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


Truth = reliable facts that allow a reasoned judgment about what happened
Unpunished crimes = causes loss of faith, creates disrespect for the law, encourages more crime
Things we’re willing to trade uncover of truth for:

Autonomy: no physical coercion or threats
Privacy: police can’t search wherever, whenever
Integrity: public officials must deal honestly with citizens
Equal treatment: no discrimination on basis of race, religion, gender, etc.
Respectful of suspect’s dignity

It’s the D’s decision to testify, not the D’s lawyer
A lawyer may refuse to offer evidence, other than the testimony of a D in a criminal matter, that the lawyer reasonably believes is false.
A lawyer needs to reveal the truth to the court if he knows his client is going to lie
Felony theft: items value>$1000
Prosecutor obligation is different from that of the defense
Police normally control the input (gather information)
Police do not work for but with the prosecutors, so prosecutors can give only limited legal guidance (police doesn’t have to listen to the prosecutors)
Constitutional regulation of the police:

4th Amendment: right to be free from unreasonable searches & seizures
5th Amendment: privilege against self incrimination
6th Amendment: right to counsel, and limits on actions police can take w/o defense lawyer present
14th/5th Amendment due process clause

Index crimes = homicide, rape, robbery, agg assault, burglary, theft, car theft, arson
Crime rate dropsdrugs and guns don’t count in the statistics!
State case load dwarves federal case load
Clearance: arrest and charge (not convictions)
Prosecutors can only review cases police bring in, but not cases they don’t bring in
Booking: after arrest. Taken to station, fingerprinted, inventory searched, etc. often place in jail (prison is bigger), where investigation may continue.
Complaint: for felonies, temporary charging document; for misdemeanors, final charging document
First appearance: make sure there is enough evidence to continue to hold D (quick and dirty); appointment of lawyer if indigent; bail (financial incentive to show up for court)
Preliminary hearing: adversarial determination of probable cause; if enough evidence, case bound over either to the grand jury or to the trial court
Grand jury: 23 citizens, meet only w/ prosecutors; review evidence to see if enough to go to trial, if so, vote to indict (only takes 12, and based on probable cause) indictment is always produced by a grand jury
5th Amendment guarantees a grand jury
Arraignment: inform D in open court of charges; (in the federal system arraignment always comes after the indictment); the only time the court is asking the D whether he pleads guilty
Guilty pleas can be entered almost any time (88% of Ds plead guilty)
Pretrial motions: challenges to police practice, motion to suppress evidence
Criminal discovery =/= civil discovery
Jury has absolute power to acquit—no appeals by the gov
Sentencing by JUDGE, not jury
Federal Sentencing Guidelines influence ultimate sentence
All convicted Ds can appeal once. Limited to trial errors (no new evidence), sometimes no oral argument, judge decides. Discretionary review in SC
Habeas corpus?
Ds are entitled to fair proceedings, not perfect onesharmless errors (violation did not cause prejudice) are ignored
Fourth Amendment part I: (1) Did the police involve in search and seizure? (2) If there is, is the search/seizure unreasonable?
If there is a warrant, it’s almost always going to be a “reasonable” search/seizure
Exclusionary rule: if police violate D’s constitutional rights in obtaining evidence, the prosecution may not use that evidence to prove D’s guilt at a criminal trial
Wolf v. Colorado: 4A was incorporated against the states, but NOT the exclusionary rule
Mapp v. Ohio: Since 4A’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth Amendment, the same sanction of exclusion is also enforceable against them.
Exclusionary rule only applies when: (1) police find evidence in illegal search or seizure (2) prosecutor wants to use evidence against D at trial
If police violate the D’s constitutional rights in obtaining evidence, the prosecution may not use that evidence to prove D’s guilt at a criminal trial, both in state and federal courts (Mapp). upset people when they see guilty ppl walk away just b/c the evidence is inadmissible
The exclusionary rule is still the main means that we use to regulate police behavior
You have to challenge the exclusionary rule with a if it’s excluded, the jury never hears itprosecutor can appeal suppression before trial
No state action, no suppression (if the house was broken in by a private citizen, there’s no violation of 4A)
If the police illegally searched your parents’ house and found evidence against you, it’s your parents right that’s been violated, not yours, so the evidence can still be admitted in court.
Don’t open the door for the prosecutor by saying you’ve never owned a knife, b/c prosecutor can use the illegal evidence to impeach your testimony
Exclusionary rule doesn’t apply to civil cases
Grand jury can hear ANYTHING, including the illegal evidence
Katz v. US

D was charged w/ transmitting wagering information by telephone. FBI attached an electronic listening and recording device to the outside of the public telephone booth where D transmitted the information. does this evidence violate 4A and become inadmissible?
Holding: yes. 4A governs not only the seizure of tangible items, but extends as well to the recording of oral statement, overheard w/o any technical trespass.
Reasonable-expectation-of-privacy test
Besides, the FBI did this w/o a search warrant.
The court didn’t specify whether it’s a search or seizure, and what has been sea

s property to gather evidence is enough to establish that a search occurred
We give “” to strangers like girl scouts, salespersons to come up to our house and knock on the door. But we don’t give implied license for police to come search for evidence (police and still come knock and talk).
“Open field” is still good law
Dissent: there are times when people approach your front door w/o the intent to converse, like mail carriers, so can police.

US v. White

Issue: whether the testimony of the agents who overheard D and the informant’s conversation w/ radio devices should be barred
Holding: No. The law permits the use of informants, so it shouldn’t protect the D when the same agent has recorded or transmitted the conversations which are later offered as evidence
Dissent (Douglas): 4A protects people from being eavesdropped also in a modern sense

If you show your friend an illegal gun and he goes tell the police, 4A isn’t violated b/c it’s not state action. If the police send your friend to probe, still no violation b/c 4A doesn’t protect a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it (Hoffa).
Enhanced sense: (prosecution’s defense) police can use a flashlight to look into your house, if he’s not standing in your curtilage
Kyllo v. US

Police use thermal imaging device to detect the high-intensity lamps used for marijuana in D’s house.
Gov’s argument: the thermal image only detects the heat radiating from the external surface of the house and that it doesn’t detect private activities occurring in private areas.
Holding: the thermal image is a search. All details within one’s home is protected from any search under 4A.
It’ll be impractical to define what are “intimate” activities that should be protected, and the thermal image is very likely to disclose many intimate activities
Police conduct implicates the 4A where police use a “device that’s not in general public use” and gather info from D’s home that would not otherwise be available w/o a physical intrusion
Dissent: the equipment in this case did not penetrate the walls of D’s home, and while it did pick up details of the home that were exposed to the public, it did not obtain any information regarding the interior of the home; the device can’t identify objects

US v. Jones