Marquette University Law School Faculty Blog

The New Miranda Warning

Post author:Michael Cicchini
Post published:November 8, 2010
Post category:Constitutional Interpretation Criminal Law & Process U.S. Supreme Court

I never thought the Miranda warning was all that useful. In fact, it actually raises more questions than it answers. For example, the warning tells a suspect that anything he says can be used against him in court. But asking for an attorney is saying something, isn’t it? Could the prosecutor later use such a request against him? (After all, television teaches us that only guilty people “lawyer-up.”) And what if the suspect wants to remain silent? Could his silence be used against him in court? The Miranda warning fails to answer these and many other questions.

Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

In response to all of this chaos, I’ve drafted a new and improved Miranda warning.

Seventh Circuit Backs Away From Apparent Circuit Split on Three Strikes Provision of PLRA

Post author:Michael M. O'Hear
Post published:November 6, 2010
Post category:Prisoner Rights Seventh Circuit

Enacted in 1996, the Prison Litigation Reform Act raised numerous obstacles to prisoner rights lawsuits. The “three strikes” provision of the statute, codified at 28 U.S.C. § 1915(g), is intended to bar prisoners who have a history of frivolous litigation from proceeding in forma pauperis. IFP status results in the waiver of court filing fees that would otherwise be beyond that means of indigent litigants. For most prisoners, in light of their limited financial resources, a denial of IFP status is the functional equivalent of a denial of access to the courts.

Last week, in Turley v. Gaetz (No. 09-3847), the Seventh Circuit backed away from dicta in earlier decisions that seemed to embrace an exceptionally and unnecessarily broad reading of the three strikes bar. Had the court adhered to the earlier dicta, it would have opened a circuit split on a very important prisoner rights issue.

Here’s what happened.

Appellate Advocacy at the Law School

Post author:Melissa Love Koenig
Post published:November 5, 2010
Post category:Legal Writing Marquette Law School

Congratulations to the students in Appellate Writing and Advocacy, who are turning in their final briefs today. This moment is a good one to reprint an article that Emily Lonergan, the Chief Justice of the Moot Court Board, wrote for the most recent De Novo newsletter. De Novo is the publication of the State Bar of Wisconsin’s Appellate Practice Section. The Appellate Practice Section is active, and De Novo is a good source for news, information, and tips about appellate practice. This article is reprinted with permission.

Marquette Helps Students Master the Art of Legal Writing, by Emily Lonergan, 3L

Marquette University Law School presents students with the opportunity to master the art of appellate advocacy in both the classroom and the courtroom.

The typical law student hoping to participate in Moot Court starts with an Appellate Writing and Advocacy course, offered to second- and third-year students during the fall semester. While the course is open to everyone, regardless of their interest in the Moot Court program, it is a prerequisite for anyone who hopes to compete in a national competition. The goal of the course is first and foremost to teach appellate advocacy. It teaches students in a traditional lecture format everything from preserving the record to when to file notice of appeal.

But the course also has a hands-on approach as well.