Criminal Procedure, Constitutional Limitations in a Nutshell
Authors:
Israel, Jerold H. / LaFave, Wayne R.
Edition:
9th
Copyright Date:
2020
16 chapters
have results for criminal procedure, constitutional limitations in a nutshell
Chapter 1 The Constitutionalization of Criminal Procedure 65 results (showing 5 best matches)
- This nutshell provides an overview of the current constitutional regulation of the criminal justice process, along with a more detailed analysis of specific constitutional standards governing selected aspects of the process. Chapter 1 discusses the doctrinal foundations of the constitutional regulation of the process. Chapters 2–6 then describe the constitutional regulation of police investigations. The analysis here brings together the various different constitutional guarantees that bear upon different police investigative procedures. In chapters 7 and 8, we consider the constitutional right to the assistance of counsel and the constitutional prohibition against compelled self-incrimination as they bear upon procedures other than police investigations. These two constitutional rights are given individual treatment because of their pervasive significance, impacting all stages of the process. In chapter 9, we add a brief survey of several additional constitutional restrictions that...
- It would take far more space than we have available to restate even in the briefest fashion all of the Supreme Court rulings that have shaped the constitutional standards currently applicable even as to the investigative stage alone. Prior to the 1960s, space limitations would not have been a problem. Indeed, those constitutional rulings applicable to the state criminal justice systems—which produce the vast bulk of criminal investigations and criminal prosecutions in this country—could readily have been surveyed in less than a quarter of these pages. That changed during the latter half of Chief Justice Warren’s tenure (basically 1961–69), when the Court issued an extensive body of rulings expanding federal constitutional regulation of the state criminal justice processes. The expansion was so great that commentators described the Warren Court as having produced a “criminal-justice-revolution.” Since that time, no field of constitutional adjudication has consistently occupied a more...
- The second major doctrinal prerequisite for the extensive constitutionalization of criminal procedure was adoption of expansive interpretations of individual guarantees. Even though applied to the states, the Bill of Rights guarantees, if interpreted narrowly, would have only a limited impact upon the criminal justice process. A narrow construction of each of the guarantees would produce a constitutional regulatory scheme that governs only a small portion of the total process and imposes there limitations fairly restricted in scope and unlikely to have a significant impact upon traditional state and federal criminal justice practices. Consider, for example, the Fifth Amendment clause stating that “no person * * * shall be compelled in any criminal case to be a witness against himself.” Read narrowly, that provision might be said simply to prohibit the state from compelling the defendant to testify in his criminal trial as to any incriminating aspects of his involvement in the...
- Once the Court selectively incorporated almost all of the specific guarantees dealing with criminal procedure, the independent content of due process came to be known as “free-standing due process” (i.e., standing apart from the incorporated guarantees). Notwithstanding the extensive range of the incorporated guarantees, free-standing due process plays an important role in the constitutional regulation of state criminal procedures. Indeed, constitutional requirements grounded in free-standing-due process extend across all stages of the criminal justice process, including police investigations (see §§ 5.4, 6.2(e)), pretrial procedures (see §§ 9.1(a), 9.2(b), 9.3(b), 9.4), adjudication by guilty plea (see § 9.5), adjudication by trial (see §§ 9.6(g), 9.7(c), 9.8(b),(c),(f)), sentencing (see § 7.2(a), 9.9(a)), and appeals (see § 9.9(b)). Many of these free-standing due process standards extend concepts found in the specific guarantees to procedural settings not covered by those... ...(a...
- Taken together, the various Bill of Rights provisions offer an obvious potential for extensive constitutional regulation of the criminal justice process. Constitutional provisions, however, are not self-defining. Their ultimate impact depends, in large part, upon how they are interpreted by the judiciary in the course of adjudicating individual cases. Thus, it was not until the Supreme Court came to adopt certain critical interpretations of the Constitution’s criminal procedure guarantees that the potential for substantial constitutionalization of the criminal justice process was realized.
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Preface 7 results (showing 5 best matches)
- This is not a text on criminal procedure; it addresses only constitutional criminal procedure. As anyone who has followed the work of the Supreme Court over the years well knows, we have, in many aspects of criminal procedure, about reached the point—to borrow Judge Henry Friendly’s phrase—where we may view “the Bill of Rights as a code of criminal procedure.” Whatever one may think of this significant development, it is apparent that most of the difficult problem areas in the field of criminal procedure are now constitutional in dimension. In concentrating upon the “constitutionalized” parts of the criminal justice process, we have avoided the task—almost impossible for a book of this size—of describing the various non-constitutional standards applied to the criminal justice process in the 50 states and our federal system. Those standards are treated in much larger works, such as
- Criminal procedure curriculums vary considerably from one school to another. Some schools offer a single course, focusing on constitutional regulation, and covering most of the major steps in the process. Our coverage matches the full range of such a course, and may well exceed it in certain chapters. Other schools divide the subject matter into two courses. The first concentrates on criminal investigations (and possibly also considers aspects of the right to counsel unrelated to investigations). Such courses also tend to focus on the constitutional regulation of the process. Our coverage here also provides a very good match; chapter 1 describes the general doctrinal foundation of constitutional criminal procedure, chapters 2–6 treat in greater depth the constitutional regulation of police investigations, chapter 8 adds material on self-incrimination issues presented in grand jury investigations, and chapter 7 considers various aspects of the right to counsel.
- This brief text is intended primarily for use by law students taking courses in the field of criminal procedure. In preparing these materials, we have attempted to set forth as succinctly and clearly as possible an analysis of the constitutional standards of major current significance. In doing so, however, we have not wavered from our firm conviction—which we believe is manifested in our casebook on
- By including more than is needed for certain courses, we have managed (we hope) to provide coverage of value to students taking all of the various criminal procedure courses. Of course, even where a particular course does not deal with the subject matter considered in one of our chapters, there is no prohibition against reading that chapter and thereby acquiring a more complete backdrop for analyzing the role of the federal constitution (as interpreted by the Supreme Court) in the regulation of the criminal justice process.
- The second course in the usual two-course package (commonly nicknamed the “Bail to Jail” course) typically concentrates on the post-investigative portion of the process, and places greater emphasis on nonconstitutional regulation. While our coverage is not as good a match for that course, it still should be of considerable help. Chapters 1, 7, 8, and 9 treat almost all of the elements of constitutional regulation considered in such a course (albeit, in a somewhat summary fashion as to chapter 9).
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Chapter 4 Police Interrogation and Confessions 103 results (showing 5 best matches)
- 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 the extent of police abuse in seeking confessions and the importance of confessions in obtaining convictions—two matters on which conclusive evidence is lacking.
- “We hold * * * that where, as here, [1] the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, [2] the suspect has been taken into police custody, [3] the police carry out a process of interrogations that lends itself to eliciting incriminating statements, [4] the suspect has requested and been denied an opportunity to consult with his lawyer, and [5] the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ * * * and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.”
- If the defendant requests an attorney, this is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease. This is because of the “pivotal role” of counsel in the criminal process, and thus a comparable per se approach is not applicable to a request for a probation officer, clergyman, or close friend. . If the defendant’s invocation of his right to counsel is limited in some way, it does not prohibit further police contact with the defendant consistent with that limitation.
- In Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction.” In deciding it was the former, the 7–2 majority in , two of its companion cases, and many of the cases in which the Court later applied majority opinion “is replete with statements indicating that the majority thought it was announcing a constitutional rule”; and (iii) that the contrary is not shown by later decisions narrowing in other respects merely show “that no constitutional rule is immutable.” And while the Court in stated there could be a legislative alternative if it was “equally as effective in preventing coerced confessions,”
- also highlights the fact that coercive tactics utilized by private persons cannot alone produce a confession that is involuntary in the constitutional sense. However, the “police overreaching” language of should not be taken literally, for a government employee need not be a law enforcement official for his questioning to implicate the strictures of the Fifth Amendment.
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Chapter 6 The Exclusionary Rules and Their Application 123 results (showing 5 best matches)
- A violation of the constitutional restraints discussed in chapters 2–5 can lead to a tort suit, the issuance of an injunction, or the imposition of administrative sanctions. But within the criminal justice process itself, such violations have their most direct impact in the exclusion of evidence. Indeed, the very issue of whether a particular police practice does constitute a violation is almost invariably raised by a defense motion challenging the prosecution’s attempt to introduce at trial evidence obtained through that police practice. The constitutionality of a search will be raised by a motion seeking suppression of evidence obtained in that search. The constitutionality of an arrest ordinarily will be presented by a motion seeking suppression of evidence obtained through a search of the person or a place incident to that arrest. The legality of electronic surveillance (including, but not limited to, its constitutionality) will be raised by a motion under § 2515 of Title III of...
- In the context of the Fourth Amendment, the prohibition against admission at trial of unconstitutionally obtained evidence has come to be known as the “exclusionary rule.” The barring of evidence under the other constitutional limitations discussed in chapters 2–5 is less often described as resting on an “exclusionary rule,” but references to a Sixth Amendment, due process, or even a self-incrimination “exclusionary rule” are found in occasional judicial opinions. Several common issues are presented in the exclusion of evidence under each of the different constitutional guarantees, and that explains why we discuss the different exclusionary requirements in the same chapter. It should be kept in mind, however, that each guarantee provides a separate grounding for its exclusionary requirement, which may give that requirement a somewhat different scope than the exclusionary requirements of the other guarantees. Thus, the title of this chapter refers in the plural to the “exclusionary...
- In , the Court concluded that the fruits doctrine did not bar admission of evidence derived from a constitutional violation if such evidence would “inevitably” have been discovered from lawful investigatory activities without regard to that violation. The inevitable discovery rule differs from the independent source rule in that the question presented is not whether the police did in fact acquire the evidence by reliance upon an untainted source but instead whether evidence in fact obtained through a constitutional violation would otherwise inevitably have been discovered from an untainted source. Yet, as the Supreme Court explained in the inevitable discovery rule is analytically similar to the independent source rule, in that both are intended to ensure that exclusion does not outrun the deterrence objective: the prosecution is neither “put in a better position than it would have been if no illegality had transpired” nor “put in a worse position simply because of some earlier...
- In order to raise a constitutional challenge to governmental action, a litigant must have a sufficient interest in the challenged action to be said to have “standing” to present that claim. The standing requirement demands that the objecting party establish at least that “personal stake in the outcome of the controversy” as will “assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions.” . In a criminal case, that minimal requirement presumably is met by the defendant’s interest in challenging the admissibility of evidence, for his avoidance of a conviction (obviously a significant personal stake) may rest on the success of his challenge.
- Court had before it only the question of whether the fruits doctrine should apply to a second confession following an initial violation, the Court’s language certainly suggested that the fruits doctrine was not applicable to any type of secondary evidence derived from a opinion noted, for example, that application of the fruits doctrine assumes a “constitutional violation,” but that unwarned questioning in itself violated only prophylactic standards laid down to safeguard against such a violation. The doubts created by announced a constitutional rule, were tempered by the plurality’s conclusion in that no self-incrimination violation occurs re a confession obtained in violation of unless and until it is admitted against the maker in a criminal trial.
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Chapter 8 The Privilege Against Self-Incrimination 82 results (showing 5 best matches)
- In , a sharply divided Court concluded that precluding reliance on the privilege by granting witness immunity from criminal prosecution was entirely consistent with the purposes of the Fifth Amendment privilege, as illustrated by historical practice. The English had adopted an immunity procedure, known as providing “indemnity” against criminal prosecution, soon after the privilege against compulsory self-incrimination became firmly established, and a similar practice was followed in the colonies. So too, the self-incrimination privilege had been held inapplicable where the witness’ compelled testimony would relate only to an offense as to which he had been pardoned or as to which the statute of limitations had run. The thesis of these rulings, like that of the indemnity practice, was that where the witness was assured that his truthful testimony could not lead to his criminal prosecution, the privilege was not available, as the danger against which the privilege protected had been...
- The scope of the constitutional privilege has been set by the Court’s interpretation of each of the elements set forth in the language of the self-incrimination clause. Reading that language in light of the history and policies of the common law privilege, the Court has adopted a series of general principles that establish the content of the key terms and phrases of the self-incrimination clause—i.e., “person,” “compelled,” “to be a witness,” “against himself,” and “in a criminal case.” Those principles are discussed below.
- majority distinguished the cases that had allowed witnesses in civil and administrative proceedings to refuse to testify when their prospective testimony might be used against them in subsequent criminal prosecutions. The six justices in the majority divided, however, in their characterization of those rulings. Four justices described those rulings as establishing a prophylactic procedure (see § 1.4(e)), based on the need to “memorialize the fact” that the witness is not willing to testify voluntarily. Two other justices characterized those rulings as establishing “a law outside the Fifth Amendment core,” reflecting the “judgment that the core guarantee, or the judicial capacity to protect it,” required the “complementary protection” of allowing the witness to assert the privilege prior to any actual use of the witness’ ...Under either characterization, the majority agreed, there was no need to expand the supplementary protection of the Fifth Amendment right to include a damage...
- also advanced an analysis that would allow a person compelled to give testimony in any judicial proceeding to exercise the privilege. Counselman reasoned that the compulsion of testimony and the use of that testimony in a criminal case need not occur simultaneously. The privilege therefore should protect against compelling the testimony of a person in any proceeding where that testimony could later be used by the government in a criminal case brought against that person (thereby making him a “witness against himself”). Based on this reasoning, the Court later held that the privilege protects witnesses in a variety of settings not part of the criminal case (e.g., civil cases and administrative hearings), provided that the testimony that would be compelled from the witness might realistically be used against the witness in a subsequent criminal prosecution, see § 8.2(c).
- did add, however, an evidentiary limitation that had not been imposed in the earlier entity-agent cases. Since the agent’s act of production is an act of the entity and not the individual, the government “may make no evidentiary use of the ‘individual act’ against the individual.” Illustrating this point, the Court noted that “in a criminal prosecution against the custodian, the Government may not introduce into evidence before the jury the fact that the subpoena was served upon and the corporation’s documents were delivered by one particular individual, the custodian.” The government would be limited to showing that the entity had produced the document and to using that act of the entity in establishing that the records were authentic entity records that the entity had possessed and had produced.
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Copyright Page 6 results (showing 5 best matches)
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Chapter 7 Right to Counsel 125 results (showing 5 best matches)
- As discussed in § 7.2(a), the Court has not had occasion to determine whether a Constitutional right to retained counsel might exist where there is no right to appointed counsel. That issue is unlikely to be presented in the context of the Sixth Amendment since the primary limitations on the scope of the right of an indigent “accused” to appointed counsel (e.g., the misdemeanor non-incarceration limitation, see § 7.1(c)) will not be matched by a state prohibition against being represented by retained counsel in that proceeding.
- The defendant in a case like must bear the consequences of his unwise choice of counsel. The same is not true, however, when defendant has a constitutional right to counsel tied to ensuring a fair proceeding. At one time, it was thought that a deficient trial performance by retained counsel did not present a constitutional violation unless that deficiency was so obvious that the trial judge should have known that the adversarial process was breaking down. This was distinguished from incompetency by appointed counsel, where the state was thought to have greater responsibility since the court had selected counsel. Such a distinction in judging the performance of retained and appointed counsel was rejected in , where the Court noted: “Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their...
- rulings further recognized that showing prejudice does not in itself dictate the “appropriate remedy.” Such “a remedy must ‘neutralize the taint’ of a constitutional violation, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution.” Thus, where “the sole advantage a defendant would have received under the plea is a lesser sentence,” once the defendant has established prejudice, “the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” On the other hand, in a case where “resentencing alone will not be full redress,” as where “an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after...
- A constitutional right to the assistance of counsel also can be derived from other constitutional guarantees besides the due process right to a fair hearing. Thus, (§ 4.4) recognized a right to consult with counsel as a measure protecting the self-incrimination privilege of a person subjected to custodial interrogation. The Court there required that the police inform such a person that “he has a right to consult with a lawyer and to have the lawyer with him during interrogation,” and that “if he is indigent, a lawyer will be appointed to present him.” This requirement extends beyond the Sixth Amendment right to counsel since custodial interrogation often occurs before the individual is an “accused” in a “criminal prosecution.” The approach of requiring an opportunity to consult with counsel as a means of safeguarding another constitutional guarantee has also been advanced, without success, in other contexts. In ...was urged unsuccessfully by the dissenters, who argued that a...
- The constitutional right to the effective assistance of counsel, “entitles the * * * [defendant] to the undivided loyalty of his counsel.” . The defendant does not receive the full efforts of counsel when the attorney’s decisions are influenced by obligations owed to persons other than the defendant. Such a division of loyalty can arise from various different defense arrangements (current and past) which may subject counsel’s representation to conflicting interests. These include: (1) joint representation of codefendants who will be tried together; (2) joint representation of codefendants who will be tried separately; (3) defense counsel has previously represented, or is currently representing, in another matter or the same matter, a likely prosecution witness; (4) defense counsel has previously represented, or is currently representing, in another matter or the same matter, the victim of the alleged offense; (5) a third party with some interest in the case is paying the defendant’s...
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Chapter 9 The Post-Investigatory Process: From Bail to Appellate Review 151 results (showing 5 best matches)
- (under that limitation, jurors could not testify as to jurors drinking and using drugs together). , carved out a constitutional exception to the acceptable application of the common law rule. The Court there held that a defendant was denied his constitutional right to an impartial jury by a state ruling that excluded on a postconviction challenge juror affidavits reporting a juror’s anti-Mexican statements during deliberations. The Court explained that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” This requirement does not arise unless “there is a showing” that one or more jurors made a statement that “exhibit[ed] overt racial bias that cast serious doubt on the fairness and impartiality of...
- Due process requires the prosecution to prove beyond a reasonable doubt each element of the crime charged.
- The constitutional regulation of the presentation of evidence presents a complex series of standards that are commonly studied in courses on evidence. For our purposes, it is sufficient to note that these standards flow from three sources—the confrontation clause of the Sixth Amendment, the compulsory process clause of the Sixth Amendment, and free-standing due process. The constitutional regulation bears upon various aspects of state evidentiary law including the range of cross-examination, and the limitation of competency to testify.
- The Constitution allows the states considerable flexibility in determining the extent to which they will grant to the defense a right to pretrial discovery of the evidence that the prosecution intends to use at trial. As discussed in subsection (d) infra, the prosecution does have a constitutional duty under the doctrine to disclose material exculpatory evidence in its possession, but that disclosure is geared to trial fairness, and typically does not require pretrial disclosure. (§ 9.5(a)). Also, the evidence that the prosecution intends itself to use at trial ordinarily will be incriminating, rather than -encompassed exculpatory evidence. Thus, the Court has stated: “There is no general constitutional right to discovery in a criminal case, and
- Once a suspect is arrested, a series of non-investigative steps in the process carry the case to its final disposition. These steps are commonly described as post-investigatory, although very often investigation continues during this post-arrest period. Post-investigatory steps include charging, neutral-body screening of the charge, pre-adjudication procedures, adjudication, sentencing, appeals, and in some instances, a successive prosecution. Each of these steps is subject to constitutional regulation. Several aspects of that regulation have been discussed in chapters 6, 7, and 8. This chapter provides a brief overview of its primary additional components. With so much ground to cover, we will describe in detail only the most prominent Supreme Court rulings.
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Chapter 5 Lineups and Other Pretrial Identification Procedures 39 results (showing 5 best matches)
- In the government argued that a lineup is no different from other identification procedures, such as taking and analyzing “the accused’s fingerprints, blood sample, clothing, hair, and the like,” apparently in an attempt to bring the instant . The majority in held that the taking of a blood sample was not covered by the Fifth Amendment, and thus found “no issue of counsel’s ability to assist petitioner in respect of any rights he did possess.” The Court in distinguished the other procedures listed by the government on the ground that they do not present the risks attendant lineups: “Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts.” On this basis, the Court held in
- Although not protected by the Fifth Amendment, some identification procedures (such as speaking or writing for identification) require the active participation of the suspect. But, what if the suspect will not cooperate? One possibility, feared the dissenters in is that “an accused may be jailed—indefinitely—until he is willing to” cooperate. Indeed, some courts have utilized civil contempt and criminal contempt as a means to coerce or punish the suspect who failed to comply with a court order to participate in some identification proceeding. Another possibility is that the prosecution may be permitted to comment at trial on the lack of cooperation. Cf. , holding refusal to give a blood sample is admissible at a criminal trial, as the refusal “is not an act coerced by the officer.” But comment on the defendant’s refusal to speak for identification is improper if it was the direct result of a prior police warning of the right to remain silent, for then the silence is insolubly...
- If an identification was “suggestive” (e.g., a one-on-one confrontation) and also “unnecessarily” so (i.e., there was no good reason for foregoing more reliable procedures), that alone does not require the exclusion of evidence. The Court declined to hold otherwise as to an identification that predated the . If there has been suggestiveness, a subsequent in-court identification is inadmissible only if there is “a very substantial likelihood of irreparable misidentification,” and “with the deletion of ‘irreparable’, [that test] * * * serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself.” supra. The Court later refused to apply a per se rule to post- the factors to be considered in evaluating the likelihood of misidentification “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the
- At least after the accused has been indicted, ruled the Court in , he should not be exhibited to witnesses in a lineup conducted for identification purposes without notice to and in the absence of his counsel. Rather, both the accused and his counsel must be notified of the impending lineup, and the lineup must not be conducted until counsel is present (expressly left open was the possibility that the presence of substitute counsel might suffice where notification and presence of the suspect’s own counsel would result in prejudicial delay). In the absence of “legislative or other regulations * * * which eliminate the risks of abuse and unintentional suggestion at lineup proceedings,” the Court emphasized in the above procedures are required by virtue of the defendant’s constitutional right to confrontation and his right to counsel at a critical stage of the proceedings. (Apparently no court has yet held any set of regulations to be adequate.)
- If the required lineup procedures are not followed, then testimony as to the fact of identification at the lineup is inadmissible at trial. “Only a exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.” If such testimony is admitted, the defendant is entitled to a new trial unless it is determined that the error was harmless beyond a reasonable doubt (see § 9.10).
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Chapter 3 Wiretapping, Electronic Eavesdropping, and the Use of Secret Agents 42 results (showing 5 best matches)
- The Supreme Court has held that techniques of encouragement may not reach the point where they constitute “entrapment”; if they do, the presence of entrapment constitutes a defense to the defendant’s otherwise criminal act. The exact definition of entrapment is a matter of dispute, but it clearly includes the situation in which “the criminal design originates with the [police agents] and they implant in the mind of an innocent person the disposition to commit the offense and induce its commission in order that they may prosecute.” . So far, the Court has based the defense upon other than constitutional grounds; some of the Justices have relied upon general principles of substantive criminal law and others upon the supervisory power of the Court over the administration of justice in federal courts.
- In support of the contention that freedom from entrapment is a right protected under the due process clause, commentators have suggested that: (1) by analogy to the Fourth Amendment protection against unreasonable searches or by application of the penumbral “right of privacy,” , secret agents may encourage only those individuals as to whom there exists “probable cause” (under the balancing approach, see §§ 2.9, 2.11, a lesser quantum of evidence than would be required for arrest); (2) by analogy to the constitutional prohibition on illegally obtained confessions, under which ruses and appeals to sympathy are relevant considerations, , secret agents may not overbear a person’s will to get him to perpetrate a crime; (3) by analogy to the doctrine that it is cruel and unusual punishment to convict for mere status and without the proof of any act, ...basis for conviction must be attributable to the defendant rather than to the police or their agents; (4) by analogy to the constitutional...
- In lower court decisions upholding Title III, the following arguments have been made: (1) One reason for advance notice, as emphasized by four members of the Court in , is to guard the entering officer from attack on the mistaken belief he is making a criminal entry, and this danger is not present in most eavesdropping cases—including all which do not require a trespass. (2) Another reason for notice is so that the individual will be aware that a search was conducted, but in the more typical search case this notice may come only after the event by discovery of the warrant and a receipt at the place searched, which is comparable to the Title III requirement of service of an inventory within 90 days. (3) Prior notice is not required when there is reason to believe it would result in destruction of the evidence sought (see § 2.5(b)), and while the Court in ...to uphold all eavesdropping without notice on this ground, this “exigency” is sufficiently established upon a showing...
- In , the Supreme Court, while noting that the entrapment defense “is not of a constitutional dimension,” acknowledged that there might be “a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Due process does not bar conviction of a defendant for sale of narcotics supplied to him by a government agent. seldom found government “overinvolvement” to violate due process, and have indicated that for such a violation it must appear that (a) the plan did not originate with the defendant, (b) the defendant was not reasonably suspected of criminal conduct or design, and (c) a government agent supplied indispensable and not otherwise readily available goods or services to the illegal enterprise.
- The Act originally provided that it did not limit the constitutional power of the President to take such measures as he deems necessary to, inter alia, “obtain foreign intelligence information deemed essential to the security of the United States.” Those powers do not extend to warrantless tapping in security cases, as Fourth Amendment protections are “the more necessary” for “those suspected of unorthodoxy in their political beliefs.” . (The matter is now dealt with in the Foreign Intelligence Surveillance Act of 1978,
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Chapter 2 Arrest, Search and Seizure 192 results (showing 5 best matches)
- With the exception of the case in which private premises must be entered to make the arrest (see § 2.7(a)), there is no constitutional requirement that an arrest warrant be obtained when it is practicable to do so. While the Court has expressed a “preference for the use of arrest warrants when feasible,” see , it also has declined “to transform this judicial preference into a constitutional rule,” . Such a rule, it noted in would “encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances.” On the other hand, held that once a warrantless arrest is made, the Fourth Amendment “requires a [prompt] judicial determination of probable cause as a prerequisite to extended restraint on liberty following [the warrantless] arrest.” That determination, upon a standard which “is the same as that for arrest,” may be made in an ex parte proceeding (i.e., without defense participation) in the same manner as the issuance of a warrant. A probable...
- qualify literally as a search “incident” to arrest but is related to booking is DNA testing, legislatively authorized on the federal level and in a majority of states. In the Court held that “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photography, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” The Court’s “identification” rationale in raises the question whether there is thus a constitutional requirement that DNA samples be destroyed and
- Although the results in should apply to suspicion of minor possessory offenses, the Court has recognized an offense category limitation only in the somewhat different situation presented by . The Court there held a criminal activity, but only as to “felonies or crimes involving a threat to public safety,” where “it is in the public interest that the crime be solved and the suspect detained as promptly as possible.”
- ’s statement that a stop is reasonable only if “the officer’s action * * * was reasonably related in scope to the circumstances which justified the interference in the first place,” suggests a limitation on investigative techniques during a stop, as was seemingly confirmed in , holding that refusal to state one’s name during a stop could be criminalized only if “the request for identification was ‘reasonably related in scope to the circumstances which justified’ the stop.” But in , where after defendant was stopped for a minor traffic violation a drug dog was used to detect drugs within the car even absent reasonable suspicion drugs were there, the Court held an investigative technique violates ’s limits only if it (1) extends the period of custody or (2) itself constitutes a search (which use of the dog was not; see § 2.2(b)). As the Court elaborated in another traffic stop/dog sniff case, ...of police inquiries in the traffic stop context is determined by the seizure’s ‘mission’—...
- As for entry of the curtilage (an area to be ascertained on a case-by-case basis “with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and other steps taken by the resident to protect the area from observation by people passing by,” is whether the conduct intrudes upon a justified expectation of privacy. But in (holding that a drug-dog’s detection of marijuana inside defendant’s residence by sniffing at his front door was a search), the Court opted for a “property-rights” approach under which the question is whether there has been “an unlicensed physical intrusion.” The Court stated a householder’s “implicit license” to potential visitors could be exceeded in three ways: (i) violating the spatial limitation by failing to “approach the home by the front path”; (ii) violating the temporal limitation by failing to...
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Outline 90 results (showing 5 best matches)
- Publication Date: October 28th, 2019
- ISBN: 9781684672547
- Subject: Criminal Procedure
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell is intended for use by law students of constitutional criminal procedure. It is a succinct analysis of the constitutional standards of major current significance. This is not a text on criminal procedure, but rather about constitutional criminal procedure. It avoids describing the non-constitutional standards applied in each state and federally. The text provides the scope and highlights you need to excel in understanding this field. This will enable you to answer exam questions more quickly and accurately, and enhance your skills as an attorney.
