Black Letter Outline on Basic Criminal Procedure
Authors:
Saltzburg, Stephen A. / Capra, Daniel J. / Davis, Angela J.
Edition:
7th
Copyright Date:
2017
20 chapters
have results for black letter outline on basic criminal procedure
Perspective 31 results (showing 5 best matches)
- The basic course in Criminal Procedure concerns the limitations imposed on the state and federal governments in investigating and prosecuting crime. These limitations are mainly grounded in the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution. This outline is intended to provide comprehensive coverage of the scope of constitutional protections ordinarily considered in a basic course in Criminal Procedure.
- The basic course in Criminal Procedure is generally concerned with Supreme Court jurisprudence interpreting and applying the Fourth, Fifth and Sixth Amendments. A cursory review of any Supreme Court term in the last thirty years will show that the Court has devoted a major part of its docket to Criminal Procedure cases. It is no secret that the area of Criminal Procedure has been largely constitutionalized by the Supreme Court, beginning with the Warren Court in the 1960’s. However, nonconstitutional standards are also pertinent to criminal investigation and prosecution, most notably the Federal Rules of Criminal Procedure and many state counterparts. The obvious thrust of the outline is to provide an understanding of the constitutional standards affecting Criminal Procedure, but non-constitutional standards will be discussed as well.
- While it is hard to generalize, we feel that professors who ask you to think about these questions in class may develop exams that invite and indeed call for a broader approach than merely issue spotting and discussing what the law is. Rather, just as in the classroom, the professor may want to know whether you think a rule is well-reasoned, problematic, insupportable, etc. This requires a deeper understanding of the cases and reasoning than can be provided by hornbook law. It is our hope that, even though this is called a “Black Letter Outline,” we can give you some perspective on the deeper questions underlying Supreme Court cases in Criminal Procedure.
- The course in basic Criminal Procedure highlights the tension between the government’s interest in investigating and prosecuting crime, and the individual’s interest in privacy, dignity, autonomy and fair treatment. A balance inevitably must be struck between these competing interests. On the one hand, it is costly to impose procedural limitations on the state: some crimes may go unpunished if the state is too constricted. On the other hand, if the state is not constricted at all, the rights of all individuals could be in peril. In deciding any issue of constitutional criminal procedure, this general tension is at the heart of Supreme Court decision-making. Speaking very generally, the Warren Court expanded procedural protections owed to criminal defendants. Later, the Burger, Rehnquist, and Roberts Courts expanded fewer rights, limited some earlier holdings, and often struck the balance in favor of prosecution of the factually guilty. While there are many exceptions to these...
- The Sixth Amendment also contains important trial rights, such as the right to confrontation, the right to compulsory process, and the right to a jury based on a fair cross-section of the community. These rights are ordinarily not treated in the basic Criminal Procedure course, and hence they are not treated here.
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Chapter I Introductory Concepts: Determining the Effect of a Supreme Court Decision on Criminal Procedure 29 results (showing 5 best matches)
- Before addressing the constitutional protection afforded criminal defendants, most courses in basic Criminal Procedure consider two general doctrines which help to put the Supreme Court’s Criminal Procedure decisions, and their effects, into context.
- It is clear that the Fourteenth Amendment’s Due Process Clause imposes some limitations on state criminal procedures. The question is whether the limitations imposed by the Fourteenth Amendment on the states are different in any way from those imposed by the Bill of Rights upon the federal government.
- It should be noted that even while the Bill of Rights protections generally apply against the states, there remain some non-constitutional limitations which apply only against the federal government and its agents. For example, the Federal Rules of Criminal Procedure continue to require twelve jurors, even though the Sixth Amendment does not after
- Only two Bill of Rights protections bearing upon criminal procedure have not been explicitly incorporated through the Fourteenth Amendment. They are the Fifth Amendment requirement of a grand jury indictment in felony cases, and the Eighth Amendment limitation on excessive bail. The Supreme Court has not directly ruled on the bail clause, but has implied that it is fundamental.
- The selective incorporation approach has been criticized as being an artificial compromise between the fundamental rights and the total incorporation approaches, and as having no basis in the language or history of the Fourteenth Amendment. It has also been criticized as being contrary to basic notions of federalism. Critics argue that it is inappropriate to impose nationwide solutions on local problems, and that placing a constitutional strait-jacket on the states will prevent them from experimenting with local solutions.
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Summary of Contents 7 results (showing 5 best matches)
- Introductory Concepts: Determining the Effect of a Supreme Court Decision on Criminal Procedure
- Criminal Procedure—Sample Examinations
- Criminal Procedure—Sample Answers
- II.State Court Activism: Providing Greater Rights to Criminal Defendants by Relying on the State Constitution
- I.The Basic Right to Counsel
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Table of Contents 79 results (showing 5 best matches)
- Introductory Concepts: Determining the Effect of a Supreme Court Decision on Criminal Procedure
- Criminal Procedure—Sample Examinations
- Criminal Procedure—Sample Answers
- II.State Court Activism: Providing Greater Rights to Criminal Defendants by Relying on the State Constitution
- 1.Same Basic Analysis
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Chapter IV Remedies for Fourth Amendment Violations 130 results (showing 5 best matches)
- which may support such an extension. Specifically, the Court stated that “when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on guilty defendants offends basic concepts of the criminal justice system.” This language is not limited to situations where the officer has reasonably relied on an intermediary.
- The exclusionary rule also imposes a cost in the loss of public respect for the criminal justice system. When guilty criminals are set free on what the public may view as a “technicality,” the integrity of the criminal justice system suffers in the eyes of the public.
- cautioned that application of the good faith exception “assumes, of course, that the officers properly executed the warrant and searched only those places for those objects that it was reasonable to believe were covered by the warrant.” Improper execution of a valid warrant is an error properly attributed to the officer rather than to the magistrate. So for example, if the warrant authorizes a search of a certain hotel room and the officers extend the search to an adjoining room, this error in execution is not excused by the good faith exception. See the discussion earlier in this outline on execution of warrants.
- good faith exception applies only where the officer reasonably relies on an invalid warrant. The good faith exception was extended in to reliance on a statue and in to situations where the officer reasonably relies on an actor who has no personal stake in a criminal prosecution.
- The inevitable discovery exception allows the fruits of illegal activity to be admitted at trial if the government can show that the challenged evidence would inevitably have been discovered through means completely independent of the illegal activity. For example, suppose that police illegally obtain a letter in a search of the defendant’s apartment. The letter indicates that the defendant has a sawed-off shotgun stored in a closet, which is a few feet away from where the defendant has been arrested and is being detained. Operating on that information, the police enter the closet and seize the gun. While the gun is a fruit of the poisonous tree, it is nonetheless admissible if the government can show that it would have been inevitably discovered anyway in a routine search incident to arrest. (where the court on these facts held the gun admissible under the inevitable discovery exception). In essence, the inevitable discovery exception is a “hypothetical” independent source exception.
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Chapter III Exceptions to the General Fourth Amendment Requirements of Probable Cause and a Warrant 346 results (showing 5 best matches)
- held that where inventory searches are performed according to departmental procedures, a warrant is not required. Because inventory searches are conducted pursuant to standardized procedures and not for purposes of a criminal investigation, there are no facts for a neutral magistrate to review.
- Finally, a word about the reliance placed on Weaver’s race. This factor is repeated several times in the Court’s opinion. I am not prepared to say that it could never be relevant. If, for example, we had evidence that young blacks in Los Angeles were more prone to drug offenses than young whites, the fact that a young person is black might be of some significance, though even then it would be dangerous to give it much weight. I do not know of any such evidence. Use of race as a factor simply reinforces the kind of stereotyping that lies behind drug-courier profiles. When public officials begin to regard large groups of citizens as presumptively criminal, this country is in a perilous situation indeed.
- , police officers received an anonymous tip that a young black male standing at a particular bus stop wearing a plaid shirt was carrying a gun. Two officers went to the bus stop minutes later and saw three black males, one wearing a plaid shirt. Without any additional information, one of the officers ordered the male wearing the plaid shirt to put his hands up on the bus stop. The officer then frisked him and seized a gun from his pocket. The Supreme Court held that the anonymous tip in this case lacked the indicia of reliability as required in There was no prediction of future activity or other information that would show that the tipster had knowledge of concealed criminal activity. The Court rejected the government’s suggestion that police officers be permitted to stop and frisk based on an anonymous tip without the standard indicia of reliability in cases involving firearms. The Court left open the possibility that there may be some cases where the potential danger is so great...
- A third limitation on the plain view doctrine is that there must be probable cause that the object in plain view is evidence of a crime. The question of whether probable cause exists has already been considered in this outline, and the “fair probability” test discussed in that section is fully applicable to the question of whether an object in plain view can be seized.
- , officers responded to a call stating that a short, black Jamaican man wearing a tan leisure suit had taken a gun out of a case and placed it in his waistband; that he ran with two other black men into the basement of 277 Edgecombe Avenue; that one of the other men was dressed in all grey and was a little taller than the gunman; and that the man carrying the gun looked like he was going to shoot someone. Officers were at the address within a minute. In front of the building they saw the defendant, who was 6′1″, wearing an open gray shirt with a black tank top underneath, and black pants; they also saw a man about 5′3″, in a brown uniform, sweeping the sidewalk; and a third man was sitting on the stoop of the building with the defendant. All three men were black. No one else was on the street. The officers observed the defendant remove his hand from inside the front waistband area of his pants, consistent with either tucking in his shirt or, in the officers’ experience, the act of a...
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Chapter II The Fourth Amendment 148 results (showing 5 best matches)
- Federal Rule of Criminal Procedure 41(c)
- A warrant is ordinarily obtained by submitting, to the magistrate, an affidavit of all the facts supporting probable cause. Some courts have held that probable cause must be determined solely on the basis of the information submitted in the affidavit.
- (school principal governed by Fourth Amendment). However, as will be discussed later in this outline, a search or seizure undertaken by non-law enforcement personnel may be considered reasonable where the same conduct by a police officer enforcing criminal law objectives may not.
- The Fourth Amendment does not contain specific language directing law enforcement agents on the correct procedure for executing a warrant. However, the general clauses requiring probable cause and reasonableness have been interpreted as placing constitutional limitations on the manner in which agents perform those duties.
- , the Court discarded the “mere evidence” rule, holding that the right to seize evidence did not rest on the government’s property interest, but rather on the government’s legitimate interest in solving crime. Consequently, the seizure of a robbery suspect’s clothing, which had been identified by an eyewitness, was upheld.
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Appendix B Criminal Procedure—Sample Answers 32 results (showing 5 best matches)
- Criminal Procedure—Sample Answers
- In response, the government will argue that Officer Lawman acted properly and was allowed to question HJ because HJ initiated the conversation by asking the officer what was going to happen to him in court. HJ’s lawyer will argue that by asking the officer what was going to happen in court, HJ was in no way initiating communication about the crimes for which he was under suspicion and simply wanted to know what procedures he would be subjected to when he went to court the next day. The government will rely on warnings and he proceeded to give an incriminating statement. The Court ruled that Bradshaw had initiated the communication and knowingly and voluntarily waived his rights thereafter, permitting the officer to question him. The government will argue that HJ’s question was identical to the question asked by Bradshaw, thus showing that HJ initiated the conversation, which then allowed Officer Lawman to question him. On the other hand, HJ’s lawyer will attempt to distinguish
- will excuse police who rely on a warrant issued by a magistrate when the warrant is not bad on its face. The courts are divided on whether applies to a warrant based on information obtained in violation of the Fourth Amendment. But at any rate, the officers would have to clearly describe the circumstances under which the defective evidence was obtained in order to reasonably rely on the magistrate’s implicit determination that it was obtained legally. Moreover, to the extent the warrant was based on a lie by the officer, the good faith exception obviously does not apply. If the evidence discussed in the several paragraphs immediately preceding is suppressed, the only remaining evidence will be the identification of Marilyn’s telephone number by the secret identification system, the fact that the telephone number is listed to Marilyn, the observation of the computer and the knowledge of a modem. Is this enough to establish probable cause? Marilyn and Tipper will argue that it is...
- Tipper and Marilyn might move to dismiss the indictment on the ground that it is the fruit of the various illegalities set forth above. Should they prevail on many of their claims, little admissible evidence would exist. Yet, indicates that challenges to grand jury action on the basis of illegally seized evidence are not likely to succeed.
- Similar circumstances existed in HJ’s case. Because of the drugs in plain view, the officers had probable cause to get a warrant to search the entire house. Even though Officer Lawman illegally searched the drawer and found the evidence, he did not tell the officers about this illegal search, so the warrant was based on an independent, legal source. The officers found the drugs in the drawer based on a legal warrant untainted by the prior illegal search.
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Appendix C Glossary 15 results (showing 5 best matches)
- A person who is detained pending a criminal procedure because the person’s testimony is needed and there is a danger that the person will not appear at the proceeding.
- The Due Process Clause prohibits the admission of identifications where unnecessary suggestiveness has created a substantial likelihood of irreparable mistaken identification. However, an unnecessarily suggestive procedure will not taint a line-up or other identification procedure if the witness has a source independent from police suggestiveness on which to make the identification.
- stop, generally defined as a fair possibility of criminal activity. Police officers must have a particularized and objective basis—based on specific and articulable facts—for suspecting the defendant of criminal activity. The relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of non-criminal acts. Compare Probable Cause, Encounter
- Test used to determine the constitutionality of various search and seizure procedures, including the issuance of a search warrant. The test focuses on all the circumstances of a particular case, rather than any one factor.
- To deprive a person of his liberty by legal authority based on probable cause for the purpose of holding or detaining him to answer a criminal charge. All that is required for an “arrest” is some act by an officer indicating his intention to detain or take a person into custody and thereby subject that person to the actual control and will of the officer; no formal declaration of arrest is required. See Custodial Interrogation,
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Appendix A Criminal Procedure—Sample Examinations 27 results (showing 5 best matches)
- Criminal Procedure—Sample Examinations
- In mid-March, 2011, Officer Marks received an anonymous letter containing a tip that the defendant, Rafael Flores, was a supplier of illegal drugs to a known drug dealer, George Philips. The letter stated, “I hate that guy Flores; I hope you bust him good.” The letter stated that Flores drove an early model red Volkswagen Beetle and he stored his drugs underneath the back seat. Officer Marks conducted an investigation and found that Flores and Philips had been incarcerated at the same time in the state penitentiary, from 2008–10—Flores for assault with intent to murder, Philips for narcotics distribution. The officer further determined through visual surveillance that Flores in fact drove an early model Volkswagen Beetle, but there was no such vehicle registered in his name. In the course of his investigation, Officer Marks went to Flores’s house and saw the Beetle parked on the street. Marks surreptitiously placed a GPS detection device on the street just in front of the left front...
- In fact, Marilyn and Tipper have vowed to each other and to their friends that they will demonstrate the folly of the statute and show the state that it cannot and should not attempt to use the criminal law to deal with a minor irritant like hackers. After considerable thought about how best to get the attention of lawmakers, Marilyn told Tipper that they should use their computer to tap into the judicial database of the state and to erase all of the computer records relating to persons convicted of minor criminal acts. Tipper expressed some concern about the plan and suggested that it might be more of a demonstration than was needed, and also that it might be difficult to carry out the plan. After some discussion, Tipper agreed that they would see how difficult it would be to tap into the database and then decide whether to carry out the plan.
- While Officer Lawman was waiting for the other officers to arrive, he looked around in all of the rooms of the house, including all of the closets. He didn’t open any containers in any of the rooms. While in H.J.’s bedroom, Lawman saw some white powder on a silver dish on the bedside table. Based on his experience working in the narcotics division, Lawman recognized the powder as cocaine and placed it in a plastic evidence bag that he conveniently kept in his pocket.
- Marilyn and Tipper are students at State University, the largest state controlled university in the state. Both are computer whizzes and often refer to themselves and their friends as “hackers.” They take great pride in being able to find ways around security protections which computer owners install to protect confidential information. On one occasion, they used a small personal computer and a modem (a device which permits one computer to speak to another over telephone lines much the way a Lexis or Westlaw terminal can communicate with a database) to circumvent the security codes in the University President’s computer system and left him a happy birthday message on his screen which he saw when he arrived at the office on his birthday.
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Chapter VII Constitutional Limits on Identification Evidence 40 results (showing 5 best matches)
- Even if the police have employed unnecessarily suggestive police procedures, it does not necessarily follow that the resulting identification is unreliable. The identification may be reliable procedures—such as one-on-one show-ups, distinctively standing out in line-ups (i.e., tallest, heaviest, only black defendant in line), and individual or repetitive pictures—are considered in light of all the circumstances in determining whether an independent source exists for a reliable identification.
- The more suggestive the police procedure, the more likely it is to have an effect on the resulting identification. For example, a one-on-one show-up is much more likely to have an effect on the witness than is a photo array where the photos may be dissimilar, but where the witness is at least presented with more than a single option.
- took place before trial, the Court held that in light of modern criminal procedures, the Sixth Amendment right to counsel applies to , where the suspect, after being arraigned and released on bail, was surreptitiously monitored in conversation with an accomplice who was working with the police. The
- The three dissenting judges argued that the right to counsel issue should not turn on whether photographic identifications included the corporeal presence of the defendant but, instead, on whether exclusion of defense counsel at such displays could result in a denial of effective assistance of counsel for the defendant at trial. The dissenters believed that the same “inherent suggestibility” of pre-trial line-ups existed in photographic identifications, and as both the defendant and defense counsel were not present during the displays, there was even “less likelihood that irregularities in the procedure [would] ever come to light.”
- The Supreme Court has held that exigent or extraordinary circumstances allow for “permissible” suggestiveness. In other words, certain circumstances could make suggestive police procedures necessary and, thus, permissible. One example of such a case is a vicious attack upon a married couple resulted in the death of the husband, and the hospitalization of the wife who had been stabbed eleven times. Due to the witness’ serious injuries and proposed surgical procedure, a suspect in the attack was brought to the hospital for a one-on-one show-up. The Court held that the show-up procedure, while suggestive, was permissible due to the near-death condition of the witness. Indeed, the Court called attention to the flip-side of such suggestive confrontations by pointing out that the witness “was the only person in the world who could possibly exonerate Stovall.”
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Chapter VI Self-Incrimination and Confessions 131 results (showing 5 best matches)
- Court held that the use of a coerced confession at trial violates the fundamental right to fair trial procedures. The Court acknowledged that a state has broad discretion to establish procedural rules in criminal cases, but observed that it may not substitute the “rack and torture chamber” for the witness stand. In effect, the state police and prosecutor had accomplished this in
- , noting that criminal codes contain “overlapping and related statutory offenses” that permit prosecutors to easily charge “a startlingly numerous series of offenses from a single * * * criminal transaction.” After describing several examples of how a single criminal act can result in numerous criminal charges, the dissenters discussed the difficulty of administering the test, noting the disagreement among judges, lawyers, and law professors on how the test should be applied. The dissenters suggested that police officers in the field would find it even more difficult to apply the test when deciding whether to interrogate a suspect.
- , the Court relied on
- argued that the conviction should also be reversed on an alternative Due Process ground. These Justices contended that Due Process was violated because the defendant was deprived of his right to after his indictment on a capital charge. By secretly interrogating the defendant and denying his requests to consult with counsel, the police used a “kangaroo court” procedure that denied him effective representation by counsel at trial.
- explanations concerning custodial procedures, such as fingerprinting, transportation, and inventorying, will probably not be considered interrogation even though the defendant makes incriminating statements during the process. Even direct questions about an arrestee’s understanding of these procedures will not be interrogation, because these questions are reasonably “attendant to” the processes themselves.
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Capsule Summary 136 results (showing 5 best matches)
- If the search or seizure is not conducted for purposes of criminal law enforcement but rather to effectuate some other governmental objective such as a regulatory interest, it may in most cases be conducted on less than probable cause.
- Adverse comment to the jury on the criminal defendant’s election not to testify constitutes punishment for the invocation of silence and violates the Fifth Amendment. An adverse inference can permissibly be drawn in a civil case, however.
- It is permissible to hold a counsel-free line-up for an indicted defendant as to a different charge, since being indicted on one charge is not a “criminal prosecution” as to any other.
- While stops of vehicles ordinarily require reasonable suspicion, there are certain circumstances in which roadblock seizures at fixed checkpoints are allowed without any suspicion of criminal activity. These checkpoints are conducted for purposes other than criminal law enforcement, such as highway safety and border control. However, if the primary purpose of a checkpoint is criminal law enforcement, the officer must have reasonable suspicion for the stop.
- Probable cause as to identity must be based on specific information tying a suspect to a crime. Probable cause requires a case-by-case approach; nonetheless, since the standard is only one of fair probability, a suspect’s correspondence to a relatively specific description will go far toward a showing of probable cause. Furthermore, the state’s case on probable cause as to identity is made significantly stronger if the suspect who fits a general description also has a prior criminal record.
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Chapter VIII The Right to Counsel 68 results (showing 5 best matches)
- The intent of the Sixth Amendment’s Framers was to ensure that criminal defendants could be represented at trial by their retained counsel. Under English law, attorneys were prohibited from appearing on behalf of defendants in felony cases. The Sixth Amendment reversed this rule, and made counsel’s assistance available to all who could afford to hire a lawyer.
- complained that the majority had found a right to self-representation “tucked between the lines of the Sixth Amendment.” The dissenters were also concerned about the effects of self-representation on the criminal justice system. They stated that a widespread exercise of the “newly discovered” right of self-representation would result in added congestion for the courts and would have a negative impact on the quality of justice.
- Conversely, if there is no right to counsel, there is no right to effective assistance of counsel. As previously discussed in this outline, the Supreme Court has held that there is no right to counsel for appellate review or for collateral attack beyond the first appeal of right. As a result, if counsel acts ineffectively at these stages, there is no constitutional claim of ineffective assistance. (no claim of ineffective assistance is cognizable where counsel’s mistakes occurred on collateral attack);
- The Basic Right to Counsel.
- The Basic Right to Counsel
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Chapter V The Privilege Against Self-Incrimination 62 results (showing 5 best matches)
- had been granted immunity, the state could use his incriminating statements against him by denying him contracts based on his testimony. While these statements would be compelled, the privilege only protects individuals from the use of compelled statements in a criminal case.
- The privilege may be asserted in any proceeding and at any time the government seeks to compel a person to disclose potentially incriminating information (e.g., on a tax return,
- The state may compel disclosure of information, however, for use in civil or other non-criminal proceedings. The Fifth Amendment privilege does not protect against use of a compelled statement outside of a criminal case. (permitting compulsion in a probation revocation proceeding, since that is not a criminal case, and there was no risk that the statements could be used in a subsequent criminal case).
- , the Court held that the possibility of criminal prosecution by a foreign government does not constitute a “criminal case” for purposes of the privilege against self-incrimination. Balsys refused to answer questions in a deportation hearing in which the government alleged that he had committed offenses during World War II. He asserted the Fifth Amendment privilege on the ground that his testimony might be used against him in a prosecution in Israel or Lithuania. The Court analyzed the policies supporting the privilege as set forth in
- There are three basic components to the privilege against self-incrimination. Each of these components must exist in order for a person to effectively claim the privilege.
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Index 3 results
- Publication Date: April 19th, 2017
- ISBN: 9781634609524
- Subject: Criminal Procedure
- Series: Black Letter Outlines
- Type: Outlines
- Description: Basic Criminal Procedure is a clear and comprehensive outline of the most important principles and issues taught in the basic Criminal Procedure law school course. It covers the 4th, 5th, and 6th Amendments, including Exceptions to the Warrant requirement, Remedies for 4th Amendment violations, the Privilege Against Self-Incrimination, Limits on Identification Evidence and the Right to Counsel. Basic Criminal Procedure also provides sample examination questions and answers.
