Law, Justice, and Society:A Sociolegal Introduction

Chapter 6Criminal Procedure

Criminal Procedure

• Sets forth appropriate behavior for agents of the state if they deprive criminal suspects of their liberty

• Derived from the due process clause of Fifth and Fourteenth Amendments

• Procedural law is a pendulum between due process and crime control models.

• Procedural laws attempt to balance the goals of these two models.

Criminal Procedure

• U.S. Constitution• Bill of Rights• Fourteenth Amendment• State constitution• Federal and state statutes • Fourth, Fifth, and Sixth Amendments• Supreme Court decisions

Sources of Criminal Procedure Law

Criminal Procedure

• Warrant clause– All warrants must be based on probable cause.– Must describe the place or person with particularity

• Reasonable clause– Allow searches without warrants – Probable cause and exigent circumstances

• Probable cause– Fluid concept – Brinegar v. United States (1949)

Search and Seizure Law

Criminal Procedure

• Fourth Amendment prohibits unreasonable seizures.

• Seizure: the exercise of dominion or control by the police over a person or an item

• Detention occurs when a reasonable person viewing the particular police conduct as a whole and within the setting would conclude that the police had restrained their liberty so that they are not free to leave.

Arrest

Criminal Procedure

• With a warrant• If the officer has probable cause • If misdemeanors occur in the presence of an

officer• If felonies occur in the presence of an officer or

outside of a private dwelling

When an Officer May Arrest

Criminal Procedure

• Whatever force is reasonable under circumstances

• Deadly force permitted to protect life• Knock and announce

– Must announce presence and purpose

– Must give occupant reasonable time to open the door

– Rule may be ignored in certain circumstances.

Manner of Arrest

Criminal Procedure

• May ask questions of anyone in public–not an arrest or seizure– Citizens may ignore or walk away–does not constitute

probable cause.• “Seizure tantamount of arrest” requires more than

mere suspicion but not probable cause.– Traffic stops– Border searches for drug couriers– Stop and frisks on street

Types of Seizures

Criminal Procedure

• Terry v. Ohio (1968)• Requires reasonable suspicion based on experience

– Less demanding than probable cause

• The stop: must be temporary and no longer than necessary under the circumstances – May ask questions to dispel suspicions and alleviate fears

• The frisk: if the stop does not allay officer fears– Pat-down of outer clothing– Officer may not manipulate items she feels in order to discern

what they are.

Stop and Frisk

Criminal Procedure

• Seizure occurs whenever a vehicle is stopped.• Must have at least reasonable suspicion

– Except certain roadblocks

• May ask the driver and passengers to exit• May request documentation such as VIN and ask

other questions• May seek consent for search

Vehicle Stops

Criminal Procedure

• The examination of an individual’s house, person, or effects to discover items related to criminal activity

• Applies only to places where persons have a reasonable expectation of privacy

• Reasonable expectation of privacy:1. Subject of the search must have a subjective

expectation of privacy.2. Society must view that expectation as reasonable.

Searches

Criminal Procedure

• Searches incident to arrest– “lunge area”

• Consent– Must be both voluntary and intelligent– Must be limited to both area and time– Require proper authority to consent

• Vehicles– Lessened expectation of privacy when vehicle is in

public – To search without a warrant:

• Must demonstrate that there exists probable cause• Must establish that the vehicle is mobile

Exceptions to Search Warrant Requirement

Criminal Procedure

• Vehicles (cont.)– Search incident to an arrest after arrestee is secured is

not permitted unless search is for evidence related to the arrest.

– Inventory searches limited to protection of property of arrestee

• Warrantless searches are okay so long as they are routine and not done as pretext.

– Surveillance and monitoring of vehicles permitted on open road

• Not permitted when vehicle is in private dwelling

Exceptions to Search Warrant Requirement (cont.)

Criminal Procedure

• Plain view:– “objects falling in the plain view of an officer who has

a right to be in a position to have that view are subject to seizure” (Harris v. United States, 1968)

– Item must be immediately apparent as contraband.– Police may use tools to aid in their observation.

• Open fields:– Do not fall under protection of Fourth Amendment– May be achieved while trespassing – Open fields are anything not within the curtilage – Aerial surveillance permitted

Exceptions to Search Warrant Requirement (cont.)

Criminal Procedure

• Abandoned property– Not protected under Fourth Amendment– Depends on where the property is abandoned and on

intent of the disposer• Special needs of law enforcement

– Applied in cases that are a mixture of criminal investigation and conduct by other public agencies

– Student searches– Probationers/parolees

Exceptions to Search Warrant Requirement (cont.)

Criminal Procedure

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Criminal Procedure

• Originally interpreted to mean that those who wanted and could afford counsel could not be denied such

• Powell v. Alabama (1932): due process requires the appointment at government expense of defense attorneys for indigent defendants facing capital charges

• Johnson v. Zerbst (1938): applied to all federal felony cases

Right to the Assistance of Counsel

Criminal Procedure

• Gideon v. Wainwright (1963): applied these cases to the states

• Argersinger v. Hamlin (1972): any indigent defendant facing incarceration for a felony or misdemeanor must be represented by counsel

Right to the Assistance of Counsel (cont.)

Criminal Procedure

• Fifth Amendment provides that persons shall not be compelled to incriminate themselves.

• Self-incrimination is permitted: voluntariness.• Miranda v. Arizona (1966)

– Before a custodial interrogation, a suspect must be informed of both his privileges against self-incrimination and right to counsel.

Right to Counsel During Interrogations

Criminal Procedure

• Right to remain silent• Anything a defendant says can be used against

him in court• Right to have an attorney present during

questioning• If the defendant cannot afford one, one will be

appointed

Miranda Rights

Criminal Procedure

• Custody– When the suspect has been subjected to a formal arrest

or equivalent restraints on his freedom of movement

– Free to leave test

• Interrogation– Occurs when:

• Police are asking questions the answers to which may incriminate

• In circumstances in which the police, through their actions, create the “functional equivalent” of an interrogation

– Engage in activity they “should know is reasonably likely to evoke an incriminating response from a suspect”

When Miranda Applies

Criminal Procedure

• Routine traffic stops• Sobriety checkpoints• Conversations between two officers in vicinity of suspect• Voluntary statements without prompting• Routine questioning of persons at a crime scene• Clarifying questions• Questions that are part of stop and frisk• Threat to public safety

Exceptions to Miranda

Criminal Procedure

• After Fifth Amendment is invoked: – Police may not question more unless the suspect initiates further

communication– Suspect cannot be questioned about other crimes unrelated to the

current offense• Police posing as an inmate • Police do not need to let a suspect know that she has a

lawyer waiting if the lawyer was acquired by a family member.

• Illegally obtained confession may be admitted at trial to impeach the defendant’s testimony.

• Miranda rights may be waived– Knowing, intelligent, and voluntary

Extensions and Application of Miranda

Criminal Procedure

• Suspect has a right to counsel at a lineup if it occurs after criminal charges have been filed.– Constitutes critical stage in prosecution

• Potential for prejudicial error

• No right if lineup takes place prior to charges being filed

Pretrial Identification Procedures

Criminal Procedure

• Pointer v. Texas (1965) made the confrontation clause obligatory on the states.

• Crawford v. Washington (2004): the statement of an absent witness may be admitted only when the witness is unavailable or if the defense had prior opportunity to cross-examine– “Unavailable" should be read to mean that the witness is

demonstrably unable to testify in person.– Does not guarantee the right to face-to-face confrontation at trial

(sexual molestation trials)

Confrontation of Witnesses Clause

Criminal Procedure

• Defendants have the right to compel favorable witnesses to appear in court to testify on their behalf.

• Must show that the proposed witnesses’ testimony and/or evidence is relevant and that such testimony would not be cumulative.

• Made applicable to states in Washington v. Texas (1967)

Right to Compulsory Process Clause

Criminal Procedure

• Any evidence obtained by the government in violation of the Fourth Amendment guarantee against unreasonable searches and seizures is not admissible in a criminal trial for the purpose of proving guilt.

• Boyd v. United States (1886)• Adams v. New York (1904)• Weeks v. United States (1914)

– Birth of the exclusionary rule

The Exclusionary Rule

Criminal Procedure

• Weeks applied only to federal government – Silver platter doctrine

• Nardone v. United States (1939)– Fruit of the poisonous tree doctrine

• Wolf v. Colorado (1949)– Applied exclusionary rule to states

• Left enforcement up to states

• Mapp v. Ohio (1961)– Fully applied exclusionary rule to states

The Exclusionary Rule (cont.)

Criminal Procedure

• Rakas v. Illinois, 1978: to claim Fourth Amendment protection, a defendant must have standing

• Means that a person has the right to bring legal action by virtue of being personally harmed

• Independent source exception–evidence may be admitted if knowledge of that evidence is gained from a source that is entirely independent from a source tainted by illegality

Curtailing the Exclusionary Rule

Criminal Procedure

• Attenuation exception: illegally obtained evidence is admissible if there is less than a clear causal connection between the illegal police action and the evidence

• Good faith exceptions: evidence obtained by the police acting in good faith is admissible; police must rely on others

• Inevitable discovery exception: permits the introduction at trial of evidence that was illegally obtained if the officers can demonstrate that they would have eventually discovered the evidence

Curtailing the Exclusionary Rule (cont.)