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Managing Transitional Moments in Criminal Cases |
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Toby J. Heytens [View as PDF]
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115 Yale L.J. 922 (2006)
As long as some courts review the work of others, there will be situations in which governing precedent shifts during the interval between an initial decision and the underlying dispute's ultimate resolution. Although such "transitional moments" follow many appellate court decisions, several of the Supreme Court's recent criminal procedure rulings would have been especially disruptive if implemented in a maximally retrospective fashion. Focusing on direct review of federal convictions, this Article identifies and critiques one widely used method for limiting the effects of legal change: subjecting defendants who failed to raise objections that were foreclosed by controlling time-of-trial authority to a narrow form of review that virtually guarantees that their appeals will fail. The problem with applying "plain error" rules in this way is that it cannot be justified by the purposes warranting use of forfeiture rules in the direct review context. Given the unsuitability of the forfeiture approach as a means of coping with transitional moments, the Article suggests a reconsideration of the Warren Court's preferred method: nonretroactivity doctrines.
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