I. criminal procedure overview 3



Download 464.2 Kb.
Page1/16
Date20.05.2018
Size464.2 Kb.
  1   2   3   4   5   6   7   8   9   ...   16


I. CRIMINAL PROCEDURE OVERVIEW 3

A. BACKGROUND TO CRIMINAL PROCEDURE 3

B. DUE PROCESS – THE FOURTEENTH AMENDMENT 4

1. The Text 4

2. Due Process 4

II. THE FOURTH AMENDMENT 5

A. FOUNDATIONS OF THE FOURTH AMENDMENT 5



1. The Text 5

B. WHAT IS A “SEARCH”? 5



1. Pre-Katz case law 7

2. Post-Katz case law 8

3. Knowing exposure to the public (third party doctrine) 10

4. Electronic surveillance 12

5. Why is privacy important? 16

C. WARRANT REQUIREMENT 17



1. Oath or affirmation 17

2. Neutral and detached magistrate 17

3. The particularity requirement 18

4. Executed in a reasonable manner 18

D. PROBABLE CAUSE 19



1. Overview of probable cause 19

2. Bare hunch is not enough 20

3. Use of informants 20

4. How high does the probability need to be? 21

E. EXCEPTIONS TO THE WARRANT REQUIREMENT 22



1. Overview 22

2. Exigent circumstances 23

3. Plain view 26

4. Arrest 26

5. Search incident to arrest 28

6. Automobile exception 32

7. Bright-line rules v flexible standards 35

F. STOP AND FRISK 36



1. Overview 36

1. Has there been a “stop/seizure”? 37

2. Was there “reasonable suspicion” for the “stop”? 39

3. Was the scope of the “stop” permissible? 41

4. Was the “frisk” permissible? 41

E. PRETEXTUAL ACTION AND PROFILING 42



1. Pretextual arrest 42

2. Profiling 42

F. EXCESSIVE FORCE 45

G. CONSENT 46

H. ADMINISTRATIVE SEARCHES (“SPECIAL NEEDS”) 48



1. Overview 48

2. Early cases 49

3. Roadblocks 50

4. Customs and border protection 51

5. Non-police searches 51

I. FOURTH AMENDMENT REMEDIES 53



1. The Exclusionary Rule 53

2. Good faith exception to exclusionary rule 54

3. Other remedies 54

III. LINE-UPS (IDENTIFICATION PROCEDURES) 56

1. Overview 56

2. Post-indictment line-ups and show-ups 56

3. Pre-indictment line-ups and show-ups 57

4. Photo arrays 57

IV. POLICE INTERROGATION 59

A. BACKGROUND 59

B. DUE PROCESS VOLUNTARINESS TEST 59

1. The voluntariness test 59

2. The 14th Amendment text 59

3. Voluntariness due process cases 60

4. Policy considerations (advantages and disadvantages) 61

C. FIFTH AND SIXTH AMENDMENT RIGHTS 62



1. The 5th Amendment 62

2. The 6th Amendment 63

3. Moving away from the voluntariness test: Massiah & Escobedo 63

D. MIRANDA 64



1. Overview 64

2. The Miranda decision 65

2. Was there “custody”? 66

3. Was there “interrogation”? 68

4. Were the appropriate warnings given? 70

5. Was a valid waiver given? 71

6. Has there been an invocation of Miranda rights? 73

E. THE SIXTH AMENDMENT RIGHT TO COUNSEL 77



1. Overview 77

2. Fifth v. Sixth Amendment Table 78

F. ASSESSING THE LAW OF POLICE INTERROGATION 79




I. CRIMINAL PROCEDURE OVERVIEW




A. BACKGROUND TO CRIMINAL PROCEDURE



Goals of criminal procedure

What is the purpose of the body of law that we call criminal procedure?



  • To control crime

  • To ensure accurate determinations of guilt (factual accuracy)

  • Preserving the rights of the citizen (privacy of the home)

  • Maintaining confidence in the criminal justice system

  • Limit the power of the executive → constrains arbitrariness in exercise of government power

  • Consistency in the application of the law → particularly in preventing racial discrimination (equality)


Rules of criminal procedure

  • The function of criminal procedure is to try and achieve the goals outlined above

  • There are a lot of rules of criminal procedure (i.e. restrictions on police entering a private home, prohibition on using force against a suspect to extract a confession etc.)

  • Most of criminal procedure is constitutional and therefore “judge defined” → the importance of the SC in providing guidance (CB p.81)

  • All of this constitutional regulation begins with the idea of “due process” (CB p.81)

  • The constitutional hook is the 14th Amend which imposes the 4th and 5th Amends on state/local police

  • A huge problem is whether the police actually follow these rules


Why don’t police always follow the rules of criminal procedure?

  • Consequences of breaching the rules are only felt down the track during the trial process where the evidence is excluded (accordingly it is largely a “paper threat”)

  • Fast-paced nature of decision making by police on the streets → responding to fast breaking events

  • People largely being victimized are not in a position to assert their rights → a lot of obstacles for vulnerable people to sue police → enforcement is dependent upon defense attorneys

  • Police typically have low visibility (although this is changing with body cams) → practically everything police do is low visibility (not many people see it, especially in a private home or pulling over a car on a dark night on a remote stretch of highway, or confronting someone in an alleyway) → but if a judge puts a crucifix in his court, then everyone sees it so this is high visibility

  • Systems for appointing counsel to represent indigent defendants are very problematic

  • These situations are dangerous → police work is dangerous → split second decision-making


Paradoxical increase in rates of incarceration

  • Why even though we have these criminal procedure rules, do we have increasing rates of incarceration? This seems paradoxical

  • Are we better off with more or less criminal procedure? Stuntz observes this dynamic (CB p.38) → as courts have increased criminal procedure protections which in turn raise the cost of criminal investigation and prosecution, the executive/legislature have in turn sought to reduce those costs (by reducing defense funding, imposing mandatory sentences which induce defendants to plead guilty)

  • Stuntz argues that over-criminalization has increased as criminal procedure has expanded

  • But Prof disagrees with this view, he thinks that there are other reasons for over-criminalization (not just expanded criminal procedure), it is very hard to claim a causal connection, the better approach is to keep the safeguards and focus in addition on what is needed to make those safeguards effective (better funding of public defenders etc.)


Directory: sites -> default -> files -> upload documents
upload documents -> Torts Outline Daniel Ricks
upload documents -> Torts outline Functions of Tort Law
upload documents -> Constitutional Law (Yoshino, Fall 2009) Table of Contents
upload documents -> Arrest: (1) pc? (2) Warrant required?
upload documents -> Civil procedure outline
upload documents -> Criminal Procedure: Police Investigation
upload documents -> Regulation of Agricultural gmos in China
upload documents -> Rodriguez Con Law Outline Judicial Review and Constitutional Interpretation
upload documents -> Standing Justiciability (§ 501 Legal/beneficial owner of exclusive right? “Arising under” jx?) 46 Statute of Limitations Run? 46 Is Π an Author? 14 Is this a Work of Joint Authorship? 14 Is it a Work for Hire?
upload documents -> Fed Courts Outline: 26 Pages

Download 464.2 Kb.

Share with your friends:
  1   2   3   4   5   6   7   8   9   ...   16




The database is protected by copyright ©ininet.org 2020
send message

    Main page