Professor Kennedy, UNC Law
1. The Norms of the Criminal Process
Four sometimes overlapping, sometimes inconsistent norms:
A. THE ACCURACY OF VERDICTS
A perfectly accurate criminal process would result in no arrests of innocent persons, or innocent persons would be released prior to trial, or as the result of acquittal at trial. Similarly, in an entirely accurate system, all guilty persons would be arrested, or, at least, all those guilty who are arrested would be convicted.
B. THE FAIRNESS OF THE PROCESS ITSELF
A second way to measure the legitimacy of a criminal justice system is by determining how fairly it treats person suspected of, or prosecuted for, alleged criminal activity. Although the “accuracy” and “fairness” norms sometimes overlap, they represent different and sometimes conflicting concerns, in part because the concept of fairness suggests that even guilty persons should be treated with care for their rights and human dignity.
C. THE DEGREE TO WHICH THE JUSTICE SYSTEM LIMITS GOVERNMENTAL POWER IN RELATION TO CITIZENS ENSNARED IN THE CRIMINAL PROCESS
A third concern of the American criminal process is to place sensible limits on the power of the government in its encounters with persons accused of crime. It is the principle that explains the ratification of most of the provisions of the Bill of Rights, namely, that we are a political system that values individual rights and favors limited governmental power to interfere in the lives of its citizens.
D. THE EFFICIENCY OF THE PROCESS
An inefficient system is wasteful of human and institutional resources. Ay system that is slow to reach an outcome can also undermine social protection by delaying the confinement and punishment of the guilty.
2. Alternative Models of Criminal Justice
A. CRIME CONTROL MODEL OF CRIMINAL JUSTICE
B. DUE PROCESS MODEL OF CRIMINAL JUSTICE
3. The Role of “Truth” in the Criminal Justice System
4. Accusatorial versus Inquisitorial Systems of Justice
5. Race, Gender, and Economic Class in the Law
6. Bright Line Rules versus Case-by-Case Adjudication
7. Subjectivity vs. Objectivity: Rule Making to Avoid Pretextual Conduct
8. Does the Process Protect the Innocent?
Fourth Amendment: An Overview
1. The Text
The Fourth Amendment to the United State Constitution reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath and affirmation , and particularly describing the place to be searched, and the person or things to be seized.”
A. THE REASONABLENESS CLAUSE
The first portion of the Fourth Amendment tells us what the amendment seeks to prohibit (or the right we hold against the government). In this portion, the text states who is covered (“the people”); what is covered (“persons, houses, papers, and effects”); and the nature of the protection (“to be secure … against unreasonable searches and seizures”).
B. THE WARRANT CLAUSE WITH ITS “PARTICULARITY REQUIREMENT”
The second portion tells us what is required for a warrant to be issued (“probable cause [for the search or seizure], supported by oath or affirmation”, and tells us something about the form of the warrant itself (“particularly describing the place to be searched, and the persons or things to be seized”).
C. THE CONNECTION BETWEEN THE REASONABLENESS CLAUSE AND THE WARRANT CLAUSE
In light of the comma, does the second clause inform the first? That is, in view of the Warrant Clause, should we conclude that any search or seizure conducted without a valid warrant is unreasonable (or, at least, presumptively unreasonable) and, thus, impermissible, in view of the reasonableness requirement of the amendment? Alternatively, is the warrant clause independent of the reasonableness clause? That is, does the warrant clause simply tell us how warrants should be issued but nothing about whether or when warrants must be issued?
2. What Does the Fourth Amendment Seek to Protect? Historical and Policy Overview
3. The Fourteenth Amendment and Incorporation
The Fourteenth Amendment imposes limits on state action. The “incorporation debate” centers on the second clause of section 1, namely the Due Process Clause. “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” The essential question is this: to what extent does the Fourteenth Amendment Due Process Clause “incorporate” (or “absorb”) the Bill of rights and, as a consequence, impose upon the states the same restrictions the Bill of Rights imposes on the federal government?
A. FULL INCORPORATION
According to Justice Hugo Black, “one of the chief objects that the provisions of the [Fourteenth] Amendment’s first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.” In other words, the Fourteenth Amendment in general, and the Due Process Clause in particular, incorporate all of the rights included in the Bill of Rights, nothing more and nothing less.
B. FUNDAMENTAL RIGHTS
The essence of this doctrine is that the Fourteenth Amendment “neither comprehends the specific provisions by which the founders deemed it appropriate to restrict the federal government nor is it confined to them. The Due Process Clause … has independent potency ….”
Tests by which the “fundamentalness” of a right is determined have included:
1. Whether the right “is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions
2. Whether it is basic in our system of jurisprudence
3. Whether it is a fundamental right, essential to a fair trial
4. Whether it is fundamental to the American scheme of justice.
C. FULL INCOPROATION PLUS
The Due Process Clause incorporates the Bill of Rights in its entirety (full incorporation), as well as any fundamental rights that fall outside the express language of the Constitution (a component of fundamental rights doctrine.
D. SELECTIVE INCORPORATION
Selective incorporationists agree with fundamental rights theorists that not all rights included in the Bill of Rights are inevitably absorbed by the Fourteenth Amendment. On the other hand, contrary to fundamental rights theory, and more in keeping with full incorporation, selective incorporationists believe that one a right is deemed to be fundamental, it is “applicable to the States with all the subtleties and refinements born of history and embodied in case experience developed in the context of federal adjudication.”
It follows, therefore, that constitutional law that has developed regarding the federal right is not determinative of the scope of the state version of the analogous right emanating from the Fourteenth Amendment. It is logically possible that what constitutes an unreasonable search or seizure according to the Fourth Amendment might be reasonable under the Fourteenth Amendment, or vice-versa. Once a Bill of Rights provision is determined to be fundamental, every feature of the federal right applies to the states.
E. WHICH THEORY HAS “WON” THE DEBATE?
The Court has considered specific provisions of the Bill of rights on a right-by-right basis, determining whether a particular right is fundamental to the American system of justice. Once the Court has determined that a right is fundamental, it has nearly always concluded that the provision of the Bill of Rights should “be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” That is, with the exception of the unanimity requirement of the right to a jury trial, it appears that all of the incorporated rights involving criminal procedure include all of the “baggage” from the federal system.
In the realm of criminal procedure, all but one provision of the Bill of Rights applies to the states. Moreover, although the Court has held that the rights not mentioned in the Constitution, such as the right of privacy are mandated by “due process” in the criminal procedure context, the Court has stated that “[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.” That “limited operation” does, however, encompass some important protections, for example the right of a criminal defendant to disclosure by the prosecution of evidence that is favorable to the defendant and material to guilt or punishment.
4. The Birth of the Exclusionary Rule
The right granted by the Fourth Amendment—to be free from unreasonable searches and seizures—must be distinguished from the remedy for a Fourth Amendment violation. The primary Fourth Amendment remedy has been the “exclusionary rule.” In very general terms, this rule provides that evidence seized by the police in violation of the Fourth Amendment may not be introduced by the governme
A. GENERAL PRINCIPLES
Contemporary Fourth Amendment search analysis begins with Kats rather than with the property-rights/trespass approach formerly used.
Katz v. United States
RULE: The Fourth Amendment protects a person from search and seizure if, under the circumstances, he has a justifiable expectation of privacy, regardless of whether an actual physical trespass occurred.
Federal officers conducted warrantless surveillance of K’s conversations by attaching an electronic listening device to the outside of a telephone booth K used to conduct conversations. In light of the Court’s original jurisprudence, the parties pressed their Fourth Amendment claims in terms of whether the telephone booth, like a house, was a “constitutionally protected area,” and whether physical intrusion of it was necessary to raise a Fourth Amendment “search” claim. The Court arrived at the view that the trespass doctrine constituted “bad physics as well as bad law” and announced “that the ‘trespass’ doctrine … can no longer be ruled as controlling.”
1. The Katz Majority Opinion
Justice Stewart said that “the Fourth Amendment protects people, not places.” Although Stewart offered no bright-line definition of a “search,” he stated that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” whereas “what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
2. The Kats Concurring Opinion: A New “Search” Test
Justice Harlan explained that the “reasonable expectation of privacy” standard has a subjective and objective component.
1. First, the individual must have “exhibited an actual (subjective) expectation of privacy.
2. Second, he must prove that the expectation he exhibited is one that “society is prepared to recognize as ‘reasonable’” or—to use the Court’s variants—“legitimate” or “justifiable.” (objective)
Police conduct does not constitute a search if either prong of the test is lacking. Thus, although people in general may have a reasonable expectation of privacy in their telephone conversations, and individual’s subjective realization that his conversations were not private would undermine his Fourth Amendment claim.
3. The Objective Prong: What Precisely Is the Standard?
4. Should We Have the Subjective Prong?
Some theorize that if the subjective prong is taken seriously, the government can eliminate privacy expectations—and thus, render the Fourth Amendment inapplicable—by the simple act of announcing its intention to conduct Orwellian surveillance.
Beyond this, non-governmental intrusions can undermine our right to be free of governmental intrusions. For example, modern technology makes it possible—even inexpensive—for private individuals to observe their neighbors from long distances, or to track their movements electronically, as well as for corporations to discover previously private information about us by computer.
Furthermore, increased crime and urbanization accustom us to a less private way of life.
With these lesser expectations of privacy, the scope of our Fourth Amendment protections potentially narrows, which further increases the government’s legal right to invade individual’s privacy.
Justice Harlan ultimately agreed with this criticism of his test. He concluded that the critical focus should be on objective expectations. United States v. White, dissenting opinion. The task of the law, he noted, is “to form and project,” and not simply to “mirror and reflect.”