Louisville Law Examiner
Serving The University of Louisville School of Law Community
Volume 8, Number 3 Louisville, Kentucky, December, 1982 Circulation 4500
Suggests changes
Leibson Reaches
High Court
By John Schaaf
When Kentucky's seven-member
Supreme Court convenes in Frankfort in
January, one of its four new justices will
be Charles M. Leibson, a Jefferson Cir­cuit
Judge and part-time professor at the
University of Louisville School of Law.
Leibson won Jefferson County's seat
on the high court earlier this month
when he defeated for.mer Com­monwealth's
Attorney Edwin A.
Schroering in an election to fill the seat
now held by Justice Marvin Sternberg,
who is retiring.
Leibson, a highly-respected jurist
(Louisville Bar Association's Judge of
the Year in 1979; Association of Trial
Lawyers of America's Outstanding State
Trial Judge in America in 1980) had to
wage a tough and expensive ten-month
campaign for the Supreme Court seat.
A primary election in May pitted eight
candidates, including five Jefferson cir­cuit
judges, against each other. The two
highest vote-getters, Leibson and
Schroering, then squared off in the most
expensive judicial election campaign in
Kentucky history.
Leibson raised and spent more than
$90,000 in the two races and Schroering
spent close to $60,000.
All of which leads Leibson to believe
there is room for some changes in the
way Kentucky selectes its judges.
"Having just been through the elec­tive
procedure," Leibson said, "I think
there must be a better way.''
A person seeking a judgeship in Jef­ferson
County must be prepared to en­counter
some problems, according to
Leibson. For example, it's very difficult
to build a countywide campaign
organization from the ground up.
"Each judicial candidate is his own
political party," Leibson said. "He has
to start from scratch and put together a
political organization.''
The effort involved in campaigning in
two elections in the same year is such
that Leibson thinks it might make some
highly qualified people reluctant to run
for a judgeship.
"The demand in terms of time, effort,
and financing is so significant that it
might well discourage the most desirable
people from seeking office," Leibson
said.
Though Kentucky's constitutionally
mandated system of electing judges is
not likely to change, Leibson said the
process would be improved if only one
The old Courthouse as ~:eflected by the more modern Hall of Justice.
Photo by Mark Ashburn
Judge Leibson as seen during a recent interview following his election to Ken­tucky's
Supreme Court.
judicial election were held, rather than
requiring candidates to run in both a
primary and a general election.
"Constitutionally, I don't know if
there's any way that could be done,"
Leibson said. "But a single election,
where the fellow with the most votes
wins, would be more desirable than go­ing
through two elections. I don't see
any reason why a candidate has to be
elected by a majority as opposed to a
plurality.''
(Continued on page 2)
Old Courthouse
Renovation completed
By Jon Hardy
Walking up a large stone stairway and
entering through a giant doorway, you
are greeted by a Statue of Henry Clay in
the center of a large rotunda with a dom­ed
ceiling. You might think you've walk­ed
into a state capitol, which is what the
145 year old building was originally in­tended
to be. But a closer inspection
reveals it's the old Jefferson County
Courthouse with a fresh new look.
This building, which a few years ago
housed many of the courtrooms for the
community, has been replaced by the
Hall of Justice in many of its essential
services. In the past five years, it has
undergone an extensive 5.6 million
dollar renovation that reached comple­tion
this August. According to Elizabeth
Jones, administrator of the Jefferson
County Office of Historic Preservation,
the facelift incorporates elements of
several historical periods in the life of
the building.The result is a balance bet­ween
maintaining the building's
historical character and improving its
usefulness.
On the preservation side, much
original detail was restored. We now
find beige stucco-finished walls, terazzo
floors, and stained oak doors. Even
some curved archways in the deed room,
hidden by bricks and mortar for many
years, were returned to their original
state. In contrast, however, we see an
entirely rebuilt rear section and many
new furnishings and fixtures. The new
design accommodates the physically
disabled with sloped floors, wide
elevators, and lower water fountains. It
also features new heating and air condi­tioning
along with improvements to in-·
crease energy efficiency. Adequate
lighting was added for reading in the
deed room.
The second floor hallway, where Pro­bate
Court once was, has been closed. It
now houses the offices of the three
County Commissioners, complete with a
kitchen. The County Judge's chambers
and Fiscal Court have been relocated on
the fourth floor where Circuit Court and
the Law Library once were. Probate
Court, part of the District Court system
since 1978, has been in the Hall of
Justice for several years now, with its
older records in the Fiscal Court
Building.
In recent years, the old courthouse
had suffered wear and decay and had the
appearance of an antiquated prison. The
County's needs have long outgrown the
space available in a nineteenth century
building. After the Hall of Justice was
built, the Hollenbach administration
began the long restoration project with
the outside of the building. For many
years now, the public has had to put up
with various inconveniences, including
the constant shuffling of offices. Now
the work is finished and we have a useful
building of which we can be proud.
Page1 · Louisville Law Examiner, December 1982
Louisville Law Examiner
EDITORIAl, BOARD
Bill Savarino
Editor-in-Chief
Ruth Ann Cox
Managing Editor
Steve Durham
Mike Kirk
Associate Editors
Mark Ashburn
Photographic Editor
Rich Milster
Brandeis Brief Editor
STAFF
Crystal Collins
Jon Hardy
Charles Herd
Judy Hoge
Steve Jamrozy
Ravi Myneni
John Schaaf
Catherine Spalding
Neil Ward
Judge MARLIN M. VOLZ, Advisor Professor LAWRENCE W. KNOWLES, Consulta nt
The Louisv ille Law Examiner is publi shed seven times during the academic
year in the interest of the University of Louisville School of Law community.
Articles are invited from faculty members, students, and members of the bar
who wish to do freelance work. Any proposed article should be cleared with
the Editor as to topic and length .
Adrl .,, all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville, Kentucky 40208. Phone:
502-588-6398 .
Attention Alumni!
In respo nse to your great demand for news concerning
fellow classmates, The Examiner will be featuring a
special column highlighting interesting activities of our
law school alumni.
Information abo ut new jobs, different offices, interesting
cases, or commentaries on life is welcomed.
This will be your column and I urge you to take
advantage of it.
Please send all items of interest to the editor at the
above address .
Leibson
reaches high
court
(Continued from page 1)
Another way to improve the judicial
election process, Leibson said, is for the
Louisville Bar Association to maintain
a high level of involvement in local
judicial races.
"I would like to see the Bar Associa­tion
take a much more active hand in
selecting desirable candidates and back­ing
those candidates," Leibson said.
''The Bar Association should not stand
on the sidelines in elections and then
complain because people get elected who
are not the most desirable candidates."
Leibson pointed to his own candidacy
as an example of the impact lawyers can
have on judicial elections.
"They came forward and supported
me in a most active manner," Leibson
said . " I hope they will continue to speak
out aggressively and to actively support
desirable candidates through financial
help, letters to clients, or anything else
they can do ."
When a poll of local attorneys was
conducted earlier this year, Leibson was
rated "highly qualified" for the state's
Supreme Court by 74 percent of those
responding; Schroering was rated
"highly qualified" by nine percent.
Leibson won the election by about
12,000 votes.
The only Circuit Judge elected to the
Supreme Court this year, Leibson will
join Court of Appeals Justices William
Gant of Owensboro, Donald Winter­sheimer
of Covington, and Roy Vance
of Paducah as the newest members of
the state's high court.
In his years as a Circuit Judge, Leib­son
has seen many divorce and other
family-related actions move through the
courts and, based on what he's heard
from lawyers who have practiced before
him, he says he believes those issues
could be better handled by a court set up
specifically to deal with family matters.
"I think every lawyer who handles
any significant amount of divorce prac­tice
believes very strongly that we need a
family court in Jefferson County,"
Leibson said.
Local courts have not been able to
adequately deal with divorce actions, ac­cording
to Leibson.
"There isn't any question in my mind
that divorce law has been treated as a
step-child of the Circuit Court," Leib­son
said . "We need to organize a family
court, if possible, so those cases are
handled by people who are sophisticated
U of L enters
Twentieth
Century
By Judy Hoge
Modern computer technology has ar­rived
at the University of Louisville Law
School in the form of three brand
spank ing-new IBM DISPLAY­WRITERS,
or as most of us know them,
"WORD PROCESSORS." These word­processors
have become standard equip­ment
in most law offices - a necessity
nowadays, rather than the luxury they
were in the past.
Word Processors, for the uninitiated ,
look li ke a combination of a typewriter
and a TV screen. Everything typed on
the keyboard is displayed on the screen,
so any errors are easily seen and cor­rected
before the text is printed. The
Word Processor is "smarter" than a
typewriter, however, in that it "knows"
when a word is going to go over the
margin, and "re-directs" it. to the next
line. Some word processors are so smart
that they have built-in dictionaries that
automatically correct misspelled words.
The advantages are obvious. Once
mastered, Word Processors can increase
productivity, reduce errors , and general­ly
make life a bed of roses for the user.
Here at the Law School, one Word
Processor is allocated to the administra­tion,
one to the faculty, and one to the
Journal of Family Law. Each is com­plete
with its own printer, and is capable
of handling 3 keyboards or more apiece .
Existing software programs include fair­ly
sophisticated record-keeping pro­grams,
(including some math functions),
and a confidential password system,
thus._ limiting access to the programs for
security reasons.
Betsy Young, instrumental in the
selection of these valuable machines,
reports training is progressing at each
user's own pace. IBM has provided a
self-teaching manual which allows each
person to proceed at their own speed, in
their own time, to a point where they
feel competent and comfortable with the
machine.
in family and behavioral problems, peo­ple
who pursue domestic relations cases
with the kind of attention and vigor
those cases need."
Leibson thinks creation of a family
court would bring about several im­provements
in the judicial process.
"First of all, divorce cases would get
heard quicker and more efficiently," he
said. "They wouldn't be in conflict on
the docket with jury trials, criminal
cases, and all kinds of other matters."
Leibson said there are special reasons
for facilitating family-related litigation.
"Family cases need to be heard quick­ly
because they're ongoing emotional
problems until they're disposed of,"
Leibson said. "Quite often, when they
have to be continued, it's a personal
disaster for the people involved ."
Another benefit which Leibson sees in
the development of a family court is the
possibility of bringing together in one
place problems now handled in several
courts .
"With family problems, there's a
great deal of overlap between Circuit
Court and the juvenile and domestic
relations courts which are part of
District Court," Leibson said.
He thinks a family court could be
organized so that it would have jurisdic­tion
over family-related matters now
Third-year
asserts grid­iron
dominance
The Third-year class asserted its
undeniable dominance over an inex­perienced
but spunky First-year team
with a walk-away 30-14 victory in are­cent
touch football game held on the
oval.
The First-year team challenged and
success fully whipped a crippled Second­year
team before baiting the alleged
" over-the-hill" Third-year squad.
The "over-the-hill Third-year crew
came out smoking with an 80 yard
touchdown bomb from Hank "The
Rocket" Robinson to previo usly
unknown speedster, C.V. Reynolds, on
the very first play of the game. Third­year
wide-receiver, Barry "Whizzer"
Willett added another TD with a diving
catch just before the end of the half. The
First-year team worked up to a tie score
early in the third quarter, before the
Third-year team swung the momentum
back to its favor when "The Rocket"
connected with Tom "The Blah" Blaha
for 7 on a quick crossing pattern over
the middle.
From there the impenetrable Third­ye;
u defense ensured the win when Ron­nie
Hampton returned his second in­terception
of the day for a TD. Defen­sive
lineman, Terry "The Hammer"
Clarke tagged First-year quarterback
Chris O'Bryan in the end zone for a two
point safety to round the score at an
even 30.
MONEY
FOR SCHOOL!
We guarantee to find scholarships,
grants, fellows hips, and other aid
which you are eligible to receive. Por
informat ion and appli cation form. wri te:
FINANCIAL AID FINDER
P.O. Box 1053-11
Fairfield. lA 52556
(Enclose $1 for postage & handl ing)
heard in a variety of courts.
''Then you wouldn't have a neglect or
abuse case being heard in the District
Court, while at the same time, the same
facts are being tried in Circuit Court in a
divorce or termination procedure,"
Leibson said. "You now have a lot of
overlap and inefficiency and those pro­blems
could be significantly improved
by a family court."
Leibson thinks it is legally possible for
such a court to be established by a ruling
of the state's Supreme Court, without
legislation or an amendment to Ken­tucky's
Constitution.
However, he made it clear he is reluc­tant
to discuss the mechanics of setting
up a family court until he hears the views
of the Bar Association, judges, and
others interested in the idea.
Most of the comments he's heard have
been supportive of the family court con­cept,
but Leibson said the views of the
entire legal community should be assess­ed
before any action is taken.
"I would love to see the Bar Associa­tion
conduct some kind of referendum
or take a position on this matter," Leib­son
said. "There's no need to call for
family courts or anything else until we
find out if there's a strong consensus of
the Bar Association that such is
needed."
'L<luisville Law Examiner, December 1982
Brandeis Brief: Emerging Legal Issues
The Exclusionary Rule- Going, Going
But Not Gone
•••
This is the first of a two-part series on the exclusionary rule. Given the con­straints
of time and space, these articles are not intended to be an exhaustive
treatment of the subject. Rather, they are intended to provide an overview of the
Fourth A-mendment and its future in light of recent decisions of the Supreme
Court of the United States.
By Danial T. Goyette
and
Frank W. Heft, Jr.
Daniel T. Goyette is a graduate of Marquette University and the University of
Oklahoma School of Law. He was recently appointed Jefferson County Public
Defender, having previously served as Chief Trial Attorney and Asso.ciate Direc­tor
of the Office of the Public Defender. He is a former Assistant Com­monwealth's
Attorney and currently serves as Chairman of the Criminal Law
Section of the Kentucky Bar Association. Mr. Goyette is also a lecturer at the
School of Law, presently teaching a course in Professional Responsibility.
Frank W. Heft, Jr. is a graduate of Boston University and the University of
Louisville School of Law. He is Chief Appellate Defender of the Jefferson Coun­ty
Public Defender, having· previously served as a trial attorney on the staff of the
Jefferson County Public Defender. He has argued before Kentucky and Federal
appellate courts including the Supreme Court of the United States. Mr. Heft is
also a Lecturer in the defense section of the Applied Criminal Justice Seminar at
the School of Law.
After nearly seventy years of
estab!ished use, the continued vitality of
the exclusionary rule is in doubt due to a
variety of indirect attacks constricting its
scope and applicability. Although
created as a means to implement the pro­hibitions
on governmental action con­tained
in the Fourth Amendment to the
Constitution of the United States, the
exclusionary rule has become the target
of increasing criticism for that very
reason, namely, that it limits govern­mental
action, most notably in the area
of law enforcement according to its
critics.
The exclusionary rule developed first
in the federal courts when the Supreme
Court ruled in Weeks v. United States,
232 U.S. 383 (1914), that evidence seized
by federal officers in violation of the
Fourth Amendment could not be used in
a federal criminal case. Even though the
Supreme Court did not apply the federal
exclusionary rule to state criminal pro­ceedings
until 1961 in deciding Mapp v.
Ohio, 367 U.S. 643, the State of Ken­tucky
was among the first six states to
adopt the exclusionary rule forty-one
years earlier, holding tht testimony con­cerning
evidence seized without a war­rant
was improperly admitted. Youman
v. Commonwealth, 189 Ky. 152, 224
S.W. 860 (1920). Furthermore, Ken­tucky
is among the states which do not
narrowly confine the exclusionary rule
to federal standards. City of Danville v.
Dawson, Ky., 528 S.W.2d 687 (1975).
The protection of the right of privacy
within the state is a matter in which a
state supreme court may impose more
stringent restrictions on police activity
than those imposed by the United States
Supreme Court in interpreting the
Federal Constitution. See State v. Op­perman,
247 N.W.673 (S.D. 1976)
wherein the state supreme court differed
with the U.S. Supreme Court's holding
in South Dakota v. Opperman, 428 U.S.
364 (1976), finding that the state con­stitution
was violated even though the
U.S. Constitution was not.
Generally, the exclusionary rule is
considered a judicially fashioned device
to deter future unlawful police conduct,
but that is actually only one of its pur­poses
and it has not been universally ac­cepted
as its primary goal or underlying
rationale. Other objectives offer a much
sounder and more practical basis for the
rule including the constitutional right to
exclusion based on due process as well as
the Fourth Amendment. Although these
judicially recognized purposes are firmly
rooted in the origin and historical
development of the rule, they have been
largely ignored of late.
The primary objective of the Fourth
Amendment is the right of privacy and
the exclusionary rule was envisioned as
an effective means of protecting that
right. See generally J. Cleary, Search
and Seizure: Current Status of the
"The protection of the right of
privacy within the state is a
matter in which a state supreme
court may impose more stringent
restrictions on police activity than
those imposed by the United
States Supreme Court in
interpreting the Federal
Constitution. ''
Fourth Amendment and the Exclu­sionary
Rule (1981). It is the protection
of the rights of citizens generally that
gives rise to the restraint on law enforce­ment
officers. Therefore, it is necessary
that something more than an illusory
civil remedy protect the right of privacy
from unwarranted governmental intrus­tions.
See Baker v. McCollan, 443 U.S.
137 (1979); Rizzo v. Goode, 423 U.S.
362 (1976).
Secondly, the exclusionary rule clearly
implements the Fourth Amendment. In
Weeks v. United States, supra at 393,
the Court held that if the protection of
the citizen was not respected by declar­ing
the evidence inadmissible, the
Fourth Amendment "might as well be
stricken from the Constitution."
Thirdly, the exclusionary rule
preserves judicial integrity by insulating
the courts from participating in viola­tions
of the Fourth Amendment. "To
sanction such proceedings would be to
affirm by judicial decision a manifest
neglect if not an open defiance of the
prohibitions of the Constitution, intend­ed
for the protection of the people
against such unauthorized action."
Supra at 394.
Finally, as previously mentioned,
another limited but important purpose
of the rule is the prospective deterrence
of police misconduct in violation of the
Fourth Amendment. This is an obvious
extension of the maxim that no one is
above the law and demonstrates that
violation of the law will not be tolerated
in the name of law enforcement. Thus,
the exclusionary rule is designed to en­sure
public confidence in government as
''To declare that in the
administration of the criminal
laws the end justifies the means
- to declare that the government
may commit crimes in order to
secure the conviction of a private
criminal - would bring terrible
retribution. ''
well as respect for the law. Justice
Brandeis expressed this purpose best in
his dissenting opinion in Olmstead v.
United States, 277 U.S. 438, 485 (1928):
In a government of laws, existence of
the government will be imperiled if it
fails to observe the law scrupulously.
Our government is the potent, the
omnipresent teacher. For good or for
ill, it teaches the whole people by its
example. Crime is contagious. If the
government becomes a lawbreaker, it
breeds contempt for law; it invites
every man to become a law unto
himself; it invited anarchy. To
declare that in the administration of
the criminal laws the end justifies the
mans - to declare that the govern­ment
may commit crimes in order to
secure the conviction of a private
criminal - would bring terrible
retribution. Against that pernicious
doctrine this court should resolutely
set its face.
It .is with these various purposes in
mind that the exclusionary rule was for­mulated
to effectuate the Fourth
Amendment. However, with the most
recent appointments to the U.S.
Supreme Court, the continued existence
of the exclusionary rule is being serious­ly
threatened. The Court has steadily
eroded the rule which it created by
limiting its applicability and narrowing
the range of defendants entitled to use it.
See United States v. Salvucci, 100 S.Ct.
2547 (1980); Rawlings v. Kentucky, 100
S.Ct. 2256 (1980). It is clear that the
principles enunciated in the early deci­sions
have given way to a more
pragmatic application of the exclu­sionary
rule.
The unique problems posed by sear­ches
of automobiles and closed con­tainers
have had considerable impact on
the application of the exclusionary rule.
See e.g. Carroll v. United States, 267
U.S. 132 (1925); Chambers v. Maroney,
399 U.S. 42 (1970); United States v.
Chadwick, 433 U.S. l (1977); Arkansas
v. Sanders, 442 U.S. 753 (1979). Recent­ly,
in the companion cases of Robbins v.
California, 453 U.S. 420 (1981) and New
York v. Belton, 453 U.S. 454 (1981), the
Supreme Court again struggled with the
issue of warrantless searches of con­tainers
found in automobiles.
In Robbins, the petitioner was stop­ped
by police because of his erratic driv-ing.
While he was getting his car
registration, the police officers smelled
marijuana. Robbins was patted down
and one of the officers found marijuana
after searching the passenger compart­ment
of the car. Robbins v. Com­monwealth,
453 U.S. at 422.
After Robbins was placed in the police
car, the officers continued to search the
car and found two packages wrapped in
green opaque plastic in a recessed lug­gage
compartment. Fifteen pounds of
marijuana were found when the officers
unwrapped the package. !d. at 422.
Justice Stewart, writing for a plurali­ty,
held that the "automobile
exception" to the warrant requirement
of the Fourth Amendment did not
justify the warrantless search of a closed
container found during the course of a
lawful search of an automobile. Thus,
the warrantless search of the packages
discovered in Robbins' car violated the
Fourth and Fourteenth Amendments.
!d. at 429. Chief Justice Burger concur­red
in the judgment without filing an
opinion. !d. at 429. Justice Powell con­curred
in a separate opinion. /d. at 429.
Justices Blackmun, Rehnquist and
Stevens dissented. !d. at 436, 437 and
444, respectively.
In New York v. Belton, supra, a
police officer made a traffic stop of the
car in which Belton was riding. As he
asked to see the driver's license and
automobile registration, the officer
smelled marijuana and observed on the
floor of the car an envelope marked
"Supergold" that he associated with
marijuana. He ordered all the occupants
out of the car and arrested them for
possession of marijuana. The officer
separated the men along the road so that
they would not be within touching
distance of each other. He then retrieved
the "Supergold" envelope and found It
to contain marijuana. After searching
each of the arrestees, he searched the
passenger compartment of the car and
found Belton's jacket on the back seat.
... "automobile exception " to the
warrant requirement of the
Fourth 4mendment did not ·
justify the warrantless search of a
closed container found during the
course of a lawful search of an
automobile. ''
The officer unzipped one of the jacket
pockets and found some cocaine. New
York v. Belton, 453 U.S. at 455-456.
Justice Stewart, writing for the ma­jority,
concluded that the jacket was
within the arrestee's immediate control,
as that concept was previously defined in
Chime/ v. California, 395 U.S. 752
(1969). Therefore, the warrantless
search of the jacket did not violate the
Fourth and Fourteenth Amendments
because it was a search incident to a
lawful arest. !d. at 462-463. In light of
the result reached, the majority found it
unnecessary to determine whether the
search and seizure were justified under
the "automobile exception" to the war­rant
requirement. !d. at 462, n. 6.
Justices Rehnquist and Stevens concur­red
in separate opinions. !d. at 463.
Justices Brennan, Marshall and White
dissented. !d. at 463 and 472.
Page 4 Louisville Law Examiner, December 1982 ia ,.
The Exclusionary Rule Go
(Continued from page 3)
In spite of their similar factual bases,
Robbins and Belton were decided on dif­ferent
theories which yielded different
results. Thus, Robbins and Belton did
little but add to the confusion that seems
inherent in recent Fourth Amendment
cases. Perhaps Justice Stevens in his
concurring ·opinion in Belton best ex­pressed
the Court's own dissatisfaction
by noting that he and Justices Brennan,
White, Marshall, Blackmun and Rehn­quist
believed that the two cases should
have been decided in the same way. New
York v. Belton, 453 U.S. at 463. Ob­viously,
the Court was looking for an
opportunity to eradicate the turmoil
plaguing the issues involving the sear­ches
of automobiles and their contents.
The opportunity arose within several
months of the Robbins decision when
the Court in granting the Government's
petition for certiorari in United States v.
Ross, ordered the parties to address the
question of whether Robbins should be
reconsidered. United States v. Ross, 454
U.S. 891 (1981) (order granting Govern­ment's
petition for a· writ of certiorari).
In United States v. Ross, 102 S.Ct.
2157 (1982), District of Columbia police
officers received a telephone tip from a
reliable informant that a person known
as "Bandit'; was selling narcotics from a
parked car at a certain location. He also
supplied police with a description of the
car. The informant said he saw a nar­cotics
sale and that some narcotics were
contained in the trunk of the car. !d. at
2160.
Police drove to the area and observed
a car, matching the description given by
the informant, parked at the designated
location. A license check revealed that
the car was registered to Ross who used
the alias "Bandit" . Id. at 2160.
"The informant said he saw a
narcotics sale and that some
narcotics were contained in the
trunk of the car. "
The police cruised the area and a short
time later saw Ross's car driving away.
They observed that the driver matched
the informant's description and they
then stopped the car. While searching
Ross ' an officer noticed a b.u llet. on the car's front seat. The car's mtenor was
searched and a gun was found in the
glove compartment. Ross was arrested
and handcuffed. One of the officers
"took Ross' keys and opened the trunk
where he found a closed brown paper
bag." The officer "opened the bag and
found a number of glassine bags con­taining
a white powder" which was later
determined to be heroin. !d. at 2160.
A subsequent search of the car occur­red
at a police station and a leather
pouch was found in the trunk. The
pouch was unzipped by police and was
found to contain $3,200 in cash. All of
the searches were conducted without a
warrant. Id. at 2160.
At trial, Ross' motion to suppress the
heroin and the cash was overruled. The
conviction was reversed by the United
States Court of Appeals for the District
of Columbia. United States v. Ross, 655
F.2d 1159 (D.C. Cir. 1981) (en bane).
Relying on Arkansas v. Sanders, supra,
the Court of Appeals held that the.
Fourth Amendment was violated by the
warrantless search of the brown paper
bag and the leather pouch. 655 F.2d at
1161. The court found that neither
search could be justified as falling within
the purview of the "automobile excep­tion"
to the warrant requirement nor as
being a search incident to a lawful ar-rest:
ld. at 1169.
The Supreme Court reversed the deci­sion
of the Court of Appeals by holding
that if the search of a lawfully stopped
vehicle was justified by probable cause,
justification would also exist for the ·
search of the entire vehicle and all the
contents of the vehicle in which the ob­ject
of the search might be concealed.
United States v. Ross, 102 S.Ct. at 2172.
... "the Court of Appeals held
that the Fourth Amendment was
violated by the warrantless search
of the brown paper bag and the
leather pouch. "
To reach its result the majority opi­nion,
written by Justice Stevens, sought
to harmonize "automobile exception"
cases such as Carroll v. United States,
and Chambers v. Maroney, both supra,
with cases involving the searches of clos­ed
containers. See United States v.
Chadwick and Arkansas v. Sanders,
both supra.
The "automobile exception" to the
warrant requirement was first ar­ticulated
in Carroll v. United States,
supra, but, according to the Court, the
scope of such a search had never been
addressed. United States v. Ross, 102 S.
Ct. at 2159. The Court in Carroll noted
that Congress had for a long period of
time drawn distinctions, for Fourth
Amendment purposes, between sta­tionary
structures such as a dwelling
house or store for which a search war­rant
might readily be obtained and the
"search of a ship, motor boat, wagon or
automobile for contraband goods,
where it is not practicable to secure a
warrant, because the vehicle can be
quickly moved out of the locality .. . "
Carroll v. United States, 267 U.S. at
153. The basis of the "automobile ex­ception"
when viewed historically
emanated from the mobility of the vehi­cle
and the perceived impracticality of
obtaining a search warrant for it.
However, as Justice Stevens noted in
Ross, the "automobile exception" is
tempered by requiring police officers
to have probable cause to believe that
contraband is contained in the vehicle.
United States v. Ross, 102 S.Ct. at
2163-2164.
The foregoing considerations led the
Ross majority to conclude that the
"automobile exception" permitted the
search of vehicles only when probable
cause existed to justify the search. Id. at
2164. In that situation, "a search is not
unreasonable if based on facts that
would justify the issuance of a warrant,
even though a warrant has not actually
been obtained." ld. at 2164.
"The basis of the 'automobile
exception' when viewed
historically emanated from the
mobility of the vehicle and the
perceived impracticality of
obtaining a search warrant for
it ...
After considering the "automobile ex­ception",
the Court in Ross focused on
the law regarding the search of movable
containers. In United States v. Chad­wick,
supra, the police had probable
cause to believe that a padlocked
footlocker contained marijuana. The
footlocker was seized from the trunk of
a car and a warrantless search of the
footlocker was conducted after the
footlocker had been taken to the offices
of federal agents. United States v.
Chadwick, 433 U.S. at 3-6. The Court
rejected the Government's argument
that ''the warrantless search was
reasonable because a footlocker has
some of the mobile characteristics that
support the warrantless searches of
automobiles." United States v. Ross,
102 S.Ct. at 2165; See United States v.
Chadwick, 433 U.S. at 12. This argu­ment
was rejected because the Court
recognized that "a person's expectations
of privacy in personal luggage are
substantially greater than in an
automobile" . United States v. Chad­wick,
433 U.S. at 12-13.
A similar fact situation was presented
in Arkansas v. Sanders, supra. There,
police officers had probable cause to
believe a suitcase contained marijuana.
The suitcase was seized after it had been
placed in the trunk of a taxi . The suit­case
was then opened by the police and
marijuana was found therein. Arkansas
v. Sanders, 442 U.S. at 755-756. The
Supreme Court held that the warrantless
search of the suitcase violated the
Fourth Amendment and the rule enun­ciated
in Chadwick. As in Chadwick, the
Court declined to extend the
"automobile exception" to justify the
warrantless searches of the items of lug­gage
although those closed containers
were found in the trunk of automobiles.
See United States v. Chadwick, 433 U.S.
at 13; Arkansas v. Sanders, 442 U.S. at
762.
The Court distinguished Ross from
Chadwick and Sanders in one very im­portant
respect. "[I]n neither Chadwick
nor Sanders did the police have probable
cause to search the vehicle or anything
within it except the footlocker in the
former case and the green suitcase in the
latter case." United States v. Ross, 102
S.Ct. at 2167 . The police in Ross,
however, "had probable cause to search
the .. .. entire vehicle." Id. at 2169. As
will be shown, this distinction proved
most significant in terms of the Court's
analysis in Ross.
''The police
probable cause
entire vehicle. ''
however, 'had
to search the ....
Another important factor was that
Ross, unlike Robbins, directly presented
the issue of whether police officers could
open containers found in an automobile
during "the course of legitimate war­rantless
search" of the vehicle. !d. at
2168. Survival of the Robbins doctrine
seemed to be in serious doubt. For the
Court, the answer to the question
presented in Ross was to be determined
by the scope of the search permitted by
the "automobile exception" to the war­rant
requirement. Id. 102 S.Ct. at 2169.
In considering what constituted the
parameters of a search permissible under
the "automobile exception", the Court
in Ross reviewed Carroll v. United
States, Chambers v. Maroney, both
supra, Husty v. United States, 282 U.S.
694 (1931) and Scher v. United States,
305 U.S. 251 (1938). Although those
cases did not directly present the issue of
whether the "automobile exception"
justified the warrantless search of closed
containers found inside the automobile,
the Court in Ross found significance in
the fact that the argument had not been
raised in those cases. "[T]hat no such
argument was even made illuminates the
profession's understanding of the scope
of the search permitted under Carroll."
United States v. Ross , 102 S.Ct. at 2169.
The Court thus appears to categorize the
failure to previously challenge extension
of the "automobile exception" to cover
warrantless searches of closed containers
as the bar's acceptance that closed con­tainers
can be searched without a war­rant
when a search of the automobile is
otherwise justified. That a particular
argument has not been raised hardly
seems an adequate basis upon which to
justify so broad an assumption; especial­ly
where such an important and troubl­ing
aspect of the Fourth Amendment is
involved. The very distinct expectations
of privacy which individuals have in
their automobiles and in closed con­tainers
within the automobile may
operate to justify a search of the former
but not of the latter. These distince
privacy interests are seemingly ignored
by the Court's sweeping assertion.
"The Court thus appears to
categorize the failure to
previously challenge extension of
the 'automobile exception ' to
cover warrantless searches of
closed containers as the bar's
acceptance that closed containers
can be searched without a
warrant when a search of the
automobile is otherwise
justified."
Moreover, the Court's assumption
contradicts what had previously been
enunciated in Arkansas v. Sanders,
supra: " [T]he reasons for not requiring
a warrant for the search of an
automobile do not apply to searches of
personal luggage taken by police from
automobiles." !d. , 442 U.S. at 765 . For
that reason, the Court in Sanders could
"find no justification for the extension
of Carroll and its progeny to the war­rantless
search of one's personal luggage
merely because it was located in an
automobile lawfully stopped by the
police." !d. at 765 . Obviously, some
members of the legal profession did not
believe that the "automobile exception"
alone justified the warrantless search of
closed containers found in an
automobile. But if Sanders proved pro­blematical
to the Court in Ross, a
resolution was had in Ross by rejecting
that portion of Sanders which was relied
upon by the plurality in deciding Rob­bins.
United States v. Ross, 102 S.Ct. at
2172.
The "automobile exception" grew out
of the very real and practical problems
confronting police officers who lawfully
stop an automobile in order to conduct a
search. The Court in Ross sought to
utilize these practical problems as a
justification for the warrantless search
of containers and other packages that
are located inside an automobile. If the
"automobile exception" did not encom­pass
such containers, the Court feared
that "the practical consequences of the
Carroll decision would be largely
nullified." ld. at 2170.
As noted above, the argument that
warrantless searches of luggage found in
automobiles were reasonable because
the luggage had a degree of mobility
similar to the automobile was rejected in
United States v. Chadwick, 433 U.S. at
12. The same argument would seem to
apply with equal force to other closed
containers. Moreover, since there is a
greater expectation of privacy in such
containers than in an automobile (see
generally United States v. Chadwick, Id.
at 12-13), there is less justification for
the warrantless search of containers as
opposed to an automobile. Thus, the
(Continued to page 5)
Louisville Law Examiner, December 1982 PageS
r• ng, Going But Not Gone •••
(Continued from pa~e 4)
Court's fear that "practical conse­quences"
of the "automobile
exception" would be negated if closed
containers were beyond the scope of
automobile searches seems more
speculative than real. First, the con­tainer
itself could be seized and taken
before a magistrate for the issuance of a
search warrant. Second, the owner of
the container could consent to the search
to avoid the delay caused by the procure­ment
of a search warrant. Last, the im­practicality
of obtaining a search war­rant
would seem non-existent in situa­tions,
such as Ross, where the
driver/ owner of the vehicle and the con­tainers
had been arrested prior to any
search of the containers. In these latter
situations, no doubt the containers
believed to contain contraband would
already have been seized by the police
and would then be taken to a secure
location, e.g. a police station, where
they would then be opened. Compliance
with the warrant requirement could
hardly be considered burdensome in this
latter situation.
"Thus, the Court's fear that
'practical consequences' of the
'automobile exception' would be
negated if closed containers were
beyond the scope of automobile
searches seems more speculative
than real. ''
In holding that the "automobile ex­ception"
encompassed warrantless sear­ches
of containers found inside the vehi­cle,
the Court in Ross relied heavily on
its observation that "a lawful search of
fixed premises generally extends to the
entire area in which the object of the
search may be found ... " United States
v. Ross, 102 S.Ct. at 2170. Thus, as the
Court noted, a search for weapons in a
house would justify searching in closets
and other containers where the weapons
might be found. !d. at 2170. From the
foregoing premises, the Court concluded
that, "A warrant to search a vehicle
would support a search of every part of
the vehicle that might contain the object
of the search." !d. at 2170. As the Court
further noted when a warrant directs
that a search be executed upon a con­tainer
believed to "conceal the object of
a search," the container can be opened
immediately and the person's expecta­tion
of privacy must yield "to the
magistrate's official determination of
probable cause." !d. at 2171. The same
rule was applied to the individual's
privacy interest in his automobile and its
contents. !d. at 2171-2172.
Certainly the issuance of a search war­rant
would enable police officers to
search in those areas, as specified in the
warrant, where the object of the search
might reasonably be concealed and
discovered. The Court in Ross found the
foregoing principle equally applicable to
the warrantless search of movable con-
"Certainly the issuance of a
search warrant would enable
police officers to search in those
areas, as specified in the warrant,
where the object of the search
might reasonably be concealed
and discovered. "
tainers found in an automobile. Accor­dingly,
the majority opinion concluded
that "If probable cause justified the
search of a lawfully stopped vehicle, it
justifies the search of every part of the
vehicle and its contents that may conceal
the o_bject of the search." !d. at 2172.
The scope of any search justified by the
"automobile exception" to the warrant
requirement "is no broader and no nar­rower
than a magistrate could
legitimately authorize by warrant." !d.
at 2172.
Notwithstanding the apparent
simplicity of the rule enunciated in Ross,
the majority's conclusion, in effect, cir­cumvents
the essence of the warrant re­quirement.
In applying the scope of the
"automobile exception" to encompass
warrantless searches of movable con­tainers
found inside a vehicle, the Court
in Ross deviates from established Fourth
Amendment doctrine because deter­mination
of probable cause to search
such containers is no longer made by a
"neutral and detached" magistrate but
rather is made by the police officer who
is to conduct the search at the scene.
In prior decisions, the Fourth Amend­ment
had been interpreted as requiring
that a "neutral and detached"
magistrate determine whether probable
cause existed for the issuance of a search
warrant. See Johnson v. United States,
333 U.S. 10, 13-14 (1948); Coolidge v.
New Hampshire, 403 U.S. 443, 449-450
(1971); Schadwick v. City of Tampa, 407
U.S. 345, 350 (1972). This principle
emanated from a recognition of the
distinct interests underlying the actions
of law enforcement authorities and the
function of a reviewing magistrate. For
the Court in Ross to enable police of­ficers
to determine whether probable
cause exists to support the search of
movable containers located inside an
automobile represents a significant
departure from previously enunciated
Fourth Amendment principle, but it is
one that the majority obviously believed
necessary in order to advance law en­forcement
interests in a particularly con­fusing
area of constitutional law. See
also Justice Powell's concurring opinion
in United States v. Ross, 102 S.Ct. at
2173. The dissenting opinion of Justice
Marshall pointedly criticized the majori­ty
for ignoring "the critical function
that a magistrate serves." !d. at 2174
(Marshall, J ., dissenting).
"Thus, the Court's analogy to the
scope of a search conducted with
a warrant is inapposite to
situations involving warrantless
searches and the reliance on that
rationale to justify the type of
warrantless search conducted ... ''
Although issuance of a search warrant
may justify a search into places where
the object of the search may be conceal­ed,
!d. at 2170, it does not follow that
such reasoning supports the warrantless
search of movable containers found in­side
automobiles. The safeguard of hav­ing
a pre-search determination made by
a magistrate as to the existence of pro­bable
cause is absent from the type of
searches permitted by Ross. Thus1 the
Court's analogy to the scope of a search
conducted with a warrant is inapposite
to situations involving warrantless sear­ches
and the reliance on that rationale to
justify the type of warrantless search
conducted in Ross is misplaced.
Justice Blackmun in his concurring
opinion stated that he was joining the
majority in order that an "authoritative
ruling" be made on the issue. !d. at
2173. He quite correctly observed that
the majority opinion should have the ef­fect
of clarifying "a good bit of the con­fusion
that has existed'' in the area of
automobile and container searches. !d.
at 2173.
One's reasonable expectation of
privacy continues to be considered by
Justice Powell as a relevant and decisive
factor in search cases but he also con­siders
that expectation to be a limited
one with respect to automobiles. /d. at
2173 (Powell, J., concurring). In light of
Carroll and Chambers, Justice Powell
reached the conclusion that Ross "does
not depart substantially from Fourth
Amendment doctrine in automobile
cases." Id. at 2173. Justice Powell noted
the guidance Ross would provide the
police and courts in automobile search
cases. !d. at 2173. Obviously, he believ­ed
the need for guidance and clarity
justified deviations from established
Fourth Amendment principles.
Justice White believed that Ross
should have been affirmed on the basis
of Robbins v. California, supra. He also
indicated his agreement with much of
Justice Marshall's dissenting opinion.
!d. at 2173 (White, J., dissenting).
"He did not find the two
justifications supporting the
warrantless searches of
automobiles, i.e. mobility and a
diminished expectation of
privacy, capable of supporting
the warrantless search of
containers found inside the
vehicle."
In a lengthy dissenting opmwn,
Justice Marshall, with whom Justice
Brennan joined, accused the majority of
not only ignoring precedents but also of
"repealing the Fourth Amendment's
warrant requirement." /d. at 2173-2174
(Marshall, J ., dissenting).
For Justice Marshall, there is no
justification within the Fourth Amend­ment
for replacing a magistrate's deter­mination
of probable cause to conduct a
search with that of a police officer who
is on the scene. !d. at 2174, 2177 (Mar­shall,
J., dissenting). He did not find the
two justifications supporting the war­rantless
searches of automobiles, i.e.
mobility and a diminished expectation
of privacy, capable of supporting the
warrantless search of containers found
inside the vehicle. He believed the
mobility aspect to be non-existent
because the container could be readily
seized and brought to a magistrate.
Relying on Arkansas v. Sanders, 442
U.S. at 764-765, he noted the
individual's greater expectation of
privacy in the contents of a container as
opposed to an automobile. United States
v. Ross, 102 S.Ct. at 2176 (Marshall, J.,
dissenting). Thus, the warrantless search
of a movable container could not be sup­ported
on either the "mobility" or
"privacy interests" theories. The ma­jority,
in Justice Marshall's words,
"simply creates a new 'probable cause'
exception to the warrant requirement for
automobiles." /d. at 2176 (Marshall, J.,
dissenting). It was Justice Marshall's
position that Chadwick, Sanders, and
Robbins led to the conclusion that
movable containers found inside an
automobile were entitled to the same
safeguard of the warrant requirement as
if such containers had been found in a
place other than an automobile. !d. at
2177.
From a practitioner's standpoint, it
appears that the Court in Ross has in­deed
developed some clear guidelines in
what has long been a perplexing and
confusing area of the law. The Court's
analysis in reaching its result will no
doubt be the subject of much debate by
commentators, and only time will enable
determinations of the practical effect
and applicaton of Ross. Yet, the Court
did not give police officers carte blanche
to utilize the lawful stop of an
automobile as an opportunity to search
the entire vehicle and all movable con­tainers
within it. Restrictions have been
imposed on the scope of a Ross search.
"The scope of a warrantless
search of an automobile is thus
not defined by the nature of the
container in which the
contraband is secreted. "
As the Court stated, "The scope of a
warrantless search of an automobile is
thus not defined by the nature of the
container in which the contraband is
secreted. Rather, it is defined by the ob­ject
of the search and the places in which
there is probable cause to believe that it
may be found." /d. at 2172. Thus, if the
police had probable cause to believe that
the driver of an automobile had used a
full-sized shotgun in the commission of
a robbery shortly before the vehicle was
actually stopped, Ross would permit the
police to search the trunk or any other
container capable of holding the
shotgun. However, Ross would not per­mit
the police in searching for the
shotgun to search the glove compart­ment
or, perhaps, a container the size of
a shaving kit. See examples given by the
Court in Ross. /d. at 2172.
Ross can become problematical in­sofar
as the scope of a warrantless
search is "no broader" than that which
a magistrate could authorize by warrant.
Previously, the breadth of the search
would have been determined prior to the
search by a "neutral and detached"
magistrate while reviewing the facts ar­ticulated
by police officers as supporting
probable cause for the issuance of the
search warrant. With the police officers
able to make the probable cause deter­mination
at the scene, courts will be put
in the position of attempting to deter­mine
from hindsight whether a review­ing
magistrate would have authorized so
broad a search on the facts known prior
to commencement of the search. This
development is at odds with the principle
that hindsight cannot be used to justify
the reasonableness of a search or
seizure. See generally United States v.
Martinez-Fuerte, 428 U.S. 543, 565
(1976). Thus, it is reasonable to an­ticipate
that future litigation will involve
the determination of whether the
breadth of a particular search was per­missible
under Ross.
This development is at odds with
the principle that hindsight can­not
be used to justify the
reasonableness of a search or
seizure.
As is characteristic of many Fourth
Amendment decisions, Ross is by no
means the ultimate resolution of a com­plex
and confusing area of constitu­tional
law. However, it does clarify the
scope of permissible, warrantless sear­ches
of containers found inside
automobiles, even if it does so at the ex­pense
of creating a significant departure
from well-established Fourth Amend­ment
precedent. Whether the result
reached in Ross indicates a trend toward
promoting law enforcement interests
over adherence to traditional Fourth
Amendment doctrine will be examined
in the context of the so-called "good
faith" exception to the exclusionary rule
in the second part of this analysis.
I',,.H IJ
Page6
·-~ t • r · · • ·: ~ · .- • • .. ' t 1 ~ 1 f • ·" " ; f / 'l 1 f f t I , J ' 1
{;ouisville Law Examiner, December 1982
Murphy's Law Besets
National Moot Court
Tea111
By Charles F. Herd, Jr.
The assignment seemed simple
enough: write an appellate brief favor­ing
petitioner or respondent, whichever
had been assigned, and then argue orally
before practicioners sitting as judges.
But things are not always as they seem,
as Team A's Babs Elliott, Karen Holt,
and Bob Steinmetz and Team B's Bob
Drane, Charles Herd , and Howard Joe
Scalone discovered.
Writing a 40 page appellate brief (ex­clusive
of statement of facts, procedural
history, and cites) in Supreme Court
fashion and according to the Harvard
Citator is no small task, as 2 a .m.
writing frenzies will attest. The fact
situation was at best challenging as it in­volved
the "slippery" issue of whether
habeas corpus lies for a prisoners whose
6th Amendment confrontation right had
been denied because a grand jury witness
was unavailable at the time of trial, and
if so, whether the "indicia of reliability"
test as established in Ohio v. Roberts is
sufficient enough to overcome the 6th
Amendment guarantee. Several judges
perceived the issue as: whether the right
to confront an opposing witness so con­stitutionally
fundamental that it cannot
be denied even if a witness is not present
to testify? And if so, does that not fly in
the face of Justice Powell's majority
opinion in Stone v. Powell which rejects
writs of habeas corpus when state ap­pellate
courts have already litigated the
issue? It did not take long to discover
that there is no "correct answer" or
clear truth here, for law and policy fall
evenly on both sides. It was an ideal
moot court problem - current, impor­tant,
and impossible to solve!
Both teams pulled "round-the­clockers"
getting the final draft of the
briefs duplicated and in the mail. Team
B's arrival at the post office at midnight
sharp was fiasco non paraliel. It would
all be downhill from here, or so we
thought.
Karen Holt first sensed onimous
foreboding as we entered the 18
passenger, twin engine commuter plane
in Pittsburgh. I remember seei ng her
reading_ the instructions on the air sick
bag when the cabin lights went dark . Ar­riving
in Charlottesville/ Wahoovia air­port
at 10 p.m., we were confident that
victory was within our grasp, for we had
practiced our oral argument, sans notes,
before four local attorneys, three federal
clerks, and a federal judge. We were
ready to clash wits and words before
" THE" Supreme Court!
The force might have been with us,
but our luggage was not. It was
so mewhere ove r Pi t t sbur g h ,
Washington, or perhaps Baltimore. We
were forced to argue against " 3-pieced"
opponents !n our blue jeans, corduroys,
and a borrowed jacket from Professor
and coach, J .J . " Major" Ragan . The
comedy of errors had begun.
Team A argued against the University
of Virginia (on their home turf) in round
one. Though well argued , our team was
narrowly defeated by the Wahoos based
on a comprehensive score (including the
written grade from the team's brief)
although our oral delivery was probably
superior.
The justices had not learned of our
lost luggage tale of woe until after the
round, so they knew not why we were so
casually attired and this perhaps entered
their decision. Team B defeated the
University of West Virginia, worn pants
and misfit jacket notwithstanding, based
on superior oratory persuasiveness, only
to learn five hours later that the brief
scores had been confused. The justices
recalculated their mathematics and
decreed the University of West Virginia
the winner ... by .03 percent of a percen­tage
point!
We were certainly discouraged and a
bit disappointed. The confidence of the
spartans was fading fast.
Most of the luggage arrived about 4
p.m. so we were able to put together
presentable clothing for the second
rounds. Team A, being silver-tongued,
out ar ~ ,, e d th eir opponents from
William and Mary, but once again the
bedeviled brief score handed us a narrow
defeat. Team B's down-home style sue-
A moment in history:
JAMES SPEED
James Speed (1812-1887) taught in the
University of Louisville Law Depart­ment
both before and after the Civil
War. Descended from an English family
that settled in Surry County, Virginia,
around the end of the seventeenth cen­tury,
Speed attended law school at Tran­sylvania
University in Lexington before
beginning practice in Louisville in 1833.
In 1849 he wrote a series of anti-slavery
letters to the Louisville Courier, an act
which hampered his political aspirations
until the beginning of the Civil War.
Speed opposed secession and sought to
avoid war between the states, but once
the conflict began he became President
Abraham Lincoln's principal advisor on
Kentucky affairs, according to historian
E. Merton Coulter. In 1864 Speed went
to Washington as attorney-general, a
post which he kept after Lincoln's
assassination. Under Andrew Johnson,
Speed argued that Confederate Presi­dent
Jefferson Davis should be tried in
the civil courts, opposed presidential
veto of the Freedman's Bureau bill, and
supported the Fourteenth Amendment.
Finding himself more and more in
disharmony with the president, Speed
resigned in 1866 and returned to
Louisville. As a law professor, he fre­quently
invited students to his home,
where he afforded them the courtesy of
distingui shed guests and matched wits
with them in discussing legal matters.
Speed grew more conservative in later
years and in 1884 supported the
presidential candidacy of Grover
Clevelend. This likeness of Speed ap­peared
in The History of the Ohio Falls
Cities and Their Counties (1882).
-Courtesy of the
University Archives
Photo by Mark Ashburn
Moot Court team top row, from left: Bob Steinmetz, Karen Holt and Babs Elliot.
Bottom row, from left: Bob Drane, Charles Head and Joe Scalone.
cumbed to the polish of the Richmond
team . We were through!
On the flight home I couldn't help
recalling the sage wisdom of W.C.
Fields: "If at first you don't succeed,
try, try again. Then quit. There's no use
being a damn fool about it." I told the
monk sitting next to me of our disap-pointing
weekend . He said to remember
the epigram: "The lesson that most of us
on this voyage never learn, but can never
quite forget, is that to win is sometimes
to lose." He told me the inverse is also
true. I thought for a moment, told him
I'd remember, and asked who gave such
advice. He said "Richard M. Nixon."
Journal of
Family Law
Mail to:
Journal of Family Law
University of Louisville
School of Law
Louisville, KY 40292
0 Vol. 21, No. 1 (S4 .00)
0 Vol. 21 ($15 .00)
Name ______________________________ _
Address-----------------------------
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A Quarterly Publication of the Universit}· of Louisville School of Law
Louisville Law Examiner, December 1982 Page7
the time is now .
Tips on Seeking
Employment
By Mike Kirk
What will you be doing this summer?
"Who cares?" you reply unconcernedly,
the summer is six months away and I
have more immediate concerns. Finals,
papers and how many more shopping
days there are until Christmas seem
more important right now than summer
employment. An attitude like that may
help you do well in school, but it will
also help you get a good tan next sum­mer
as you lay in the back yard wishing
you had looked for a job the previous
fall .
Phyllis Leibson, director of the Place­ment
Office says the time to act is
NOW! In a recent interview she was ask­ed
to examine the prospects of law
students in each class and offer some ad­vice
on what is available to the student.
She also offered tips on job-hunting.
First, Mrs. Leibson was asked to give
advice to the first or second year student.
for next summer. She replied that the
traditional option of clerking is not the
student's only choice. The student can
undertake further education such as
summer school or study programs
abroad. The advantage of such a choice
is that it can make the student a more in­teresting
person as well as expanding the
student's experiences. As the saying
goes, all work and no play makes Jack a
dull boy.
If the tudent chooses the option of
clerking, Mrs. Leibson pointed out that
there are two preliminaries that must be
considered : location and environment.
Environment refers to the type of posi­tion
the student selects such as a clerk in
a law firm, a government job or an in­tern
ship with a corporation. The sum­mer
offers the student a chance to
become acquainted with locations that
might offer different and more diverse
opportunities after graduation.
Next, the student must draft a resume
which exhibits his interests as well as
qualifications . Once the resume is com­pleted
it must be sent out with a cover
letter, and contact should be made with
the employer personally with the aim of
securing an interview . There is often a
partner or department which is assigned
to interviewing and hiring new
employees. Contact should be made with
this person. This ensures that any con­tact
you make with that office will go
straight to that person, rather than lying
on the desk keeping coffee stains off the
finish .
Once the student has done all of this,
he may not be working for a large firm
downtown and sitting in the firm's box
at the Derby. The reason for this is that
most of the large firms recruit in the fall
and have completed their interviews by
the end of November. The large firms
are more concerned with academic ex-cellence
and snap up the top prospects
early. This does not mean that the
average student is out of luck, however.
In fact, says Mrs. Leibson, there are
many possibilities if the student takes ac­tion
immediately. Many small and
medium size firms do not know what
their needs for the summer will be and
will not make that decision until the spr­ing.
Also positions can be had with
government agencies and public interest
groups such as the National Lawyer's
Guild or Legal Aid. If the student is
overly ambitious and has an interest in
corporate law he may seek a position
with a corporation. This means he must
secure an interview and suggest that the
corporation hire him for a position
which does not exist at present but which
the student can create if it will benefit
the company.
All of this advice is to help the
underclassman lay a groundwork for his
future employ after graduation. The
next position Mrs. Leibson was asked to
examine was that of a second-year stu­dent
looking beyond next summer to
post-graduate employment. She pointed
out that all of the advice pertaining to
the underclassmen looking for summer
employment applies here as well.
The wise student can turn a summer
job into full-time employment following
graduation. It behooves a student to
gain summer employment with an office
in which they would consider working
after law school.
A list should be drawn up with many
options because the student who has few
choices can be easily disappointed if they
do not pan out. Again, Leibson stressed
that the student should make personal
contact with the employer or hiring part­ner
who will know when a position
opens up and will be aware that the stu­dent
is available to fill it. The Placement
Resource Library has this information
and the Placement Office has profiles on
many firms and companies. These pro­files
can show the student what the firm
or company offers.
The final position Leibson examined
was that of the third year student who is
looking toward graduation. Her first
piece of advice is that if the student has
not been offered employment - do not
panic. Some employers will not decide
how to fill positions in their firms or
companies until the spring because they
do not know their needs yet. Again, the
key word is now for making contacts.
One course which the law school of­fers
that can help is the clinical programs
for Legal Aid, the Public Defender's Of­fice
and the County Prosecutor's Office.
They provide the student with practical
experience. Also the student should at­tend
the Placement Office seminars dur­ing
the spring.
Visual G1rts
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502·241·5541
News-In-Brief
Congratulations to recent
graduates John P. Farrar and Ed Pot­ter
who passed the Illinois Bar Exam.
•••••
Congratulations also to Linda
YorkS. Park and Keith D. Hardison,
both UofL graduates, for being ap­pointed
Assistant Commonwealth's
Attorneys.
*****
Concern for Dying, an educational
council founded in 1967, sponsors an ·
interdisciplinary program for
students in the health care and legal
professions interested in developing
skills for dealing with the needs of the
terminally ill and their families.
The Fourth. Annual Leadership
Training Weekend will take place
March 25 through March 28, 1983, at
Stony Point Conference Center, in
Stony Point, New York. The legal
medical, ethical and psychologicai
issues in critical and terminal care
decision-making will be considered.
Students will be selected to attend
the weekend on the basis of their in­terest
in the field of death and dying
and their willingness to assume
leadership responsibilities.
If you are interested in being con­sidered
for the Leadership Training
Weekend, write to: Biance Katris,
Program Coordinator, Concern for
Dying, 250 West 57 Street, New
York, N.Y. 10107, (212) 246-6962.
The deadline for applicants Is
January 10, 1983.
Ritchie Speaks on
De111onstrative Evidence
By Crystal Collins
"Post trial interviews of jurors are
often depressing... the vanquished at­torney
very often discovers that the
deliberating jury gave scant considera­tion
to his most precious points," said
Robert W. Ritchie at a recent Criminal
Law seminar sponsored by the Universi­ty
of Louisville School of Law. "The
lawyer who fails to augment his trial
presentation with visual stimuli -
demonstrative evidence - is entering
battle without one of the most potent
weapons."
Mr. Ritchie, a Knoxville, Tennessee
attorney, is president-elect of the Na­tional
Association of Criminal Defense
Lawyers.
What is demonstrative evidence? In
the July 1980 Trial magazine, Melvin M.
Belli, past president of the American
Trial Lawyers Association, defined it as
"anything which appeals to the jurors'
sense. It can be something for them to
look at, to touch, to smell, to taste, or to
listen to ."
According to Mr. Ritchie, it is the
prosecutor that has led the way in
demonstrative evidence. ''Unfortunately
for defendants, the prosecutor has long
recognized that demonstrative
evidence's capacity to arouse emotion,"
in certain circumstances, is closely
related to the jurors ability of retention.
"Gaudy display of murder weapons ...
bloody, bullet-riddled clothing, and
wounds and scars is a standard tactic of
prosecutors, and a drug trial is not a
drug trial until each juror has held the
evil narcotic," added Mr. Ritchie.
Effective presentation of
demonstrative evidence requires pretrial
planning. "If he has prepared," said
Mr. Ritchie, "defense counsel will be
able to bolster his case by utilizing one
or more of the types of demonstrative
evidence . Among them, are
photographs, diagrams, police
documents, transcripts of favorable
testimony, charts, scene mock ups and
experiments.
Photographs, once authenticated,
should pose few admissibility problems.
According to Mr. Ritchie, "the defen­dant
seldom receives maximum benefit
from photographs because of counsel's
failure to enlarge the pictures before
trial." Magnification of the photo
heightens the visual impact while enabl­ing
the lawyer to focus the jury's atten­tion
on the photograph at the proper
moment.
For effective use of a diagram, it must
be "drawn to scale and depict the scene
at the time of the alleged offense ... when
a not-so-exact diagram is challenged, the
defendant can usually avoid admissibili­ty
problems simply by acknowledging
that although the scale is not perfect, the
diagram reasonable depicts the scene
and therefore assists the jury in
understanding the witness' testimony."
Additionally, police documents and
transcripts of favorable testimony
"should not stay on the counsel table
during trial," said Mr. Ritchie. If they
contain helpful information, have them
enlarged.
The use of charts is becoming more
and more important. "In criminal
cases," Mr. Ritchie explained, "charts
based upon competent evidence may
themselves be admitted into evidence."
An example of a chart would be one that
lists eyewitnesses descriptions, e.g.,
eyewitness Jones described the assailant
to be 5 feet 7 inches, with brown hair
and mustache, weighing about 140
pounds; eyewitness Smith described the
assailant to be 5 feet 9 inches with
blonde hair, mustache and beard,
weighing about 160 pounds. Your client
is actually 6 feet, with brown hair, no
mustache or beard, weighing 175
pounds. A chart listing these incon­sistencies
will have an effect on the
jurors.
Displays simulating the crime scene,
or scene mockups, "can increase a
witness' ability to communicate with the
jury." The scene must, however, be
reasonably produced.
Experiments done in the courtroom,
said Mr. Ritchie, are not worth the risks.
"The courtroom is generally not the
place to experiment with anything."
A problem encountered with the use
of demonstrative evidence is admissibili­ty,
it simply must be relevant to be ad­missible.
According to a recent article in
the Criminal Law Bulletin, "evidence is
relevant if it possesses any tendency to
make the existence of any fact of conse­quences
to the determination of the act
on more probable or less probable that it
would be without the evidence."
RANARD'S PICTURE
SHOW
Photographs as Documents
John Ranard 502-584-8747
PageS Louisville Law Examiner, December 1982
n
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~cason's
~rtttings
And Best Wishes
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Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40208
Lou1s D. Brande1s
r ; Law Examiner
Volume 8
Leibson elected
to High Court
Post
........................ Page 1
Brandeis Brief
Series Continues
with an analysis of
The Exclusionary Rule
........................ page 3
Moot Court
Conquers Biggest
Foe .................. Page 6
Tips For
The Job Seeker
........................ Page 7
December 1982 Number 3