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Disentangling Webb: governmental intimidation of defense witnesses and harmless error analysis

Article Abstract:

Cases involving governmental intimidation of defense witnesses constitute structural errors, requiring per se reversal, rather than harmless errors. Many courts have interpreted Webb v Texas as requiring per se reversal in such cases, but Webb only dealt with the level of error needed for summary reversal. In Arizona v Fulminante, the US Supreme Court established that cases in which errors affect the structure of the trial require per se reversal. Governmental intimidation of defense witnesses would satisfy the Fulminante test for structural error and therefore warrant per se reversal.

Witnesses, Judicial error, Intimidation

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Strict scrutiny for gender, via Croson

Article Abstract:

Intermediate scrutiny has been the standard for gender discrimination, while strict scrutiny has been applied to affirmative action in City of Richmond v J.A. Croson Co. The Croson case supplies a process-based form of strict scrutiny which should be extended from racially based affirmative action to apply to gender-based affirmative action as well. In addition, Croson's rejection of a distinction between benign and pernicious discrimination, as well as the inadequacy of intermediate scrutiny, supports application of strict scrutiny to all forms of gender discrimination.

Affirmative action, Sex discrimination

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