Law, Justice, and Society: A Sociolegal Introduction

1. Law, Justice, and Society:A Sociolegal Introduction Chapter 6Criminal Procedure

2. 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 5th and 14th amendments • Procedural law is a pendulum between due process and crime control models • Procedural laws attempt to balance the goals of these two models

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

4. 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- change to accommodate different situations Search and Seizure Law

5. 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

6. Criminal Procedure • With a warrant • If the officer has probable cause • If misdemeanors occur in the presence of an officer, they may arrest • If felonies occur in the presence of an officer or outside of a private dwelling, they may arrest When an officer may arrest

7. Criminal Procedure • Whatever force is contextually necessary • Deadly force permitted to protect life • Knock and announce • must announce their presence and purpose • give occupant reasonable time to open the door • rule may be ignored in certain circumstances Manner of Arrest

8. 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 searchers for drug couriers • stop and frisks on street Types of Seizures

9. Criminal Procedure • Terry v. Ohio (1968) • Require reasonable suspicion based on experience • 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 • may not manipulate items they feel in order to discern what they are Stop and Frisk

10. Criminal Procedure • Seizure occurs whenever a vehicle is stopped (Delaware v. Prouse 1979) • Must have at least reasonable suspicion • except certain roadblocks • May ask the driver and passengers to exit and frisk (Pennsylvania v. Mimms 1977) • May request documentation, VIN, and ask other questions • May seek consent searches Vehicle Stops

11. Criminal Procedure • The examination of an individual’s house, person, or effects to discover items related to criminal activity • Only applies 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

12. 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 • must demonstrate that there exists probable cause • must establish that the vehicle is mobile Exceptions to Search Warrant Requirement

13. 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) • must be immediately apparent • Open fields: • do not fall under protection of fourth amendment • may be achieved while trespassing • open fields is anything not within the curtilage Exceptions to Search Warrant Requirement (cont.)

14. 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.)

15. 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

16. 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.)

17. 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

18. Criminal Procedure • Right to remain silent • Anything they say can be used against them in court • Right to have an attorney present during questioning • If they cannot afford one, one will be appointed Miranda Rights

19. Criminal Procedure • Powell v. Alabama (1932) Indigent defendants have right to free counsel in capital cases. • Johnson v. Zerbst (1938) Indigent defendants charged with serious felonies in federal courts have right to free counsel. • Gideon v. Wainwright (1963) Sixth Amendment applied to the states. Indigent defendants have right to free counsel in all felony cases. • Escobedo v. Illinois (1964) Suspects have right to counsel when the police cease making general inquiries and focus on a particular individual. • Miranda v. Arizona (1966) Suspects must be informed of right to counsel, as well as other rights, before custodial interrogation. • Argersinger v. Hamlin (1972) Indigent defendants have right to free counsel in misdemeanor cases as well as felony cases if facing incarceration.

20. Criminal Procedure Exceptions to Miranda • Routine traffic stops • Sobriety check points • Conversations between two officers in vicinity of suspect • Voluntary statements without prompting • Routine questioning of persons at a crime scene • Clarifying questions • Questions which are part of stop and frisk • Threat to public safety

21. Criminal Procedure • Once fifth amendment is invoked, police may not question anymore, unless the suspect initiates further communication • Once invoked, they 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 they have a lawyer waiting for them if the lawyer was acquired by a family member Extensions and Application of Miranda

22. Criminal Procedure • 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 (cont.)

23. Criminal Procedure • Suspect has a right to counsel at a line-up if it occurs after criminal charges have been filed Pretrial Identification Procedures

24. Criminal Procedure • Pointer v. Texas (1965) made the confrontation clause obligatory on the states • Crawford v. Washington (2004): the statements of absent witnesses 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

25. Criminal Procedure • Defendants have the right to compel favorable witnesses to appear in court to testify on their behalf • Must show the relevance of the proposed witness’s testimony and/or evidence and that such testimony would not be cumulative • Made applicable to states in Washington v. Texas (1967) Right to Compulsory Process Clause

26. Criminal Procedure • Any evidence obtained by the government in violation of the 4th 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

27. Criminal Procedure • Weeks only applied to federal government • silver platter doctrine • Nardone v. United States 1939 • fruit of the poisonous tree doctrine • Mapp v. Ohio 1961 • applied exclusionary rule to states The Exclusionary Rule (cont.)

28. Criminal Procedure • Rakas v. Illinois 1978: in order 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

29. 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.)

30. Criminal Procedure • Advance of the Exclusionary Rule Boyd v. U.S. (1886) Hint of an exclusionary rule based on the 5th Amendment. Adams v. N.Y. (1904) Affirmed common law principle that evidence is evidence. Weeks v. U.S. (1914) Formulated the exclusionary rule for federal cases. Nardone v. U. S. (1939) Fruit of the poisonous tree first announced. Wolf v. Colorado (1949) Applied the Fourth Amendment to states but not the exclusionary rule. Mapp v. Ohio (1961) Applied the exclusionary rule to states.

31. Criminal Procedure • Retreat from the Exclusionary Rule Wong Sun v. U. S. (1963) Evidence is admissible if it is attenuated by it being sufficiently remote from the initial illegality. Rakas v. Illinois (1978) Defendant must have standing to claim 4th Amendment protection. Segura vs. U.S. (1984) Evidence is admissible if obtained from a source independent of any initial police illegality. U. S. v. Leon (1984) Evidence is admissible if officers acted in good faith based on the actions of others; i.e., judges, legislators, etc. Nix v. Williams (1984) Evidence is admissible if it would have inevitably been discovered by legal means.