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 persons, or things to be seized.
A. Warrant Requirement? – The amend does not say that a search warrant must be issued, it only states that where one is issued it must be based on a reasonable/probable cause.
III. ARREST, SEARCH & SEIZURE
A. The Exclusionary Rule
1. Exclusionary Rule – Evidence obtained by violating D’s constitutional right may not be introduced by the prosecution, at least for purposes of providing direct proof of D’s guilt.
2. Private police have traditionally been treated as private persons, a conclusion recently questioned b/c today private police participate in much of the police work that their public counterparts so and state action exists as a matter of degree in most cases.
a) Dillemma: What is the remedy for a violation of 4th Amendment? – The text is silent in this regard.
b) Theory & Policies Behind Rule via Mapp
(1) Deterrence – Such exclusion will act as a deterrent to violations of the Constitution, since in many cases the police will have no motive to conduct an unlawful search if they know that they will not be able to use its fruits in evidence.
(2) Fairness –The integrity of the judicial system requires that the courts not be made ‘party to lawless invasions of constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.’
(a) NOTE – Since Mapp, the Court has de-emphasized the judicial integrity justification of the exclusionary rule entirely to the point of practical extinction!
(b) Pragmatic Explanation for Such – Judicial integrity potentially functions as a moral imperative and does not seem to allow for cost-benefit analysis of the exclusionary rule.
c) Criticisms of Exclusionary Rule
(1) Historical Criticism – Common law principles protecting interests of personhood, property, and privacy has been tort. Thus, ER prevents other remedies like tort
(a) Response: But remedies have shown to be worthless and futile!
(2) Times Have Changed –
(a) Response: No they haven’t. Politicians always on police side.
(3) ER is not a Deterrent – Most violations of 4th Amendment occur at its edges where the errors are inadvertent and hence cannot be prevented. We would not want to deter good faith police activity.
(a) Response:It is easier to prove that a penalty has NOT 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
clearly substantive. The Exclusionary Rule is an independent procedural right to makes this right more meaningful.
(2) Kaplan Theory – Hold Exclusionary Rule inapplicable to the most serious crimes.
(3) Warren Burger Theory – Policemen can’t be expected to understand nuances of 4th Amendment. Better remedy would be a administrative fine to the government.
(4) Dripps Contingent Suppression Remedy – Damages against government for improper searches would be equal to governmental gain from violation. Thus, government indifferent between exclusion and damages. Encourages honest fact finding and interpretations of the Constitution.
(5) KAMISAR – Realize that appellate cases are anomalous because they are so close. Most cases yield to guilty pleadings.
4. Exceptions to Exclusionary Rule
a) Good Faith Exception
(1) United States v Leon 1984 – Police rely on a search warrant issued by a magistrate but later found to be unsupported by probable cause.
(a) Good Faith Exception – If warrant improperly issued, Exclusionary Rule does not apply if officer reasonably believed it was proper.
(i) What is Good Faith? – Whether a reasonably well trained officer would have knows that the search was illegal despite the magistrate’s authorization.
(ii) When Good Faith? – Leon requires good faith BEFORE going to the magistrate.
(b) Balancing Methodology – Court chooses to balance social costs with benefits of the exclusion. Court finds that the benefits to guilty defendants is offensive to basic concepts of justice. The costs are enormous. Impede unacceptably the truth finding function of judge and jury.
(c) Justification – 3 Fold Justification
(i) ER designed to deter police misconduct rather than magistrates
(ii) No evidence magistrates inclined to ignore 4th Amendment
(iii) No evidence that exclusion would have deterrent effect on magistrates
(a) FOCUS – White focuses greatly on this 3rd part.
(d) KAMISAR – The costs are overblown. Studies show that only .5% of all felony arrestees benefit. White dismisses this as a percentage. HOW ELSE DOES ONE LOOK AT DATA! Perspective is everything.
(e) Majority Distinction: 4th Amendment Right & Remedy – The wrong of the 4th Amendment is search itself, whereas the exclusion of evidence is the remedy.
(f) Brennan Dissent – Admission of illegally obtained evidence implicates same Constitutional concern as the initial seizure. (No distinction in the right and the remedy)
(i) Deterrence? – Question of deterring future police conduct was not a relevant concern in Weeks.
(ii) Deterrence Theory Misguided – The cost of the exclusionary rule is fabricated. There is no cost. The evidence should never have been had anyway.
KAMISAR – The exclusionary rule is a now a systemic social policy weighing costs and benefits instead of constitutional
