourth Amendment, but had not yet ruled that the Fourth Amendment applied to the states. We conceptualize the diffusion of the exclusionary rule in state courts as a matter of state law as a two-stage process. The first stage concerns whether the issue of exclusion of evidence obtained through illegal searches and seizures in violation of state constitutional law was presented to state supreme courts following adoption of the federal exclusionary rule in Weeks v. United States. The second stage concerns whether the state courts adopted the exclusionary rule as a matter of state law, before Wolf v. Colorado, when the Fourth Amendment was made applicable to the states. This article uses logistic regressions to evaluate the pattern of communication and influence among state courts in the diffusion of the exclusionary rule at each stage in the process. The results are striking. They suggest that precedents by other state supreme courts in the same West legal reporting regions were more influential in determining whether the question would arise in a particular state than precedents by state supreme courts in neighboring states, or the same federal circuit regions, or the same census regions. But precedents by other state supreme courts in the same federal circuit regions appear to have been more influential in determining whether the exclusionary rule would be adopted than precedents in neighboring states, the same West reporting regions, or the same census regions. These results both corroborate and extend those of previous studies