Law School Legends Audio on Criminal Procedure
Author:
Cheh, Mary M.
Edition:
2nd
Copyright Date:
2021
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24 tracks
have results for Law School Legends Audio on Criminal Procedure
Criminal Procedure and the Constitution 4 results
- And if you've already started your criminal procedure classes, you've seen, or will see, that basic criminal procedure is not at all like substantive criminal law, and not even like a counterpart to civil procedure, with its primary emphasis on rules of procedure. Rather, with criminal procedure, there are, of course, criminal procedural rules, but this course is more like constitutional law. And that has some important consequences in studying criminal procedure.
- Hello, this is Mary Cheh, Professor of Law at George Washington University. These recordings are on criminal procedure and largely about criminal procedure investigative, that is, pre-trial. Most of the activity in criminal procedure is pre-trial, and almost all the cases end in the pre-trial period, and certainly, over 90% end with a guilty plea. So, we're going to cover the topics of criminal investigative procedure with a smattering of topics that are in adjudicative criminal procedure, sometimes affectionately called the "bail-to-jail" part of criminal procedure. But essentially, it's going to be about the pre-trial matters.
- Why is criminal procedure more like constitutional law? Well, because the main protections - not exclusively but in the main - the main protections for individuals who are being investigated and prosecuted by the government are federal constitutional provisions arising from the Bill of Rights. For example, we will be looking at the Fourth Amendment protection against unreasonable searches and seizures, the Fifth Amendment right not to be forced to incriminate yourself, the Sixth Amendment right to counsel in criminal cases. All of these we will focus on.
- This constitutional basis for criminal procedure leads to three principal points that you should know. First, how is it that constitutional Bill of Rights' protections, which were meant to apply only to the federal government, apply now to state and local criminal prosecutions as well? This is an especially important question, since most criminal prosecutions are state and local matters. And the answer lies in the Doctrine of Incorporation.
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Administrative and Special Needs Searches 9 results (showing 5 best matches)
- Remember, the drug testing program has to be based primarily on a special need apart from ordinary criminal law enforcement. So a hospital's program for testing pregnant mothers for drug use, though based on a very general health and safety objective, was so enmeshed with law enforcement and the gathering of evidence and bringing criminal cases, it was not separate from ordinary law enforcement, and the court said that it didn't satisfy ordinary law enforcement requirements and was unconstitutional.
- Then there are these so-called special needs searches typically involving drugs and drug testing, where there are special needs apart from traditional criminal law enforcement that would make Fourth Amendment requirements impractical. A lesser justification may be permissible again, even in absence of any individualized suspicion at all. And in doing the balancing, the court has upheld for example, random drug testing of students in schools or of government employees in safety positions.
- Okay, let's talk about administrative and special needs searches. Government agents engage in a range of intrusions that are not primarily traditional criminal law enforcement. These are regulatory inspections of homes or businesses, automobile checkpoints to detect drunk drivers who may present a danger on the roads, drug testing of students and government employees, things of that nature.
- And so instead, if the government is intruding on your expectation of privacy, but doing so primarily not for conventional criminal law enforcement, the government's actions are gonna be judged under a kind of freeform balancing reasonableness test, namely the court said it will weigh the need to search for these regulatory or special needs searches, weigh the need to search against the invasion the search entails. And if the need outweighs the invasion, and this is kind of like a freeform reasonableness test, it will be reasonable and okay under the Fourth Amendment without conventional Fourth Amendment requirements.
- In this regard, consider a hypothetical. If police set up a checkpoint to interdict drugs for the purpose of interdicting drugs and have dogs on hand to help with that test, that objective, that's ordinary criminal law enforcement. But contrary wise, if officers are routinely having their dogs on hand, they may have them in the back of the cruiser and they, you know, they're doing their ordinary motor vehicle checks, somebody is speeding, or what have you, if they bring the dog out while they're issuing the ticket, that's a secondary and not primary purpose of lawful traffic stops, and if it doesn't prolong the stop, that kind of use of dogs to find drugs would be okay. That wasn't the main purpose of it. Okay.
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Identification Procedures 12 results (showing 5 best matches)
- It's a matter of evidentiary weight and ultimately the fact-finder's evaluation, but that's the ordinary stuff of criminal trials. For us, the matter of eyewitness identification becomes a constitutional criminal procedure matter when the police use pretrial identification procedures, pretrial before trial, such as a lineup, a show-up, or a photo array. When these procedures are used, the main concern is the purposeful or even unintended suggestiveness that might be introduced into the identification and, ultimately, the reliability of the eyewitness's identification.
- The second constitutional basis for challenging identifications is due process of law. If there are identification procedures, whether pre-indictment or post-indictment, and the defendant can show that these government-created procedures, because you need state action, were unnecessarily suggestive and likely to lead to mistaken identification, this is a very heavy lift for the defendant. But if the defendant can show these two things, that the identification was unnecessarily suggestive and likely to lead to mistaken identification, then those identifications can be excluded, and they may even be excluded from the trial.
- The degree of attention at the time, the accuracy of the witness's prior descriptions, how much time to view, the time between the crime and the police-created ID procedure, whether the identification procedure was so corrupting that it would necessarily influence the identification. If it's found to be reliable, the court will admit the in-court and the pretrial identification. If it's found not to be reliable, the court will typically not admit either.
- Okay. Now, I want to turn to identification procedures. In many cases, the prosecution of a defendant may depend upon eyewitness identification, testimony from somebody who was an eyewitness. And an identification is made of that person, what they did committing the crime or connected to the crime. And this may be highly reliable, but that depends more or less on the original opportunity to view whether the circumstances were such that the person could really see and, you know, whether it was a good look or whether they knew that person, etc.
- Now, a typical scenario is a show-up. Let's say the victim is robbed on the street. The police arrive immediately and get out an identification, which is radioed forward. Other police see the person who seems to match the identification and the description and then brings the victim to view the person. Now, what about that identification? Is that identification admissible at trial? Well, we have to confront the due process clause. To be a due process violation, the identification procedure we said must first be unnecessary and suggestive.
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Doctrine of Incorporation 3 results
- The matter was debated principally in the 1900s, and for criminal procedure principally in the 1960s. And the Supreme Court finally settled on the Doctrine of Selective Incorporation, Selective Incorporation. That is, we ask, is the particular constitutional right one that the Supreme Court has deemed fundamental or essential to the American system of justice? And by that approach, the Supreme Court ultimately incorporated or applied almost all, but not all, of the Bill of Rights against state and local governments.
- In terms of criminal procedure with its focus on the Fourth, Fifth, Sixth, and Eighth Amendments, all you really need to know is that everything is incorporated except the Fifth Amendment requirement that all prosecutions for capital or infamous crimes, meaning essentially all felonies, be begun with an indictment handed up by a grand jury. This is referred to as the "Grand Jury Clause." States don't have to follow that. They can if they want, because they're not constitutionally obligated. They can if they want, but instead, they may begin all of their state prosecutions by a prosecutor's information, which is simply a piece of paper like a complaint that the prosecutor files and a case is started. The charges are laid against the defendant.
- The Doctrine of Incorporation. In the early 1800s, the Supreme Court decided a case that held that the Bill of Rights applies only against the federal government and not against state and local governments. But thereafter, in 1868, the 14th Amendment was adopted and among its provisions are one that says, "Nor shall any state, any state, deprive any person of life, liberty, or property without due process of law." A question arose. Was this due process clause applicable as it is to the states meant to incorporate the protections of the Bill of Rights against the states?
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Conclusion 1 result
- Well, with these last topics, we come to the end of this recording, but I just briefly want to say something and remind you. In a criminal procedure course, it's vital that you approach each of the topics, particularly the big topics, Fourth Amendment, Miranda, identification, with a general roadmap of possible issues, to see whether they are raised in your exam question.
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Guilty Pleas 7 results (showing 5 best matches)
- Okay, another topic that may not be part of a basic course in criminal procedure, but it could be part of it and so, again, some passing familiarity with it, and that is guilty pleas. And it's important really to make some mention of this because in real life, it's especially the case that guilty pleas are prominent because most...well over 90% of cases result in guilty pleas. This is usually the end of the procedural line in the overwhelming number of criminal cases.
- Finally, the fourth good basis for withdrawing your guilty plea after sentencing is the failure of the prosecutor to keep an agreed-upon plea bargain. Here is this little vignette. Defendant Smith agrees to plead guilty in exchange for the prosecutor's promise to consolidate all the charges and to make no sentencing recommendation. Now Defendant Smith consolidates all the charges, he pleads guilty, and then Judge Brown takes the plea, and the judge leans over and says to the prosecutor, "By way of sentence, what do you recommend?" and the prosecutor jumps up and says, "Give him the maximum," well, that's a breach of the agreed-upon plea bargain by the prosecutor, and it's a good basis for withdrawing the guilty plea even after sentencing. If you get anything on your criminal procedure exam about guilty pleas and plea bargaining, and you have that possibility, that's often a very good choice to withdraw your plea, that the prosecutor didn't keep his or her side of the bargain, and...
- Okay, the first thing you need to know about guilty pleas is that the Supreme Court has been pursuing two basic paths. Number one, as a general rule, the United States Supreme Court will not disturb guilty pleas after sentencing. It sees a guilty plea there as an intelligent choice among the defendant's alternatives on the advice of a competent attorney. So, the first avenue that the Supreme Court has been following, is that generally, it will not disturb guilty pleas after sentencing, which it views to be an intelligent choice among the defendant's alternatives on the advice of a competent attorney.
- What else does Judge Brown have to tell Defendant Smith about? The second thing Judge Brown has to tell Defendant Smith about is the maximum authorized sentence and any mandatory minimum sentence. And then Judge Brown has to tell the defendant that he's got a right to plead not guilty, to demand the trial, and that by pleading guilty, he's going to waive the trial, and the court will move directly to sentencing. All of this has to be on the record.
- And what if there's some mistake in that plea-taking ceremony? What is the defendant's remedy to withdraw his plea and plead again? Now, what about withdrawing your plea after sentencing? What's our general rule about withdrawing a guilty plea after sentencing? Our general rule is that the Supreme Court will not allow the withdrawal of a guilty plea after sentencing, because it sees that as an intelligent choice among the defendant's alternatives on the advice of a competent attorney.
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Preliminary Proceedings 5 results
- With grand juries, there are generally like four things you should probably note. Number one, states don't have to have grand juries as part of their regular charging process. The Fifth Amendment right to grand jury indictment has never been required in state cases or incorporated in state cases. This is the one instance where criminal procedure rules are not incorporated against the states. They don't have to use them constitutionally speaking, but they may, under their own system, if they want, rely on grand juries. And if you don't have a grand jury, you charge by information. Again, it's just a piece of paper that sets out the charge against the defendant.
- Now, I wanna talk about a few items that are ordinarily not taken up in criminal procedures, certainly investigative, but you may have them in your course, so you have to have some passing familiarity with them. I wanna talk about initial appearance, Gerstein hearings, preliminary proceedings, bail, and the grand jury. Starting first with the initial appearance, after an individual is arrested and booked, that person will be taken before a magistrate or a judge for the "initial appearance." This typically includes notifying the defendant of the charge, appointing a lawyer, and setting the conditions of release. This proceeding may also fold into the so-called Gerstein hearing, the name of which comes from the case called Gerstein versus Pugh. The purpose of the Gerstein hearing is to see whether there's probable cause to continue to hold that person who's been arrested, and this applies when the person has remained in custody. It's only required when the person has been held in...
- Let's talk a little bit about grand juries. Grand juries are an odd, unique, peculiar institution that we inherited from England, which decades ago abolished it. And it has two principal functions, an investigative function and a charging function. As to charging, the Grand Jury Clause of the Fifth Amendment applies for the commencement of prosecutions for capital or other infamous crimes, typically we mean felonies, and it has to be by virtue of a grand jury indictment. That means a group of citizens, usually 23 in the federal system, come together, and by majority vote, determine whether there's probable cause to believe a crime was committed and the defendant committed it. The grand jury then hands up the indictment, and that's the commencement of criminal proceedings.
- Number two, the prohibition on the use of illegally seized evidence doesn't apply in the conduct of grand juries. What does that mean? Well, it means the grand jury witness can be compelled to testify based upon illegally seized evidence, and no grand jury indictment is gonna be quashed because it's relying on illegally seized evidence.
- ...yet again in the case of Trump versus Vance, a case just recently decided against former President Trump. A state district attorney got a subpoena from a grand jury directing this accounting group to produce financial records relating to the president and business organizations affiliated with the president, former president, including tax returns and related schedules. Well, the president said, "Hey, I'm the president of the United States. I should have absolute immunity, or at least I should have some standard that protects me beyond what an ordinary citizen would get. I should have some special protection against responding to subpoenas for documents about my affairs." But the court didn't agree with either of those points and held that the president is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. And so the grand jury is entitled to everybody's evidence. And unless somebody has a Fifth...
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State Constitutional Rules 2 results
- But what if a state wanted to provide more protection for individuals or criminal defendants. For example, we're going to see that the Fourth Amendment only requires a warrant for an arrest if the arrest takes place in the home or a home-like equivalent. In other words, under the Fourth Amendment, no warrant is needed for a public place arrest. Could a state say, "Well, we want to give greater protection. And we want warrants for all arrests, in the home or in public." Could it do that? Yes, but it has to do that very carefully. The state must say and say clearly, that it's relying exclusively on its own state law if it were to adopt such a rule. It can't say that it was interpreting the US Constitution, or the Fourth Amendment, or even be confusing and link with federal rules. It has to be very clear and say, "We're relying only, and exclusively, and explicitly- on our own state law." Then it could have more protection than is required under the Bill of Rights.
- The second question for us is okay, the due process clause of the 14th Amendment applies the constitutional guarantees of the Bill of Rights, most of them against the state and local governments. Again, everything except the Fifth Amendment requirement of the grand jury indictment. But what if a state wanted to follow a different set of rules other than those set out in the Bill of Rights, could it do that? Yes, but only to a limited extent. A state could not provide less protection than that required by the Constitution. For example, the state couldn't say, "Okay, the Sixth Amendment incorporated against the states, requires counsel in criminal cases." But we're not going to follow that. We're going to say, "No counsel in criminal cases." Could they do that? No. The Federal Constitution sets a floor of protections, which states may not fall below.
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The Right to Counsel 2 results
- The second major point here relates to the ineffective assistance of counsel claim. If you take up the right to counsel and issues related to it, and if it's separate from identification, procedures or other pretrial matters, you will no doubt encounter this issue. And perhaps it might be tested on because professors seem to like that if you're taking up this part...these materials in your basic course.
- Next, I wanna say a few words about the right to counsel, the Sixth Amendment. We've already discussed that in different contexts. We've talked about it, you know, in terms of how it may apply in incriminating statements or how it might apply in eye witness identification. But just to elaborate on this a little bit more, the Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right to have assistance of counsel for his defense."
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Privilege Against Self Incrimination 3 results
- A second way is if there's no possibility of incrimination. For example, if the statute of limitations has run on the underlying crime that you're concerned about, there's no possibility your statements could be used against you in a criminal case. So that's another way that you're not gonna be able to rely on the Fifth Amendment. And finally, waiver. The defendant can waive his or her Fifth Amendment privilege against self-incrimination. And a classic way of waiving is by taking the witness stand. If the defendant takes the witness stand, his Fifth Amendment privilege is waived as to all subjects of legitimate cross-examination. So, you can lose your Fifth Amendment privilege by being granted appropriate immunity, by there being no possibility under law that your statements could be used against you because let's say there's a statute of limitations that's run, or by waiving it. And one way you could waive it is to take the stand in your own case, and then all legitimate subjects...
- And then finally, the requirement of it being in a criminal case. This too is important. The protection is not just against incrimination during a criminal case, it can come in any proceeding, formal or informal, criminal or civil. The only requirement is that there is compelled testimony, communication tending to incriminate you that could be used against the person in a criminal trial. These ingredients are most relevant to us in two ways. First of all, again, the protection is for testimony, not the exhibition of physical characteristics. So, if a person is put in a lineup, or is asked to speak words that the robber used, the physical sound of one's voice, it has to be testimony. And again, the testimonial compulsion must come from the government. Okay? Not the individual himself who may have been mentally ill and was speaking because he heard voices in his head. And the Fifth Amendment privilege is the one that's gonna lead us ultimately and next to Miranda versus Arizona. But...
- ...14th amendment due process clause. Remember, the doctrine of incorporation that we spoke about at the beginning. Now, the Fifth Amendment says no person shall be compelled in any criminal case to be a witness against himself. The key definitional ingredients of this protection are, first, person. Person means only a real person, not an artificial entity like a corporation or a labor union. Even somebody who's actually serving in the capacity of a custodian cannot in that capacity refuse to turn over subpoenaed records, so it has to be a real person. Compelled means compelled by the government, forcing or pressuring someone to testify. And for our purposes, that will mean being subpoenaed or subject to custodial interrogation by the police. Being a witness against oneself. Importantly, please note, this means testimony that's incriminating. Testimony or communicative evidence. And that has to be distinguished from compelling someone to produce real or physical evidence, like...
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The Exclusionary Rule 8 results (showing 5 best matches)
- So, the balance weighs in favor of rejecting the exclusionary rule in those proceedings. The court has even held that illegally seized evidence may be used in rebuttal impeachment of a defendant in a very criminal case if the defendant testifies contrary to the illegally seized evidence. And the rationale, I think it's very sensible. Without allowing the government to use such evidence in impeachment, defendants would be rewarded for perjury and could use the exclusionary rule as a sword. However, that same rule doesn't apply to the defendants' witnesses, because it could seriously chill defendants from putting on a case, and defendants can't always control their own witnesses and how they might testify. So, effectively, first, the exclusionary rule is limited to criminal prosecutions and to the prosecution's case in chief. Second, the exclusionary rule is limited where police have violated it yet they have acted in good faith. They weren't behaving egregiously or truly culpably. So...
- So, you will need to know the exclusionary rule in general, exclude evidence illegally obtained and evidence derived therefrom, but the key is knowing the limits on the exclusionary rule. And these limits are arrived at pretty much by balancing the rule's contribution to deterrence of illegal police behavior versus the very substantial costs of depriving courts of probative and reliable evidence of the defendant's guilt. So, what do we have? No exclusionary rule available in proceedings other than a criminal trial and even there, only the prosecution's case in chief, and illegally obtained evidence can be used to impeach the defendant. The exclusionary rule is not available if the police acted in good faith. And there are a variety of good faith scenarios. Good faith reliance on a facially valid warrant. Good faith reliance on a valid statute that the Supreme Court later invalidated or overruled. Good faith reliance on a court or even police-maintained database if it's not a...
- Or a second good faith is if the officer relied on a statute authorizing a search but later that statute was ruled unconstitutional. How's the officer gonna know that? And, third, if the officer relied on a Supreme Court case that was later overruled. How would the officer know it was going to be overruled? Or a fourth instance, the officer relied on court or even police-managed databases, for example, saying there was an existing warrant out for somebody, but, actually, it had been quashed, leading to an illegal arrest and then obtaining evidence, etc. The most expensive application of the good-faith exception to the exclusionary rule came in the case of Herring versus the United States. This was another computer database error case. But here it wasn't a database managed by a court. But it was one managed by a law enforcement agency itself. Officers in one county arrested Herring based on there being an outstanding warrant listed in another county sheriff's database. Herring was...
- This exception to the exclusionary rule is based on prediction of what would have happened, and the surrounding facts have to be proved by the government by a preponderance of the evidence. Third, there's another exception, it's called attenuation. Derivative evidence must be causally related to the original illegality. But sometimes, the chain of connectedness is too attenuated. There are intervening events that may break the chain of the connection. Yes, but for the original illegality, the derivative evidence would not have been discovered, but deterrence benefits of a remote connection don't outweigh the substantial costs of applying the exclusionary rule. Here are some examples of attenuation or breaking the chain as the colorful language is, thus allowing derivative evidence in. First, intervening acts of free will by either the defendant or witness can break the chain. Intervening acts of free will always break the chain, and it's common to test on that point. For example, a...
- ...seizures. And the test that the court uses to determine whether it will apply the exclusionary rule in particular proceedings or in particular circumstances is a balancing test, which is the deterrent effect of suppression must be substantial and outweigh the heavy cost of suppression in terms of loss of reliable evidence and loss prosecutions. Courts have even spoken of the exclusionary rule as "a last resort." Using this test, the court has limited the use of the exclusionary rule in several ways. First, it's limited the proceedings where it may be used. It's not applicable in civil proceedings, in habeas corpus proceedings, in preliminary hearings and bail hearings, sentencing proceedings, parole revocations, and grand jury proceedings. In all of those cases, the court regards it as quite speculative that officers would violate the Fourth Amendment and risk losing evidence in a criminal case but hope to use it in these other proceedings, for example, in grand jury...
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Sixth Amendment and Confessions 4 results
- Well, again, if you have a confession or incriminating statement and the government wants to use it against the defendant here in the Sixth Amendment, if criminal proceedings have begun, if the defendant is now an accused by way of arraignment, formal charge, preliminary hearing, indictment, information, but not merely a suspect or not merely an arrestee, formal proceedings have begun, the government may not deliberately elicit incriminating statements from the defendant on the crime charged. It's not generally applicable to all crimes, but on the crime charged, it is specific to the offense.
- Okay. The third constitutional basis for challenging a confession or an incriminating statement, we talked about due process. The second, was Fifth Amendment with Miranda. Now, it's the Sixth Amendment, right to counsel. The Sixth Amendment guarantees that "In all criminal prosecutions, prosecutions, the accused, the accused, shall enjoy the assistance of counsel for his defense."
- The Sixth Amendment, of course, applies against states because it's incorporated through the 14th Amendment, again, incorporation. The Supreme Court in a case called "Massiah versus the United States" decided two years before Miranda, held that it's a Sixth Amendment violation if the government in the absence of counsel, deliberately elicits incriminating information from a person against whom adversary criminal proceedings have commenced.
- And if you're talking about indictment in that particular case and with Massiah's case, what the government did, it got a co-defendant to wear a device and conduct a conversation with Miranda who was out on bail, and thus get incriminating statements from him after he had been indicted in a case, and he was already entitled to a Sixth Amendment right to counsel. So, what does this mean in terms of protecting against confessions or incriminating statements?
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Interrogations and Confessions 1 result
- All right, let's turn to police interrogations and confessions. Confessions play a very important role in criminal investigations and prosecutions, and there are three constitutional provisions that limit the government's ability to obtain these confessions and incriminating statements. And they all are; due process of law; second, the Fifth Amendment privilege against self-incrimination, including, most importantly, the rules about Miranda versus Arizona; and third, the Sixth Amendment right to counsel.
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State Action 3 results
- The third fundamental point about the constitutional basis of criminal procedure is the requirement of state action, state action. Constitutional protections, except for the 13th Amendment, which bans slavery, apply only against governments, not private action. So for example, the Fourth Amendment protection against unreasonable searches and seizures doesn't apply if your neighbor is searching your house. Maybe that's a crime, but it doesn't violate the Fourth Amendment. And that neighbor could take any evidence of your crimes, or drugs, for example, and give it to the police. There's no state action there. There's no violation of the Fourth Amendment because your neighbor is not a government. Or, for example, the Fifth Amendment privilege against self-incrimination doesn't apply to private parties. So if your same neighbor confines you to your house until you sign a confession, and then shares that with the police, obviously, you should move away because this is not a very pleasant...
- So review, whose conduct is government conduct for the purposes of the Fourth Amendment and other constitutional protections under the Bill of Rights? Answer, the publicly paid police on or off duty, any private individual acting at the direction of the public police. And finally, only those privately paid police that are deputized by the government with the power to arrest you or acting as agents of the police. So, with these general points in mind, we're now going to move to the basic protections an individual enjoys while being investigated or prosecuted by the police.
- Or what about the private security guard at the food store holds you and questions you in the back room about an allegation of shoplifting and you confess? Is that a violation of the Fifth Amendment or due process? No. Here again, no state or government action. And then you have to ask, "Well, what does count as state or government action?" First, actions by the publicly paid police on or off duty. The publicly paid police are always government conduct. Number two, any private individual or entity acting at the direction of the public police is also a state actor. Any private individual acting at the direction of the public police. Let's say that your local police department asks your roommate to search your dresser drawers for drugs. That would convert your roommates conduct into governmental conduct. Any private individual acting at the direction of the public police then becomes the agent of the police and that too is state action.
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- And with deadly force, lethal force, as in shooting somebody, or intentional head strikes with flashlights or batons, or physical choking and/or restraints that choke, then the officer needs probable cause to believe to use that deadly force, that lethal force, that the suspect poses a threat of serious harm either to the officers or others. And so, for example, shooting and killing a teenage boy running away from a burglary was deadly force, and excessive, and unlawful. Now, we're talking about the exclusionary rule here, but there's been an increasing use of the criminal law against officers that use deadly force, or other force that is excessive and unreasonable.
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Warrants 10 results (showing 5 best matches)
- Well, when is a warrant needed for an arrest? Overwhelmingly, arrest in this country are made without a warrant. First, under the common law and for the Fourth Amendment, you need to understand the difference between a felony and a misdemeanor. Felonies are crimes punishable by a maximum sentence of more than one year. Misdemeanors are crimes punishable by a maximum authorized sentence of up to and including one year. Now, at common law, police could arrest without a warrant for a felony in their presence anytime they had probable cause to believe a felony was committed and that person did it. And police may arrest for a misdemeanor committed in their presence. Let's say, for example, an officer sees you picking someone's pocket on the street, but under the Fourth Amendment, the police need a warrant for a misdemeanor not committed in your presence. Second, arrest warrants are not needed if the police arrest somebody in a public place. But the flip side of that, of course, is that...on
- The Fourth Amendment, again, doesn't say you have to have them, but if you do have them, it has to be on oath. And it has to be before a neutral officer. It has to be based on probable cause. And it has to particularly describe the persons, places, or things to be searched or seized. Warrants are desirable though, and often, courts say that they are preferred because the police and the prosecution have to go to this neutral official, usually a magistrate, and again, under oath, explain to that neutral party why they have the necessary justification or probable cause and as a neutral figure, which is to say someone not engaged in the competitive enterprise of ferreting out crime, that person can place him or herself between the citizen and the police before there is a search or a seizure. And the basis for the search and seizure is then memorialized ahead of time beforehand. And so, there's no adding to it or embellishment of it after the search or seizure takes place. And it will...law
- But then the court changed its mind primarily at the prodding and Justice Scalia and others, you know, other justices, law professors, etc. And there came a change in a case called Arizona versus Gant, decided in 2009. There the defendant parked his car in the driveway and got out. He was there arrested based upon information that the police had, that he was driving on a suspended license. He was handcuffed and locked in the back of the patrol car. Police then searched the interior of the car and all containers in it as per Belton and found cocaine in his jacket left in the car. The Supreme Court reconsidered Belton and in a closely divided vote, the court held that the police may search a vehicle incident to a recent occupants arrest consistent with the rationale of danger to police or destruction of evidence only when the arrestee is unsecured and within reaching distance of the car's interior at the time of the search. And it added one additional wrinkle. It said, "Circumstances...
- Now, this didn't apply to Gant because there was no reason to believe that evidence of the crime of arrest would be found in the car because he was arrested for driving on a suspended license. And there was nothing that could be found inside that would be relevant to the crime of arrest. Now, some further complexity about searches incident to an arrest, ordinarily, you know, you don't need a warrant for a search incident to an arrest. And we know it's the person in the wingspan area, but we have this little complexity about a car, recent occupant of a car, but here's another complexity. When you are arrested, we said you get the search incident to an arrest and all of the objects on you, one of which might be or might be in your wingspan area is your cell phone. Search of a person incident to an arrest under the general rule would seem to include cell phones. However, the court decided a case called Riley versus California, and it changed the rule when we're dealing with cell phones...
- So, and in any event, if you really had that, you could rely on emergency doctrines. So, the court ruled that when you have a search incident to an arrest, if you wanna search the contents of a cell phone on that person or in the wingspan area, you need a warrant. Okay. Now, another important exception to the warrant requirement, we talked about search incident, for example. But another one is the so-called automobile exception. Leaving aside search incident to an arrest and the other items that we talked about, this is a different rule. This is not somebody recently emerged from a vehicle or anything like that. This is a situation, so we focus on this, the police have probable cause to believe that a car contains contraband or proceeds or evidence of a crime. And the car, think of the car here as a container. Now, if police wanna search a container, they ordinarily need probable cause and a warrant, but what if the container is a car and they have probable cause to believe that the...
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Miranda v. Arizona 9 results (showing 5 best matches)
- What's interrogation? And remember, Miranda's triggered by custody and interrogation. Interrogation includes expressed questioning or its functional equivalent, which the court has said any words or actions that the police should have realized were reasonably likely to elicit an incriminating response from the suspect. And there are two cases that I want to compare and contrast to give you a feel for this. The first is Rhode Island versus Innis. In that case, there was a murder, a taxi driver, I believe, with a shotgun. And the shotgun had not yet been found. The suspect was arrested...so he's under arrest and he invoked his right to counsel. So any questioning had to cease, no questioning. He was put in the squad car and on the way to the station, one officer said to another that there was a school for handicapped children nearby, and the officer hoped that the children wouldn't find the gun and maybe hurt themselves and added that it would be too bad if a little girl found it and...
- Okay. Let's talk about Miranda versus Arizona. Probably one of the best-known cases of all, see it on TV, well-known rules, etc. And you can expect to encounter this, and I would think, certainly be tested on it. So what are the rules of Miranda versus Arizona? The case was decided in 1966, it was a 5-4 case and it held that whenever a suspect is in custody and subject to interrogation, no statement incriminating or claimed to be exculpatory can be used against that person unless the famous Miranda warnings are given, which you know, everyone in America knows from TV are, "You have a right to remain silent. Anything you say can and will be used against you. You have a right to consult with a lawyer and have that person with you during the interrogation. And if you're indigent, a lawyer will be appointed for you to represent you." A suspect may voluntarily and knowingly waive these rights and submit to questioning. Once you get these warnings, the suspect can waive and submit to...
- Contrast that with another case, Brewer verses Williams. A little girl had been abducted and killed and her body was dumped in an open area. This case is sometimes referred to as the Christian Burial Speech Case. Now the dialogue in that case, even though the detective told the suspect, "I don't wanna hear anything from you. I don't wanna hear anything you have to say." Here, the dialogue was aimed at the suspect and police knew of the suspect's special susceptibility to religious pleas and his mental instability. And the court said that this conversation about, gee, you know, unless we find the little girl's body, here she was snatched away from her family on Christmas Eve, and it's winter and the body might get snow on top of it. It might never be found, and the family will be deprived of giving that child a Christian burial. In that context, the court said, yes, the tactics used by the police there did amount to interrogation. It was words or action that the police should have...
- So what about waiver? When will you be considered to have waived your rights? Well, waiver, the court has said has to be knowing, voluntary, and intelligent. Forget the intelligent part, okay? That's not really serious. Has to be knowing and voluntary. What does that mean? Well, no force or tricks on the waiver. You have to have the capacity to understand the warnings themselves. If you have the capacity, bare-bones to understand what was told to you, then you can waive. You don't have to be told other things. You don't have to be told what crimes you're going to be asked about. You don't have to be told that prior statements you may have made are inadmissible unless the police try to trick you in that regard. You don't have to be told that a lawyer is trying to reach you. The only relevant information is what's in the room with you. Okay. So you can waive.
- ..., there's no anticipatory invocation. You only get to invoke your rights when you're actually the subject of interrogation. Okay. What if you do clearly and unambiguously invoke your rights? Can the police try again? Can they have at you again? Well, it depends on what you invoked. If you invoke your right to silence, the police can come back if they have an...and put quotes around this, this is gonna be your operative language. If they have "scrupulously honored your claim to silence." If they've scrupulously honored the right to silence invocation. For example, they say, okay, and they give you a breather. They act respectfully. And then after a decent interval, they can come back and see if you now want to talk. Of course, they can't badger you and they can't have successive attempts after attempts, but they give you a timeout, okay? Something like that. And then they come back and it's all very respectful and they can ask you again, you know, "You didn't want to talk to...
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What is a Search or Seizure 7 results (showing 5 best matches)
- Okay, before we actually go on to the next question, which is standing, I'm wanna read something because it's important. It's an area where the law is evolving, and your professors are likely to pay some attention to this and so we have to pay some attention to this. In recent years, the most controversial issues in the area of what counts as a search or seizure or one, the transferring of property documents or information to a third party. And the idea had been, particularly with bank records and things like that that I've mentioned, that you have no reasonable expectation of privacy in those documents anymore because you conveyed them to somebody else and those somebody else's could then be also the police. And the second area is surveillance. The police watching you. Now, the usual rule is what a person knowingly exposes to the public the police can also see. They don't have to avert their eyes. But both of these doctrines, while they're still generally true, are being modified...on
- So, the key area to watch for is extended surveillance of people via GPS or similar devices. And there are two cases that are of primary importance here. First is Jones versus the United States and second, Carpenter versus the United States. In Jones, a unanimous Supreme Court held that the attachment of a GPS tracking device on a vehicle and monitoring the movement of that vehicle on public streets for four weeks was a search under the Fourth Amendment. The opinion for the court was written by Justice Scalia, and he relied on trespass theory saying that cars didn't replace trespass theory with reasonable expectation of privacy, it added to it. And since the device, in that case, was physically attached to a car to gain information, it was a trespass and needed a warrant, which, by the way, the police did have initially but then it had expired. But five justices writing separately did not want to rely exclusively on trespass theory and noted that the physical attachment was just a...
- Now, Justice Sotomayor said that the court would have to consider the nature, the amount of information the government can acquire, its permanence in storage, its manipulation via data mining, and the length of time that it continues. This prolonged surveillance can enable the government to ascertain political and religious beliefs, sexual habits, and so on. Justice Alito, Ginsburg [inaudible 00:04:52] and Kagan said, "We have to ask in a particular case whether the surveillance involved a degree of intrusion that a reasonable person would not have anticipated. And whatever that line may be, four weeks of monitoring was too much." Now, of course, if the police have a doubt about this, they just go get a valid warrant. Now, two years after Jones, the court expressed broad sympathy for Justice Sotomayor's view that new technologies could seriously intrude on reasonable expectation of privacy. And in a case called Reilly versus California, the court excluded from the routine access to...
- But the second case in this context is Carpenter versus the United States decided in 2018. It was closely divided, a five-four case. In Carpenter, the police used a court-ordered subpoena by statute in effect to get wireless phone companies to give them cell site location data. Now, to explain what this is, your phone, right now probably taps into the wireless network several times a minute whenever your signal is on whether you're using the phone or not. Each time your phone connects to a cell site, it generates a time-stamped record known as a cell site location information. Modern cell phones, including text that you send on your phone, generate vast amounts of increasingly precise cell site location data, which wireless carriers collect and store for their own business reasons, and typically keep it for all of these millions of phones for five years. The government asked the provider for Carpenter's cell-site locations for about 130 days, generating over 12,000 location points,...
- So, here's where it gets interesting. To find that this tracking and non-physical tracking constituted a search, these five justices had to confront well-developed Fourth Amendment notions that anything one discloses to the public may be equally observed by the police. Now, Justice Sotomayor put the issue most directly when she said, and I'm quoting, "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Now, you're out there in the world, and presumably, anyone could be tracking you, so the police can track you. But the challenge for these justices, and I think you would do well to be able to discuss these frontiers in the Fourth Amendment law, the challenge is to provide a standard to determine when government tracking or surveillance without physical trespass is a Fourth Amendment search.
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Due Process and Involuntary Confessions 4 results
- Lying is commonplace and accepted. The police will say, "Oh, we have your fingerprints on the murder weapon, we have a witness." But unless the lies are of such a nature to meet the test of involuntariness, it's not a violation of due process. Now, if you lie about the law, and you say, "Oh, the statute of limitations has run and you can't be prosecuted." or something like that, lying could rise to the level where it overcame a defendant's will. But the same is true of trickery, lying and trickery. The police force a sympathy with you. "Oh, I'd have done the same thing if I were in your shoes," kind of thing. And pretending to be the suspect's friend, that's a common tactic. Saying, "I'll get in trouble with my superiors if there's no confession, and I need this job." Things like that. But you can go too far. For example, there was a case where the officer impersonated a priest and heard the suspect's confession. There was another case where the police created false scientific reports
- Due process, starting first with due process, due process of law. A confession violates due process if under the totality of the circumstances, and whenever we say totality of the circumstances, you know that you're going to have to play around with facts and consider all the facts. So the rule is under the totality of the circumstances, was the confession or the incriminating statement involuntary? That is, did the police or the government use tactics and pressured the defendant such that those tactics overcame the will of the defendant or rendered him unable to make a rational choice to confess or not? If a confession is obtained through physical violence, or a threat of it, holding a gun to someone's head, for example, or through psychological torture, for example, relentless questioning day and night for days with sleep deprivation, etc., resulting in a confession, that would be involuntary.
- But modern-day interrogations are more of a con job on the suspect where the police lie, or trick, or make false promises to get the suspect to confess. To evaluate that kind of behavior, we ask, again, in the totality of the circumstances, considering the actual tactics, the conditions of the interrogation, and the characteristics of the defendant, did the police action overcome the will of the defendant or render him unable to make a rational choice about whether to confess or not?
- ...the defendant. And then ask, overall, were the police tactics, did they overcome the will of the defendant or rendered a defendant unable to make a rational choice about whether to confess or not? Finding a confession involuntary, and it's very unlikely that that will happen, but in each case, you have to go through the process with the test, argue whether it was met on the facts that you're given. And remember, a voluntary confession doesn't mean that it was volunteered. And you can pressure the suspect, even considerable pressure, you just can't overcome the suspect's will. And it has to be the government that's responsible for causing the involuntary confession. State action has to exist. For example, there was a case where the suspect was pressured by his own mental illness, voices in his head, telling him to confess, and the police neither caused that condition nor exploited it. There was no state action, the government wasn't responsible there. If a confession is... ...on...
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Community Caretaking Functions 5 results
- Now the final sort of special area here is community or public caretaking functions. It's an odd beast because it could fall under emergencies, it could fall under other doctrines. But it has started to be carved out as a kind of separate area to focus on. The police undertake many actions to help individuals or protect people, or the public from harm. Consider these examples, a neighbor says that she hasn't seen the elderly man who lives next door in a couple of days and ordinarily, he's out on the porch. Could the police check on him, a welfare check? And what if no one answers when they go to the house, no one answers the phone, or no one answers the door? Can the police then enter without a warrant? And then if they found some contraband, use it against the person?
- Another case, Brigham City versus Stuart. It was a public safety kind of exception to the warrant requirement. Police had an objectively reasonable basis for believing that an occupant of a home was seriously injured or imminently threatened with injury. The police got a call about a loud party. They went to the premises and they could see within that there was a fight going on so they entered. And that could be viewed as a [inaudible 00:03:13] of emergency and the fact that they didn't have a warrant was excused.
- He agreed to go by ambulance to a hospital for evaluation, but he denied the officer's request to search his home for firearms. Nevertheless, they went in after he left and found and seized two guns. Caniglia sued for Fourth Amendment violations, and the officers tried to rely on Cady versus Dombrowski, but the court said no, there's a difference between a community caretaking function vis-a-vis a car and one vis-a-vis a home, and they declined to find this broad caretaking function with respect to the home.
- So if you have facts, you know, that fall in these general areas, you know, to check on things, to see if someone might be getting hurt, there's no automatic entry into a home without a warrant. You either must have a basis for the warrant or it must be excused by virtue of an emergency. In other contexts, you should apply a general reasonableness approach. Was it reasonable for the police to undertake their community or public caretaking function and did they find evidence in the course of doing that and then they could admit the evidence? Okay.
- Well, there's this case of Cady versus Dombrowski. The driver was in a car accident and was taken to the hospital. The driver happened to be a police officer, and the car was taken to a private garage. The police believed that the driver, because he was a police officer, was required to have his service revolver on him at all times. And so went to the place where the car was and looked in the car and in the trunk. And in searching for the service revolver in this way, they found bloodstained items later used to convict the driver, this police officer, of murder. And the court said in that case, that it was reasonable as part of a community caretaking function to protect the public from the chance that the gun would fall into the wrong hands, and once they were able to check throughout the car, plain view, took care of the rest.
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Probable Cause 3 results
- In particular, the letter said that on a certain date in the future, it was predictive, the wife would drive down to Florida, drop their car, and then fly home. The husband would fly down shortly thereafter, and drive the car home loaded with drugs in the car. The police verified what they could in the prediction, and not all of it was correct, but the wife drove down, and the husband followed.
- There was a quick turnaround, but they both drove home together. So, it was largely correct. And they were driving north on an interstate frequently used by travelers to the Chicago area from Florida. Police, based upon what they knew, in terms of what the anonymous tip told them, what their corroboration told them, and what the prediction was that was largely correct, the police went for a warrant. And they got the warrant for both the car and the home.
- The court said that the tip by itself probably wasn't enough and that their behavior by itself probably wasn't enough. But the tip plus the odd behavior in the travel pattern, and the predictive quality of what was given to the police, basing it on what the court said is a balanced common sense determination under all the circumstances, was there a fair probability that evidence of a crime would be found in a particular place? And in that instance, their car and their house. So, what can your professor expect you to know about probable cause?
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Standing 3 results
- So, he may have been legitimately on the premises, i.e., sitting in the car, but he had no reasonable expectation of privacy, no standing in the car itself or in the stuff seized. Now, you have to have standing. There might be a search or seizure, but it has to be an intrusion against you that you can complain of. So, now we're ready to look at our third question. We have state action. We have a search or seizure, and the person has standing to complain. And so, now we want to look at the requirements for a reasonable and hence valid search or seizure.
- Now, the court has been talking about, you know, notions about whether somebody was legitimately on the premises, or whether they were the object of the search, whether the police were trying to get them, these kinds of things have pretty much fallen away. And instead, you know, we take a closer look. For example, in the overnight guest situation, or in the social guest situation, if you're present in the area search, for example, you're in the kitchen, you came over for, I don't know, a cup of sugar. But police are searching the basement and they find evidence that they use against you. That social guest doesn't have standing to challenge that.
- ..., before we get to the requirements of a reasonable search and seizure, the probable cause and the warrant, we have this issue about standing. Let's say there is a search or seizure that occurred. The question is, does this person, this defendant, have standing to object to what was done? Was it that defendant's reasonable expectation of privacy that was intruded on, or was it someone else's? Standing, okay. First, there are four situations where you will definitely have standing, okay? You own, you own the premises or the items searched, your backpack, your purse, your house. Second, you live in the premises searched, whether you own or lease or whatever, it could be the grandson living with his grandmother. Third, you're an overnight guest. Even though you don't have the power to admit or, you know, keep somebody out, ytou share your host's reasonable expectation of privacy, overnight guest. And fourth, you, your person has been searched, or you are seized, as in being arrested...
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Summary of Fourth Amendment Rules 1 result
- Was the search or seizure reasonably executed? The manner of execution, and not excessive destruction of property or excessive force to arrest. And then, finally, can the individual rely on the exclusionary rule to keep the evidence that was discovered out of a prosecution? And then we have these four additional doctrines: Search and seizure, consent, administrative and special needs, and what we just covered, the community caretaking function. Now, that completes our Fourth Amendment materials and we will now turn to confessions and incriminating statements.
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- Miranda is not specific to the offense charged. Your right of silence or to have a lawyer present with you applies to any crimes. The police might ask you when you're in custody and subject to interrogation. But the Sixth Amendment is specific to the offense charged, only statements as to the crime charged. For example, if the government wants to continue its investigation of a suspect who's out on bail and obtains incriminating statements deliberately elicited, as in Massiah. They can't use those in the prosecution of the crime charged, but they could use those for crimes not yet charged.
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- Publication Date: September 22nd, 2021
- Subject: Criminal Procedure
- Series: Law School Legends Audio Series
- Type: Audio Lectures
- Description: With Law School Legends, you’ll get a brilliant law school professor explaining an entire subject to you in one simple, dynamic lecture. The Law School Legends make even the most difficult concepts crystal clear. You’ll understand the big picture, and how all the concepts fit together. In this lecture, professor Mary Cheh of George Washington University Law School covers the basic Criminal Procedure course, which is primarily investigative criminal procedure in schools where they divide the course into two topics. One of investigative criminal procedure, and the other of criminal procedure adjudication.