Constitutional Law Blog
Kalamazoo - Constitutional Law Blog

The United States Supreme Court is the most watched and researched court in the country, if not the world. Its opinions are available in many formats, and many primary and secondary sources are available for research into the Court's decisions and the Court itself. In fact, the Court is so important that under Bluebook Rule 8, it is the only court where a capital "C" must be used any time the Court is mentioned.


Fifth Amendment:

Posted December 1, 2018

The Fifth Amendment states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

In a recent United States Supreme Court decision, the Court stated, "In the Fifth Amendment context, we have created prophylactic rules designed to safeguard the core constitutional right protected by the Self–Incrimination Clause.  Among these rules is an evidentiary privilege that protects witnesses from being forced to give incriminating testimony, even in noncriminal cases, unless that testimony has been immunized from use and derivative use in a future criminal proceeding before it is compelled.  By allowing a witness to insist on an immunity agreement before being compelled to give incriminating testimony in a noncriminal case, the privilege preserves the core Fifth Amendment right from invasion by the use of that compelled testimony in a subsequent criminal case.  Because the failure to assert the privilege will often forfeit the right to exclude the evidence in a subsequent “criminal case", it is necessary to allow assertion of the privilege prior to the commencement of a “criminal case” to safeguard the core Fifth Amendment trial right.  If the privilege could not be asserted in such situations, testimony given in those judicial proceedings would be deemed voluntary, hence, insistence on a prior grant of immunity is essential to memorialize the fact that the testimony had indeed been compelled and therefore protected from use against the speaker in any “criminal case.”

Chavez v Martinez, 538 U S 760; 123 S Ct 1994; 155 L Ed 2d 984, (2003)


Double Jeopardy:

Posted November 18, 2018

Both the United States and Michigan constitutions prohibit a person from twice being placed in jeopardy for the same offense. US Const, Am V; Const 1963, art 1, § 15; People v Nutt, 469 Mich 565, 574 (2004).

The Double Jeopardy Clause of the United States Constitution, Am V, provides: No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb. The Clause applies to the states through the Fourteenth Amendment. North Carolina v Pearce, 396 US 711, 717 (1969).

The Michigan Constitution provides: No person shall be subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15. This provision is essentially identical to its federal counterpart and was intended to be construed consistently with the corresponding federal provision.

Both federal and Michigan double jeopardy provisions afford three related protections:

  1. against a second prosecution for the same offense after acquittal,
  2. against a second prosecution for the same offense after conviction, and
  3. against multiple punishments for the same offense.

The purposes of double jeopardy protections against successive prosecutions for the same offense are to preserve the finality of judgments in criminal prosecutions and to protect the defendant from prosecutorial overreaching. Collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy as it surely protects the person who has been acquitted from having to run the gauntlet a second time.

The purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant from having more punishment imposed than the Legislature intended. Where multiple punishments are involved, the Double Jeopardy Clause acts as a restraint on the prosecution and the courts, not the Legislature. If a defendant can make a prima facie showing of a violation of the Double Jeopardy Clause, a second prosecution is barred unless the government can demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution.”

People v Wilson (Amir), 454 Mich 421, 428 (1997).


Motion to Dismiss Criminal Charges:

Posted October 12, 2018

No court rule or statute specifically addresses a motion to dismiss criminal charges. MCR 2.504 is the civil court rule governing dismissal of actions. Ordinarily a motion to dismiss is used to address issues such as double jeopardy or entrapment, where the remedy is dismissal of the case.

A motion to dismiss challenging the bindover decision after the preliminary examination is typically designated as a motion to quash. The trial court exceeds its authority when it dismisses the information against a defendant at a pretrial stage of the proceedings, People v Morrow, 214 Mich App 158, 165 (1995), because the prosecutor has

exclusive authority to decide whom to prosecute. People v Williams (Anterio), 244 Mich App 249, 254 (2001). MCL 767.29 governs the prosecution’s practice of nolle prosequi. The court reviews a trial court’s ruling regarding a motion to dismiss for an abuse of discretion.

People v Stone, 269 Mich App 240, 242 (2005).


Presumption of Prejudice:

Posted September 12, 2018

There is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt. United States v Cronic, 466 US 648, 659 n 26 (1984), citing Strickland, 466 US at 693‐696. However, in Cronic, 466 US at 658‐ 660, the United States Supreme Court identified three rare situations involving circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified and in which prejudice is therefore presumed:

  • the complete denial of counsel, such as where the accused is denied counsel at a critical stage of the proceedings; where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and
  • where counsel is called upon to render assistance under circumstances where even competent counsel very likely could where defense counsel was appointed to represent defendants in a capital case on the day the trial was scheduled to start.

A structural error does not automatically satisfy the second Strickland prong; rather, . . . Strickland, 466 US at 692, and . . .Cronic, 466 US at 659 n 25, articulated only a narrow class of situations in which prejudice is presumed for ineffective assistance purposes: when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding or when counsel is burdened by an actual conflict of interest. An ineffective assistance of counsel claim premised on either counsel’s waiver of or failure to object to the Sixth Amendment right to a public trial requires a showing of actual prejudice before the defendant is entitled to relief.

A presumption of prejudice exists when a defendant’s former defense counsel joins the prosecutor’s office that is pursuing the case against the defendant. Such a presumption may be overcome, however, if the prosecutor shows that the attorney who had a conflict of interest was properly ‘screened from any participation in the matter.

United States v Cronic, 466 U S 648; 104 S Ct 2039; 80 L Ed 2d 657, (1984)