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Criminal Procedure: Investigation
University of Toledo School of Law
Steinbock, Daniel J.

Criminal Procedure – Investigations
Professor Steinbock
Fall 2009
Criminal Procedure Investigations
I.                    The Bill of Rights – provisions limiting Congress’s power over criminal procedure.
a.       The 4th Amendment
                                                               i.      “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 on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
b.      The 5th Amendment
                                                               i.      “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces…; nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb; nor shall be compelled in any criminal case to be a witness against himself, no be deprived of life, liberty or property, without due process of the law”
c.       The 6th Amendment
                                                               i.      “in criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed… and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense”
II.                  Selective Incorporation
a.       The 4th Amendment
                                                               i.      Incorporated
1.       Prohibition against unreasonable search and seizures (Wolf v. Colorado)
2.       The exclusionary rule (Mapp v. Ohio)
b.      The 5th Amendment
                                                               i.      Incorporated
1.       The bar against double jeopardy (Benton v. Maryland)
2.       Privilege against self incrimination (Malloy v. Hogan)
                                                             ii.      Not incorporated
1.       Right to indictment by a grand jury for capital and infamous crimes has been held not binding on the states (Hurtado v. California)
a.       Many states don’t use grand juries as a regular part of the charging process.
c.       The 6th Amendment
                                                               i.      Incorporated
1.       Right to trial by jury (Duncan v. Louisiana)
2.       Right to public trial (In Re Oliver)
3.       The right to a speedy trial (Klopfer v. North Carolina)
4.       The right to confront witnesses (pointer v. Texas)
5.       The right to a compulsory process to obtain witnesses (Washington v. Texas)
6.       Right to the assistance of an attorney in felony cases (Gideon v. Wainwright)
7.       Right to the assistance of an attorney in misdemeanor cases in which a prison term is imposed (Argersinger v. Hamlin)
III.                The Exclusionary Rule
a.       General Principles
                                                               i.      To deter the government agents from trampling the protections provided in the Bill of Rights.
                                                             ii.      Evidence obtained by an illegal search or seizure is not admissible in a criminal proceeding against the victim of the search or seizure as proof of guilt.
                                                            iii.      Rationale: 
1.       If the government cannot use the evidence it obtained in violation, it will be less likely to act in contravention of those rights
                                                           iv.      Application – rule applies in Federal Cases (Weeks v. US) and in State Cases (Mapp v. Ohio). It also applies across federal-state cases (Elkins v. US).
                                                             v.      Where rule does not apply – Generally the rule only applies in Criminal Trial proceedings. Outside of the criminal trial the Court weighs the cost of excluding the illegally obtained evidence against the deterrent benefit of extending the rule to a new situation.
1.       Non-trial proceedings
a.       Evidence my usually be produced at non-trial proceedings before and after the adversarial trial process.
                                                                                                                                       i.      Pre-trial
1.       Grand jury proceedings
2.       Preliminary hearings
3.       Bail hearings
                                                                                                                                     ii.      Post-trial
1.       Sentencing
2.       Parol hearings
b.      Because police have little to gain by allowing the evidence in these proceedings; they won’t be allowed to use it in trial.
2.       Civil Suits
a.       Not applicable in most civil suits
b.      HOWEVER
                                                                                                                                       i.      Where the civil suit is quasi-criminal in nature, the rule can apply.
                                                                                                                                     ii.      Ex: Civil forfeiture action arising from criminal conduct
b.      Scope – Under the exclusionary rule all evidence that has been illegally obtained must be excluded. Other evidence that has been acquired, directly or indirectly as a result of an illegal search or arrest must be excluded from evidence as well, unless the government can break the link between the illegally obtained evidence and the other evidence
                                                               i.      Fruit of the Poisonous Tree –
1.       Ask whether the evidence being objected to was obtained through exploitation of the illegally obtained evidence, or instead by means sufficiently distinguishable to be purged of the taint
                                                             ii.      Dissipation of the Taint – Evidence may be allowed if the prosecution demonstrates that the taint has been removed. THREE WAYS
1.       Inevitable Discovery
a.       If the police would have discovered the evidence regardless of their illegal conduct, it may be admitted. (People v. Fitzpatrick)
b.      The Burden is on the government to show by preponderance of the evidence that the item the prosecution was is seeking to introduce ultimately would have been discovered by lawful means
c.       The police can actually knowingly act unlawfully and deliberately choose to take an unlawful method, as long as they show that they would have found it lawfully anyway.
2.       Independent Source
a.       If police obtained evidence of independent source not connected to the illegal search or seizure, it will be admissible.
b.      EX. If police initially discover evidence during an illegal search of a warehouse, but subsequently discover the same evidence during a valid search, the evidence is admissible. 
                                                                                                                                       i.      Second search must be independent of illegal search (Murray v

de a timely motion to suppress, it constitutes error for a court to admit illegally obtained evidence. Such error requires reversal unless the error is determined to be “HARMLESS”
1.       Waiver
a.       D may be considered to have waived her objection to the use of illegally obtained evidence.
b.      If D fails to object or move to suppress the failure will usually bar subsequent consideration of the issue at trial or on appeal.
                                                             ii.      Harmless Constitutional Error
1.       The prosecution must show beyond a reasonable doubt that the admission of the evidence that should have been excluded was harmless error and did not contribute to conviction.
a.       Every error that is structural is deemed to be a harmful error (bias judge, failure to instruct correctly on proof beyond reasonable doubt, race or gender discrimination in jury selection).
The Right to Counsel
I.                    General
a.       The defendant has a right to counsel under the 5th and 6th amendments.
                                                               i.      5th amendment rights applies at all custodial interrogations
                                                             ii.      6th amendment right applies at all critical stages of the prosecution after formal proceedings have begun.
II.                  Pre-Trial
a.       Identifications –
                                                               i.      6th Amendment Right to Counsel
1.       When Right Exist
a.       Right to an attorney at an POST CHARGE lineup or showup (Moore v. Illinois)
2.       Role of Counsel at a Lineup
a.       Right is simply to have an attorney present during the lineup so that the lawyer can observe any suggestive aspects of the lineup and bring them out on cross-examination of the witness.
b.      Lawyer doesn’t have the right to set up the line up
3.       Photo Identification
a.       Accused does NOT have the right to counsel at photo identifications
b.      However, the accused may have a due process claim regarding the photo identification
4.       Physical Evidence
a.       The accused does NOT have the right to counsel when the police take physical evidence such as:
                                                                                                                                       i.      Handwriting exemplars
                                                                                                                                     ii.      Fingerprints
III.                At Trial
a.       Generally
                                                               i.      D has a right to counsel under the 5th and 6th amendment.
b.      Applicable Stages
                                                               i.      The D has the right to be represented by privately retained counsel, or to have counsel appointed to him by the state if he is indigent, at the following stages
1.       Custodial police interrogations (Miranda)