For the Defense - Vol. 8, Issue 4 - 36
" The Only Constant in Life Is Change. "
One Judge's View of
Criminal Practice Evolution
P
ACDL President Patrick A. Casey kindly asked me to reflect on
my fifty years in criminal law. In order to place my reflection
into the proper context, I thought it was best to start with
a brief reflection upon the fifty years before my admission to
practice. The lawyers in the first half of the twentieth century
experienced profound changes in criminal law. In law school
where my classmates and I studied constitutional and criminal law
in 1971-72, we were taught that since 1914, evidence seized in
violation of the Fourth Amendment may not be used in Federal
court.1
In the year I was born, the U.S. Supreme Court held that
in a prosecution in a State court for a State crime, the Fourteenth
Amendment does not forbid the admission of evidence obtained
by an unreasonable search and seizure.2
However, by the time I was
in junior high school, the Court held that the exclusionary rule is
an essential part of both the Fourth and Fourteenth Amendments
36 For The Defense l Vol. 8, Issue 4
and will apply to state court searches.3
As early as 1938, a person
charged with crime in a federal court was entitled by the Sixth
Amendment to the assistance of counsel for his defense.4
That
right did not apply in state court even if jail was a possibility until
1963.5
Also in 1963, the Court held that the prosecution must turn
over exculpatory evidence to the defense.6
Three years later, the
Court held that suspects in custody must be warned of their Fifth
Amendment right against self-incrimination before any statement
may be used against them.7
before I started to practice law in 1974 and even before I was a
" certified legal intern " trying misdemeanor criminal cases in 1973
while still in law school. So, what has changed in the last 50 years?
As we will see in this article, the only constant over the past fifty
years was change. What follows are some of the more memorable
changes I recall.
These cases were already decided
For the Defense - Vol. 8, Issue 4
Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 4
Contents
For the Defense - Vol. 8, Issue 4 - 1
For the Defense - Vol. 8, Issue 4 - 2
For the Defense - Vol. 8, Issue 4 - Contents
For the Defense - Vol. 8, Issue 4 - 4
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