Compare the theory of criminal procedure to the reality. -

Chapter 1 Introduction to Criminal Procedure Chapter 2 Remedies

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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Summarize the constitutional basis for criminal procedure. � Explain the importance of precedent. � Compare the theory of criminal procedure to the reality. � Describe the public order (crime control) and individual rights (due process) perspectives of criminal

justice and how criminal procedure balances the two. � Outline the structure of the court system, including the responsibilities and jurisdictions of each level. � Summarize important issues and trends in criminal procedure. � Provide an overview of the criminal process.

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CHAPTER OUTLINE

Introduction to Criminal Procedure

C H

A P

T E

OUTLINE

Introduction: What Is Criminal Procedure? Emphasis on Constitutional Rights

Sources of Rights Rights of Relevance in Criminal Procedure The Incorporation Controversy

Significance of the Debate Views on Incorporation Outcome of the Debate

The Importance of Precedent Stare Decisis Distinguishing Cases

Theory versus Reality Competing Concerns in Criminal

Procedure Due Process

The Obstacle Course Quality over Quantity Insistence on Formality Faith in the Courts

Crime Control The Assembly Line Quantity over Quality Insistence on Informality Faith in the Police

Finding Court Cases and Tracing Their Progress Finding Cases Tracing the Progress of a Criminal Case How Cases Arrive at the Supreme Court

Important Issues and Trends in Criminal Procedure

Bright-Line Decisions versus Case-by-Case Adjudication

Subjectivity versus Objectivity Increased Faith in the Police Judicial Restraint Personal Privacy Criminal Procedure and the War

on Terror Criminal Procedure and Technology

The Criminal Process: An Overview Pretrial Adjudication Beyond Conviction

Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

What Is Criminal Procedure?

American criminal procedure consists of a vast set of rules and guidelines that describe how suspected and accused criminals are to be handled and processed by the justice system. Of great significance is the relationship between the police and the people suspected of criminal activity. Criminal procedure arms the police with the knowledge necessary to preserve the rights of individuals who are seized, searched,

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4 Part 1 • Introduction

arrested, and otherwise inconvenienced by law enforcement officials. It also arms other actors—such as judges, prosecutors, and defense attorneys—with the necessary information to preserve the rights of individuals accused of criminal activity. In short, criminal procedure begins when the police first contact a person and ends well after his or her conviction.

At least three important themes run throughout criminal procedure. First, there is a concern with the constitutional rights of accused persons, as interpreted by the courts. People enjoy a number of important rights in the United States, but the bulk of criminal procedure consists of constitutional procedure or what the U.S. Constitution says—usually through the interpretation of the U.S. Supreme Court (i.e., the Court)— with regard to the treatment of criminal suspects.

Second, criminal procedure contains an important historical dimension, one that defers regularly to how sensitive legal issues have been approached in the past. The role of precedent, or past decisions by the courts, cannot be overemphasized. At the same time, though, the world continues to evolve, and it is sometimes necessary to part ways with the past and decide novel legal issues.

Third, criminal procedure creates something of a collision between two different worlds: the world of the courts versus that of law enforcement. What the courts require and what law enforcement actually deals with do not always harmonize. That is, in the real world, the influence of the courts may not always be as significant or relevant as might be expected. The following subsections will elaborate more fully on the importance of these three themes.

EMPHASIS ON CONSTITUTIONAL RIGHTS

The Preamble to the U.S. Constitution states,

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Of particular relevance to criminal procedure are the terms justice and liberty. The Constitution helps ensure these through both setting forth the various roles of government and protecting the rights of people within the nation’s borders. Throughout the years, the courts have devoted a great amount of energy to interpret- ing the Constitution and to specifying what rights are important and when they apply.

However, the Constitution is not the only source of rights; there are others worthy of consideration. In addition, some rights are more important than others, at least as far as criminal procedure is concerned. Finally, the two-tiered system of government in the United States creates a unique relationship between the federal and state levels. Criminal procedure cannot be understood without attention to the interplay between federal and states’ rights.

Sources of Rights

In addition to the Constitution, important sources of rights include court decisions, statutes, and state constitutions. Most of the court decisions discussed in this section and throughout the text are U.S. Supreme Court decisions.

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Whenever the Supreme Court interprets the Constitution, it effectively makes an announcement concerning people’s rights. For example, the Fourth Amendment states that unreasonable searches and seizures are impermissible. The term unreasonable is not self-explanatory, however, so the Court has taken steps to define it. One definition of unreasonable appears in the recent decision of Wilson v. Layne (526 U.S. 603 [1999]), in which the Court held that it is unreasonable for the police to bring reporters along when serving a warrant, unless the reporters are there to serve a legitimate law enforcement objective.

Although the Constitution and the court decisions stemming from it reign supreme in criminal procedure, statutes also play an important role. Obviously, the Constitution and the courts cannot be expected to protect all of the interests that people represent. Statutes attempt to compensate for that shortcoming by establishing that certain rights exist. An example is Title VII of the 1964 Civil Rights Act. Among other things, it prohibits discrimination in employment. Another statute of relevance in criminal procedure (one that will be considered in some depth in Chapter 2) is 42 U.S.C. Section 1983. It allows private citizens to sue local law enforcement officials for violations of federally protected rights.

In addition, each state has its own constitution, which can be considered an important source of rights. The supremacy clause of Article VI to the U.S. Constitution makes it the supreme law of the land and binds all states and the federal government to it. However, nothing in the U.S. Constitution precludes individual states from adopting stricter interpretations of the federal provisions. In general, if a state constitution gives less protection than the federal Constitution, such a limitation is unconstitutional. But a stricter interpretation of the federal Constitution is perfectly reasonable. For example, the Supreme Court has interpreted the Fifth Amendment in such a way that it requires police to advise a suspect of his or her so-called Miranda rights when the suspect is subjected to custodial interrogation—an action that does not necessarily rise to the level of an arrest. A state, however, could require that Miranda rights be read whenever a person is arrested, regardless of whether he or she is interrogated.

Finally, although it is not a source of rights per se, the Federal Rules of Criminal Procedure are worth considering.1 Excerpts from the Federal Rules are reprinted through- out this book because they sometimes clarify important rulings handed down by the U.S. Supreme Court. Additionally, the Federal Rules set forth the criminal procedure guidelines by which federal criminal justice practitioners are required to abide.

Rights of Relevance in Criminal Procedure

Of the many rights specified in the U.S. Constitution (which, incidentally, is reprinted in the Appendix), the rights stemming from five amendments are of special importance in criminal procedure. Four of these—the Fourth, Fifth, Sixth, and Eighth Amendments— can be found in the Bill of Rights. Beyond the Bill of Rights, the Fourteenth Amendment is of special relevance in criminal procedure. Sometimes the First Amendment, which protects individual rights to assembly and speech, and the Second Amendment, which protects the right to bear arms, are relevant in criminal procedure, but only rarely.

• The Fourth Amendment is perhaps the most well known source of rights in criminal procedure. In fact, it is viewed to be so important that several books on criminal procedure devote the overwhelming majority of their chapters to it. The Fourth Amendment states,

1 Federal Rules of Criminal Procedure, issued by the 107th Congress, First Session, December 1, 2001. Available online: www.house.gov/judiciary/crim2001.pdf.

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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.

Several rights can be distinguished by reading the text of the Fourth Amendment. It refers to the right of people to be free from unreasonable searches and seizures, and it provides that specific requirements are to guide the warrant process. That is, a warrant must be issued by a magistrate or judge, supported by probable cause, and sufficiently specific as to what is to be searched and/or seized. Because of the complexity of the Fourth Amendment, this book devotes an entire section to its interpretation (see Part 2).

• The second constitutional amendment of special relevance to criminal procedure is the Fifth Amendment. It states,

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, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This book also examines the Fifth Amendment in detail, focusing in particular on the role of the grand jury, the statement that no person shall be “twice put in jeopardy of life or limb” (known as the double-jeopardy clause), the statement that no one can be compelled “to be a witness against himself” (also known as the self-incrimination clause), and perhaps most important of all, the requirement that an individual cannot be deprived of life, liberty, or property without due process of law.

• The Sixth Amendment is also of great importance in criminal procedure. It specifies,

In all 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, which district shall have been previously ascer- tained by law, 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 defence.

Of relevance to criminal procedure is the Sixth Amendment’s language concern- ing speedy and public trials, impartial juries, confrontation, and compulsory process. The Sixth Amendment also suggests that in addition to being public, trials should be open, not closed, proceedings. The Supreme Court has interpreted the Sixth Amendment as providing the right of the accused to be present at his or her trial and to be able to put on a defense.

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• The Eighth Amendment is relevant in criminal procedure but to a limited extent. It states,

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment’s language on bail and the nature of cruel and unusual punishment are addressed in Chapters 10 and 15, respectively.

• The Fourteenth Amendment has an important home in criminal procedure. It is a fairly long amendment, however, and only a small portion is relevant to the handling and treatment of criminal suspects. That portion states,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The due process language of the Fourteenth Amendment mirrors that of the Fifth. Nonetheless, because the Fifth Amendment is part of the Bill of Rights, it is only binding on the federal government. The Fourteenth Amendment, by contrast, has been used by the Supreme Court to incorporate, or make applicable to the states, several of the rights provided for in the Bill of Rights. (The following subsection introduces the so-called incorporation controversy.)

The Fourteenth Amendment’s due process clause has been interpreted to consist of two types of due process: (1) substantive due process and (2) procedural due process. The essence of substantive due process is protection from arbitrary and unreasonable action on the part of state officials. By contrast, a procedural due process violation is one in which a violation of a significant life, liberty, or property interest occurs (e.g., Geddes v. Northwest Missouri State College, 49 F.3d 426 [8th Cir. 1995]). Procedural due process is akin to procedural fairness.

Summary. Figure 1.1 lists the constitutional amendments that are of particular importance in criminal procedure. As the following section will describe, certain rights that are provided for in each amendment may not be binding on the states. Also, even though a particular amendment may provide a particular right, the Supreme Court may have interpreted that amendment to apply only in certain circumstances. Such circumstances will be discussed throughout the text.

The Incorporation Controversy

The Bill of Rights, consisting of the first 10 amendments to the U.S. Constitution, places limitations on the powers of the federal government. It does not limit the power of the states, however. In other words, the first 10 amendments place no limitations on state and local governments and their agencies. Government power at the state and local levels is clearly limited by state constitutions.

Even though the Bill of Rights does not limit state and local governments, the Supreme Court has found a way to do so through the Fourteenth Amendment. In particular, the Court has used the Fourteenth Amendment’s due process clause,

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which holds that no state shall “deprive any person of life, liberty, or property, without due process of law,” to make certain protections specified in the Bill of Rights applicable to the states. This is known as incorporation.

The extent to which the Fourteenth Amendment should regulate state and local government power has been the subject of some disagreement—hence, the incorporation controversy. The basic question posed over the years has been, To what degree should the Fourteenth Amendment’s due process clause incorporate the various provisions of the Bill of Rights so as to restrict state and local law enforcement in the same way federal law enforcement is restricted by the Bill of Rights?

SIGNIFICANCE OF THE DEBATE The incorporation debate is significant because of three concerns. First, since most contact between citizens and the police occurs at the state and local levels, it is critical to determine the role of the federal Constitution at the state level. Comparatively few people have contact with federal law enforce- ment, so the Bill of Rights actually regulates a limited number of police/citizen contacts. Second, incorporation, according to some, threatens federalism. Under the doctrine of federalism, states have the authority to develop their own rules and laws of criminal procedure, but if the Fourteenth Amendment incorporates the Bill of Rights, this authority can be compromised. Third, the incorporation debate raises important concerns about the separation of powers. Namely, the Supreme Court has decided which rights should be incorporated—a decision that may better be reserved for Congress.

FIGURE 1.1 Constitutional Amendments Important to Criminal Procedure and Their Relevant Provisions

• Fourth Amendment: Protects from unreasonable searches and seizures. • Fifth Amendment: Provides protection from double jeopardy and self-incrimination

and for grand jury indictment in serious crimes. • Sixth Amendment: Provides for a speedy and public trial, impartial jury, con-

frontation, compulsory process, and assistance of counsel. • Eighth Amendment: Protects from cruel and unusual punishment. • Fourteenth Amendment: Includes the so-called due process clause, which has

been used to incorporate various other rights described in the Bill of Rights.

DECISION-MAKING EXERCISE 1.1

The First Amendment and Criminal Procedure

The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Given what you have read so far, is the First Amendment relevant to criminal procedure?

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Chapter 1 • Introduction to Criminal Procedure 9

VIEWS ON INCORPORATION There are four leading views on the incorporation debate.2

One has won out over the others, but all of the views are important to consider, regardless.

• The total incorporation perspective holds that the Fourteenth Amendment’s due process clause incorporates the entire Bill of Rights. In other words, all protections specified in the Bill of Rights should be binding on the states. The primary proponent of this view was Supreme Court Justice Hugo Black (e.g., Adamson v. California, 332 U.S. 46 [1947]; Rochin v. California, 342 U.S. 165 [1952]).

• The second leading view on incorporation is that of selective incorporation, or the fundamental rights perspective. It favors incorporation of certain protections enumerated in the Bill of Rights, not all of them. Further, this perspective deems certain rights as being more critical, or fundamental, than others. The Supreme Court’s decision in Snyder v. Massachusetts (291 U.S. 97 [1934]) advocates this perspective, arguing that the due process clause prohibits state encroachment on those “principle[s] of justice so rooted in the traditions and consciences of our people as to be ranked as fundamental.”

• The third view on incorporation can be termed total incorporation plus. This view holds that the Fourteenth Amendment’s due process clause incorporates the whole Bill of Rights as well as additional rights not specified in the Constitution, such as the “right to privacy.” This view can be found in such Supreme Court cases as Adamson v. California and Poe v. Ullman (367 U.S. 497 [1961]).

• Finally, some people believe that the topic of incorporation deserves case-by-case consideration. That is, no rights should be incorporated across the board. Rather, the facts and circumstances of each individual case should be weighed in order to determine if any protections listed in the Bill of Rights should apply at the state or local level.

OUTCOME OF THE DEBATE So, Which perspective has won out? Arguably, the selective incorporation, or the fundamental rights, perspective is the winner. The Supreme Court has consistently held that some protections listed in the Bill of Rights are more applicable to the states than others. The Fourth Amendment, in its view, lists several fundamental rights. By contrast, the Fifth Amendment’s grand jury clause has not been deemed fundamental and is not binding on the states (Hurtado v. California, 110 U.S. 516 [1884]).

To an extent, part of the total-incorporation-plus perspective has won out, as well. While not all of the Bill of Rights is binding on the states, the Supreme Court has repeatedly emphasized Americans have a fundamental right to privacy. This is despite the fact that the Constitution makes no mention of privacy. It is commonly said (as will be noted in the section on the Fourth Amendment) that people do not enjoy an expectation of privacy in public places. It would seem, then, that certain rights not listed in the Constitution have been identified as well as incorporated.

Figure 1.2 lists the rights that have been deemed fundamental by the Supreme Court and, as a result, incorporated to the states.3 The Supreme Court cases responsible for these incorporation decisions are listed, as well.

2 J. Dressler, Law Outlines: Criminal Procedure (Santa Monica, CA: Casenotes Publishing, 1997), pp. 2-3–2-4. 3 Some scholars believe that the Ninth Amendment to the U.S. Constitution (also referred to as the penumbra clause) implies that all of the rights not specifically spelled out in the Constitution are automatically protected nonetheless. But to demonstrate this, a court would have to recognize a particular right as fundamental in case law. Privacy could be considered one such right.

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THE IMPORTANCE OF PRECEDENT

To many students of criminal procedure, legal research is a less than desirable pursuit. Even so, it is essential in everyday practice because of the importance of precedent. A precedent is a rule of case law (i.e., a decision by a court) that is binding on all lower courts and the court that issued it. A past decision may not be available in each case, but when one is, the courts will defer to it. This is the doctrine of stare decisis.

Stare Decisis

Stare decisis is a Latin term that means to abide by or to adhere to decided cases. Most courts adhere to the principle of stare decisis. That is, when a court has handed down a decision on a specific set of facts or legal questions, future court decisions that involve similar facts or questions will defer to the previous decision. In short, stare decisis is simply the practice of adhering to a previous decision or precedent.

Why does stare decisis occupy such an important position in the U.S. court system? The answer is that it promotes consistency. It is well known that accused criminals enjoy the right to counsel (Gideon v. Wainwright, 372 U.S. 335 [1963]), but what if from one year to the next, the Supreme Court vacillated on whether this right were constitu- tionally guaranteed? The criminal process, not to mention the rights of the accused, would be unpredictable and vary from one point to the next.

It is important to note that the practice of deferring to precedent is not always possible or desirable. First, stare decisis is usually only practiced by courts in a single jurisdiction. Suppose, for example, that a federal circuit appeals court handed down a decision. All the district courts within that circuit would then abide by the appeals court decision. Courts outside that circuit would not be bound to adhere to the decision

FIGURE 1.2 Rights Incorporated to the States

Right Deciding Case

First Amendment freedom of religion, speech, and assembly and the right to petition for redress of grievances

Fiske v. Kansas, 274 U.S. 380 (1927)

Fourth Amendment prohibition of unreasonable searches and seizures Wolf v. Colorado, 338 U.S. 25 (1949) Fifth Amendment protection against compelled self-incrimination Malloy v. Hogan, 378 U.S. 1 (1964) Fifth Amendment protection from double jeopardy Benton v. Maryland, 395 U.S. 784

(1969) Sixth Amendment right to counsel Gideon v. Wainwright, 372 U.S.

335 (1963) Sixth Amendment right to a speedy trial Klopfer v. North Carolina, 386 U.S.

213 (1967) Sixth Amendment right to a public trial In re Oliver, 333 U.S. 257 (1948) Sixth Amendment right to confrontation Pointer v. Texas, 380 U.S. 400 (1965) Sixth Amendment right to an impartial jury Duncan v. Louisiana, 391 U.S.

145 (1968) Sixth Amendment right to compulsory process Washington v. Texas, 388 U.S.

14 (1967) Eighth Amendment prohibition of cruel and unusual punishment Robinson v. California, 370 U.S.

660 (1962)

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(although some courts often do as a matter of professional courtesy). Perhaps more important, if a case coming before a court is unique and does not resemble one decided in the past, the court may distinguish it.

Distinguishing Cases

When a previous decision does not apply to the current facts, a court will distinguish the case, saying, in effect, that this case is different and cannot be decided by looking to past rulings. Another way of understanding what it means to distinguish a case is to think of the present set of facts as unique and never before considered by an appellate court.

Since only a handful of cases make it to the appellate level, and even fewer still arrive at the Supreme Court, there is an untold number of cases waiting to be distinguished. This is a critical point. The case law in place currently addresses only a minute quantity of possible constitutional questions. Countless contacts occur between the police and citizens, and several of them may give rise to important constitutional questions. Yet they may never see the inside of a courtroom. So, while this book may appear heavy on case law, a thorough understanding of criminal procedure would require a review of the nearly infinite possible factual circumstances that could arise in the criminal process.

An example of a case that was distinguished is Terry v. Ohio (392 U.S. 1 [1968]). In that case, the Supreme Court held that police officers can stop and frisk suspects with reasonable suspicion, not probable cause (the latter standard appearing in the text of the Fourth Amendment). The Court felt that a stop-and-frisk is different from a search or a seizure and, as such, should be governed by a different set of standards. Had the Supreme Court not decided Terry, or any case like it, stop-and-frisk encounters would probably still be considered seizures and therefore subject to the Fourth Amendment’s requirement for probable cause. Terry will be considered in more detail later, as will many other distinguished cases.

In nearly every class on criminal procedure, students ask, “What if . . . ?” The “what-if” question reflects a concern over possible factual circumstances not already addressed in published court decisions. In order for a “what-if” question to be answered, a court decision must result. Otherwise, the best approach to answering such a question is to look to the past and find a decision that closely resembles the hypothetical scenario. In this vein, every case discussed throughout this text should be thought of as a distinguished case. Every decision was based on a different set of factual circumstances and was deemed by the reviewing court as worthy of being distinguished. Were it not for distinguished cases, criminal procedure case law could be adequately covered in a matter of minutes, even seconds.

THEORY VERSUS REALITY

Criminal procedure consists mostly of rules and guidelines that have been handed down by the courts so as to dictate how the criminal process should play out. As already mentioned, many of these rules and guidelines have come from the U.S. Supreme Court, which has decided on thousands of occasions how the Constitution should be inter- preted. However, in some circumstances, court decisions may not really have a great deal of influence. That is, some court decisions are made in the theory world, which is somewhat disconnected from the day-to-day operations of law enforcement. In contrast, the police occupy a position that is very definitely in the real world. Understandably, there can be differences, even tensions, between the worlds of theory and reality.

The fact that theory and reality may differ is a subject that receives little direct attention in criminal procedure textbooks. Indeed, that certain Supreme Court decisions may not really matter, or might even be flatly ignored, is a controversial notion, to say

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the least. Americans are taught that the courts—and the Supreme Court, in particular— are charged with interpreting the Constitution and the laws of the United States. They are further taught that law enforcement should accept such interpretations uncritically and without much reflection. While this is mostly true, theory and reality can still differ for at least four reasons.

• First, the Supreme Court sometimes makes decisions on excruciatingly detailed mat- ters that have almost no applicability to most law enforcement officers most of the time. A good example is the Supreme Court’s recent decision in Atwater v. City of Lago Vista (533 U.S. 924 [2001]), a case that will be considered more fully later. (See Chapter 5 on warrantless searches and seizures.) The Court decided that the Fourth Amendment does not prohibit the police from arresting people for seat-belt viola- tions. On one level, this decision seems significant, but how many police officers are now going to arrest people for seat-belt violations? Probably very few police will take up this cause because they usually have more important matters to address.

• Second, the Supreme Court frequently hands down restrictive decisions that would seem to have dramatic effects on the nature of law enforcement but that actually involve issues already being addressed by many police agencies. For example, the Supreme Court’s decision in Tennessee v. Garner (471 U.S. 1 [1985]) made it a violation of the Fourth Amendment for the police to use deadly force to apprehend an unarmed and nondangerous fleeing felon. However, prior to Garner, many police agencies had already adopted restrictive deadly force policies—policies that, in many instances, were more restrictive than what was handed down in Garner. Police agency policy, therefore, can differ from, and even be more restrictive than, decisions reached by the Supreme Court. To illustrate this, several excerpts from police agency manuals and guidelines are reprinted throughout subsequent chapters.

• The third reason for the theory/reality dichotomy is that the courts sometimes hand down decisions that can be effectively circumvented or ignored by the police. Clearly, it is not in the best interest of law enforcement to ignore the courts, and it is probably quite rare that the police do so, but it can be done. For example, in Kyllo v. United States (533 U.S. 27 [2001]), the Supreme Court held that a search occurs when the police to scan a private residence with an infrared thermal imager without first obtaining a warrant. The consequence of conducting such a scan without a warrant is that any evidence subsequently obtained will not be admissible in court. However, in reality, what is to prevent the police from scanning someone’s house if there is no intent to secure evidence?

• Finally, what the courts say and the police do can differ simply as a consequence of the U.S. legal system. It is well known, for example, that a police officer cannot stop a motorist without some level of justification. On how many occasions, though, are motorists stopped without justification? That is, how many people are pulled over every day simply because a police officer is suspicious of them? This cannot be

DECISION-MAKING EXERCISE 1.2

Traditional Legal Doctrine Meets High-Tech Crime

In Katz v. United States (389 U.S. 347 [1967]), the Supreme Court decided that searches occur when a government actor infringes on a person’s reasonable expectation of pri- vacy. Assume federal agents have a trained drug dog sniff

passengers’ luggage on a baggage carousel in an airport. Does this constitute a search? Is Katz equipped to deal with a situation such as this, or is the situation such that it calls for a distinguished case?

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established for certain, but it does happen. It can happen because the legal system cannot do much to prevent it. Someone who is wrongfully stopped can file a complaint, but research shows that many such complaints are resolved in favor of the police.4 A lawsuit can be filed, but as will be noted in Chapter 2, such suits rarely are successful. And if nothing worthy of arresting the motorist is discovered, then it is doubtful that the illegal stop will draw attention in court.

In fairness to the law enforcement community, it is not the case that the police (or other criminal justice officials) regularly trample people’s constitutional rights. Most law enforcement officials are responsible, professional, and upstanding enforcers of the law, as are most judges and prosecutors. But the fact cannot be ignored that the reality of everyday law enforcement and the somewhat distant nature of certain court decisions do not always meet. It is for this reason that distinctions between theory and reality are pointed out throughout later chapters. Police department policy manual excerpts also appear throughout the book. They help bridge the gap between theory and reality by illustrating the procedures law enforcement officials must follow in addition to those laid out by the Supreme Court.

COMPETING CONCERNS IN CRIMINAL PROCEDURE

Criminal procedure is an exciting topic because of the inherent tension it creates between two competing sets of priorities. On the one hand, there is a serious interest in the United States in controlling crime, with some Americans advocating doing whatever it takes to keep criminals off the streets. On the other hand, because of their country’s democratic system of government, Americans value people’s rights and become angry when those rights are compromised or threatened. These two competing sets of values have been described by Herbert Packer as the crime control and due process perspectives.5

The values each opposing perspective subscribes to are probably familiar to many readers because the due process/crime control debate invariably pops up all through- out criminal justice. Almost without exception, whenever there is disagreement as to how best to approach the crime problem—be it through court decisions or legislative measures—the due process/crime control distinction rears its head. A delicate balance has to be achieved between the two perspectives.

The due process perspective closely resembles a liberal political orientation. Liberals often favor protection of people’s rights and liberties to a higher degree than

4 For an informative review, see J. L. Worrall, “If You Build It, They Will Come: Consequences of Improved Citizen Complaint Review Procedures,” Crime and Delinquency 48 (2002): 355–379.

DECISION-MAKING EXERCISE 1.3

Theory and Reality Collide

In Miranda v. Arizona (384 U.S. 436 [1966]), the U.S. Supreme Court decided that the police must advise suspects who are custodially interrogated of their Fifth Amendment privilege against self-incrimination. This case will be revisited in great detail later in the book, but for now, it illustrates that (1) custody occurs when a reasonable person would

believe the suspect is not free to leave (an arrest being a prime example of such action) and (2) interrogation refers to actions by the police that are reasonably likely to elicit a response from the suspect. Assume that the police arrest a man but do not interrogate him. Assume further that the man confesses to a crime. Does Miranda apply?

5 H. L. Packer, The Limits of the Criminal Sanction (Palo Alto, CA: Stanford University Press, 1968).

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their conservative counterparts. By contrast, the crime control perspective is the one most frequently subscribed to by conservative law-and-order types.

Of course, in reality, there can be a great deal of overlap between the two orientations. Liberals occasionally favor conservative crime control policies, and conservatives can be concerned with protecting the rights of American citizens. That is to say, although the two groups frequently stand in stark contrast to each other, they do sometimes meet in the middle. Regardless, the values espoused by each group—be it an interest in crime control, an interest in civil rights, or an interest in both—are here to stay. Given that, it is useful to consider each perspective in more detail, focusing special attention on the implications for criminal procedure.

Due Process

Packer’s due process perspective is, first and foremost, concerned with people’s rights and liberties. It also gives significant weight to human freedom. Due process advocates believe that the government’s primary job is not to control crime but rather to maximize human freedom, which includes protecting citizens from undue government influence. Proponents of due process favor minimizing the potential for mistakes, as explained by Packer:

People are notoriously poor observers of disturbing events. . . . [C]onfessions and admissions by persons in police custody may be induced by physical or psychological coercion so that the police end up hearing what the suspect thinks they want to hear rather than the truth; witnesses may be animated by a bias or interest that no one would trouble to discover except one specially charged with protecting the interests of the accused (as the police are not).6

Due process advocates also believe that each suspect is innocent until proven guilty, just as Americans are taught. In addition, they place greater emphasis on legal guilt (whether a person is guilty according to the law) rather than factual guilt (whether a person actually committed the crime with which he or she is charged).

Underlying the due process/crime control perspectives are four ideals: (1) The criminal process looks, or should look, something like an obstacle course; (2) Quality is better than quantity; (3) Formality is preferred over informality; and (4) A great deal of faith is put in the courts.

THE OBSTACLE COURSE The “obstacle course” idea is rooted in a metaphor, of course. A criminal process that resembles an obstacle course is one that is complex and needs to be navigated by skilled legal professionals. Further, it is one that is somewhat difficult to operate in a predictable fashion. It is not a process that prides itself on speed and efficiency—values of great importance in the crime control perspective. In fact, the opposite could be said. The obstacle-course metaphor also stresses that each case must pass through several complicated twists and turns before a verdict can be rendered.

QUALITY OVER QUANTITY Another way to distinguish between due process and crime control is in terms of quantity and quality. The due process view favors quality—that is, reaching a fair and accurate decision at every stage of the criminal process. It stresses that each case should be handled on an individual basis and that special attention should be paid to the facts and circumstances surrounding the event. In addition, the concern with quality is one that minimizes the potential for error. For example, due

6 Ibid., p. 163.

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Chapter 1 • Introduction to Criminal Procedure 15

process advocates are in favor of allowing several death penalty appeals because the possibility of executing the wrong person should be avoided at all costs.

INSISTENCE ON FORMALITY Due process advocates do not favor informal processes. Because of the potential for human error and bias, they favor a full-blown adversarial criminal process. They also believe that early intervention by judges and other presumptively objective parties (besides, say, the police) is in the best interest of people accused of breaking the law.

FAITH IN THE COURTS Another value inherent in the due process perspective is intense faith in the courts as opposed to law enforcement. Due process advocates correctly point out that the job of a judge is to interpret the U.S. Constitution. This, they argue, helps provide protection to people charged with crimes. Faith in the courts also corresponds with the above-mentioned insistence on formality. When guilt or innocence is determined in court, an air of fairness and objectivity must be maintained.

Crime Control

In contrast to the due process perspective, the crime control perspective emphasizes the importance of controlling crime, perhaps to the detriment of civil liberties. From a cost/benefit perspective, crime control advocates believe that the benefit of controlling crime to society at large outweighs the cost of infringing on some individuals’ due process protections. Another way to distinguish between the due process and crime control perspectives is to consider the distinction between means and ends: Crime control is more concerned with the ends, with wiping out crime, or at a minimum, with mitigating its harmful effects. By contrast, due process is concerned with the means, with the methods by which people are treated by criminal justice officials. The result— either crime or the absence of it—is not of great concern to due process advocates.

Additional differences between the due process and crime control perspectives are illustrated in Figure 1.3.

THE ASSEMBLY LINE The metaphor of an “assembly line” suggests that the criminal process should be automatic, predictable, and uniform. In other words, every criminal should be treated the same, with minimal variations in terms of charges and sentences. The assembly- line metaphor further suggests that the criminal process should be quick and efficient.

FIGURE 1.3 The Values of Due Process versus Crime Control

Crime Control Values Due Process Values

• Follows “assembly line” metaphor • Follows “obstacle course” metaphor • Emphasizes quantity over quality • Emphasizes quality over quantity • Favors informality • Prefers formality • Has faith in the police • Has faith in the courts • Makes presumption of guilt • Makes presumption of innocence • Seeks to benefit society • Seeks to benefit suspects • Is concerned with ends, not means • Is concerned with means, not ends • Seeks to maximize police authority • Seeks to maximize human freedom • Seeks to control crime at all costs • Seeks to protect people’s rights at all costs • Puts emphasis on factual guilt • Puts emphasis on legal guilt

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16 Part 1 • Introduction

The goal of the crime control perspective is to move criminals through the justice process as swiftly as possible. A full-blown adversarial criminal process, replete with hearings and other pauses in the interest of the accused, is anathema to the crime control view.

QUANTITY OVER QUALITY As just mentioned, the due process model stresses quality over quantity. The crime control model, by contrast, favors quantity over quality, a view that is consistent with the assembly-line metaphor. The goal is to move as many offenders as possible through the criminal justice system with as little delay as possible. If mistakes are made along the way and someone is wrongfully charged or convicted, so be it. That is, the overall goal of ensuring that as many criminals are dealt with as possible is superior to protecting any individual’s constitutional rights.

INSISTENCE ON INFORMALITY Whereas the due process perspective favors the formality of the criminal process, with particular emphasis on the courts, the crime control perspective favors informality. The courts are to be avoided; instead, justice should be meted out beyond the walls of a courtroom. Plea bargaining, for instance, is favored because of its swift, behind-the-scenes nature (not to mention that it eliminates the need to go to trial). An insistence on informality suggests further that the law enforcement establishment should be more involved in making determinations of guilt, not the courts.

FAITH IN THE POLICE Finally, whereas the due process perspective places a great deal of faith in the courts, the crime control perspective puts a high degree of trust in the police. All Americans are taught that each suspect is innocent until proven guilty in a court of law. Clearly, the courts are charged with making this determination. However, crime control advocates favor so-called street justice, giving the police vast discretion in deciding how to deal with people suspected of being involved in criminal activity. A fitting quote describing the crime control perspective is, therefore, “All criminals are guilty until proven innocent.” In other words, all suspects should be considered guilty; if the courts determine otherwise, then so be it.

DECISION-MAKING EXERCISE 1.5

Due Process or Crime Control

In two decisions, United States v. Leon, 468 U.S. 897 (1984) and Massachusetts v. Sheppard, 468 U.S. 981 (1984), the Supreme Court created what is known as the “good faith” exception to the exclusionary rule. This exception, as well as the exclusionary rule, is discussed toward the end of Chapter 2. But for now, realize that both cases are important in that they held that violations of people’s constitutional rights are permissible, under limited circumstances, when the police

make honest mistakes. For example, if a police officer relies on a search warrant that was obtained on the basis of a reasonable mistake, he or she could serve the warrant, search for evidence, and seize it, even if these actions violated the rights of the person searched. The key is that the mistake must be a reasonable one. How, then, would you characterize both the Leon and Sheppard decisions: as prioritizing crime control or due process?

DECISION-MAKING EXERCISE 1.4

Due Process or Crime Control

How should the Miranda decision from Exercise 1.3 be charac- terized: as due process-oriented or crime control-oriented? In other words, does Miranda prioritize the suspect’s due process

rights or the interest of the police in controlling crime? What about the Supreme Court’s decision in Kyllo v. United States, mentioned in the “Theory versus Reality” section?

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FINDING COURT CASES AND TRACING THEIR PROGRESS

Criminal procedure can be complex not only because of the many factual questions that arise in day-to-day police/citizen encounters (as well as throughout the rest of the justice process) but also because of the two-tiered structure of the U.S. court system. This two-tiered structure reflects the idea of dual sovereignty: that the federal and state governments are considered separate, or sovereign, in their own right. Each state, as well as the federal government, has its own court structure.

There is no way to succinctly describe all the variations in state court structures, but, generally, they resemble one another. Typically, the lowest-level courts in a given state are courts of limited jurisdiction, which have jurisdiction over relatively minor offenses and infractions. A traffic court fits in this category. Next are the trial courts, also called courts of general jurisdiction, which try several types of cases. Courts of general jurisdiction are often county-level courts and are frequently called superior courts. At the next highest level are the intermediate appellate courts; verdicts from courts of general jurisdiction are appealed to these courts. Finally, each state has its own state supreme court, the highest court in the state. Figure 1.4 shows a typical state court structure—from the state of Washington. Importantly, state courts try cases involving state laws (and, depending on the level of the court, some county, city, and other local ordinances).

The federal court structure can be described succinctly because, for the purposes of criminal procedure, it consists of three specific types of courts. Federal courts try cases involving federal law. The lowest courts at the federal level are the so-called district courts. There are 94 federal district courts in the United States (as of this writing), including 89 district courts in the 50 states and 1 each in Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. At the next level are the U.S. courts of appeals. There are 13 of these so-called circuit courts of appeals: 12 regional courts and 1 for the federal circuit. Each is charged with hearing appeals from several of the district courts that fall within its circuit. Finally, the U.S. Supreme Court is the highest court in the federal system. As will be discussed, however, the Supreme Court does not only hear federal appeals.7 Figure 1.5 shows the structure of the federal court system; the courts of relevance in criminal procedure are highlighted. Figure 1.6 presents a map of the geographic boundaries of the U.S. courts of appeals and the U.S. district courts.

The federal government and each of the 50 states are considered a sovereign entity. That is why each has a court system of its own. There is another set of sovereigns, however: the Native American tribal courts. These tribal courts will receive no further attention in this book because, in general, they do not have to follow the same constitutional requirements as state and federal courts. Rather, they come under the Indian Civil Rights Act of 1968. The U.S. military also has its own structure, in which the rules of criminal procedure differ markedly from those covered here. Because of the complexity of the Uniform Code of Military Justice, military courts and criminal procedure will not be covered in this book, either.

That said, what decides where a case will be decided? Generally, if the case involves federal law, it will be tried in federal court. If, by contrast, it involves state law, it will be heard in state court. Certain crimes—such as kidnapping, transportation of illegal narcotics across state lines, and robbing a federally insured bank—can be tried in both federal and state courts, if the prosecutors agree. As will be discussed later, such a dual prosecution does not violate the Fifth Amendment’s double-jeopardy clause.

7 Note that references to the federal-level Supreme Court are always capitalized (e.g., the U.S. Supreme Court, the Supreme Court, and even the Court), whereas those to state-level supreme courts are not (i.e., except in cit- ing a particular state court, such as the Florida Supreme Court).

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WASHINGTON COURT STRUCTURE

* “en banc” means all justices/judges hear the case at once. “In panels” means only some of the justices/judges hear the case. ** Court Statistics Project. *** District court provides services to municipalities that do not have a municipal court.

SUPREME COURT

9 justices sit en banc and in panels*

CSP** case types: • Mandatory jurisdiction in civil, capital criminal, criminal, administrative agency, juvenile, certified

questions from federal court cases. • Discretionary jurisdiction in civil, noncapital criminal, administrative agency, juvenile, disciplinary,

original proceeding, interlocutory decision cases.

COURT OF APPEALS (3 courts/divisions)

22 judges sit in panels

CSP case types: • Mandatory jurisdiction in civil, noncapital criminal, administrative agency, juvenile, original proceeding cases.

• Discretionary jurisdiction in administrative agency, interlocutory decision cases.

SUPERIOR COURT (31 districts in 39 counties) A

179 judges

CSP case types: • Tort, contract ($0/no maximum). Exclusive real property rights ($0/no maximum), estate, mental

health, civil appeals, miscellaneous civil jurisdiction. • Exclusive domestic relations jurisdiction. • Exclusive felony, criminal appeals jurisdiction. • Exclusive juvenile jurisdiction.

MUNICIPAL COURT (125 courts)

98 judges

CSP case types: • Misdemeanor, DWI/DUI, domestic violence. • Moving traffic, parking, miscellaneous traffic,

ordinance violation.

Jury trials except in infractions and parking.

DISTRICT COURT*** (44 courts in 56 locations for 39 counties)

109 judges

CSP case types: • Tort, contract ($0/$50,000). Exclusive small

claims jurisdiction ($4,000). • Misdemeanor, DWI/DUI, domestic violence. • Moving traffic, parking, miscellaneous

(nontraffic) violations. • Preliminary hearings.

Jury trials except in traffic and parking.

Court of last resort

Intermediate appellate court

Court of general jurisdiction

Courts of limited jurisdiction

FIGURE 1.4 Structure of a State Court System (Washington)

Source: Bureau of Justice Statistics, State Court Organization, 2004 (Washington, DC: U.S. Department

of Justice, 2006), p. 316. Available online: http://bjs.ojp.usdoj.gov/content/pub/pdf/sco04.pdf (accessed

February 16, 2011)

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Chapter 1 • Introduction to Criminal Procedure 19

THE UNITED STATES FEDERAL COURTS

UNITED STATES SUPREME COURTSUPREME COURT

APPELLATE COURTS

TRIAL COURTS

FEDERAL COURTS AND OTHER ENTITIES OUTSIDE THE JUDICIAL BRANCH

U.S. Courts of Appeals 12 Regional Circuit Courts of Appeals

1 U.S. Court of Appeals for the Federal Circuit

U.S. District Courts 94 judicial districts

U.S. Bankruptcy Courts

U.S. Court of International Trade U.S. Court of Federal Claims

Military Courts (trial and appellate) Court of Veterans Appeals

U.S. Tax Court Federal administrative agencies and boards

FIGURE 1.5 Structure of the Federal Court

As indicated near the outset of this chapter, criminal procedure textbooks—this one included—focus almost exclusively on U.S. Supreme Court decisions. Why focus on federal Supreme Court decisions rather than state supreme court decisions? The answer is that many important cases move from the state supreme courts to the U.S. Supreme Court, which is the court of last resort. Decisions of the U.S. Supreme Court are, there- fore, important because they represent the last word on what conduct is constitutional and what is not.

To understand the relationship between the federal and state courts, it is necessary to understand first where to find criminal cases and then how to trace the progress of criminal cases as they move from the trial to the appellate level. Following discussion of these topics, attention will turn to what types of cases are decided by the U.S. Supreme Court and how state-level court decisions arrive at the nation’s highest court.

Finding Cases

Being able to find court cases requires that readers be familiar with legal citations as well as the publications in which cases can be found. Legal citations are somewhat

Source: Administrative Office of the U.S. Courts, Understanding the U.S. Court (Washington, DC:

Administrative Office of the U.S. Courts, 2011). Available online: http://www.uscourts.gov/FederalCourts/

UnderstandingtheFederalCourts/FederalCourtsStructure.aspx (accessed February 16, 2011)

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FIGURE 1.6 Geographic Boundaries of the U.S. Courts of Appeals and the U.S. District Courts

cryptic but can be deciphered with relative ease. The following is the citation format used throughout this text:

Miranda v. Arizona (384 U.S. 436 [1966])

Miranda and Arizona refer to the parties to the case. Importantly, the party listed first is the one initiating the action. In this case, Miranda appealed his conviction, which is why he is listed first. The legal citation format that follows the parties is interpreted as follows: The first part, 384, is the volume; the second part, U.S., is the publication in which the case can be found; the third part, 436, is the page on which the case starts; and the fourth, 1966, is the year the decision was published. See Figure 1.7 for a listing of publications in which court cases can be found.

After becoming familiar with case citations, it is necessary to learn where the cases can actually be found. First, most university libraries have one or several of the so-called reporters listed in Figure 1.7. They can be found in bound form on the library shelves. Online research is also an option. Cases can be found at such Web sites as www. findlaw.com. U.S. Supreme Court cases can be found at www.supremecourtus.gov. Another Web site, maintained by Cornell University, is helpful for finding Supreme Court cases: http: //www.law.cornell.edu/supct/.

Many university libraries also have access to subscription databases, such as LexisNexis, which contain cases from nearly all courts across the country. Both Lexis

Source: Administrative Office of the U.S. Courts, Court Locator (Washington, DC: Administrative Office

of the U.S. Courts, 2011). Available online: http://www.uscourts.gov/Court_Locator.aspx (accessed

February 16, 2011)

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Chapter 1 • Introduction to Criminal Procedure 21

and West have a feature known as Shepard’s Citations. This allows researchers to enter a case citation and retrieve every other case that has cited it. Doing a Shepard’s search is useful for tracing the history and current status of an important decision.

For those who do not enjoy reading actual court decisions, other sources of legal information may be useful. For example, legal dictionaries and encyclopedias offer clarification of important legal concepts. Legal digests identify and consolidate legal issues, provide commentary on and interpret cases, and otherwise “digest” complex material. Finally, law reviews are useful places to find discussions of various aspects of the law as well as opinions on and interpretations of court cases. Databases such as LexisNexis contain full-text articles from nearly all law reviews. The Web links listed at the end of this chapter include some legal research sites with information on how to find cases, statutes, and other relevant information.

Tracing the Progress of a Criminal Case

One of the more frustrating aspects of criminal procedure, especially for those who have little familiarity with the law or legal jargon, is the sometimes laborious task of tracing the progress of a criminal case. If final decisions were reached in a single court, then criminal procedure would be vastly simplified. In reality, though, a single case can bounce back and forth between trial and appellate courts, sometimes for years. Indeed, many U.S. Supreme Court decisions concern matters that occurred a decade or more ago. Thus, it is of particular importance for students of criminal procedure to learn how to trace a criminal case.

There are several essential steps to tracing the progress of a criminal case. First, it is necessary to have a basic understanding of the nation’s court structure. This requires knowing where the criminal trial in question took place. If it took place in a federal circuit court, then tracing the progress of the case will be fairly easy. There are only three possible courts—district court, circuit appellate court, and the Supreme Court—that may have

FIGURE 1.7 Publications Containing Court Cases

Abbreviation Description

U.S. United States Reports: This is the official publication for U.S. Supreme Court decisions. S.Ct. Supreme Court Reporter: This Westlaw publication reports U.S. Supreme Court decisions. CrL Criminal Law Reporter: This Bureau of National Affairs publication reports U.S. Supreme Court decisions. L.W. United States Law Week: This Bureau of National Affairs publication reports U.S. Supreme Court decisions. F.2d Federal Reports, Second Series: This Westlaw publication reports decisions of the Federal Courts of

Appeals. P.2d Pacific Reporter, Second Series: This Westlaw publication reports decisions from the Pacific states. A.2d Atlantic Reporter, Second Series: This Westlaw publication reports decisions from the Atlantic states. N.E.2d North Eastern Reporter, Second Series: This Westlaw publication reports decisions from the northeastern

states. N.W.2d. North Western Reporter, Second Series: This Westlaw publication reports decisions from the northwestern

states. S.E.2d South Eastern Reporter, Second Series: This Westlaw publication reports decisions from the southeastern

states. S.W.2d South Western Reporter, Second Series: This Westlaw publication reports decisions from the southwestern

states. S.2d Southern Reporter, Second Series: This Westlaw publication reports decisions from the southern states.

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22 Part 1 • Introduction

handed down decisions on the matter. If the case originated in state court, however, it can be decidedly more difficult to trace the case over time. Familiarity with the state court structure is needed, as well as an understanding of how cases can jump back and forth between the state and federal courts, which will be discussed later in this section.

Second, to adequately follow the progress of a criminal case, it is also necessary to understand the legal jargon, beginning with the parties to the case. The parties to the case are the people involved. At the trial level, the parties of interest are the defendant, or the person charged with the crime in question, and the prosecutor, or the official representing the government. At the appellate level, these parties are no longer called defendant and prosecutor but rather appellant and appellee. The appellant is the party that appeals; both the prosecutor and defendant can appeal (see Chapter 15), but the defendant appeals more often than the prosecutor. The appellee (sometimes called the respondent) is the party appealed against. The term petitioner is also used at times, namely when a prisoner files a habeas corpus petition (see Chapter 15). A petitioner is one who petitions an appellate court to hear his or her case.

Next, to follow a criminal case, it is essential to have an understanding of how cases are decided and what possible decisions can be reached. At the trial level, two decisions can result: guilty and not guilty. At the appellate level, however, the picture becomes more complex. Assume, for example, that a defendant is found guilty in a federal district court and appeals to one of the circuit courts of appeals. Assuming that the court agrees to hear the case, it can hand down one of several decisions. It could reverse the lower court’s decision, which is akin to nullifying or setting it aside. Sometimes the appellate court vacates the lower court’s decision, which is basically the same as reversing it. A reversal does not always have the effect of setting the defendant free, however. The appellate court could also remand the case back to the lower court. When a case is remanded, it is sent back to the lower court for further action consistent with the appellate court’s decision. Cases can also be reversed and remanded together. The appellate court can also affirm the lower court’s decision, in which case it agrees with the lower court.

If there was only one appellate court, tracing the progress of a case would be fairly simple. Unfortunately, multiple appellate courts exist, which means the decisions from court to court can change. This is a very important point. Assume, for example, that a defendant is found guilty in a state trial court. He or she could appeal to the state’s intermediate appellate court, which could reverse the defendant’s conviction. The case could then go to the state’s supreme court, which could reverse the appellate court’s decision and basically uphold the defendant’s conviction. Finally, the case could go to the U.S. Supreme Court, which could again reverse the defendant’s conviction. Believe it or not, this is a fairly simple progression. Nothing prevents a single case from going from the trial court to the appellate court, back to the trial court, up to the appellate court again, then up to the state supreme court, back to the intermediate appellate court, and so on.

It is essential to understand what has happened with a criminal case before making any claims as to its importance or influence. In other words, doing incomplete legal research can be a recipe for disaster. If, for instance, a researcher finds a state supreme court decision that supports a point he or she wants to make but that decision was later reversed, say, by the U.S. Supreme Court, whatever argument he or she makes in reliance on that state supreme court case will be inaccurate. Thus, in tracing the progress of a criminal case, it is necessary to understand whether the issue in question has been resolved or may currently be on the docket of an appellate court, which could render an altogether different decision.

In tracing a criminal case, especially when interpreting one decided at the appellate level, it is important to understand the components of a published decision.

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Chapter 1 • Introduction to Criminal Procedure 23

An appellate court often consists of a panel of judges who may not always agree with one another, even though the court reaches a single decision. For example, a 5 to 4 decision by the U.S. Supreme Court is one in which the Court reached a single decision because of a majority, but four of the justices disagreed. The opinion is the voice of the five justices (or the voice of the majority of the judges in a lower ap- pellate court decision), although one or more of the five may opt to write a concurring opinion, which supports the majority’s decision but with different legal logic. The four remaining justices will probably write a dissent, in which they argue why they disagree with the majority’s decision. If they wanted to, each of the four minority justices could write his or her own individual dissent. Either way, it is important to distinguish between a given court’s opinion and possible concurring and dissenting opinions.

There is much more to tracing the progress of a criminal case than understanding the terminology encountered along the way. How is it that certain cases are appealed and others are not? Under what circumstances may the defendant appeal but not the prosecution, and vice versa? Why do some defendants file several appeals and others do not? Answers to these questions are presented in the last chapter of this text, where special attention is given to the appellate process and other methods for challenging the verdicts of trial courts throughout the United States.

How Cases Arrive at the Supreme Court

Most criminal cases originate at the state level. This should be obvious because there are 50 state court structures and only 1 federal court system. Also, the number of state laws criminalizing certain types of conduct vastly exceeds the number of federal laws with the same objective. But just because most cases are heard in state courts does not mean they cannot be heard at the federal level. State-level cases can arrive at the U.S. Supreme Court.

Stated simply, a state-level case can arrive at the Supreme Court if it raises a federal question, which is usually a question concerning the U.S. Constitution. First, however, such a case must proceed through several steps. It must move all the way to the state supreme court. That is, a case cannot jump from a state-level intermediate appellate court to the U.S. Supreme Court.

Next, like many appellate courts, the U.S. Supreme Court must decide whether it wants to hear the case. The party seeking a decision must file documents with the Court, asking to be heard. If the Supreme Court agrees the case is worth deciding, it issues what is known as a writ of certiorari. This is an order by the Court, requiring the

DECISION-MAKING EXERCISE 1.6

Interpreting a Supreme Court Holding

Assume that John Smith was subjected to a search that was not supported by probable cause. Assume further that he was convicted in a federal district court based on evidence obtained from the search. He appealed his conviction to the U.S. court of appeals, which remanded his case back to the district court to determine if the search to which Smith was subjected required probable cause. (Some searches, as will be discussed later, do not require probable cause.) The district court concluded that

the search did not require probable cause. The case was then appealed again to the U.S. court of appeals, which reversed the district court’s decision, holding that the search did need to be supported by probable cause. The U.S. Supreme Court then granted certiorari and reversed the U.S. court of appeals decision, holding that the search did not need to be supported by probable cause. In plain English, what happened here? In other words, what is the practical effect of this convoluted case progression?

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lower court to send the case and a record of its proceedings to the U.S. Supreme Court for review. Four of the nine U.S. Supreme Court justices must agree to hear a case before a writ of certiorari will be issued. This is known as the rule of four.

If four justices do not agree to hear the case, that is the end of the road in terms of legal options. When tracing the progress of a case, encountering a statement such as “cert. denied” will indicate this result. The case was denied a hearing by the Supreme Court. Figure 1.8 summarizes how cases arrive at the Supreme Court.

It cannot be overemphasized that only a handful of cases ever reach the U.S. Supreme Court. It is not uncommon for the Supreme Court to review thousands of petitions yet grant less than 100 writs of certiorari. Most cases that are appealed stop short of reaching the Supreme Court, so it is necessary to find out at what level the final decision was reached. Not tracing a case to its final decision can be fatal to a legal argument. In other words, if a researcher wants to argue a specific point with reference to a previously decided case, he or she must be sure that the decision is, if only for the time being, a final one.

U.S. Courts of Appeals State Supreme Courts

Trial Courts of General Jurisdiction

Intermediate Appellate CourtsU.S. District Courts

U.S. Supreme Court

struoCleveL-etatSstruoCleveL-laredeF

FIGURE 1.8 How Cases Arrive at the U.S. Supreme Court

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DECISION-MAKING EXERCISE 1.7

Would the Supreme Court Hear This Case?

Assume that a state supreme court heard an appeal from one of the state’s intermediate appellate courts. In the appeal, the defendant argued that her conviction should be overturned, as the judge failed to declare that certain testimony provided by the government’s lead witness should have been deemed inadmissible according to the state’s rules of evidence. In making its decision, the appellate court

sided with the government, upholding the defendant’s con- viction. Would the U.S. Supreme Court likely hear this case? What if, instead, the defendant argued that the original judge mistakenly permitted the prosecutor to comment to the jury concerning the defendant’s refusal to take the stand and testify? Would that issue likely get a hearing from the Court?

Manson v. Braithwaite (432 U.S. 98 [1977])

IMPORTANT ISSUES AND TRENDS IN CRIMINAL PROCEDURE

Criminal procedure, as presented in this text, is mostly about interpreting U.S. Supreme Court decisions regarding certain constitutional rights. In interpreting those decisions, it is worth understanding some important terms, issues, and trends in the Supreme Court’s decision-making practices over the years. Also, it is important to realize that criminal procedure has recently changed due to some important legislation. This section focuses on six topics: (1) bright-line decisions versus case-by-case adjudication; (2) the distinction between subjectivity and objectivity; (3) an increased faith in the police; (4) the notion of judicial restraint; (5) the issue of personal privacy; and (6) the PATRIOT Act, which was signed into law following the attacks on the Pentagon and the World Trade Center on September 11, 2001.

Bright-Line Decisions versus Case-by-Case Adjudication

There are two types of Supreme Court decisions: (1) bright-line decisions and (2) deci- sions requiring case-by-case adjudication. A bright-line decision is one in which the Court hands down a specific rule, one subject to very little interpretation. It is like the metaphorical “line drawn in the sand”; in other words, the Court emphatically communicates to the criminal justice community what it can and cannot do. An example of a bright-line decision is Wilson v. Layne, a case mentioned near the beginning of this chapter. In that case, the Supreme Court said that the police cannot bring the media along on the service of warrants unless its presence serves a legitimate law enforcement objective. It is easy to see that this is a clear, bright-line rule. Exactly what constitutes a “law enforcement objective” may be somewhat vague, but otherwise, this rule is quite clear. The advantage of a bright-line rule is that it promotes clarity and consistency. Also, it is easily understood by criminal justice officials.

A decision requiring case-by-case adjudication is quite different. In many cases, the Supreme Court refers to the concept of totality of circumstances. For example, in the case of Manson v. Braithwaite (432 U.S. 98 [1977]), the Supreme Court held that the totality of circumstances determines whether an identification procedure is unreliable. This means that all the facts and circumstances surrounding the case must be examined in order to determine whether a constitutional rights violation has taken place. Deciding whether the totality of circumstances supports the action in question requires looking at each case individually. There is no existing recipe specifying what authorities should or should not do. A case-by-case decision is preferable in some instances because it is rarely possible to know in advance all the possible twists and turns in a criminal case. That is, case-by-case decisions promote flexibility, leaving it up to the lower courts (usually, the trial court) to decide if the action in question conforms to constitutional guidelines. However, this approach can also create uncertainty for law enforcement officials.

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Subjectivity versus Objectivity

The terms subjective and objective are sometimes found in Supreme Court decisions. And although what these terms mean in everyday use is well understood, what they mean in the language of criminal procedure is not necessarily so well defined. Part of the confusion stems from the fact that subjective and objective are sometimes used directly before the term reasonable. It is not uncommon to read a Supreme Court opinion referring to objective reasonableness or subjective reasonableness. Usually, phrases such as these are considered in the context of the Fourth Amendment because of its language on reasonableness.

Police conduct that is considered subjectively reasonable, or characterized by subjective reasonableness, is one that would be considered reasonable by the police officer engaged in the conduct. For example, if a police officer arrests a person without probable cause but feels that probable cause was present, his or her actions can be considered subjectively reasonable. Objective reasonableness, by contrast, refers to what a reasonable person (usually, a reasonable police officer) would do or feel under the circumstances. A reasonable person would believe that making an arrest without probable cause is unconstitutional.

Objective and subjective language can be found in the Supreme Court’s references to people’s privacy interests. For example, in deciding whether a person enjoys a reasonable expectation of privacy when engaging in some sort of activity, both terms frequently appear. The Court has been forced to answer a simple question: Should individual people be trusted to identify their privacy interests, or should what a reason- able person would believe determine the expectation of privacy?

In the past few decades, the Supreme Court has moved from subjective analyses to objective analyses in many of its decisions. The reason for this should be fairly clear: A subjective analysis puts a high degree of faith in the individual police officer, citizen, or other person. Assume that a man has a marijuana field on his property, and it is observed by the police in a helicopter flyover. He will probably argue that he should be able to enjoy privacy in his backyard and that the police should not be able to spy on him. Such an argument is quite predictable in a case like this because it behooves the suspect to assert a privacy interest. However, what the suspect believes and what a reasonable person may believe could be two entirely different things. Indeed, the Supreme Court has moved to an objective analysis in many scenarios such as this for the simple reason that individuals are not entirely without bias in making such determinations. The Court now prefers to defer to what a reasonable person would believe.

In some ways, the term objective, as used in court decisions, mirrors its meaning in everyday use. It suggests a more or less unbiased view of a particular matter. By comparison, the term subjective suggests more of an individually based determi- nation. Unfortunately, it is not always easy to identify what a reasonable person would believe. The notion of a reasonable person is, in fact, a hypothetical construct. For this reason, the Court usually decides what can be considered an objectively reasonable belief.

The distinction between objective and subjective reasonableness can be clarified with an important Supreme Court decision. In the landmark case of Graham v. Connor (490 U.S. 386 [1989]), the leading nondeadly force case decided to date, the Supreme Court declared emphatically that all claims involving allegations of excessive (non- deadly) force against police officers must be analyzed under the Fourth Amendment’s reasonableness requirement. Namely, “[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard” (p. 386).

26 Part 1 • Introduction

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More importantly, in Garner, the Court adopted a test of objective reasonableness to decide whether excessive force has been used. This requires focusing on what a reasonable police officer would do “without regard to [the officer’s] underlying intent or motivation.” In trying to decide what a reasonable police officer would do, the Court looked to three factors: (1) the severity of the crime; (2) whether the suspect posed a threat; and (3) whether the suspect was resisting and/or attempting to flee the scene. Courts must, in focusing on these three factors, allow “for the fact that police officers are often forced to make split-second judgments—about the amount of force that is necessary in a particular situation” (p. 386). Note that the Court was not concerned with what the individual officer felt with regard to these three factors. Rather, the preferred focus was on what a reasonable officer would believe.

Increased Faith in the Police

Earl Warren was appointed to the position of chief justice of the U.S. Supreme Court in 1953; thus, references to the Warren Court reflect the time from 1953 to 1969, during which Warren was chief justice. The Warren Court handed down a number of decisions, particularly throughout the 1960s, that provided extensive constitutional protections for criminal defendants. To use Packer’s language, the Court was highly concerned with due process during this period. Others describe the Court as being extremely liberal during the Warren era. All in all, the Court did not place a great deal of trust in the police, much less other criminal justice officials. Rather, it was concerned primarily with individual rights.

Warren E. Burger held the position of chief justice from 1969 to 1986. During his tenure, the Court moved closer to the center of judicial and political thought and away from the liberal stance of the Warren Court. This movement toward conservatism gained significant momentum with the appointment of William H. Rehnquist as chief justice in 1987. The decisions handed down by the Court in the area of criminal procedure began to take on a different orientation, one that placed a great deal of faith in the police. In practice, many of the Court’s decisions of late have increased the power of law enforcement as well as granted the police extensive latitude with regard to con- trolling crime. For example, the Court created the well-known “good faith” exception to the exclusionary rule (see Chapter 2). Also, many decisions have carved out exceptions to the Fourth Amendment’s warrant requirement, suggesting that judicially authorized search and arrest warrants are not of particular use or importance much of the time.

The reader is encouraged to take note of the dates of the many Supreme Court decisions discussed throughout this text. With only a handful of exceptions, the decisions of the Warren Court in the 1960s were concerned with the rights of criminal suspects and placed significant restrictions on the authority of criminal justice officials.

DECISION-MAKING EXERCISE 1.8

A Bright-Line Decision or Case-by-Case Adjudication

In Tennessee v. Garner (471 U.S. 1 [1985]), a Memphis police officer shot and killed an unarmed 15-year-old boy who was fleeing the scene of a residential burglary. The officer called to the boy, Garner, to stop, but he did not. When Garner was about to climb a fence, the officer shot him in the back of the head, fatally wounding him. Garner’s surviving family members filed a section 1983 lawsuit, claiming the level of

force used was excessive. The Supreme Court agreed, ruling that deadly force may be used only when two criteria are present: (1) It is necessary to prevent the suspect’s escape, and (2) the officer has probable cause to believe the suspect poses a serious threat of death or serious physical injury to other people or police officers. Can the Court’s decision in Garner be characterized as bright line in nature?

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28 Part 1 • Introduction

Many of the decisions handed down since approximately the 1980s reflect something of a change in priorities, one that favors increased law enforcement authority and a concern with effective crime control, as opposed to due process.

Judicial Restraint

The term judicial restraint identifies the philosophy of limiting decisions to the facts of each case, deciding only the issue or issues that need to be resolved in a particular situation. The practice of judicial restraint also entails avoiding unnecessary decisions on constitutional questions that have yet to be posed. In the area of criminal procedure, a judicially restrained judge will look to the Constitution for guidance and, should the Constitution not be entirely clear, he or she will attempt to understand the framers’ intent. Another way to think of judicial restraint is that it is interpretive, seeking only to interpret the Constitution. Yet another way to understand judicial restraint is with regard to precedent; the judicially restrained judge will defer to precedent as much as possible and avoid setting new guidelines and rules.

The philosophy of judicial restraint can be placed at one end of the large spectrum of judicial philosophies. At the other end is judicial activism. A judicially active judge is one who sees his or her role as more than interpreting the Constitution. A judicially active judge avoids precedent, preferring to hand down decisions with sweeping impli- cations for the future. Thus, a judicially active judge looks more to the future than the past. Further, a judicially active judge favors “judge-made” law.

In Silverman v. United States (365 U.S. 505 [1961]), the Supreme Court elaborated on the notion of judicial restraint when it was deciding a Fourth Amendment case: “[T]he facts of the present case . . . do not require us to consider the large questions which have been argued. We need not here contemplate the Fourth Amendment implications of these and other frightening paraphernalia which the vaunted marvels of an electronic age may visit upon human society” (p. 509). The Court basically stated that large questions should not be answered, but only the specific question before the court.

Personal Privacy

The Supreme Court’s landmark decision in Katz v. United States (389 U.S. 347 [1967]), a case that will be revisited later, reflects a high degree of respect for people’s privacy. This and other Supreme Court decisions show that people should enjoy protection beyond physical intrusions into their property. In Katz, the Court stated that “the Fourth Amendment protects people, not places,” emphasizing that the scope of the “Amendment cannot turn upon the presence or absence of physical intrusion.” This has come to be known as the privacy doctrine.

In the past, the Court required a physical intrusion by authorities into a person’s private property. This was known as the trespass doctrine. People did not enjoy

DECISION-MAKING EXERCISE 1.9

Subjective or Objective

Chapter 2 will discuss civil liability against the police, but for now, realize that a police officer who is sued for violating someone’s constitutional rights can assert a defense to such liability. That defense is known as qualified immunity. A police officer who is sued enjoys qualified immunity if he or she did

not violate clearly established rights that a reasonable person would have known about (Harlow v. Fitzgerald, 457 U.S. 800 [1982]). Which type of reasonableness is considered in this context: objective or subjective?

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privacy unless the police or other government officials physically trespassed on their property. Today, fortunately, privacy has been extended to encompass more than personal property. What people say in private telephone conversations (as in Katz), for instance, is subject to intense constitutional protection:

We conclude . . . that the “trespass” doctrine . . . can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifi- ably relied while using the telephone booth and thus constituted a “search and seizure” within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. (p. 353)

The importance of personal privacy has been reaffirmed over the years in many court decisions and even by prominent academics. Sam Ervin’s observation on the matter is illustrative:

The oldest and deepest hunger in the human heart is for a place where one may dwell in peace and security and keep inviolate from public scrutiny one’s innermost aspirations and thoughts, one’s most intimate associations and communications, and one’s most private activities. This truth was documented by Micah, the prophet, 2,700 years ago when he described the Mountain of the Lord as a place where “they shall sit every man under his own vine and fig tree and none shall make them afraid.”8

The trend toward increased personal privacy is an interesting one because the Fourth Amendment (and the whole Bill of Rights, for that matter) contains no mention of privacy. In other words, there is no constitutional right to privacy. The Supreme Court has seen fit to identify a right to privacy, nonetheless. As such, privacy is something of a judicially created right. Another judicial creation is the exclusionary rule (discussed in Chapter 2). Because the exclusionary rule is a judicial creation, it has been eroded over the years. It is therefore conceivable that the right to privacy could be eroded in this way, as well. In fact, decisions such as United States v. Dionisio (410 U.S. 1 [1973]), in which the Court held that people cannot expect privacy in what they knowingly expose to the public, support such a possibility. Privacy in the home, however, continues to enjoy the highest level of protection.

DECISION-MAKING EXERCISE 1.10

The Issue of Personal Privacy

In Kyllo v. United States (533 U.S. 27 [2001]), the Supreme Court decided that law enforcement’s use of a thermal imaging (infrared) device constitutes a search. The Court stated, “Where, as here, the Government uses a device that is not in general public use, to explore details of the

home that would previously have been unknowable with- out physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant” (p. 2046). Did the Court exercise judicial restraint in its decision? Why or why not?

8 S. J. Ervin, “The Exclusionary Rule: An Essential Ingredient of the Fourth Amendment,” Supreme Court Review (1983): 283, 288–289, 296–297.

United States v. Dionisio (410 U.S. 1 [1973])

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30 Part 1 • Introduction

Criminal Procedure and the War on Terror

Criminal procedure is sometimes altered by important changes in federal and state legislation. One example of such legislation is the Antiterrorism and Effective Death Penalty Act of 1996, passed following the 1995 bombing of the Oklahoma City federal building. It has altered federal habeas corpus practice (see Chapter 15). An arguably more important piece of legislation, one that has affected several aspects of criminal procedure, it was signed into law following the September 11, 2001, attacks on the Pentagon and the World Trade Center towers.

On September 14, 2001, in response to the September 11 attacks, then-President George W. Bush declared a state of emergency, which permitted him to invoke certain presidential powers. Those powers included the ability to summon reserve troops, to marshal military units, and to issue executive orders for the implementation of such things as military tribunals. Congress also took action following September 11. In order to empower the Department of Justice, Congress passed the PATRIOT Act on October 26, 2001.9

The PATRIOT Act made several important changes to past law and practice. First, it centralized federal law enforcement authority in the U.S. Department of Justice. For example, Section 808 of the act reassigned the authority for investigating several federal crimes of violence from law enforcement agencies, such as the Secret Service and the Bureau of Alcohol, Tobacco, and Firearms, to the attorney general. The act also provided

A fiery blast rocked the World Trade Center in

New York City after both towers were hit by

hijacked passenger planes on September 11,

2001. This attack, along with a similar attack

on the Pentagon in Washington, DC, prompted

passage of the Patriot Act.

9 On March 9, 2006, President Bush signed a law that made the Patriot Act permanent. Certain provisions were changed and some civil liberties protections were added, but most of the original act remains intact.

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Chapter 1 • Introduction to Criminal Procedure 31

for Central Intelligence Agency (CIA) oversight of all domestic intelligence gathering. Prior to the PATRIOT Act, the CIA’s role was primarily concerned with foreign intelli- gence gathering. The act also expanded the definition of the terms terrorism and domestic terrorism to include activities that

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any state; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by mass destruction, assassination, or kidnapping; or (iii) to effect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States.10

Of particular relevance in the context of this book are the changes in criminal procedure attributable to the PATRIOT Act. First, the Supreme Court has traditionally held that the Fifth and Sixth Amendments’ rights of due process and access to jury trials apply to all persons, not just citizens of the United States (United States v. Verdugo-Urquidez, 494 U.S. 259, 264–266 [1990]). In addition, the Supreme Court has held that all undocumented aliens living inside U.S. borders are entitled to the protec- tions enunciated in the Bill of Rights (Mathews v. Diaz, 426 U.S. 67 [1976]). Specifically, the Court has stated that “the Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to constitutional protection” (p. 77). These rights have also applied to the removal of aliens from within U.S. borders. That is, proceedings for the deportation of aliens have had to conform to constitutional requirements, especially due process (Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 [1953]).

In short, legal, illegal, resident, and temporary aliens have all historically enjoyed the same constitutional protections as ordinary U.S. citizens. But with the passage of the PATRIOT Act, that is no longer the case. In several ways, the PATRIOT Act alters and even abolishes constitutional protections historically available to legal and illegal aliens.

The war on terror has had far-reaching implications for criminal procedure. To illustrate, Figure 1.9 summarizes a number of key Supreme Court cases pertaining to terrorism and the primary holdings from each. Notice how some decisions favor the suspect and others favor the government.

Criminal Procedure and Technology

Technology continues its relentless march. New devices are constantly being invented to help law enforcement officials detect crime and catch criminals. The problem is that many technological innovations raise constitutional questions. What’s more, many Supreme Court decisions were rendered years ago when many of today’s technologies were not even conceived of. Is our Constitution and the resulting court decisions equipped to deal with these advances? Only time will tell. This book contains several references in upcoming chapters to technological innovations and related court cases that have implications for criminal procedure. An example is the Kyllo v. United States Supreme Court decision discussed in Exercise 1.10. Kyllo will be revisited in Chapter 3.

10 USA PATRIOT ACT, Public Law 107–56, Section 802.

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32 Part 1 • Introduction

THE CRIMINAL PROCESS: AN OVERVIEW

There is no easy or concise way to describe the criminal process. In an attempt to do so, the 1967 President’s Crime Commission described the criminal process with the flowchart reprinted in Figure 1.10, but this conceptualization is not perfect. There are countless variations, at both the federal and state levels, in how criminal cases are handled. Further, depending on the seriousness of a case, the criminal process may assume different forms.

Almost all criminal procedure texts present an overview of the criminal process, like the one that follows. But because of the variation from one jurisdiction to the next, readers should take steps to familiarize themselves with the criminal processes in the areas in which they reside. That said, think of the rest of this section as an overview of the criminal process. The rest of this book will detail the criminal process in this order.

Pretrial

A typical criminal case begins with a complaint. It may come in the form of a 911 call from a citizen, a report to the police that someone has been victimized, or a report from a law

FIGURE 1.9 Key Supreme Court Cases in the War on Terrorism

Case Question before the Court* Decision

Ex Parte Milligan (1866)

Is it constitutional to try U.S. citizens before military tribunals when civilian courts are available?

No. It is unconstitutional to try U.S. citizens before military tribunals when civilian courts are available.

Hamdi v. Rumsfeld (2004)

Can U.S. citizens arrested abroad and detained on suspected involvement in terrorism challenge in court the government’s justification for detaining them?

Yes. Detained U.S. citizens enjoy the right to challenge their detentions before an impartial judge.

Rumsfeld v. Padilla (2004)

Can U.S. citizens arrested domestically and detained as “enemy combatants” on suspected involvement in terrorism challenge in court the government’s justification for detaining them?

Not answered. The case was remanded. The principal issue in this case remains unresolved.

Rasul v. Bush (2004)

Can noncitizen detainees at Guantanamo Bay challenge the constitutionality of their confinement?

Yes. The federal courts have jurisdiction to decide the constitutionality of detaining foreign nationals.

Hamdan v. Rumsfeld (2006)

Is it within the authority of Congress and the President to try suspected terrorists before military tribunals?

No. Bush-era military tribunals violate the Uniform Code of Military Justice and the Geneva Conventions.

Boumediene v. Bush (2008)

Are parts of the Military Commissions Act of 2006 that strip federal courts of jurisdiction to hear habeas corpus petitions from foreign citizens illegal?

Yes. Parts of the Military Commissions Act of 2006 that strip federal courts of habeas corpus jurisdiction in cases involving Guantanamo Bay detainees are unconstitutional.

Ashcroft v. al-Kidd (2011)

Does the attorney general have qualified immunity for his involvement in the arrest of a person as a material witness? Can a validly obtained warrant be challenged on the motive that the arresting authority had an improper motive?

Yes. The attorney general enjoys qualified immunity in such cases. No. Detaining al-Kidd as a material witness was constitutionally reasonable, even if the government’s motive to hold him was based on a belief that he was a terrorist.

* The case may have dealt with more than one question. The key question with relevance to criminal procedure is presented here.

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Nonpolice referrals

Police juvenile unit

Released or diverted

Intake hearing

Waived to criminal court

Formal juvenile or youthful offender court processing

Informal processing diversion

Information

Refusal to indict

Grand jury

Information

Charges dropped or dismissed

Bail or detention hearing

Charges dropped or dismissed

Preliminary hearing

Initial appearance

Released without prosecution

Charges filedArrest

Unsolved or not arrested

Investi- gation

Reported and observed crime

Felonies

Juvenile offenders

Prosecution and pretrial services

Entry into the system

Arraignment

Charge dismissed

Arraignment Trial

Acquitted

Reduction of charge

Guilty plea

Trial

Charge dismissed Acquitted

Sentencing

Probation

Revocation

Parole

Prison

Pardon and clemency

Capital punishment

Out of system (registration, notification)

Out of system

Probation

Guilty plea

Adjudication

Sentencing and sanctions

Corrections

Diversion by law enforcement, prosecutor, or court

Unsuccessful diversion

Convicted

Misdemeanors

Convicted

Appeal

Intermediate sanctions

Jail

Out of system

Habeas corpus

Released or diverted

Probation or other nonresidential disposition

Revocation

Out of system

Residential placement

Aftercare

Revocation

Disposition

Released

Adjudication

Prosecution as a

juvenile

Crime

FIGURE 1.10 Sequence of Events in the Criminal Justice System

Source: President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Science and Technology (Washington, DC: Government Printing

Office, 1967), pp. 58–59.

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enforcement officer who observes a crime in progress. If a citizen reports the crime, the police will usually follow up on the complaint by performing an investigation. If an officer observes the crime, not as much investigation is necessary. In the former instance, the police must take steps to confirm the observations of the citizen. A police officer’s observations, by contrast, do not require as much investigative scrutiny. In fact, when an officer observes a crime in progress, he or she will probably arrest the suspect on the spot. This arrest will then be subjected to judicial scrutiny in a court hearing, in which a judge will decide if there was probable cause to arrest the suspect.

In a crime reported by a citizen, once the police have identified a suspect, they will approach a judge and seek either an arrest or a search warrant. In either case, the police must be able to show probable cause that the evidence they seek will be found in the place to be searched and/or that the suspect was the one who committed the crime. If this burden is met, an arrest, a search warrant, or both will be issued and the police will go to arrest the suspect or search the premises named in the search warrant. The burden of probable cause that is required for search and arrest warrants is not to be taken lightly and has spawned a great deal of debate in the courts. Probable cause, as well as other such standards of justification, is the focus of Part 2, Chapters 3 through 7.

The role of the police during the pretrial process cannot be overemphasized. In the period from the first contact between an officer and suspect up to the point when the suspect is arrested and detained, the police’s role is complex and multifaceted. The Constitution, particularly the Fourth Amendment, places significant restrictions on what the police can and cannot do when they investigate crimes and handle suspects. This is why many criminal procedure books (this one included) devote extensive attention to the role of the police in the criminal process. Criminal procedure is, in many ways, police procedure. However, because the criminal process continues well beyond an arrest and imposing criminal charges, this book takes the additional step of consider- ing the whole of the criminal process.

If, as indicated, a police officer arrests a suspect for a crime committed in his or her presence, no warrant is necessary. But even when arresting a suspect or searching his or her residence based on a citizen complaint, a warrant is not always required. Many situations arise in which the police are permitted to arrest or to search without a warrant. Suspects who evade authorities, seek to destroy evidence, or are likely to inflict harm on others create circumstances in which the police must act quickly. Indeed, in many other areas of law enforcement, the police may be forced to make split-second decisions, whether to arrest or search, without the protection of a warrant. These areas of law enforcement will be considered, as well.

Once a suspect is arrested—be it pursuant to an arrest warrant, a warrant to search his or her residence, or another method—he or she will be searched. This is done to protect the police and also to discover contraband that may be in the suspect’s possession. Then, the suspect will be transported to the police station and booked. Booking is the process in which the suspect is fingerprinted, processed, photographed, and probably placed in a holding cell. The suspect may also be required to submit to testing (such as a Breathalyzer) and possibly be required to participate in a lineup for identification by a witness to the crime.

After this, the police will present their case to the prosecutor, and, assuming the prosecutor believes the evidence is persuasive enough, he or she will bring charges against the suspect, subject to certain restrictions identified by the U.S. Supreme Court. The suspect will now be considered the defendant. If the charges are minor, the police may release the suspect, in which case he or she will be required to appear in court at some later date.

Suspects who are booked, placed in detention, and charged with a crime face a number of different court hearings, depending on the seriousness of the crime.

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Misdemeanors, because of their not-so-serious nature, tend to be fast-tracked through the courts. A misdemeanor defendant may appear at only one court hearing, in which the judge will decide guilt or innocence. Felony defendants, by contrast, face a longer legal road. If, as described already, the suspect is arrested without a warrant, he or she will be granted a probable cause hearing, in which the judge will decide whether the arresting officer had appropriate justification to make the arrest. (This hearing may, in fact, be merged with other hearings, but this book will treat it as a separate event.)

The next step in the criminal process is the arraignment. At the arraignment, the suspect comes before a judge and is, at a minimum, informed of the charges against him or her. The defendant will also be notified of the right to counsel, the right to remain silent, and other important rights. He or she will also be allowed to enter a plea. Common pleas are guilty, not guilty, and nolo contendere (which is akin to a plea of “no contest”). A public defender may be assigned at this stage, particularly if the defendant is unable to afford his or her own representation. Probable cause may also be determined at this stage, if a separate hearing is not required. Finally, for a misdemeanor charge, a trial may take place at the arraignment. A bail determination could be made, as well.

If the bail determination is not fused with the arraignment, a separate hearing may be warranted. (The approach taken in this book is that the bail determination is made in a separate hearing.) In deciding whether bail should be granted, the judge will take such factors into account as the seriousness of the crime as well as the defendant’s prior record, likelihood of flight, and level of dangerousness. The defendant’s financial status may also be considered.

It is important to note that the prosecutor’s method of filing charges varies from one state to the next. Some states require that the prosecutor proceed by information, a document that describes the charges the prosecutor is filing. Other states require that the prosecutor proceed by a grand jury indictment. That is, a grand jury decides whether charges should be filed, usually with the advice and assistance of the prosecutor. Some states require or allow both methods of filing charges, depending on the nature of the case. What is important in this discussion, however, is that in jurisdictions in which the prosecutor proceeds by information, he or she is usually required to show that the charging decision is appropriate. This is accomplished in a so-called preliminary hearing, during which the prosecutor makes out what is known as a prima facia case of the defendant’s guilt. A preliminary hearing can also be required in a grand jury jurisdiction, requiring the prosecutor to present his or her case before seeking a grand jury indictment.

Adjudication

Once the pretrial process has concluded and the charges have stood, a trial may or may not take place. If, at arraignment, the defendant pleads guilty, then a trial is not necessary. In such an instance, special steps must be taken to ensure that the defendant’s guilty plea is valid. The defendant may also agree to a plea bargain agreement, in which in exchange for leniency from the prosecutor and/or the court, he or she pleads guilty to the crime with which he or she is charged. Plea bargaining of this nature can occur at any stage of the criminal process, however. That is, a suspect can reach a plea agreement with the prosecutor as early as the pretrial stage, during the trial, and, in fact, well into jury deliberations. In any case, the plea bargain, if there is one, must be accepted by the court. The judge makes this determination.

If the defendant pleads not guilty, the case is set for trial. The trial is usually scheduled for some date well after the arraignment. This allows both sides—the prosecution and the defense—to prepare their respective cases. A balance needs to be achieved between providing enough time for both sides to present effective arguments and protecting the defendant’s Sixth Amendment right to a speedy trial. During this preparation process,

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1. SUMMARIZE THE CONSTITUTIONAL BASIS FOR CRIMINAL PROCEDURE.

Criminal procedure is mostly about constitutional rights. What’s more, it is about constitutional rights as primarily interpreted by the U.S. Supreme Court. State laws, agency policies, time-honored practices, and the like also set forth rules and guidelines, but the focus here is almost exclusively on rights spelled out in the U.S. Constitution—notably, those found in the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

36 Part 1 • Introduction

discovery takes place. Discovery is the process by which each side to a criminal case learns what evidence the other side will present. Work product and legal strategy are off limits, but the identities of witnesses who will testify, the physical evidence in possession of both parties, and other items must all be made available in the discovery process.

At trial, the prosecutor bears the burden of proving that the defendant is guilty beyond a reasonable doubt. After the prosecution has presented its case, the defense steps in and presents its case. In doing so, it seeks to cast doubt on the prosecution’s evidence. A criminal trial may move back and forth in this fashion until both sides rest. At this point, a verdict must be reached. Depending on the seriousness of the offense, the verdict is decided by either a judge or a jury. A judge decides the defendant’s fate in a so-called bench trial but only for an offense that is likely to result in less than six months’ imprison- ment. A jury decides the verdict when the offense at issue is more serious. Special steps must be taken in either instance to ensure the impartiality of the judge or the jury.

Beyond Conviction

The criminal process does not necessarily end once the verdict has been read. Sentencing usually takes place at a separate hearing. The guilty party may be sentenced to death (for a capital crime), committed to prison, fined, placed on probation, or subjected to a host of other possible sanctions. Probation is the most common sanction; imprisonment and, of course, death are clearly much more serious. When a person is committed to prison or sentenced to death, it may seem that the criminal process has just begun, as the appeals process can drag on years beyond the criminal trial.

Appeals come in two varieties: automatic and discretionary. Most convicted criminals are entitled to at least one automatic appeal (also known as an appeal of right). An automatic appeal must be heard by an appellate court. With a discretionary appeal, however, it is up to the appellate court to decide whether the appeal will be heard. The right of a convicted criminal to file excessive discretionary appeals is deplored by supporters of the death penalty and other serious sanctions.

Making an appeal is not the only method of challenging a guilty verdict. The right of habeas corpus—a method of what is commonly called collateral attack—is guaranteed in the Constitution, providing every convicted criminal the right to petition a court to decide on the constitutionality of his or her confinement. All that is granted, however, is the right to file a petition, or to request to be heard. The decision whether to grant a prisoner’s habeas petition is up to the reviewing court. If a prisoner exhausts all available appellate mechanisms and is denied habeas review, he or she will remain in prison for the full term of his or her sentence.

Summary

2. EXPLAIN THE IMPORTANCE OF PRECEDENT.

Criminal procedure and history cannot be divorced from one another because of the importance of precedent. Before making decisions, courts almost always look to the past for the purpose of determin- ing whether a case with similar facts has already been decided. If one has not, the court will distin- guish the present case and hand down a decision that may be relied on by some other court, at some other date.

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Most criminal cases originate in trial courts of general jurisdiction; the decisions of these courts are appealed to intermediate appellate courts and then to the state supreme court. A state supreme court decision can be appealed to the U.S. Supreme Court but will only be heard if it raises a constitutional question. This is usually true for federal cases, as well.

6. SUMMARIZE IMPORTANT ISSUES AND TRENDS IN CRIMINAL PROCEDURE.

Several important topics, issues, and trends need to be understood before reading too much into court decisions. First, some decisions consist of specific bright-line rules, whereas others favor case-by-case adjudication. Next, the courts—in particular, the U.S. Supreme Court—have moved from a subjective to an objective focus, meaning that they are now more concerned with how a reasonable person would act under the circumstances. Third, Supreme Court decisions of late have reflected an increased faith in the police. Fourth, to understand why court decisions often focus on excruciating legal details, one must understand the notion of judicial restraint: the practice of deciding only the specific legal question before the court. Fifth, throughout criminal procedure there is a concern with people’s privacy, even though the Constitution contains no mention of the term. Finally, it is important to have an apprecia- tion for how the war on terror and technology have altered criminal procedure (these issues come up throughout the book).

7. PROVIDE AN OVERVIEW OF THE CRIMINAL PROCESS.

There is no one best way to describe the criminal process; there are simply too many variations from state to state. Even so, a more or less accurate description can be offered. The description set forth in this chapter and followed throughout the remainder of the book begins with the police/citizen encounters and then moves into arrest, booking, pretrial hearings, trial, and appeals. Along the way, special attention is given to constitutional rights stemming from several amendments to the Constitution and to the four important actors—the police, prosecutors, defense attorneys, and judges— whose decisions affect the whole of the criminal process. The reader is strongly encouraged to become familiar with the details of the criminal process in his or her area of residence.

Chapter 1 • Introduction to Criminal Procedure 37

3. COMPARE THE THEORY OF CRIMINAL PROCEDURE TO THE REALITY.

Even though criminal procedure, as presented in this text, is mostly about court decisions, it would be a crucial mistake to become hopelessly mired in the world of judicial decision making. In the real world, the police and other criminal justice officials must act, and what they do does not always agree with decisions handed down by the courts. That is, the theoretical world of the courts can differ in important ways from the real world of law enforcement. Understanding that these two different worlds exist and that they can be at odds with one another allows looking at court decisions with not only a critical eye but also a dose of reality.

4. DESCRIBE THE PUBLIC ORDER (CRIME CONTROL) AND INDIVIDUAL RIGHTS (DUE PROCESS) PERSPECTIVES OF CRIMINAL JUSTICE AND HOW CRIMINAL PROCEDURE BALANCES THE TWO.

Throughout criminal procedure—indeed, through- out all of criminal justice—two competing concerns can almost always be heard. The crime control perspective favors controlling crime at whatever cost, and the due process perspective is concerned with protecting people’s rights. Every court decision, every crime control policy, and even every reaction by the criminal justice system to the threat of crime must balance both of these concerns. Some decisions and policies lean too far in the direction of crime control and, for that reason, become quite controversial. The same holds true for decisions and policies that cater to due process. For the justice process to flow smoothly, a balance needs to be achieved.

5. OUTLINE THE STRUCTURE OF THE COURT SYSTEM, INCLUDING THE RESPONSIBILITIES AND JURISDICTIONS OF EACH LEVEL.

The United States has a two-tiered court structure consisting of federal and state courts. At the federal level, three types of courts are relevant: district courts, circuit courts of appeals, and the U.S. Supreme Court. The district courts try cases involving violations of federal laws. The decisions of district courts are appealed to circuit courts of appeals and then to the U.S. Supreme Court. State court structures vary from one state to the next but generally consist of courts of limited jurisdiction, trial courts of general jurisdiction, intermediate appellate courts, and supreme courts.

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38 Part 1 • Introduction

Key Cases

• Manson v. Braithwaite, 432 U.S. 98 (1977) • United States v. Dionisio, 410 U.S. 1 (1973)

Review Questions

1. Identify several sources of rights. 2. What is the incorporation controversy? What are the

leading perspectives describing it? 3. What rights have been incorporated? What rights have not? 4. In what ways can theory differ from reality? 5. Compare and contrast the due process and crime

control perspectives. 6. Explain the federal court structure. 7. How does a case arrive at the U.S. Supreme Court? 8. Distinguish between a bright-line decision and case-

by-case adjudication.

9. How are the terms subjective and objective used in criminal procedure?

10. In what ways have recent Supreme Court decisions shown increased faith in the police?

11. What is judicial restraint? How does it compare to judicial activism?

12. Is privacy a right? If not, why is it so important in many Supreme Court opinions?

13. What happens, briefly, during the pretrial phase? 14. What happens, briefly, during the adjudication phase? 15. What happens, briefly, beyond conviction?

Web Links and Exercises

1. Finding the law: Search the U.S. Code for “search and seizure” (put “search and seizure” in quotes in the “Search Word[s]:” box), then find and discuss a statute with implications for criminal procedure.

Suggested URL: http://uscode.house.gov/search/criteria. shtml (accessed February 14, 2011)

2. State court organization: Compare and contrast your state court system’s organization to that of another state.

Suggested URL: http://bjs.ojp.usdoj.gov/content/pub/ pdf/sco04.pdf (accessed February 14, 2011)

Key Terms

affirm 22 appellant 22 appellee 22 bright-line

decisions 25 case-by-case

adjudication 25 concurring

opinion 23 courts of general

jurisdiction 17 courts of limited

jurisdiction 17 crime control

perspective 15 criminal

procedure 3 defendant 22

dissent 23 distinguish 11 district courts 17 due process

perspective 14 Eighth

Amendment 7 Federal Rules of

Criminal Procedure 5

Fifth Amendment 6 Fourteenth

Amendment 7 Fourth

Amendment 5 incorporation 8 intermediate

appellate courts 17

judicial activism 28 judicial restraint 28 objective

reasonableness 26 opinion 23 PATRIOT Act 30 petitioner 22 precedent 10 procedural due

process 7 prosecutor 22 real world 11 remand 22 reverse 22 right to privacy 29 rule of four 24 Sixth Amendment 6 stare decisis 10

state supreme courts 17

subjective reasonableness 26

substantive due process 7

superior courts 17 theory world 11 totality of

circumstances 25 trespass doctrine 28 U.S. courts of

appeals 17 U.S. Supreme

Court 17 vacate 22 Warren Court 27 writ of certiorari 23

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Chapter 1 • Introduction to Criminal Procedure 39

3. Federal court organization: Explain the relationship between the federal courts and the other branches of government.

Suggested URL: http: //www.uscourts.gov/FederalCourts. aspx (accessed February 14, 2011)

4. Legal research: Find a recent U.S. Supreme Court case (one that did not make it into this edition of Criminal Procedure) with implications for criminal procedure.

Suggested URL: http://www.supremecourtus.gov/ (accessed February 14, 2011)

5. PATRIOT Act: Discuss the pros and cons associated with the PATRIOT Act.

Suggested URL (pro): http: //www.proconservative.net/ PCVol5Is293WrayTerrorism.shtml (accessed February 14, 2011)

Suggested URL (con): http: //www.aclu.org/safefree/ resources/17343res20031114.html (accessed February 14, 2011)

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Compare the theory of criminal procedure to the reality.

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