Bail Reform for the Eighties: A Reply to Senator Kennedy

The Bail Reform Act of 1966 may rank as the most significant legislative reform of the criminal process of this century. A product of the New Frontier and the Great Society, it reflected a broad consensus that society had the ability and the duty to alleviate tile disadvantages caused by poverty, racism, and powerlessness. The Act recognized that pretrial incarceration was frequently unnecessary to assure appearance at trial and that it was unjust and discriminatory when reasonable alternatives were available. Money bail was deemphasized, and the courts were directed to release persons without it when circumstances permitted

The Right to Appointed Counsel: Argersinger and Beyond

Half a generation ago the Supreme Court in Gideon v. Wainwright found the Sixth Amendment right to counsel fundamental and essential to a fair trial. Mr. Justice Black, speaking for an unanimous Court, referred to lawyers as necessities, not luxuries. He said the noble ideal of fair trials cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him, and declared that any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. One might therefore have expected per curiam reversals, following Gideon, of criminal convictions where assistance of counsel was denied. Instead, several courts upheld such convictions for\u27misdemeanors, and the Court repeatedly denied certiorari

Legality in the Second Circuit

In his highly regarded treatise, The Limits of the Criminal Sanction, the late Professor Herbert Packer reminded us that [t]he :first principle [of criminal law] is that conduct may not be treated as criminal unless it has been so defined by an authority having the institutional competence to do so before it has taken place. This is the principle of legality. According to Professor Packer, there is all-but-universal compliance with it ... in this country. Apart from prohibitions against retroactivity, the two doctrines by which the courts keep the principle of legality in good repair are the void-for-vagueness doctrine and the doctrine requiring strict construction of penal statutes. Each is a contiguous segment of the same spectrum

Civil Procedure

The Second Circuit during the 1977-78 term decided a number of significant cases comfortably contained within the conventional rubric of civil procedure. I had intended to comment on one or more in depth in this commentary, but found myself preempted by the student comments that follow. Moreover, in reading over the court\u27s work for a term in search of an overlooked judicial gem upon which I might hope to add a little polish, and dipping lightly into the court\u27s statistics in search of inspiration, I became a born-again convert to the relatively new discipline unhappily labelled judicial administration. 1 Since all civil cases involve civil procedure, and criminal cases have a strong impact upon the process of deciding civil cases, I doubt that I have gone too far astray from the assigned topic in making a few comments on that subject

Does Miranda Protect the Innocent or the Guilty?

Miranda v. Arizona\u27 is probably the most widely recognized court decision ever rendered. Thanks to movies and television, people the world over know about Miranda rights. Governments around the globe have embraced Miranda-like rights. Suspects in South Korea must receive their Miranda warning before being interrogated. So must those in Mexico, Canada, and most European countries. Miranda\u27s notoriety surely has something to do with the decision\u27s kaleidoscopic symbolism. To some, Miranda embodies the respect due to criminal suspects. To others, it represents the professionalism of the police. Still others regard Miranda as a glaring example of the Supreme Court\u27s ambivalence toward law enforcement, its lack of respect for victims, and its willingness to coddle criminals. Constitutional lawyers cite Miranda as an example of judicial usurpation of the legislative domain.9 And so on

Two Case Histories of Blast- & Traffic-Induced Vibrations on the Stability of Burrows of Endangered Sensitive Ground Dwelling Animals

Two case histories are presented where jurisdictional authorities expressed a concern regarding the impact of blast and construction traffic induced vibrations on the stability of the burrows of endangered ground dwelling species. The first case history involved the use of explosives proposed to be used for a seismic survey in the vicinity of desert tortoise burrows. The concern was that the use of explosives in the vicinity of a tortoise burrow could cause the collapse of an occupied burrow potentially trapping the tortoise within the burrow. Field tests were performed by constructing artificial tortoise burrows and inducing progressively higher vibration levels near the test burrows while observing the stability of the burrow. The data obtained from the tests were used to develop a site-specific attenuation relationship and vibration amplitude-burrow collapse relationship. These relationships were used to establish safe distance criteria for the use of explosives. The second case history involved the effect of heavy haul-truck traffic induced vibrations on the stability of San Bernardino Kangaroo Rat (SBKR) burrows. The jurisdictional authority imposed a mitigation area requirement equal to 100-ft. on either side of the almost 2-mile long haul roadway. This resulted in a significant cost impact on the project. Initially, an evaluation was made using the results of the tortoise study for vibration amplitude-burrow stability criteria on the premise that the wide low tortoise burrows would tend to be less stable than the smaller round SBKR burrows. This relationship was used together with attenuation relationships for the heavy haul-trucks considering soil type, the road roughness, truck weight, number of trucks, and trucks speed to evaluate the required mitigation area. The initial analysis indicated that 3-ft. on either side of the roadway would be acceptable to define the mitigation area instead of the 100-ft imposed by the jurisdictional authority. The results of the initial evaluation were discussed with personnel representing the jurisdictional authority and a compromise mitigation distance of 10-ft on either side of the haul road was negotiated, contingent on the results of fieldtesting. The field testing was completed by excavating 36 artificial SBKR burrows along the haul route, inserting split sample tubes into the burrows, monitoring vibrations induced by truck traffic at 5-ft. and 10-ft. from the road, removing the split sample tubes after one hour of truck traffic (25 to 35 trucks), and measuring the volume of soil collected in the split tubes. It was found that less than 10% of the volume of the burrow hole was collected in the sample tubes and the test results were found acceptable by the jurisdictional authority. The paper provides a tabulation of all vibration measurements, photos or diagrams of sampling and test layouts, the basis for estimating vibration amplitudes, and the conclusions reached from each case history

A NASA/RAE cooperation in the development of a real-time knowledge-based autopilot

As part of a US/UK cooperative aeronautical research program, a joint activity between the NASA Dryden Flight Research Facility and the Royal Aerospace Establishment on knowledge-based systems was established. This joint activity is concerned with tools and techniques for the implementation and validation of real-time knowledge-based systems. The proposed next stage of this research is described, in which some of the problems of implementing and validating a knowledge-based autopilot for a generic high-performance aircraft are investigated

A Picture’s Worth a Thousand Words: Conversational versus Eyewitness Testimony in Criminal Convictions

Scholars and practitioners alike share a widespread belief that the single greatest cause of wrongful conviction is erroneous eyewitness testimony. This conventional wisdom is almost certainly wrong. Conversational testimonydescribing earlier conversations or statements-is more common, more likely to be inaccurate, more likely to be believed by jurors, and more likely to produce irreversible errors than eyewitness testimony. Nonetheless, the dangers to the innocent posed by conversational testimony have been largely unrecognized. This Article highlights the case for further psychological and legal attention to conversational witnesses by comparing how the psychological processes and legal responses differ between eyewitness and conversational testimony. The Article concludes with implications for reform that may minimize the ongoing and unrecognized miscarriages of justice which result from erroneous conversational testimony