Right to Counsel at the Grand Jury Stage of Criminal Proceedings

Criminal justice in the United States is administered in a series of stages, ranging from the arrest stage at the beginning, to the parole stage at the end. A person accused of crime is processed by being passed from one stage to another. At any stage the accused person may be screened out of the system altogether, or he may be passed along to the next stage for further processing. For example, at the trial stage the accused is either acquitted (screened out of the system) or he is convicted, and bound over for sentencing (passed along to the next stage for further processing). In most jurisdictions the grand jury is one of these stages in felony cases.\u27 Historically, the grand jury performed a number of functions, but its essential purpose now is to indict or no-bill an accused. Therefore, from the standpoint of both the accused and the community the grand jury stage is quite significant, because it is the gateway to the heart of the criminal justice system-the trial and sentencing stages. To some extent, then, this paper will argue for a change in the present state of the law. The argument will be presented in three parts. First, the doctrine of right to counsel as a whole will be reviewed with particular emphasis given those cases calling for counsel at various critical stages in the criminal justice process. The next part of the paper will examine the nature of grand jury proceedings from the standpoint of what, if any, aspects of those proceedings are similar to other stages that have previously been declared critical. The third part of the paper will evaluate and analyze some of the case law dealing specifically with the question of right to counsel at the grand jury stage

A Suggested Legislative Device for Dealing with Abuses of Criminal Records

There are pitfalls apparent in ameliorating the overuse of criminal records. For example, techniques of expunging, sealing, and limiting access do not affect legal status. No amount of expunging, or sealing, or limiting access is truly useful unless civil rights, such as the right to vote, are restored as well. Another problem is the inherent breadth of a criminal record, which can involve acts or allegations of acts ranging from traffic offenses to murder or rape. Thus, it is difficult to draw precise guidelines delineating those parts of the record which may be legitimately used. The apparently illegitimate use of criminal records does not lend itself to easy solution. The aims of this article are to explore some abuses of criminal records and to offer some tentative solutions, primarily in the form of a proposed statute

Deceptive Negotiating and High-Toned Morality

Rising concern about the adequacy of the adversary system to deal with disputes quickly, fairly, and economically has led to increased interest in a broad range of alternate dispute resolution mechanisms such as arbitration and the use of mini-trials. Presently, however, negotiation between disputants or negotiation between counsel for disputants is the best understood and most often utilized alternative to litigation. In fact, negotiating prior to litigating is so pervasive that it might be thought of as an inherent part of the litigation process. From a lawyer\u27s perspective, an advantage of negotiation over other forms of dispute resolution is that negotiation usually is done by lawyers. Litigators and negotiators are usually the same lawyers, and many lawyers negotiate more than they litigate. But consider the following points: (1) lawyers study litigation as an art and frequently attend courses about litigation; but lawyers seldom study negotiation as an art, and courses about negotiation are relatively rare; (2) litigators operate under sophisticated rules of procedure that prevent abuse and exploitation of one litigator by an-other, stronger litigator, but negotiators operate under primitive and obtuse rules of professional responsibility and under an amorphous set of professional mores common among lawyers. How can we account for the incongruity of lawyers calling themselves litigators when they actually negotiate for the most part? How can we account for the incongruity of lawyers possessing sophisticated litigation skills learned through concerted effort,although they spend most of their time negotiating with little or no formal training in the art of negotiation? Why was negotiation left at the starting gate, while litigation charged ahead as the most visible, if not the most useful, aspect of a lawyer\u27s professional skill? Surely the skills and art of negotiating are no more difficult to teach and to learn than are the skills and art of trial advocacy.We must look for something other than teachability to account for the fact that litigation skills hold the limelight while negotiation skills are understudied

Jury Instructions: A Persistent Failure to Communicate

This article reports on an empirical study of juror comprehension of pattern jury instructions. It demonstrated that comprehension of the original instructions was poor, but that rewriting significantly improved their ability to understand and explain the meaning of the instructions. A separate study showed that jurors report that they discuss and consider the language of the instructions provided to them