CRIMINAL PROCEDURE
I. REFLECTIONS ON LAW ENFORCEMENT
A. Klarman – Racial Origins
1. Common Theory of Counter-Majoritarian View of the Court – Is this right? With the beginning of the development of even the primitive voluntariness test excluding the most noxious coerced confessions in the 50s, these decisions were pretty much in line even with dominant opinion even in the South.
2. Not Counter-Majoritarian àRather judicial imposition of national consensus on resistant state outliers.
3. Court in Interwar Period: Reflects national opinion on racial issues better than did Congress.
B. Yale Kamisar- The Warren Court and Criminal Justice
1. Did the Warren Ct’s reform effort come at a bad time?
a) McNabb v US- ct held that voluntary confessions should be excluded from evidence if they were obtained while the suspect was being held in violation of federal requirements that arrestees be promptly taken before committing magistrate.
(1) Sought to do this by focusing on a relatively objective factor- the length of time a suspect was held by the police before being brought to a judicial officer to be advised of his rights.
C. Dripps – Constitutional Theory for Criminal Procedure
1. Premise – Congress consistently has failed to address defects in criminal procedure.
a) Example – Only 2 states require taping interrogations. Both at the hands of court not state legislators.
2. Political Incentives – Almost everyone has an interest in controlling crime.
D. Arenella – Lessons of OJ
1. Resource Imbalance in Criminal Law – Generally favors the state because most D’s are poor. The one’s that aren’t usually win.
E. Stuntz – Relationship Between Criminal Procedure and Criminal Justice
1. Problem with Criminal Procedure: The system’s structure.
2. 3 Driving Forces of Criminal Justice System
a) Crime Rates
b) Definition of Crime àExpanded criminal liability makes it easier for govt to induce guilty pleas.
c) Funding Decisions
3. Defending – More liability creates greater cost of counsel on factual issues and steering away from constitutional issues.
F. Skolnick & Fife – Above the Law
1. Police as Soldiers – There is a war model for the police.
2. War View – Holds that due process protections foil the war. This view distracts us from more promising strategies of crime control and also increases the likelihood of police violence and violation of citizen’s rights.
G. Maclin – Should Race Matter?
1. Need to Take Account for Race in Crime Control – The police officer identifies the black man with danger. This is factored into decisions made in the totality of the circumstances. In order to get beyond racism, we must first take account of race.
H. Kennedy – Race, Crime and the Law
1. Analogy: Race Based Traffic Stops and Affirmative Action
I. Taylor – Profiling
J. Davies- Profiling Terror
K. Bayley- Law and Enforcement and the Rule of Law: Is there a Tradeoff?
1. Solution is to raise the normative consciousness of police, to convince them that they have a duty to both to uphold the rule of law and to provide public safety. Problem is not normative; it is cognitive. Police know what behaviors are right and wrong and the problem is that they believe that the violation of law and of human rights is sometimes required for effective law enforcement.
L. Harris- Good Cops
1. Ashcroft Policing- designed to alter the roles of local police forces
II. FOURTH AMENDMENT – 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 or affirmation, and particularly describing the place to be searched, and the perso
had a deterrent effect than it is to show that it has succeeded.
(4) Is the Rule Worth the Cost?
3. Exclusionary Rule Jurisprudence
a) Weeks v US 1914 –
(1) Holding – In a federal prosecution, 4th Amend bars use of evidence secured through an illegal search.
b) Wolf v Colorado 1949 – There were NO FACTS in the Wolf Opinion.
(1) Frankfurter’s Framing of the Issue – Does conviction deny the ‘due process of the law’ solely because evidence admitted at trial was obtained in an inadmissible manner if it were in a federal court of law?
(a) KAMISAR – The framing of the question shaped the answer. What kind of question is this?
(2) Creation of New Right – The security of one’s privacy against arbitrary intrusion by the police – is at the core of 4th Am. – and is implicit in the concept of liberty in the Due Process Clause.
(a) Core? – Thus, Frankfurter says that only the core of the 4th Amendment is incorporated into the Due Process Clause.
(3) Holding – In a prosecution in a state court for a state crime, the 14th Amendment does not forbid admission of evidence obtained from unreasonable search and seizure.
(4) Why doesn’t Frankfurter give weight to Weeks? – Says Weeks is only a matter of judicial implication as opposed to constitutional doctrine.
(a) KAMISAR – What isn’t judicial implication?!
Federalism Rationale – Many states which reject Weeks, but have other means of protection besides exclusion of evidence. States should be allowed to punish police in different manner than excluding evidence.