LawMeme LawMeme Yale Law School  
LawMeme
Search LawMeme [ Advanced Search ]
 
 
 
 
New Yale Scholarship: Case Comment: U.S. v. Bird and U.S. v. Avantis
Posted by James Grimmelmann on Friday, August 13 @ 00:25:00 EDT Scholarship
David J. D'Addio, Case Comment, United States v. Bird and United States v. Avantis, Dual Sovereignty and the Sixth Amendment Right to Counsel, 113 YALE L.J. 1991 (2004).

(Abstract prepared by James Grimmelmann)

In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charged offenses. For double jeopardy purposes, a single criminal act that violates both state and federal law constitutes two separate offenses, because it violates the laws of two separate sovereigns. Thus, read literally, Cobb implies that the right to counsel can attach to a charged offense against one sovereign, but not to the same (uncharged) offense against a different sovereign. The Eighth Circuit concluded in United States v. Bird that Cobb does not strictly require application of the dual sovereignty. The Fifth Circuit's opposite result in United States v. Vantis, although more faithful to the plain language of Cobb, is problematic because it invites collusion among state and federal law enforcement during pretrial investigations, creating the potential for cooperating sovereigns to circumvent a defendant's Sixth Amendment right to counsel.

This Comment sides with Bird's outcome, but places the case on a firmer doctrinal foundation, arguing that the importation of dual sovereignty into Sixth Amendment doctrine runs counter to both the logic and the history of the post-incorporation Bill of Rights.

 
Related Links
· More about Scholarship
· News by James Grimmelmann


Most read story about Scholarship:
Alternatives to PATRIOTism

Options

 Printer Friendly Page  Printer Friendly Page

 Send to a Friend  Send to a Friend

Threshold
  
The comments are owned by the poster. We aren't responsible for their content.

Leges humanae nascuntur, vivunt, moriuntur
Human laws are born, live, and die

Contributors retain copyright interests in all stories, comments and submissions.
The PHP-Nuke engine on which LawMeme runs is copyright by PHP-Nuke, and is freely available under the GNU GPL.
Everything else is copyright copyright 2002-04 by the Information Society Project.

This material may be distributed only subject to the terms and conditions
set forth in the Open Publication License, v1.0 or later.
The latest version is currently available at http://www.opencontent.org/openpub/.

You can syndicate our news with backend.php



Page Generation: 0.108 Seconds