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Criminal Procedure: Investigation
University of Illinois School of Law
Leipold, Andrew D.

Crim Pro: Investigations Prof. Leipold Fall 2013

I. Introduction:

1. Role of lawyers regarding the police:

i. Courts limit what police do, so defend or challenge police conduct

ii. Prosecutors give police guidance on acceptable practices

iii. Defense lawyers protect D’s constitutional rights from the police

2. Things we might value more than allowing truth/evidence to be admissible:

i. Autonomy: don’t think police should be able to threaten suspects

ii. Privacy: don’t want police breaking down our doors

iii. Integrity

a) Public officials must deal honestly to maintain public trust

iv. Equal treatmentàno discrimination on basis of race, religion, gender etc

v. Suspect’s dignity

3. Defense counsel’s responsibility if client wants to lie on the stand:

i. Must allow D to testify, but can’t ask any questionsàinstead just let him tell his own story

ii. Judge probably not going to allow withdrawal because problem will be passed to next lawyer and perjury might occur

iii. MR 3.3 lawyer shall not knowingly offer evidence lawyer knows to be false

a) If know client intends to engage in perjury, shall take remedial measures including disclosure to the tribunal

4. Prosecutors should probably be held to an even higher standard of integrity and fair dealing than the police

i. Defense counsel maybe slightly less because duties are to their clients

5. Judiciary is best suited to regulate the police

i. Done on a case by case, fact specific basis

6. Steps in criminal case:

i. The crime

ii. Investigation

a) Traditional police work

b) Grand juries in complex and federal cases

iii. Arrest

a) Police have great discretion in making arrests

o Police as gatekeepers: courts can review cases police bring in, not otherwise

o Rules for police need to be realistic and able to be applied on the street

iv. Administrative procedures (fingerprinted, inventory search etc)

a) Possibly bail then if non serious crime

v. Initial charging decision

vi. Complaint

a) Written statement of essential fact constituting the offense charged

b) For felonies it’s temporary charging document; for misdemeanors it’s final charging doc

vii. First appearance:

a) Gerstein hearing: if arrested without a warrant, need to determine if enough evidence to continue to hold D

b) Appoint lawyer if needed

c) Bail: post bond/money to ensure will return for hearing

viii. Preliminary hearing:

a) Adversarial determination of probable cause before magistrate judge

b) If enough evidence, bound over to grand jury or trial court

ix. Grand jury review:

a) Always in federal , sometimes in state

b) Only prosecutor allowed, no judge, defense lawyer, target, public allowed

c) Review evidence to see if enough to go to trial: if so, vote to indict (true bill)

x. Filing of indictment or information:

a) Formal charge filed with trial court

b) Replaces complaint as official charging document (for felonies)

xi. Arraignment:

a) Inform D in open court of charges

b) Enter a plea

o Most cases never go to trial: means police actions important because if plead guilty, no one will review the evidence

xii. Pretrial motions:

a) Most important is motion to suppress the evidence

xiii. Trial:

a) Right to jury for serious crimes

b) Stats show only 1% of Ds go to trial and are acquitted

xiv. Sentencing: done by judge, not jury

xv. Appeal:

a) All convicted Ds can appeal once as of right

xvi. Post conviction petitions:

a) Habeas actions: separate civil action pointing to an error in the criminal caseàchallenge illegality of confinement

II. Fourth Amendment Generally:

1. Right to be secure against unreasonable searches and seizures and no warrants shall issue except upon probable cause, supported by oath, and particularly describing place to be searched and persons or things to be seized

i. Doesn’t mean that police can never searchàmeans searches must be REASONABLE

2. Debate about if amendment means always need a warrant to search:

i. Text doesn’t specifically say you ever need warrantàjust says when you need a warrant, you need probable cause

3. Text doesn’t say what the remedy should be for unreasonable searches/seizures

i. Remedies are judicial creation

4. Definition of exclusionary rule:

i. If police violate defendant’s constitutional rights in obtaining evidence, state may use that evidence to prove D’s guilt at trial

5. History of exclusionary rule:

i. Weeks v US: evidence seized in violation of 4A excluded from federal court (but fed gov’t didn’t do much criminal law)

ii. Wolf v Colorado: 4A incorporated against states through 14A BUT ER NOT incorporated against states


i. Police searched without a warrantàwhat should the remedy be for 4A violation?

ii. Court overrules Wolf & says exclusionary rule DOES apply to the states!

iii. Two rationales for the ER:

a) Judicial integrity: courts have to follow the law or people won’t have faith in the system and will invite anarchy

b) Deterrence: forward lookingàpolice won’t have an incentive to violate 4A if can’t use the evidence they find when violate the amendment

o Protects the innocent: ensures that police do not have a reason to make illegal searches

o Later comes to be the SOLE rationale for ER

7. Requirements for ER:

i. Needs to be state action (police or agents acting at police’s direction)

ii. Must be defendant’s rights that are violated, not someone else’s rights

8. Miscellaneous info about ER:

i. If excluded, prosecution barred from introducing evidence in case in chief

ii. Applies to both state and federal courts

u take the chance they’ll report to the police, so no 4A violation

a) No protection for misplaced trust in person that they won’t tell the police info

ii. US v WHITE:

a) Involved agent who was seemingly a friend wearing a wire

b) When you transmit criminal info to people, run the risk they might talk to the police

c) Relied on Hoffa line of cases speaking to the same issue

iii. Microphones/wires

a) Microphone just like false friend, only with a better record

b) Only serves as recording function because person present could already tell police what was said

iv. Under Katz analysis, no expectation of privacy because you know you’re revealing info rather than keeping it private

v. If person would leave microphone in room, then leave, maybe 4A problem because then other thinks convo is private

vi. Courts weigh interests of trusting others and police need and decide it’s not reasonable to trust others with your illegal secrets

5. Deciding if 4A is implicated is only the first step:

i. If no 4A implications (Katz not satisfied), police can do the action without a warrant (unless something like see something exposed to public in your house, then need warrant to enter house, or consent etc)

ii. If Katz test met, just means police must be REASONABLE, doesn’t mean action can’t be done

IV. When is 4A Implicated_Location & Trash:

1. Where the evidence is located impacts the reasonableness of your belief that it will remain secret

2. Open fields:

i. If have things in open field, knowingly expose it to the public & no reasonable expectation of privacy

ii. Even if police trespass in your open field with posted no trespassing signs and police violate laws to enter the field and your things can’t be seen from public place, no 4A violation

a) OLIVER case: no objective reasonable expectation of privacy in open field

b) Society doesn’t accept as reasonable privacy in area that’s outdoors and could be accessible to public if they trespass

o Not reasonable to think public/police won’t trespass sometimes

iii. Note that need not be an actual field, just needs to be open place

a) Forest, bushes, etc

3. Curtilage:

i. Curtilage: area close to your home, normally associated with your home that is considered an extension of your home so is granted the highest form of protection