Managing Transitional Moments in Criminal Cases

Abstract

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. author. Counsel, O’Melveny & Myers LLP. B.A., Macalester College; J.D., University of Virginia. This Article was written while I was a Visiting Assistant Professor at Cornell Law School. Thanks to John Blume, Jack Chin, Kevin Clermont, Walter Dellinger, Craig Green, George Hay, Sheri Johnson, Doug Kysar, Bernie Meyler, Jeff Rachlinski, Jim Ryan, Emily Sherwin, Cathie Struve, and Brad Wendel for helpful comments and suggestions. I owe special thanks to Trevor Morrison and Sarah Sawtelle. This Article is dedicated to Connie Dallman and Bill Rehnstrand—inspiring teachers and great friends. HEYTENS 3/2/2006 5:41:16 PM managing transitional moments in criminal cases 923 article contents