Principles of Criminal Procedure: Investigation, 2d
Authors:
LaFave, Wayne R. / Israel, Jerold H. / King, Nancy J. / Kerr, Orin S.
Edition:
2nd
Copyright Date:
2009
19 chapters
have results for Principles of Criminal Procedure
Chapter 1. The Legal Structure 145 results (showing 5 best matches)
- A variety of different procedures are utilized in the enforcement of the substantive criminal law. The totality of those procedures constitutes what is commonly described as the “criminal justice process” or the “criminal justice system.” Investigatory procedures are merely one, largely distinctive grouping in that criminal justice process. If those procedures are successful, they are followed by a series of additional procedures, which include the charging of the offender, the preparation for adjudication, the adjudication by guilty plea or trial, and the sentencing of persons convicted. The principles underlying the legal regulation of those post-investigation steps are discussed in a companion volume,
- The federal system, the District of Columbia, and each of the states has an extensive group of statutory provisions regulating the criminal justice process. Initially, each jurisdiction has a series of sequentially presented provisions that typically are described as the jurisdiction’s “code of criminal procedure.” In only about a third of the jurisdictions, however, are these true codifications of the law of criminal procedure. Here, the “code” does set forth the basic governing standards, often accompanied by considerable procedural detail, in a conceptually integrated, comprehensive pattern of regulation. Such statutes typically have provisions on various aspects of investigative authority, including: arrest authority; issuance of summons or citations as alternatives to arrest; search authority pursuant to a warrant; electronic surveillance authority; and detention and disposition of the arrested person. Other aspects of investigation, such as police interrogation, are rarely...
- For over a century, common law rulings were the primary source of the law governing the criminal justice process in the states. However, the introduction of comprehensive codes of criminal procedure, followed by the adoption in many states of extensive court rules, and then by the constitutionalization of the law of criminal procedure, combined to sharply reduce the role of common law rulings. Today, for all but a few states, the legal standards governing most aspects of the criminal justice process come from a combination of the federal constitution, the state’s own constitution, state statutes, and state court rules (all subject, of course, to judicial interpretation). Common law rulings still dominate as to certain aspects of courtroom procedure, but only infrequently as to investigative procedures. The grand jury investigation is one aspect of investigation in which common law rulings continue to play a significant role in many jurisdictions.
- The relationship between the Fourteenth Amendment and the Bill of Rights was first considered by the Supreme Court in the criminal procedure context in (1884). The petitioner Hurtado had been tried and convicted of murder following the initiation of charges on a prosecutor’s information and a determination of probable cause by a magistrate at a preliminary hearing. Hurtado claimed that Fourteen Amendment due process had been violated by the state’s failure to initiate prosecution through an indictment or presentment of a grand jury. In rejecting that claim, the Court acknowledged that prosecution by indictment had a long common law history, dating back to the Magna Charta, and was required in the federal system by the Fifth Amendment’s grand jury clause. However, the due process clause of the Fourteenth Amendment applied to the states only the same content as the due process clause of the Fifth Amendment applied to the federal government. Prior to the adoption of the Fourteenth...
- The most extensive explanations of the special need for expansive interpretations of the Constitution’s criminal procedure guarantees are found in academic commentary rather than Supreme Court opinions. Several of the rationales offered in that commentary, however, do find support in a series of comments, typically brief, made occasionally in opinions for the Court and more frequently in the opinions of individual justices. The rationales having such support look primarily to three factors, each discussed below: (1) the relationship of criminal procedure to the general protection of civil liberties; (2) the relationship of criminal procedure to the protection of minorities; and (3) the presence of various structural elements that enhance the Court’s authority in exercising constitutional review of the criminal process.
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Preface 4 results
- This book is intended to be used primarily by law students while engaged in the study of the subject of criminal procedure. This is one of two concise hornbooks that we have written on this subject; the other is
- Criminal Procedure
- It has been our effort to provide as much information and analysis as is possible in a relatively short and easy to use (and carry) paperback volume. By excluding any documentation via footnotes of the various subjects considered and discussed herein (an approach requiring extraordinary self-restraint by four law professors!), we have been able to use virtually all of the space in this conveniently-sized paperback for textual elaboration of the subjects covered. Leading Supreme Court cases and, occasionally, lower court cases of special significance, are identified in the text by name and date only; full citations are available in the Table of Cases. We have provided both a very detailed Table of Contents and also an Index so that a student may easily locate topics of particular interest.
- While all four of us stand responsible for the work on this book and its companion volume, , as a whole, the initial responsibility for individual chapters in these two concise hornbooks was determined according to the allocation of responsibilities in preparation of the 7–volume treatise. Hence, as to this book Wayne LaFave had initial responsibility for chapters 2, 4–6 and 8–9, Jerold Israel for chapters 1, 7, and 10, and Orin Kerr for chapter 3. Each of us would appreciate hearing from readers who have criticisms or suggestions relating to the chapters for which we had initial responsibility.
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Chapter 7. Grand Jury Investigations 226 results (showing 5 best matches)
- discounted the non-criminal cases by explaining that the availability of the privilege there rested not on the language of the self-incrimination clause, but on the authority of the Court to craft protective procedures to implement the basic constitutional right. Four justices described a witness’ exercise of the privilege outside of a criminal case as the product of a prophylactic rule (see § 1.5(f)), designed to ensure that the Fifth Amendment was not later violated by the admission of that witness’ compelled statement in a criminal trial. Two described that availability as resting in “law * * * outside the Fifth Amendment’s core,” which provided “complimentary protection” to the core’s prohibition of “courtroom use of a criminal defendant’s compelled self-incriminatory testimony.”
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- The use of immunity grants to preclude reliance upon the self-incrimination privilege predates the adoption of the Constitution. The English adopted an immunity procedure, known as providing “indemnity” against prosecution, “soon after the privilege against compulsory self-incrimination became firmly established,” and a similar practice was followed first in the colonies and then in the states. Not surprisingly, (1896) concluded that the immunity procedure was consistent with the history and purpose of the Fifth Amendment privilege. The Court stressed that the Fifth Amendment could not be “construed literally as authorizing the witness to refuse to disclose any fact which might tend to incriminate, disgrace, or expose him to unfavorable comments.” The history of the Amendment clearly indicated that its object was only to “secure the witness against criminal prosecution.” Thus, the self-incrimination privilege had been held inapplicable where the witness’ compelled testimony would...
- In the course of a grand jury investigation and a subsequent prosecution, the prosecutor or assisting personnel may have need to reveal grand jury matter to third parties in a variety of settings relating to the resolution of the investigation and prosecution. These include asking a possible witness about grand jury matter in determining whether that person should be subpoenaed, asking a possible recipient of an immunity grant about grand jury matter, asking a grand jury witness or a trial witness about grand jury matter not provided by that witness, and revealing grand jury matter to the defendant or defense counsel in the course of plea negotiations or providing informal discovery. While such disclosures are made in the performance of the prosecutor’s “duty to enforce the criminal law,” here, unlike disclosures made under that principle to investigative personnel, the disclosure is to persons who would not constitute agents of the prosecutor and therefore would not be subject to...of
- analysis of the function of the “criminal case” phrasing in the Fifth Amendment had significance far beyond the grand jury. It led to a long line of cases holding the self-incrimination privilege available to witnesses in various non-criminal proceedings, including the administrative agency investigations discussed in § 7.1(d). These rulings traditionally were viewed, consistent with analysis, as reflecting the command of the Fifth Amendment itself; but that position seemingly was rejected by a majority of the Court in did not involve the exercise of the privilege by a witness in a non-criminal proceeding, the Court considered the non-criminal cases relevant to the question before it: whether the Fifth Amendment was violated by coercive interrogation of a suspect that compelled a statement which was never used against the suspect in a criminal case (see § 5.2). The non-criminal cases were deemed relevant because the privilege was being made available to witnesses in those...criminal
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Chapter 6. Identification Procedures 93 results (showing 5 best matches)
- When the question is the reliability of the in-court identification, the issue is phrased in terms of whether the earlier suggestive procedure created “a very substantial likelihood of irreparable misidentification.” When, on the other hand, the question is the reliability of the earlier identification occurring in the context of the unnecessarily suggestive procedure, the standard is quite similar; the same language, “with the deletion of ‘irreparable,’ ” is utilized. It is unlikely but theoretically possible that there could be a risk of misidentification which was substantial but not irreparable, meaning that in a particular case applying the rule the pretrial identification would be suppressed but not the at-trial identification by the same person. Both issues necessitate evaluation of “the totality of the circumstances,” and the factors to be considered, the Court explained in “include the opportunity of the witness to view the criminal at the time of the crime, the witness’...
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- rule, holding instead that the principles in those cases would not be applied retroactively but would affect only those identification procedures conducted after the date those decisions were handed down. But the Court then went on to recognize another basis upon which identification testimony could be challenged on constitutional grounds. It must be determined, said the Court in by a consideration of “the totality of the circumstances,” whether the confrontation “was so unnecessarily suggestive and conducive to irreparable mistaken identification” that the defendant was denied due process of law. As the Court later explained, when the issue is whether a witness at the earlier identification may now identify the defendant at trial, then it must be determined whether the identification procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” “While the phrase was coined as a standard for determining whether an in...
- holding is stated in terms of a right to counsel at a “lineup,” unquestionably it extends beyond that. In was more expansively stated as being “that a corporeal identification is a critical stage of a criminal prosecution for Sixth Amendment purposes,” and thus the Court concluded that there was a right to counsel at a one-on-one showup. Indeed, as the Court observed, such a procedure is so highly suggestive that the need for counsel is especially great. The identification in prosecutor asked a rape victim to point out her assailant in the courtroom, but the Court rejected the contention that there is no right to counsel at an identification procedure conducted in the course of a judicial proceeding. Though the more formal proceeding involved in may have reduced substantially the chances of undetectable suggestiveness as compared with the typical police lineup, this was offset in the eyes of the Court by the fact that in the judicial setting the lawyer could more readily have...
- (a) The Problem of Misidentification.
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Table of Cross–References 2 results
Chapter 4. Police “Encouragement” and the Entrapment Defense 46 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- (1976), where petitioner, convicted of distributing heroin, objected to the denial of his requested jury instruction that he must be acquitted if the narcotics he sold to government agents had earlier been supplied to him by a government informant. Three members of the Court concluded that the difference between the instant case and was “one of degree, not of kind,” for here the government supplied an illegal substance that was the corpus delicti of petitioner’s crime and thus “played a more significant role” in enabling the crime to occur. But such conduct as to a predisposed defendant was deemed not to violate due process. Significantly, two concurring Justices, while agreeing that “this case is controlled completely by ...unwillingness “to join the plurality in concluding that, no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case where the Government is able to prove disposition.” The... ...of...
- (1973), an undercover agent supplied the defendant and his associates with 100 grams of propanone, an essential but difficult to obtain ingredient in the manufacture of methamphetamine (“speed”); they used it to produce two batches of “speed,” which pursuant to agreement the agent received half of in return. The defendant, convicted of unlawfully manufacturing and selling the substance, conceded on appeal that the jury could have found him predisposed, but claimed that the agent’s involvement in the enterprise was so substantial that the prosecution violated due process. In particular, he contended that prosecution should be precluded when it is shown that the criminal conduct would not have been possible had not the agent “supplied an indispensable means to the commission of the crime that could not have been obtained otherwise, through legal or illegal channels.” The Court in conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the...of
- (a) Encouragement of Criminal Activity.
- This indiscriminate attitude toward predisposition evidence is by no means a necessary feature of the subjective test. This is because less prejudicial means of determining the readiness and willingness of a defendant to engage in the criminal conduct will often be available. The most promising alternative is testimony about the defendant’s actions during the negotiations leading to the charged offense, such as his ready acquiescence, his expert knowledge about such criminal activity, his admissions of past deeds or future plans, and his ready access to the contraband. Another possibility is evidence obtained in a subsequent search or otherwise showing the defendant was involved in a course of ongoing criminal activity.
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Chapter 8. Scope of the Exclusionary Rules 105 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- Lower courts have had the least difficulty in applying the inevitable discovery doctrine where that discovery would have come about through a routine procedure invariably applied under the particular circumstances, as commonly is the case where the government argues that the evidence discovered through an illegal warrantless search would have been uncovered in an inventory search. But these courts often find more troubling a situation in which the government claims as its source of inevitable discovery an investigatory procedure that is not routine, but dependent upon a police determination that the procedure’s potential value would outweigh its costs. Here, there is greater uncertainty as to whether the procedure would have been performed and often greater incentive for police to take shortcuts. However, the same type of argument could have been made in , where the discovery of the corpse through the ...to cut short by several hours a systematic search of the highway that... ...of...of
- Of course, to gain application of the inevitable discovery doctrine, the government must establish not only that its employment of an independent, lawful investigative procedure was inevitable, but also that that procedure inevitably would have led to the discovery of the same evidence actually found through the constitutional violation. “Inevitably,” for this purpose means that the discovery definitely would have occurred, not that it “might” or “could” have occurred. However, held that the Constitution is satisfied if the government establishes inevitability by a preponderance of the evidence; a higher burden of proof (e.g., clear and convincing evidence) is not constitutionally required. Typically, lower courts insist that the government introduce specific evidence (ordinarily, testimony by a police officer) establishing that another investigative procedure would have been employed and would have been successful. In some instances, however, the successful employment of that other
- When a motion to suppress evidence is made in a criminal case on the ground that the evidence was obtained in violation of the Constitution, there may be put in issue the question of whether the movant is a proper party to assert the claim of illegality and seek the remedy of exclusion. This question is ordinarily characterized as one of whether the party has “standing” to raise the contention. One aspect of standing is that the party seeking relief must have an adversary interest in the outcome, as to which any defendant in a criminal case against whom evidence alleged to have been illegally seized is being offered surely qualifies. In most areas of constitutional law, however, it is also necessary that the adverse interest be based upon a violation of the rights of the individual raising the claim rather than the violation of the rights of some third party. This is generally true with respect to the various constitutional issues that might arise in the context of a suppression...
- On occasion, when the police conduct an illegal arrest or an illegal search, this will prompt the person arrested or subjected to the search to react by committing some criminal offense. He might attack the officer, attempt to bribe him, or make some criminal misrepresentation in an effort to bring the incident to a close. In the bribery cases, the courts have consistently held that the evidence of the attempted bribe is admissible notwithstanding the prior illegal search of arrest. The most common explanation for this, that bribery attempts are sufficiently acts of free will to purge the taint, is not particularly satisfying, for it might be asked why the bribe offer is any more an act of free will than an incriminating admission or attempt to dispose of the evidence, neither of which is per se untainted. The answer may lie in the underlying deterrent purpose of the exclusionary rule, which is a prime consideration in marking the limits on fruit-of-the-poisonous-tree doctrine....
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Chapter 5. Interrogation and Confessions 198 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- The applicability of the privilege at the police station, in a quite different sense, was much later the central issue in (2003), which, although a civil case, is worthy of consideration here. Martinez was interrogated by police officer Chavez under circumstances that would have made his resulting confession inadmissible under in a criminal case, but Martinez was not thereafter even charged with a crime. In a § 1983 action for damages, Martinez relied in part upon the Fifth Amendment, and was upheld in that respect by the district court and court of appeals, but a splintered Supreme Court reversed. Four members of the Court, relying upon the literal language of the Fifth Amendment, concluded: “Martinez was never made to be a ‘witness’ against himself in violation of the Fifth Amendment’s Self–Incrimination Clause because his statements were never admitted as testimony against him in a criminal case.” Two other Justices, while also rejecting the self-incrimination claim, did so in...
- Finally, there is the question of the kinds of proceedings at which a person may object to receipt of his incriminating statements because they were obtained in violation of the procedures. Because is grounded in the Fifth Amendment privilege against self-incrimination, this presents a question of exactly what constitutes incrimination within the meaning of the Amendment. As a general matter, this constitutional provision itself supplies the answer, for it declares that no person “shall be compelled in any criminal case to be a witness against himself.” This most certainly means, as occurred in that an improperly obtained confession is subject to suppression when offered in a criminal trial as evidence of defendant’s guilt of the crime charged. Some of the cases discussed earlier holding inapplicable to certain minor offenses, though ordinarily explained in terms of the subject matter of the interrogation, might be read as meaning rights cannot be invoked in a criminal trial
- No area of constitutional criminal procedure has provoked more debate over the years than that dealing with police interrogation. In large measure, the debate has centered upon two fundamental questions: (1) how important are confessions in the process of solving crimes and convicting the perpetrators? and (2) what is the extent and nature of police abuse in seeking to obtain confessions from those suspected of crimes? Conclusive evidence on these two points is lacking, and thus it is not surprising that this debate continues.
- emphasized in various ways that courts should be reluctant to find a waiver of the right to counsel. It was noted that the burden of showing waiver is on the prosecution, that what must be shown is “an intentional relinquishment or abandonment of a known right,” that the right is not lost merely by a lack of request by the defendant, that “every reasonable presumption” must be indulged against waiver, and that a “strict standard” equal to that concerning waiver of counsel at trial applies. Whether this means that waiver of the “pure” right to counsel under calls for something more than the waiver of counsel under (1988). Taking the “pragmatic approach” that the warnings and waiver procedure required depend largely upon “the scope of the Sixth Amendment right to counsel” at the particular stage of the criminal process at issue, the majority concluded the requirements of ...does not substantially increase the value of counsel to the accused at questioning, or expand the... ...of...
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Chapter 9. Administration of the Exclusionary Rules 75 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- Assume now the reverse situation in which the motion was denied in an earlier case. Though the constitutional doctrine of collateral estoppel regarding a prior verdict in a criminal case does not run both ways, that does not prevent a state from adopting the position that collateral estoppel principles preclude a defendant from obtaining suppression of evidence he unsuccessfully tried to suppress in an earlier case. But even when the earlier denial of the defendants suppression motion does not have such preclusive effect, the judge in the second case may nonetheless accept the admissibility ruling in the earlier case, absent a showing of new evidence or some other basis for reconsideration, provided that the defendant was convicted at the first trial and thus had an opportunity to obtain appellate review of the ruling.
- that the New York procedure was constitutionally defective because at no point along the way did a criminal defendant receive a clear-cut determination that the confession used against him was in fact voluntary. The trial judge was not entitled to exclude a confession merely because he himself would have found it involuntary, and, while we recognized that the jury was empowered to perform that function, we doubted it could do so reliably. Precisely because confessions of guilt, whether coerced or freely given, may be truthful and potent evidence, we did not believe a jury could be called upon to ignore the probative value of a truthful but coerced confession; it was also likely, we thought, that in judging voluntariness itself the jury would be influenced by the reliability of a confession it considered an accurate account of the facts.
- Such anomalous jurisdiction in the federal system is exercised with caution and restraint and subject to equitable principles. A foremost consideration is whether there is a clear and definite showing that constitutional rights have been violated. A second consideration is whether the plaintiff has an individual interest in and need for the material whose return he seeks, as where those goods are necessary to conduct a legitimate business. Yet a third consideration is whether the plaintiff would be irreparably injured by denial of the return of the property or instead has an adequate remedy at law. But courts are disinclined to grant relief when a criminal prosecution is anticipated, for they usually take the view that in such circumstances intervention would impede prosecuting officers and interfere with the grand jury.
- An identification procedure may also be challenged on the ground that it was so unnecessarily suggestive as to violate due process. In such circumstances many courts have assumed, typically without extensive discussion, that the defendant has the burden of proving the due process violation because he is the moving party. But the prosecution should bear the burdens of production and persuasion whenever the identification procedure was conducted out of the presence of defendant’s attorney, for in such a situation the defendant may not even be aware that witnesses were seeking to identify him (e.g., where a “showup” was conducted through a one-way mirror), and even if aware, he still may be unable to know what facts existed that might make the procedure unnecessarily suggestive. Some jurisdictions have divided the burden of proof between the defense and the prosecution; the defense carries the burden of showing that the identification procedure was unnecessarily suggestive, and the...
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Chapter 2. Arrest, Search and Seizure 227 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- (g) Application of Exclusionary Rule in Non-criminal Proceedings.
- The term “informant” is used here to describe an individual who learns of criminal conduct by being a part of the criminal milieu; it does not refer to the average citizen who by happenstance finds himself in the position of a victim of or a witness to a crime. The Supreme Court and other courts have with considerable frequency confronted the question of when probable cause may be said to exist exclusively or primarily upon the basis of information from such a person.
- No special showing is needed to execute a search warrant for premises in the absence of the occupant, as such execution is not significantly different from that which would otherwise occur. An inventory is required in any event; the occupant if present could not necessarily detect or prevent a broader search; and the fact that such execution will likely require forcible entry is not a sufficient detriment to make a search unreasonable where a warrant based on probable cause has been obtained. As for when the execution of the warrant is deliberately timed to occur without being known to those living at or using the premises (e.g., entry to install wiretapping devices), which appeared to concern the Supreme Court in ...the federal wiretapping law have stressed that normal investigative procedures were tried and failed or appeared unlikely to succeed. It has been intimated that some such showing might also be necessary for a so-called “surreptitious entry” warrant, authorizing police...
- Consistent with these three purposes are certain general principles that may be distilled from the decided cases in this area. They are: (1) A greater degree of ambiguity will be tolerated when the police have done the best that could be expected under the circumstances, by acquiring all the descriptive facts reasonable investigation of this type of crime could be expected to uncover and by ensuring that all of those facts were included in the warrant. (2) A more general type of description will be sufficient when the nature of the objects to be seized are such that they could not be expected to have more specific characteristics. (3) A less precise description is required of property that is, because of its particular character, contraband. (4) Failure to provide all of the available descriptive facts is not a basis for questioning the adequacy of the description when the omitted facts could not have been expected to be of assistance to the executing officer. (5) An error in the...
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Chapter 3. Network Surveillance 114 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- 18 U.S.C.A. § 2511(2)(a)(i) is known as the provider exception, as it exempts from liability provider monitoring that a provider of telecommunications would need to conduct in the ordinary course of business. Section 2511(2)(a)(i) excludes “all normal telephone company business practices” from the prohibition of Title III. Importantly, this principle is not unlimited: The basic principle is reasonableness, as measured by tailoring to the provider’s legitimate needs and interests. So, for example, providers have a right to intercept to combat fraud and theft of service, but they cannot work as an agent of law enforcement for reasons unrelated to their own network.
- (c) Compelled Disclosure of the Contents of Communications.
- The materials so far in this chapter have considered surveillance in the course of criminal investigations. There are parallel statutory authorities and Fourth Amendment limits when the government conducts investigations for the purposes of collecting information relating to foreign national security threats.
- Although the workings of FISA are usually not at issue in a criminal case, evidence obtained pursuant to FISA can be used in a criminal case in limited circumstances. Evidence acquired in noncompliance with FISA is subject to suppression by “an aggrieved person” in “any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State or a political subdivision thereof.” “[I]f the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States,” then the appropriate federal district court must “review in camera and ex parte the application, order and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.”
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Chapter 10. The Right to Counsel 108 results (showing 5 best matches)
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the authors’ 7-volume
- held invalid on equal protection grounds an intermediate appellate court’s practice of refusing to appoint counsel on appeal when the court, after reviewing the trial record, concluded that “such appointment would be of no value to either the defendant or the court.” The majority opinion found this practice inconsistent with the “ principle.” Here too, there was “discrimination against the indigent,” with “the kind of appeal a man enjoys depend[ing] on the amount of money he has.” Unlike the indigent, the more affluent defendant was not required to “run [the] gauntlet of a preliminary showing of merit” to have his case presented by counsel. As the Court saw the state’s procedure, “the indigent, where the record was unclear or errors were hidden, had only the right to a meaningless ritual, while the rich man had a meaningful appeal.” The ...stressed, however, that it was not requiring “absolute equality” throughout the criminal justice process. What was at stake here was the first...of
- The Supreme Court has applied critical-stage analysis to a variety of different steps in the criminal prosecution. In the course of those rulings, it has referred to several different touchstones for determining whether a particular step constitutes a critical stage (and therefore gives the accused the right to the assistance of counsel as to that step). Courts are directed to ask whether the particular procedural step was one “where available defenses may be irretrievably lost, if not then and there asserted,” whether the assistance of counsel at this point is “necessary to mount a meaningful defence,” and whether “potential substantial prejudice to defendant’s rights inheres in the confrontation between the accused and the government” and counsel’s assistance can “help avoid that prejudice.” Supplemented by the analysis applied in the Court’s various rulings, these touchstones would appear to require a reviewing court to ask the following questions in determining whether a...
- (1987), the majority characterized the issue before it as whether due process required the state to appoint counsel to assist the respondent in preparing a collateral attack upon her conviction under a state postconviction relief procedure. The state there had appointed counsel, but counsel had then been allowed to withdraw after concluding that the collateral attack lacked arguable merit. The Court majority reasoned that the withdrawal procedure would present a constitutional issue only if respondent had an underlying constitutional right to the appointment of counsel. Turning to that question, the Court did not focus on the need for counsel’s expertise in preparing a collateral attack petition. Arguably, a stronger case could be made here than in Court stressed, instead, the place of the collateral attack within the totality of the proceedings for determining guilt. The majority noted that “postconviction relief is even further removed from the criminal trial than is... ...of...
- Just as the right to counsel extends through various stages in the criminal justice process, waiver of that right can occur at each of those stages. In some respects, what is required for a valid waiver will vary with the particular stage. Thus, the standards for a waiver of counsel in the course of a police investigation differ in certain respects from the standards governing a waiver in a judicial proceeding. A judge accepting a waiver at trial, for example, may be required to conduct a type of inquiry as to the defendant’s state of mind that simply would not be feasible for a police officer accepting a waiver prior to custodial interrogation. The requisites for a valid waiver in the course of investigatory procedures have been discussed in previous chapters. Our focus in this section is upon waivers in judicial proceedings, particularly at trial.
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Chapter 2. Arrest, Search and Seizure Part 2 171 results (showing 5 best matches)
- claimed it was “decid[ing] nothing today concerning the constitutional propriety of an investigative ‘seizure’ upon less than probable cause,” a lesser standard was suggested when the Court related the holding to a situation “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” The Court later indicated in of the standard was that “the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Because a “ ‘totality of the circumstances’ principle * * * governs the existence of ‘reasonable suspicion,’ ” the various factors relied upon to establish such suspicion are not to be independently assessed one-by-one and rejected if susceptible to an innocent explanation. Assuming a sufficient degree of suspicion, it is ...probable cause, the requisite suspicion may not be grounded in an erroneous interpretation of...
- Thus, while a “strict standard of waiver” applies “to those rights guaranteed to a criminal defendant to insure * * * a fair criminal trial,” it need not extend to the “protections of the Fourth Amendment,” which “are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial.”
- The two drug testing cases just mentioned, as well as the testing-of-students cases (
- as objectionable on the ground that deliberate deception about an obviously material fact should be regarded as inconsistent with voluntariness, a more appropriate concern is that of keeping the above-stated principle within reasonable bounds. One attractive proposal is that permissible include a stated intention on his part to join the consenting party in criminal activity, for in that way innocent persons will be spared from intrusions upon their privacy by deception. But lower courts in the main have not recognized such a limitation, and have instead relied upon the broader proposition that the Fourth Amendment affords no protection to the person who voluntarily reveals incriminating evidence to another in the mistaken belief that the latter will not disclose it. Even that formulation should often bar some of the more extreme forms of deception, such as police entry of a private home in the guise of an employee of the gas company.
- balancing-of-interests approach, the Court in (2006) upheld a police search of a parolee notwithstanding the absence of any established standardized procedures or individualized reasonable suspicion (or, insofar as the recited facts indicated, any suspicion whatsoever). In support, it was asserted (i) “that parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is”; (ii) that “the parole search condition under California law—requiring inmates who opt for parole to submit to suspicionless searches by a parole officer or other peace officer ‘at any time’—was ‘clearly expressed’ to Samson”; (iii) that the state “has an ‘overwhelming interest’ in supervising parolees because ‘parolees … are more likely to commit future criminal offenses,’ ” as manifested by the fact “California’s parolee population has a 68-to-70 percent recidivism rate”; and (iv) that the “concern that California’s suspicionless search system gives...
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Index 171 results (showing 5 best matches)
- See also Confessions; Counsel, Ineffectiveness of; Harmless Error; Identification Procedures; Indigents, Rights of.
- See also Confessions; Network Surveillance; “Fruit of the Poisonous Tree” Doctrine; Identification Procedures; Search and Seizure Remedies; Searches and Seizures; Standing to Suppress Evidence.
- See Bill of Rights; Criminal Justice System; Due Process; Fourteenth Amendment.
- principle, § 7.10(a), (g).
- See also Identification Procedures.
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Table of Contents 140 results (showing 5 best matches)
Title Page 5 results
Advisory Board 10 results (showing 5 best matches)
- Professor of Law, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law and Dean Emeritus, University of California, Berkeley
- Professor of Law, Michael E. Moritz College of Law,
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- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: August 28th, 2009
- ISBN: 9780314199355
- Subject: Criminal Procedure
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This book, for use in connection with a course focused upon crime detection and investigation, examines various investigative procedures, including search and seizure, network surveillance, entrapment, interrogation, lineup and photo identification, and grand jury investigation; describes the scope and administration of exclusionary rules relating to those procedures; and also discusses the right to counsel. All sections in the book are cross-referenced to comparable sections of the authors' seven-volume Criminal Procedure treatise containing more detailed analysis and citations to additional supporting authorities.