S · I B · 0 Mobile St t g, E C: Cla us1ness O Knowledge ra egy u 2 0 Customer Relationship Management ~ Intern et~ Mash Up~ ; ~ :;:: >>est t . T’ I C +-0>0 coO C g, a. ·c; ra eg1c nang e § • w :§ ~ o cd > ~ !B BPM- ; Alignment :E 0( Things ~ +- Pro~esses 0 Cl) • 0 , Cl) Cl) E Architecture _g O C Business C ~ Portfolio ,iw, ID O · t· 11 t o o “‘- C: Resources ._ , \. en (.) t:; rganiza iona mpac s (!) 1) L.J Model a> –

‘0 Q) ·- >, S ·1 :::, > Q) ~aluing N~twor~.= >-~ ecur1 y 3 C) ~ 2 i ~ o Collaboration .: “” C o ProJ·ect Management ·- om e a -~ B ‘ C >- () VI E ,.,.. ‘+- Q_ > Q US1n9SS ase 8 :5 ::l C: 0 Enterprise Engagement 1.1.1 a E 8 “g e= Governance ct ~ CQ <C c Systems Sustainability C: 8 ottshoring

Wiley Binder Version WILEY

Managing and Using Information Systems

A STRATEGIC APPROACH

Sixth Edition

Keri E. Pearlson KP Partners

Carol S. Saunders W.A. Franke College of Business Northern Arizona University Dr. Theo and Friedl Schoeller Research Center for Business and Society

Dennis F. Galletta Katz Graduate School of Business University of Pittsburgh. Pittsburgh. PA

6., WILEY

VICE PRESIDENT & DIRECTOR EXECUTIVE EDITOR DEVELOPMENT EDITOR

ASSOCIATE DEVELOPMENT EDITOR SENIOR PRODUCT DESIGNER MARKET SOLUTIONS ASSISTANT SENIOR DIRECTOR PROJECT MANAGER PROJECT SPECIALIST PROJECT ASSISTANT EXECUTIVE MARKETING MANAGER

ASSISTANT MARKETING MANAGER ASSOCIATE DIRECTOR SENIOR CONTENT SPECIALIST PRODUCTION EDITOR

George Hoffman Lise Johnson Jennifer Manias Kyla Buckingham Allison Morris Amanda Dallas Don Fowley Gladys Soto Nichole Urban Anna Melhorn Christopher DeJohn Puja Katariwala Kevin Holm Nicole Repasky Loganathan Kandan

This book was set in 10/12 Times Roman by SPi Global and printed and bound by RR Donnelley.

This book is printed on acid free paper.

Founded in 1807, John Wiley & Sons, Inc. has been a valued source of knowledge and understanding for more than 200 years, helping people around the world meet their needs and fulfill their aspirations. Our company is built on a foundation of principles that include responsibility to the communities we serve and where we live and work. In 2008, we launched a Corporate Citizenship Initiative, a global effort to address the environmental, social, economic, and ethical challenges we face in our business. Among the isrnes we are addressing are carbon impact, paper specifications and procurement, ethical conduct within our business and among our vendors, and community and charitable support. For more information, please visit our website: www.wiley.com/go/citizenship.

Copyright© 2016, 2013, 2010, 2006, 2004, 2001 John Wiley & Sons, Inc. All rights reserved. No part of this publication may be repro- duced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except as permitted under Sections I 07 or I 08 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA O 1923 (Web site: www.copyright.com). Requests to the Publisher for pern1ission should be addressed to the Permissions ..,,,,J Department, John Wiley & Sons. Inc., 111 River Street, Hoboken, NJ 07030-5774, (201) 748-6011, fax (201) 748-6008, or online at: www. wiley.com/go/permissions.

Evaluation copies are provided to qualified academics and professionals for review purposes only, for use in their courses during the next academic year. These copies are licensed and may not be sold or transferred to a third party. Upon completion of the review period, please return the evaluation copy to Wiley. Return instructions and a free of charge return shipping label are available at: www.wiley.com/go/ return label. If you have chosen to adopt this textbook for use in your course, please accept this book as your complimentary desk copy. Outside of the United States, please contact your local sales representative.

ISBN: 978-1-119-24428-8 (BRV) ISBN: 978-l-119-24807-l (EVALC)

Library of Congress Cataloging-in-Publication Data Names: Pearlson, Keri E. I Saunders, Carol S. I Galletta, Dennis F. Title: Managing and using information systems: a strategic approach / Keri

E. Pearlson, Carol S. Saunders, Dennis F. Galletta. Description: 6th edition. I Hoboken, NJ : John Wiley & Sons, Inc., [2015] I

Includes index.

Identifiers: LCCN 2015041210 (print) I LCCN 2015041579 (ebook) I ISBN 9781119244288 (loose-leaf: alk. paper) I ISBN 9781119255208 (pdf) I ISBN 9781119255246 (epub)

Subjects: LCSH: Knowledge management. I Information technology-Management. I Management information systems. I Electronic commerce.

Classification: LCC HD30.2 .P4 2015 (print) I LCC HD30.2 (ebook) I DOC 658.4/03801 l-dc23 LC record available at http://lccn.loc.gov/2015041210

Printing identification and country of origin will either be included on this page and/or the end of the book. In addition, if the ISBN on this page and the back cover do not match, the ISBN on the back cover should be considered the correct ISBN.

Printed in the United States of America

10 9 8 7 6 5 4 3 2

To Yale & Hana

To Rusty, Russell, Janel & Kristin

To Carole, Christy, Lauren, Matt, Gracie, and Jacob

..

Preface

Information technology and business are becoming inextricably interwoven. I don’t think anybody can talk meaningfully about one without the talking about the other.

Bill Gates Microsoft 1

I’m not hiring MBA students for the technology you learn while in school, but for your ability to learn about, use and subsequently manage new technologies when you get out.

Give me a fish and I eat for a day; teach me to fish and I eat for a lifetime.

IT Executive Federal Express 2

Proverb

Managers do not have the luxury of abdicating participation in decisions regarding information systems (IS). Managers who choose to do so risk limiting their future business options. IS are at the heart of virtually every business interaction, process, and decision, especially when the vast penetration of the Web over the last 20 years is considered. Mobile and social technologies have brought IS to an entirely new level within firms and between ,.J individuals in their personal lives. Managers who let someone else make decisions about their IS are letting someone else make decisions about the very foundation of their business. This is a textbook about managing and using information written for current and future managers as a way to introduce the broader implications of the impact of IS.

The goal of this book is to assist managers in becoming knowledgeable participants in IS decisions. Becoming a knowledgeable participant means learning the basics and feeling comfortable enough to ask questions. It does not mean having all the answers or having a deep understanding of all the technologies out in the world today. No text will provide managers everything they need to know to make important IS decisions. Some texts instruct on the basic technical background of IS. Others discuss applications and their life cycles. Some take a comprehensive view of the management information systems (MIS) field and offer readers snapshots of current systems along with chapters describing how those technologies are designed, used, and integrated into business life.

This book takes a different approach. It is intended to provide the reader a foundation of basic concepts relevant to using and managing information. This text is not intended to provide a comprehensive treatment on any one aspect of MIS, for certainly each aspect is itself a topic of many books. This text is not intended to provide readers enough technological knowledge to make them MIS experts. It is not intended to be a source of discussion of any particular technology. This text is written to help managers begin to form a point of view of how IS will help or hinder their organizations and create opportunities for them.

The idea for this text grew out of discussions with colleagues in the MIS area. Many faculties use a series of case studies, trade and popular press readings, and Web sites to teach their MIS courses. Others simply rely on one of the classic texts, which include dozens of pages of diagrams, frameworks, and technologies. The initial idea for this text emerged from a core MIS course taught at the business school at the University of Texas at Austin. That course was considered an “appetizer” course-a brief introduction into the world of MIS for MBA students. The course had two main topics: using information and managing information. At the time, there was no text like this

1 Bill Gates, Business@ the Speed of Thought. New York: Warner Books, Inc. 1999. ‘ Source: Private conversation with one of the authors. “”1111

Preface • one; hence, students had to purchase thick reading packets made up of articles and case studies to provide them the basic concepts. The course was structured to provide general MBA students enough knowledge of the MIS field so that they could recognize opportunities to use the rapidly changing technologies available to them. The course was an appetizer to the menu of specialty courses, each of which went much more deeply into the various topics. But completion of the appetizer course meant that students were able to feel comfortable listening to, contributing to, and ultimately participating in IS decisions.

Today, many students are digital natives-people who have grown up using information technologies (IT) all of their lives. That means that students come to their courses with significantly more knowledge about things such as tablets, apps, personal computers, smartphones, texting, the Web, social networking, file downloading, online purchasing, and social media than their counterparts in school just a few years ago. This is a significant trend that is projected to continue; students will be increasingly knowledgeable the personal use of technologies. That knowledge has begun to change the corporate environment. Today’s digital natives expect to find in corporations IS that provide at least the functionality they have at home. At the same time, these users expect to be able to work in ways that take advantage of the technologies they have grown to depend on for social interaction, collaboration, and innovation. We believe that the basic foundation is still needed for managing and using IS, but we understand that the assumptions and knowledge base of today’s students is significantly different.

Also different today is the vast amount of information amassed by firms, sometimes called the “big data” prob- lem. Organizations have figured out that there is an enormous amount of data around their processes, their interac- tions with customers, their products, and their suppliers. These organizations also recognize that with the increase in communities and social interactions on the Web, there is additional pressure to collect and analyze vast amounts of unstructured information contained in these conversations to identify trends, needs, and projections. We believe that today’s managers face an increasing amount of pressure to understand what is being said by those inside and outside their corporations and to join those conversations reasonably and responsibly. That is significantly different from just a few years ago.

This book includes an introduction, 13 chapters of text and mini cases, and a set of case studies, supplemental readings, and teaching support on a community hub at http://pearlsonandsaunders.com. The Hub provides faculty members who adopt the text additional resources organized by chapter, including recent news items with teaching suggestions, videos with usage suggestions, blog posts and discussions from the community, class activities, addi- tional cases, cartoons, and more. Supplemental materials, including longer cases from all over the globe, can be found on the Web. Please visit http://www.wiley.com/college/pearlson or the Hub for more information.

The introduction to this text defends the argument presented in this preface that managers must be knowledge- able participants in making IS decisions. The first few chapters build a basic framework of relationships among business strategy, IS strategy, and organizational strategy and explore the links among them. The strategy chapters are followed by ones on work design and business processes that discuss the use of IS. General managers also need some foundation on how IT is managed if they are to successfully discuss their next business needs with IT pro- fessionals who can help them. Therefore, the remaining chapters describe the basics of information architecture and infrastructure, IT security, the business of IT, the governance of the IS organization, IS sourcing, project management, business analytics, and relevant ethical issues.

Given the acceleration of security breaches, readers will find a new chapter on IS security in this sixth edition of the text. Also, the material on analytics and “big data” has been extensively updated to reflect the growing impor- tance of the topic. Further, the chapter on work design has been reorganized and extensively revised. Each of the other chapters has been revised with newer concepts added, discussions of more current topics fleshed out, and old, outdated topics removed or at least their discussion shortened.

Similar to the fifth edition, every chapter begins with a navigation “box” to help the reader understand the flow and key topics of the chapter. Further, most chapters continue to have a Social Business Lens or a Geographic Lens feature. The Social Business Lens feature reflects on an issue related to the chapter’s main topic but is enabled by or fundamental to using social technologies in the enterprise. The Geographic Lens feature offers a single idea about a global issue related to the chapter’s main topic.

No text in the field of MIS is completely current. The process of writing the text coupled with the publication process makes a book somewhat out-of-date prior to delivery to its audience. With that in mind, this text is written

• Preface to summarize the “timeless” elements of using and managing information. Although this text is complete in and of itself, learning is enhanced by combining the chapters with the most current readings and cases. Faculty are encouraged to read the news items on the faculty Hub before each class in case one might be relevant to the topic of the day. Students are encouraged to search the Web for examples related to topics and current events and bring them into the discussions of the issues at hand. The format of each chapter begins with a navigational guide, a short case study, and the basic language for a set of important management issues. These are followed by a set of managerial concerns related to the topic. The chapter concludes with a summary, key terms, a set of discussion questions, and case studies.

Who should read this book? General managers interested in participating in IS decisions will find this a good reference resource for the language and concepts of IS. Managers in the IS field will find the book a good resource for beginning to understand the general manager’s view of how IS affect business decisions. And IS students will be able to use the book’s readings and concepts as the beginning in their journey to become informed and success- ful businesspeople.

The information revolution is here. Where do you fit in?

Keri E. Pearlson, Carol S. Saunders, and Dennis F. Galletta

Acknowledgments

Books of this nature are written only with the support of many individuals. We would like to personally thank several individuals who helped with this text. Although we’ve made every attempt to include everyone who helped make this book a reality, there is always the possibility of unintentionally leaving some out. We apologize in advance if that is the case here.

Thank you goes to Dr. William Turner of LeftFour, in Austin, Texas, for help with the infrastructure and architecture concepts and to Alan Shimel, Editor-in-Chief at DevOps.com for initial ideas for the new security chapter.

We also want to acknowledge and thank pbwiki.com. Without its incredible and free wiki, we would have been relegated to e-mailing drafts of chapters back and forth, or saving countless files in an external drop box without any opportunity to include explanations or status messages. For this edition, as with earlier editions, we wanted to use Web 2.0 tools as we wrote about them. We found that having used the wiki for our previous editions, we were able to get up and running much faster than if we had to start over without the platform.

We have been blessed with the help of our colleagues in this and in previous editions of the book. They helped us by writing cases and reviewing the text. Our thanks continue to go out to Jonathan Trower, Espen Andersen, Janis Gogan, Ashok Rho, Yvonne Lederer Antonucci, E. Jose Proenca, Bruce Rollier, Dave Oliver, Celia Romm, Ed Watson, D. Guiter, S. Vaught, Kala Saravanamuthu, Ron Murch, John Greenwod, Tom Rohleder, Sam Lubbe, Thomas Kern, Mark Dekker, Anne Rutkowski, Kathy Hurtt, Kay Nelson, Janice Sipior, Craig Tidwell, and John Butler. Although we cannot thank them by name, we also greatly appreciate the comments of the anonymous reviewers who have made a mark on this edition.

The book would not have been started were it not for the initial suggestion of a wonderful editor in 1999 at John Wiley & Sons, Beth Lang Golub. Her persistence and patience helped shepherd this book through many previous editions. We also appreciate the help of our current editor, Lise Johnson. Special thanks go to Jane Miller, Gladys Soto, Loganathan Kandan, and the conscientious JaNoel Lowe who very patiently helped us through the revision process. We also appreciate the help of all the staff at Wiley who have made this edition a reality.

We would be remiss if we did not also thank Lars Linden for the work he has done on the Pearlson and Saunders Faculty Hub for this book. Our vision included a Web-based community for discussing teaching ideas and post- ing current articles that supplement this text. Lars made that vision into a reality starting with the last edition and continuing through the present. Thank you, Lars!

From Keri: Thank you to my husband, Yale, and my daughter, Hana, a business and computer science student at Tulane University. Writing a book like this happens in the white space of our lives-the time in between everything else going on. This edition came due at a particularly frenetic time, but they listened to ideas, made suggestions, and celebrated the book’s completion with us. I know how lucky I am to have this family. I love you guys!

From Carol: I would like to thank the Dr. Theo and Friedl Schoeller Research Center of Business and Society for their generous support of my research. Rusty, thank you for being my compass and my release valve. I couldn’t do it without you. Paraphrasing the words of an Alan Jackson song (“Work in Progress”): I may not be what you want me to be, but I’m trying really hard. Just be patient because I’m a work in progress. I love you, Kristin, Russell, and Janel very much!

From Dennis: Thanks to my terrific family: my wife Carole, my daughters Christy and Lauren, and my grand- daughter Gracie. Also thanks to Matt and Jacob, two lovable guys who take wonderful care of my daughters. Finally, thanks to our parents and sisters’ families. We are also blessed with a large number of great, caring neighbors whom we see quite often. I love you all, and you make it all worthwhile!

IJII

m

About the Authors

Dr. Keri E. Pearlson is President of KP Partners, an advisory services firm working with business leaders on issues related to the strategic use of information systems (IS) and organizational design. She is an entrepreneur, teacher, researcher, consultant, and thought leader. Dr. Pearlson has held various positions in academia and industry. She has been a member of the faculty at the Graduate School of Business at the University of Texas at Austin where she taught management IS courses to MBAs and executives and at Babson College where she helped design the popular IS course for the Fast Track MBA program. Dr. Pearlson has held positions at the Harvard Business School, CSC, nGenera (formerly the Concours Group), AT&T, and Hughes Aircraft Company. While writing this edition, she was the Research Director for the Analytics Leadership Consortium at the International Institute of Analytics and was named the Leader of the Year by the national Society of Information Management (SIM) 2014.

Dr. Pearlson is coauthor of Zero Time: Providing Instant Customer Value-Every Time, All the Time (John Wiley, 2000). Her work has been published in numerous places including Sloan Management Review, Academy of Management Executive, and Information Resources Management Journal. Many of her case studies have been published by Harvard Business Publishing and are used all over the world. She currently writes a blog on issues at the intersection of IT and business strategy. It’s available at www.kppartners.com.

Dr. Pearlson holds a Doctorate in Business Administration (DBA) in Management Information Systems from the Harvard Business School and both a Master’s Degree in Industrial Engineering Management and a Bachelor’s Degree in Applied Mathematics from Stanford University.

Dr. Carol S. Saunders is Research Professor at the W. A. Franke College of Business, Northern Arizona University in Flagstaff, Arizona, and is a Schoeller Senior Fellow at the Friedrich-Alexander University of Erlangen-Nuremberg, Germany. She served as General Conference Chair of the International Conference on Information Systems (ICIS) in 1999 and as Program Co-Chair of the Americas Conference of Information Systems (AMCIS) in 2015. Dr. Saunders was the Chair of the ICIS Executive Committee in 2000. For three years, she served as Editor-in-Chief of MIS Quarterly. She is currently on the editorial boards of Journal of Strategic Information Systems and Organization Science and serves on the advisory board of Business & Information Systems Engineering. Dr. Saunders has been recognized for her lifetime achievements by the Association of Information Systems (AIS) with a LEO award and by the Organizational Communication and Information Systems Division of the Academy of Management. She is a Fellow of the AIS.

Dr. Saunders’ current research interests include the impact of IS on power and communication, overload, virtual teams, time, sourcing, and interorganizational linkages. Her research is published in a number of journals including MIS Quarterly, Information Systems Research, Journal of MIS, Communications of the ACM, Journal of Strategic Information Systems, Journal of the AIS, Academy of Management Journal, Academy of Management Review, Communications Research, and Organization Science.

Dr. Dennis F. Galletta is Professor of Business Administration at the Katz Graduate School of Business, University of Pittsburgh in Pennsylvania. He is also the Director of the Katz School’s doctoral program and has taught IS Management graduate courses in Harvard’s summer program each year since 2009. He obtained his doctorate from the University of Minnesota in 1985 and is a Certified Public Accountant. Dr. Galletta served as President of the Association of Information Systems (AIS) in 2007. Like Dr. Saunders, he is both a Fellow of the AIS and has won a LEO lifetime achievement award. He was a member of the AIS Council for five years. He also served in leadership roles for the International Conference on Information Systems (ICIS): Program Co-Chair in 2005 (Las Vegas) and Conference Co-Chair in 2011 (Shanghai); as Program Co-Chair for the

About the Authors -Americas Conference on Information Systems (AMCIS) in 2003 (Tampa, Florida) and Inaugural Conference Chair in 1995 (Pittsburgh). The Pittsburgh conference had several “firsts” for an IS conference, including the first on-line submissions, reviews, conference registration and payment, placement service, and storage of all papers in advance on a website. Dr. Galletta served as ICIS Treasurer from 1994 to 1998 and Chair of the ICIS Execu- tive Committee in 2012. He taught IS courses on the Fall 1999 Semester at Sea voyage (Institute for Shipboard Education) and established the concept of Special Interest Groups in AIS in 2000. In 2014, he won an Emerald Citation of Excellence for a co-authored article that reached the top 50 in citations and ratings from the fields of management, business, and economics.

Dr. Galletta’s current research addresses online and mobile usability and behavioral security issues such as phishing, protection motivation, and antecedents of security-related decision making. He has published his research in journals such as Management Science; MIS Quarterly; Information Systems Research; Journal of MIS; European Journal of Information Systems; Journal of the AIS; Communications of the ACM; Accounting, Management, and Information Technologies; Data Base; and Decision Sciences and in proceedings of conferences such as ICIS, AMCIS, and the Hawaii International Conference on Systems Sciences. Dr. Galletta’s editorship includes working as current and founding Coeditor in Chief for AIS Transactions on Human-Computer Interaction and on editorial boards at journals such as MIS Quarterly, Information Systems Research, Journal of MIS, and Journal of the AIS. He is currently on the Pre-eminent Scholars Board of Data Base. He won a Developmental Associate Editor Award at the MIS Quarterly in 2006. And during the off-hours, Dr. Galletta’s fervent hobby and obsession is digital pho- tography, often squinting through his eyepiece to make portrait, macro, Milky Way, and lightning photos when he should be writing.

..

Contents

Preface iv Acknowledgments vii About the Authors viii

Introduction 1

The Case for Participating in Decisions about Information Systems 2

What If a Manager Doesn’t Participate? 5

Skills Needed to Participate Effectively in Information Technology Decisions 6

Basic Assumptions 8

Economics of Information versus Economics of Things 12

Social Business Lens 14

Summary 15

KeyTerms 16

The Information Systems Strategy Triangle 17

Brief Overview of Business Strategy Frameworks 19

Business Models versus Business Strategy 21

Brief Overview of Organizational Strategies 25

Brief Overview of Information Systems Strategy 26

Social Business Lens: Building a Social Business Strategy 27

Summary 28

KeyTerms 29

Discussion Questions 29

Case Study 1-1 Lego 30

Case Study 1-2 Google 31

2 Strategic Use of Information Resources 33 ——

Evolution of Information Resources 34

Information Resources as Strategic Tools 36

How Can Information Resources Be Used Strategically? 37

Sustaining Competitive Advantage 43

Social Business Lens, Social Capital 47

Strategic Alliances 47

Risks 49

Geographic Box: Mobile-Only Internet Users Dominate Emerging Countries 50

Co-Creating IT and Business Strategy 50

Summary 51

Key Terms 51

Discussion Questions 51

Case Study 2-1 Groupon 52

Case Study 2-2 Zipcar 53

3 Organizational Strategy and Information Systems 55

Information Systems and Organizational Design 58

Social Business Lens, Social Networks 63

Information Systems and Management Control Systems 63

Information Systems and Culture 66

Geographic Lens, Does National Culture Affect Firm Investment in IS Training? 70

Summary 71

KeyTerms 71

Discussion Questions 71

Contents 1111

Case Study 3-1 The Merger of Airtran by Southwest Airlines, Will the Organizational Cultures Merge? 72 Case Study 3-2 The FBI 73

4 Digital Systems and the Design of Work 75

Work Design Framework 77

How Information Technology Changes the Nature of Work 78

Social Business Lens, Activity Streams 84

Where Work Is Done and Who Does It: Mobile and Virtual Work Arrangements 86

Geographic Lens, How Do People Around the World Feel About Working Remotely? 88

Geographic Lens, Who Telecommutes? A Look at Global Telecommuting Habits 89

Gaining Acceptance for IT-Induced Change 94

Summary 96

KeyTerms 97

Discussion Questions 97

Case Study 4-1 Trash and Waste Pickup Services. Inc. 97

Case Study 4-2 Social Networking, How Does IBM Do It? 98

5 Information Systems and Business Transformation 99

Silo Perspective versus Business Process Perspective 100

Building Agile and Dynamic Business Processes 104

Changing Business Processes 105

Workflow and Mapping Processes 107

Integration versus Standardization 109

Enterprise Systems 110

Geographic Lens, Global vs. Local ERPs 113

Social Business Lens, Crowdsourcing Changes Innovation Processes 118

Summary 119

‘-,. Key Terms 120

Ill Contents Discussion Questions 120

Case Study 5-1 Santa Cruz Bicycles 121

Case Study 5-2 Boeing 787 Dreamliner 122

6 Architecture and Infrastructure 124 —-·-···-·–·——–·————

From Vision to Implementation 125

The Leap from Strategy to Architecture to Infrastructure 126

From Strategy to Architecture to Infrastructure, An Example 133

Architectural Principles 135

Enterprise Architecture 136

Virtualization and Cloud Computing 137

Other Managerial Considerations 139

Social Business Lens, Building Social Mobile Applications 143

Summary 144

Key Terms 144

Discussion Questions 145

Case Study 6-1 Enterprise Architecture at American Express 145

Case Study 6-2 The Case of Extreme Scientists 146

7 Security 147

IT Security Decision Framework 149

Breaches and How They Occurred 151

The Impossibility of 100% Security 154

What Should Management Do? 155

Summary 162

Key Terms 163

Discussion Questions 163

Case Study 7-1 The Aircraft Communications Addressing and Reporting System (ACARS) 163

Case Study 7-2 Sony Pictures, The Criminals Won 164

8 The Business of Information Technology 165

Organizing to Respond to Business, A Maturity Model 167

Understanding the IT Organization 168

What a Manager Can Expect from the IT Organization 168

What the IT Organization Does Not Do 170

Chief Information Officer 171

Building a Business Case 173

IT Portfolio Management 175

Valuing IT Investments 176

Monitoring IT Investments 177

Funding IT Resources 182

How Much Does IT Cost? 184

Summary 187

Key Terms 188

Discussion Questions 188

Case Study 8-1 KLM Airlines 189

Case Study 8-2 Balanced Scorecards at BIOCO 190

9 Governance of the Information Systems Organization 191

IT Governance 192

Decision-Making Mechanisms 199

Governance Frameworks for Control Decisions 200

Social Business Lens, Governing the Content 204

Summary 205

Key Terms 205

Discussion Questions 205

Case Study 9-1 IT Governance at University of the Southeast 205

Case Study 9-2 The “MyJohnDeere” Platform 207

10 Information Systems Sourcing 208

Sourcing Decision Cycle Framework 209

Social Business Lens, Crowdsourcing 214

Geographic Lens: Corporate Social Responsibility 220

Outsourcing in the Broader Context 224

Summary 225

Key Terms 225

Discussion Questions 225

Case Study 10-1 Crowdsourcing at AOL 225

Case Study 10-2 Altia Business Park 226

11 Managing IT Projects 228

What Defines a Project? 230

What Is Project Management? 231

Organizing for Project Management 232

Project Elements 233

IT Projects 239

IT Project Development Methodologies and Approaches 240

Social Business Lens: Mashups 247

Managing IT Project Risk 247

Summary 253

Key Terms 254

Discussion Questions 254

Contents

Case Study 11-1 Implementing Enterprise Change Management at Southern Company 254

Case Study 11-2 Dealing with Traffic Jams in London 255

m

Ill Contents .J 12 Business Intelligence. Knowledge Management. and Analytics 258

Competing with Business Analytics 259

Knowledge Management. Business Intelligence. and Business Analytics 260

Data. Information. and Knowledge 261

Knowledge Management Processes 264

Business Intelligence 264

Components of Business Analytics 265

Big Data 268

Social Media Analytics 269

Social Business Lens: Personalization and Real-Time Data Streams 271

Geographic Lens: When Two National Views of Intellectual Property Collide 272

Caveats for Managing Knowledge and Business Intelligence 274

Summary 274

Key Terms 275

Discussion Questions 275

Case Study 12-1 Stop & Shop’s Scan It! App 275

Case Study 12-2 Business Intelligence at CKE Restaurants 276

13 Privacy and Ethical Considerations in Information Management 278

Responsible Computing 280

Corporate Social Responsibility 283

PAPA: Privacy. Accuracy. Property. and Accessibility 284

Social Business Lens: Personal Data 289

Geographic Lens: Should Subcultures Be Taken into Account When Trying to Understand National Attitudes Toward Information Ethics? 292

Green Computing 292

Summary 293

Key Terms 294

Discussion Questions 294

Case Study 13-1 Ethical Decision Making 295

Case Study 13-2 Midwest Family Mutual Goes Green 297

Glossary 299 Index 313

Introduction

Why do managers need to understand and participate in the information systems decisions of their organizations? After all, most corporations maintain entire departments dedicated to the management of information systems (IS). These departments are staffed with highly skilled professionals devoted to the field of technology. Shouldn’t managers rely on experts to analyze all the aspects of IS and to make the best decisions for the organization? The answer to that question is an emphatic “no.”

Managing information is a critical skill for success in today’s business environment. All decisions made by companies involve, at some level, the management and use of IS and the interpretation of data from the business and its environment. Managers today need to know about their organization’s capabilities and uses of information as much as they need to understand how to obtain and budget financial resources. The ubiquity of personal devices such as smart phones, laptops, and tablets and of access to apps within corporations and externally over the Internet, highlights this fact. Today’s technologies form the backbone for virtually all business models. This backbone easily crosses oceans, adding the need for a global competency to the manager’s skill set. Further, the proliferation of supply chain partnerships and the vast amount of technology available to individuals outside of the corporation have extended the urgent need for business managers to be involved in information systems decisions. In addition, the availability of seemingly free (or at least very inexpensive) appli- cations, collaboration tools, and innovation engines in the consumer arena has put powerful tools in everyone’s hands, increasing the difficulty of ensuring that corporate systems are robust, secure, and protected. A manager who doesn’t understand the basics of managing and using information can’t be successful in this business environment.

The majority of U.S. adults own a smart phone and access online apps. According to the Pew Research Center, in 2014, 90% of U.S. adults had a cell phone of some kind, and 87% of American adults used the Internet. 1 Essentially the use of these types of devices implies that individuals now manage a “personal IS” and make decisions about usage, data, and applications. Doesn’t that give them insight into managing information systems in corporations? Students often think they are experts in corporate IS because of their personal experience with technology. Although there is some truth in that perspective, it’s a very dangerous perspective for managers to take. Certainly knowing about interesting apps, being able to use a variety of technologies for different personal purposes, and being familiar with the ups and downs of networking for their personal information systems pro- vide some experience that is useful in the corporate setting. But in a corporate setting, information systems must be enterprise-ready. They must be scalable for a large number of employees; they must be delivered in an appropriate manner for the enterprise; they must be managed with corpo- rate guidelines and appropriate governmental regulations in mind. Issues like security, privacy, risk, support, and architecture take on a new meaning within an enterprise, and someone has to manage them. Enterprise-level management and use of information systems require a unique perspective and a different skill set.

‘ Internet Use and Cell Phone Demographics, http://www.pewintemet.org/data-trend/internet-use/intemet-use-over-time (accessed August 18, 2015).

1111

lfll Introduction Consider the now-historic rise of companies such as Amazon.com, Google, and Zappos. Amazon.com began as

an online bookseller and rapidly outpaced traditional brick-and-mortar businesses like Barnes and Noble, Borders, and Waterstones. Management at the traditional companies responded by having their IS support personnel build Web sites to compete. But upstart Amazon.com moved ahead, keeping its leadership position on the Web by lever- aging its business model into other marketplaces, such as music, electronics, health and beauty products, lawn and garden products, auctions, tools and hardware, and more. It cleared the profitability hurdle by achieving a good mix of IS and business basics: capitalizing on operational efficiencies derived from inventory software and smarter storage, cost cutting, and effectively partnering with such companies as Toys “R” Us Inc. and Target Corporation. 2

More recently, Amazon.com changed the basis of competition in another market, but this time it was the Web ser- vices business. Amazon.com Web services offers clients the extensive technology platform used for Amazon.com but in an on-demand fashion for developing and running the client’s own applications. Shoe retailer Zappos.com challenged Amazon’s business model, in part by coupling a social business strategy with exemplary service and sales. It was so successful that Amazon.com bought Zappos.

Likewise, Google built a business that is revolutionizing the way information is found. Google began in 1999 as a basic search company but its managers quickly learned that its unique business model could be leveraged for future success in seemingly unrelated areas. The company changed the way people think about Web content by making it available in a searchable format with an incredibly fast response time and in a host of languages. Further, Google’s keyword-targeted advertising program revolutionized the way companies advertise. Then Google expanded, offering a suite of Web-based applications, such as calendaring, office tools, e-mail, collaboration, shopping, and maps and then enhanced the applications further by combining them with social tools to increase collaboration. Google Drive is one of the most popular file-sharing tools and Gmail one of the most popular email apps. In 2015, Google’s mission was to “organize the world’s information and make it universally accessible and useful.” It is offering its customers very inexpensive fiber connections. In so doing, Google further expanded into infrastructure and on-demand services. 3

These and other online businesses are able to succeed where traditional companies have not, in part because their .,,,,,J management understood the power of information, IS, and the Web. These exemplary online businesses aren’t suc- ceeding because their managers could build Web pages or assemble an IS network. Rather, the executives in these new businesses understand the fundamentals of managing and using information and can marry that knowledge with a sound, unique business vision to dominate their intended market spaces.

The goal of this book is to provide the foundation to help the general business manager become a knowledge- able participant in IS decisions because any IS decision in which the manager doesn’t participate can greatly affect the organization’s ability to succeed in the future. This introduction outlines the fundamental reasons for taking the initiative to participate in IS decisions. Moreover, because effective participation requires a unique set of manage- rial skills, this introduction identifies the most important ones. These skills are helpful for making both IS decisions and all business decisions. We describe how managers should participate in the decision-making process. Finally, this introduction presents relevant models for understanding the nature of business and information systems. These models provide a framework for the discussions that follow in subsequent chapters.

The Case for Participating in Decisions about Information Systems In today’s business environment, maintaining a back-office view of technology is certain to cost market share and could ultimately lead to the failure of the organization. Managers who claim ignorance of IS can damage their reputation. Technology has become entwined with all the classic functions of business-operations, marketing, accounting, finance-to such an extent that understanding its role is necessary for making intelligent and effec- tive decisions about any of them. Furthermore, a general understanding of key IS concepts is possible without the extensive technological knowledge required just a few years ago. Most managers today have personal technology

‘ Robert Hof, “How Amazon Cleared the Profitability Hurdle” (February 4, 2002), http://www.bloomberg.com/bw/stories/2002-02-03/how-amazon- cleared-the-profitability-hurdle (accessed on October 29, 2015). ‘ For more information on the latest services by these two companies, see http://aws.amazon.com/ec2 and http://www.google.com/enterprise/cloud/. .,,,,J

The Case for Participating in Decisions about Information Systems 11111

Reasons IS must be managed as a critical resource since it permeates almost every aspect of business.

–… —·-·····-·······-.. ·-···-·- –·——–····—-·-·····– —–···—··—-·-···—————- IS enable change in the way people work both inside and outside of the enterprise.

··-·- ·-·- ·–·— ·-·····-·- ···-···· ….. .. ·····–· – — ——-·· – ··-·······–· –········– -·-·-··-··– -··–· – ………… – ···–·-··—–

IS are at the heart of integrated Internet-based solutions that are replacing standard business processes . ….. -· .. – -······· ·- -·-· — . ··–· . ·····- ···-·· .. . … ···-·····. –· ·- ······-· -. ·-··· ·- .. ·—- –··· – ····- … ········–. -·-·–·– IS enable or inhibit business opportunities and new strategies.

····———- -····- ·–····· ·-···- –··-·–······–·-

IS can be used to combat business challenges from competitors. — ·– — -····–·————–····—-··——~——···— —–·—–·—·—-

IS enable customers to have greater pull on businesses and communities by giving them new options for voicing their concerns and opinions using social media.

·-·-·-····-··· –·····—····· -········—·····

IS can support data-driven decision making.

IS can help ensure the security of key assets.

FIGURE 1-1 Reasons why business managers should participate in information systems decisions.

such as a smart phone or tablet that is more functional than many corporate-supported personal computers provided by enterprises just a few years ago. In fact, the proliferation of personal technologies makes everyone a “pseudo- expert.” Each individual must manage applications on smart phones, make decisions about applications to purchase, and procure technical support when the systems fail. Finally, with the robust number of consumer applications available on the Web, many decisions historically made by the IS group are increasingly being made by individuals outside that group, sometimes to the detriment of corporate objectives.

Therefore, understanding basic fundamentals about using and managing information is worth the investment of time. The reasons for this investment are summarized in Figure 1-1 and are discussed next.

6., A Business View of Critical Resources Information technology (IT) is a critical resource for today’s businesses. It both supports and consumes a significant amount of an organization’s resources. Just like the other three major types of business resources-people, money, and machines-it needs to be managed wisely.

IT spending represents a significant portion of corporate budgets. Worldwide IT spending topped $3.7 trillion in 2014. It is projected to continue to increase. 4 A Gartner study of where this money goes groups spending into five categories including devices (e.g., PCs, tablets, and mobile phones), data center systems (e.g., network equipment, servers, and storage equipment), enterprise software and apps (e.g., companywide software applications), IT ser- vices (e.g., support and consulting services), and telecommunications (e.g., the expenses paid to vendors for voice and data services).

Resources must return value, or they will be invested elsewhere. The business manager, not the IS specialist, decides which activities receive funding, estimates the risk associated with the investment, and develops metrics for evaluating the investment’s performance. Therefore, the business manager needs a basic grounding in managing and using information. On the flip side, IS managers need a business view to be able to explain how technology impacts the business and what its trade-offs are.

People and Technology Work Together In addition to financial issues, managers must know how to mesh technology and people to create effective work processes. Collaboration is increasingly common, especially with the rise of social networking. Companies are reaching out to individual customers using social technologies such as Facebook, Twitter, Reddit, Renren, YouTube, and numerous other tools. In fact, Web 2.0 describes the use of the World Wide Web applications that incorporate information sharing, user-centered design, interoperability, and collaboration among users. Technology facilitates

4.,. 4 http://www.gartner.com/newsroom/id/2959717/ (accessed March 5, 2015).

.. Introduction the work that people do and the way they interact with each other. Appropriately incorporating IS into the design of a business model enables managers to focus their time and resources on issues that bear directly on customer satisfaction and other revenue- and profit-generating activities.

Adding a new IS to an existing organization, however, requires the ability to manage change. Skilled business managers must balance the benefits of introducing new technology with the costs associated with changing the existing behaviors of people in the workplace. There are many choices of technology solutions, each with a different impact. Managers’ decisions must incorporate a clear understanding of the consequences. Making this assessment doesn’t require detailed technical knowledge. It does require an understanding of short-term and long-term con- sequences risk mitigation, and why adopting new technology may be more appropriate in some instances than in others. Understanding these issues also helps managers know when it may prove effective to replace people with technology at certain steps in a process.

Integrating Business with Information Systems IS are integrated with almost every aspect of business and have been for quite some time. For example, the CTO of @WalmartLabs, Jeremy King, wrote in a blog,

There used to be a big distinction between tech companies: those that develop enterprise technology for businesses, and the global companies that depend on those products. But that distinction is now diminishing for this simple reason: every global company is becoming a tech company …. we’re seeing technology as a critical component for business success. 5

Walmart built platforms to support all of its ecommerce and digital shopping experiences around the world. Walmart’s teams created a new search engine to enable engaging and efficient ways for on-line customers to find items in inventory. IS placed information in the hands of Walmart associates so that decisions could be made closer to the customer. IS simplified organizational activities and processes such as moving goods, stocking shelves, and “”‘111 communicating with suppliers. For example, handheld scanners provide floor associates with immediate and real- time access to inventory in their store and the ability to locate items in surrounding stores, if necessary.

Opportunities and New Strategies Derived from Rapid Changes in Technology The proliferation of new technologies creates a business environment filled with opportunities. The rate of adop- tion of these new technologies has increased due in part to the changing demographics of the workforce and the integration of “digital natives,” individuals whose entire lives have been lived in an era with Internet availability. Therefore digital natives are completely fluent in the use of personal technologies and the Web. Even today, inno- vative uses of the Internet produce new types of online businesses that keep every manager and executive on alert. New business opportunities spring up with little advance warning. The manager’s role is to frame these oppor- tunities so that others can understand them, evaluate them against existing business needs and choices, and then pursue those that fit with an articulated business strategy. The quality of the information at hand affects the quality of both decisions and their implementation. Managers must develop an understanding of what information is cru- cial to the decisions, how to get it, and how to use it. They must lead the changes driven by IS.

Competitive Challenges Competitors come from both expected and unexpected places. General managers are in the best position to see the emerging threats and utilize IS effectively to combat ever-changing competitive challenges. Further, general man- agers are often called on to demonstrate a clear understanding of how their own technology programs and products

‘ Jeremy King. “Why Every Company Is a Tech Company'” (November 21, 2013). http://www.walmartlabs.com/2013/i 1/21/why-every-company-is-a- tech-company-by-jeremy-king-cto-of-walmartlabs (accessed August 18.2015).

What If a Manager Doesn’t Participate? B compare with those of their competitors. A deep understanding of the capabilities of the organization coupled with existing IS can create competitive advantages and change the competitive landscape for the entire industry.

Customer Pull With the emergence of social networks like Facebook, microblogs like Twitter, and other Web applications like Yelp, businesses have had to redesign their existing business models to account for the change in power now wielded by customers and others in their communities. Social media and other web apps have given powerful voices to customers and communities, and businesses must listen. Redesigning the customer experience when inter- acting with a company is paramount for many managers and the key driver is IS. Social IT enables new and often deeper relationships with a large number of customers, and companies are learning how to integrate and leverage this capability into existing and new business models.

Data-Driven Decision Making Managers are increasingly using evidence-based management to make decisions based on data gathered from experiments, internal files, and other relevant sources. Data-driven decision making, based on new techniques for analytics, data management, and business intelligence, has taken on increased importance. Social media have cre- ated a rich stream of real-time data that gives managers increased insights to the impact of decisions much faster than traditional systems. Mid-course corrections are much easier to make. Predictive and prescriptive analytics give suggestions that are eerily close to what happens. Big data stores can be mined for insights that were unavailable with traditional IS, creating competitive advantage for companies with the right tools and techniques.

‘-, Securing Key Assets As the use of the Internet grows, so does the opportunity for new and unforeseen threats to company assets. Taking measures to ensure the security of these assets is increasingly important. But decisions about security measures also impact the way IS can be used. It’s possible to put so much security around IT assets that they are locked down in a manner that gets in the way of business. At the same time, too little security opens up the possibility of theft, hacking, phishing, and other Web-based mischief that can disrupt business. Managers must be involved in decisions about risk and security to ensure that business operations are in sync with the resulting security measures.

What If a Manager Doesn’t Participate? Decisions about IS directly affect the profits of a business. The basic formula Profit = Revenue – Expenses can be used to evaluate the impact of these decisions. Adopting the wrong technologies can cause a company to miss business opportunities and any revenues those opportunities would generate. For example, inadequate IS can cause a breakdown in servicing customers, which hurts sales. Poorly deployed social IT resources can badly damage the reputation of a strong brand. On the expense side, a miscalculated investment in technology can lead to over- spending and excess capacity or underspending and restricted opportunity. Inefficient business processes sustained by ill-fitting IS also increase expenses. Lags in implementation or poor process adaptation reduces profits and there- fore growth. IS decisions can dramatically affect the bottom line.

Failure to consider IS strategy when planning business strategy and organizational strategy leads to one of three business consequences: (I) IS that fail to support business goals, (2) IS that fail to support organizational systems, and (3) a misalignment between business goals and organizational capabilities. These consequences are discussed briefly in the following section and in more detail in later chapters. The driving questions to consider are the poten- tial effects on an organization’s ability to achieve its business goals. How will the consequences impact the way people work? Will the organization still be able to implement its business strategy?

ID Introduction

Information Systems Must Support Business Goals IS represent a major investment for any firm in today’s business environment. Yet poorly chosen IS can actually become an obstacle to achieving business goals. The results can be disastrous if the systems do not allow the orga- nization to realize its goals. When IS lack the capacity needed to collect, store, and transfer critical information for the business, decisions can be impacted and options limited. Customers will be dissatisfied or even lost. Production costs may be excessive. Worst of all, management may not be able to pursue desired business directions that are blocked by inappropriate IS. Victoria’s Secret experienced this problem when a Superbowl ad promoting an online fashion show generated so many inquiries to its Web site that the Web site crashed. Spending large amounts of money on the advertisement was wasted when potential customers could not access the site. Likewise, Toys “R” Us experienced a similar calamity when its well-publicized Web site was unable to process and fulfill orders fast enough one holiday season. It not only lost those customers, but it also had a major customer-relations issue to manage as a result.

Information Systems Must Support Organizational Systems Organizational systems represent the fundamental elements of a business-its people, work processes, tasks, struc- ture, and control systems-and the plan that enables them to work efficiently to achieve business goals. If the company’s IS fail to support its organizational systems, the result is a misalignment of the resources needed to achieve its goals. For example, it seems odd to think that a manager might add functionality to a corporate Web site without providing the training the employees need to use the tool effectively. Yet, this mistake-and many more costly ones-occurs in businesses every day. Managers make major IS decisions without informing all the staff of resulting changes in their daily work. For example, an enterprise resource planning (ERP) system often dictates how many business processes are executed and the organizational systems must change to reflect the new processes. Deploying technology without thinking through how it actually will be used in the organization-who .,,,,J will use it, how they will use it, and how to make sure the applications chosen will actually accomplish what is intended-results in significant expense. In another example, a company may decide to block access to the Internet, thinking that it is prohibiting employees from accessing offensive or unsecure sites. But that decision also means that employees can’t access social networking sites that may be useful for collaboration or other Web-based appli- cations that may offer functionality to make the business more efficient.

The general manager, who, after all, is charged with ensuring that company resources are used effectively, must guarantee that the company’s IS support its organizational systems and that changes made in one system are reflected in the other. For example, a company that plans to allow employees to work remotely needs an information system strategy compatible with its organizational strategy. Desktop PCs located within the corporate office aren’t the right solution for a telecommuting organization. Instead, laptop computers or tablets with applications that are accessible online anywhere and anytime and networks that facilitate information sharing are needed. Employees may want to use tablets or smart phones remotely, too, and those entail a different set of IS processes. If the orga- nization allows the purchase of only desktop PCs and builds systems accessible from desks within the office, the telecommuting program is doomed to failure.

Skills Needed to Participate Effectively in Information Technology Decisions Participating in IT decisions means bringing a clear set of skills to the table. All managers are asked to take on tasks that require different skills at different times. Those tasks can be divided into three types: visionary tasks, or those that provide leadership and direction for the group; informational/interpersonal tasks, or those that provide information and knowledge the group needs to be successful; and structural tasks, those that organize the group. Figure I-2 lists basic skills required of managers who wish to participate successfully in key IT decisions. Not only does this list emphasize understanding, organizing, planning, and solving the business needs of the organization, but also it is an excellent checklist for all managers’ professional growth.

Skills Needed to Participate Effectively in Information Technology Decisions lfll

Managerial Role

Visionary

Informational and Interpersonal

Structural

Skills

Creativity

Curiosity

Confidence

Focus on business solutions

Flexibility

Communication

Listening

Information gathering

Interpersonal skills

Project management

Analytical

Organizational

Planning

Leading

Controlling ~————-~-·—-~~—·- –·———·

FIGURE 1-2 Skills for successful IT use by managerial role.

These skills may not look much different from those required of any successful manager, which is the main point of this book: General managers can be successful participants in IS decisions without an extensive technical background. General managers who understand a basic set of IS concepts and who have outstanding managerial skills, such as those listed in Figure 1-2, are ready for the digital economy.

How to Participate in Information Systems Decisions Technical wizardry isn’t required to become a knowledgeable participant in the IS decisions of a business. Man- agers need curiosity, creativity, and the confidence to ask questions in order to learn and understand. A solid frame- work that identifies key management issues and relates them to aspects of IS provides the background needed to participate in business IS decisions.

The goal of this book is to provide that framework. The way in which managers use and manage information is directly linked to business goals and the business strategy driving both organizational and IS decisions. Aligning business and IS decisions is critical. Business, organizational, and information strategies are fundamentally linked in what is called the Information Systems Strategy Triangle, discussed in the next chapter. Failing to understand this relationship is detrimental to a business. Failing to plan for the consequences in all three areas can cost a manager his or her job. This book provides a foundation for understanding business issues related to IS from a managerial perspective.

Organization of the Book To be knowledgeable participants, managers must know about both using and managing information. The first five chapters offer basic frameworks to make this understanding easier. Chapter 1 uses the Information Systems Strategy Triangle framework to discuss alignment of IS and the business. This chapter also provides a brief over- view of relevant frameworks for business strategy and organizational strategy. It is provided as background for those who have not formally studied organization theory or business strategy. For those who have studied these areas, this chapter is a brief refresher of major concepts used throughout the remaining chapters of the book.

• I nlroduction Subsequent chapters provide frameworks and sets of examples for understanding the links between IS and business strategy (Chapter 2), links between IS and organizational strategy (Chapter 3), collaboration and individual work (Chapter 4), and business processes (Chapter 5).

The rest of the text covers issues related to the business manager’s role in managing IS itself. These chapters are the building blocks of an IS strategy. Chapter 6 provides a framework for understanding the four components of IS architecture: hardware, software, networks, and data. Chapter 7 discusses how managers might participate in decisions about IS security. Chapter 8 focuses on the business of IT with a look at IS organization, funding models, portfolios, and monitoring options. Chapter 9 describes the governance of IS resources. Chapter 10 explores sourc- ing and how companies provision IS resources. Chapter 11 focuses on project and change management. Chapter 12 concerns business intelligence, knowledge management, and analytics and provides an overview of how companies manage knowledge and create a competitive advantage using business analytics. And finally, Chapter 13 discusses the ethical use of information and privacy.

Basic Assumptions Every book is based on certain assumptions, and understanding those assumptions makes a difference in interpret- ing the text. The first assumption made by this text is that managers must be knowledgeable participants in the IS decisions made within and affecting their organizations. That means that the general manager must develop a basic understanding of the business and technology issues related to IS. Because technology changes rapidly, this text also assumes that today’s technology is different from yesterday’s technology. In fact, the technology available to readers of this text today might even differ significantly from that available when the text was being written. Therefore, this text focuses on generic concepts that are, to the extent possible, technology independent. It provides frameworks on which to hang more up-to-the-minute technological evolutions and revolutions, such as new uses of the Web, new social tools, or new cloud-based services. We assume that the reader will supplement the discussions of this text with current case studies and up-to-date information about the latest technology.

A second, perhaps controversial, assumption is that the roles of a general manager and of an IS manager require different skill sets and levels of technical competency. General managers must have a basic understanding of IS in order to be a knowledgeable participant in business decisions. Without that level of understanding, their decisions may have serious negative implications for the business. On the other hand, IS managers must have more in-depth knowledge of technology so they can partner with general managers who will use the IS. As digital natives take on increasingly more managerial roles in corporations, this second assumption may change-all managers may need deeper technical understanding. But for this text, we assume a different, more technical skill set for the IS manager and we do not attempt to provide that here.

Assumptions about Management Although many books have been written describing the activities of managers, organizational theorist Henry Mintzberg offers a view that works especially well with a perspective relevant to IS management. Mintzberg’s model describes management in behavioral terms by categorizing the three major roles a manager fills: interper- sonal, informational, and decisional (see Figure 1-3). This model is useful because it considers the chaotic nature of the environment in which managers actually work. Managers rarely have time to be reflective in their approaches to problems. They work at an unrelenting pace, and their activities are brief and often interrupted. Thus, quality information becomes even more crucial to effective decision making. The classic view is often seen as a tactical approach to management, whereas some describe Mintzberg’s view as more strategic.

Assumptions about Business Everyone has an internal understanding of what constitutes a business, which is based on readings and experi- ences with different firms. This understanding forms a model that provides the basis for comprehending actions, interpreting decisions, and communicating ideas. Managers use their internal model to make sense of otherwise

1ype of Roles

Interpersonal

Informational

I Decisional

Manager’s Roles

Figurehead

Leader

~iaison I

Basic Assumptions g

IS Examples ·-·· •……………

‘ CIO greets touring dignitaries.

manager puts in long hours to help motivate project team to complete project on schedule in an environment of heavy budget cuts. i

·-·· ···–·-·-····! ‘ CIO works with the marketing and human resource vice presidents to · / make sure that the reward and compensation system is changed to encourage use of the new IS supporting sales.

Monitor Division manager compares progress on IS project for the division with

I I milestones developed during the project’s initiation and feasibility phase.

Disseminator –;- CIO conveys organiz~tion’s busine~s strategy to IS department and : demonstrates how IS strategy supports the business strategy.

,,_S_p_o-ke_s_p_e_r-so_n _____ : -IS_m_a-na_g_e_r -represents IS department at organization’s recruiti~g fair. :

~

;;repreneur · IS division manager suggests an application of a new technology that improves the division’s operational efficiency.

sturbance handler . IS division manager, as project team leader, helps resolve design I • disagreements between division personnel who will be using the system

Resource allocator

Negotiator

and analysts who are designing it.

allocates additional personnel positions to various departments based upon the business strategy.

IS manager negotiates for additional personnel needed to respond to recent user requests for enhanced functionality in a system that is being implemented.

~·-····-·—–··-~——-.-~. FIGURE 1-3 Managers· roles. Source: Adapted from H. Mintzberg, The Nature of Managerial Work (New York: Harper & Row, 1973).

chaotic and random activities. This book uses several conceptual models of business. Some take a functional view and others take a process view.

Functional View The classical view of a business is based on the functions that people perform, such as accounting, finance, marketing, operations, and human resources. The business organizes around these functions to coordinate them and to gain economies of scale within specialized sets of tasks. Information first flows vertically up and down between line positions and management; after analysis, it may be transmitted across other functions for use elsewhere in the company (see Figure I-4).

Process View Michael Porter of Harvard Business School describes a business in terms of the primary and support activities that are performed to create, deliver, and support a product or service. The primary activities are not limited to specific functions, but rather are cross-functional processes (see Figure I-5). For example, an accounts payable process

en :s: g C Ol en Ol 0 C C “§ ~ “”E 0

C en

~ ~ Q)

E :::, <ii 0.

0 .:£ 0.

.9 u Q) cu (/) :::, u 0. :::!: (/) C <( 0

6., FIGURE 1-4 Hierarchical view of the firm.

Ill Introduction

Executive Management

Accounts Payable Process

(/)

C Ol

Pro~ct Develiment Pr~ess Q_

0

Order Fulfillment Process

<—-l_n_fo_rm_at_io_n_F_l_ow_s ___ -.)

FIGURE 1-5 Process view of the firm: Cross-functional processes.

might involve steps taken by other departments that generate obligations, which the accounting department pays. Likewise, the product creation process might begin with an idea from R&D, which is transferred to an operations organization that builds the actual product and involves marketing to get the word out, sales to sell and deliver the product, and support to provide customer assistance as needed. This view takes into account the activities in each functional area that are needed to complete a process, and any organization can be described by the processes it performs. Improving coordination among activities increases business profit. Organizations that effectively manage core processes across functional boundaries are often the industry leaders because they have made efficiencies that ‘ffllllfi are not visible from the functional viewpoint. IS are often the key to process improvement and cross-functional coordination.

Both the process and functional views are important to understanding IS. The functional view is useful when sim- ilar activities must be explained, coordinated, executed, or communicated. For example, understanding a marketing information system means understanding the functional approach to business in general and the marketing function in particular. The process view, on the other hand, is useful when examining the flow of information throughout a business. For example, understanding the information associated with order fulfillment, product development, or customer service means taking a process view of the business. This text assumes that both views are important for participating in IS decisions.

Assumptions about Information Systems Consider the components of an information system from the manager’s viewpoint rather than from the technolo- gist’s viewpoint. Both the nature of information (hierarchy and economics) and the context of an information system must be examined to understand the basic assumptions of this text.

Information Hierarchy

The terms data, information, and knowledge are often used interchangeably, but have significant and discrete mean- ings within the knowledge management domain (and are more fully explored in Chapter 12). Tom Davenport, in his book Information Ecology, pointed out that getting everyone in any given organization to agree on common defi- nitions is difficult. However, his work (summarized in Figure I-6) provides a nice starting point for understanding the subtle but important differences.

The information hierarchy begins with data, or simple observations; data are sets of specific, objective facts or observations, such as “inventory contains 45 units.” Standing alone, such facts have no intrinsic meaning but can be easily captured, transmitted, and stored electronically. ..,,,,,J

Basic Assumptions •

Data Information I Knowledge -!——– —··–··-····

‘ Information from the human mind , Simple observations of the state i Data endowed with [ of the world ‘ relevance and purpose (includes reflection, synthesis,

Definition

i ‘ context)

Charact;risti~;- ~- Easil;;;;~~t~i;;d___ • Requires unit of analysis • Hard to structure I • Easily captured on machines • Data that have been • Difficult to capture on machines I • Often quantified processed • Often tacit I • Easily transferred • Human mediation • Hard to transfer ! • Mere facts necessary

Example —-·–1 ~:~!:;;::·~:!~~o ~~:ll . ~;;!~!:~hn;~z::~ortw :~:~t~;:s~::~e;; ~:~:~~i;:~f CEO of a large manufacturing economic order quantity in light of daily inventory report,

, —–··– I company —· —··-··-·····– lmevaenals-~s:e~n–t–to–in_v_e._n_t_o_r_y·—-·~a-n-t-ic_i_p_a._t_e .. d …….. l .. a–b–o·–r -st·r·i-ke-·s-,····a–n··-d-·— . _ _ a flood in Brazil that affects the

FIGURE 1-6 Comparison of data. information. and knowledge. Source: Adapted from Thomas Davenport, Information Ecology (New York: Oxford University Press, 1997).

Information is data endowed with relevance and purpose. 6 People turn data into information by organizing data into some unit of analysis (e.g., dollars, dates, or customers). For example, a mashup of location data and housing prices adds something beyond what the data provide individually, and that makes it information. A mashup is the term used for applications that combine data from different sources to create a new application on the Web.

To be relevant and have a purpose, information must be considered within the context in which it is received and used. Because of differences in context, information needs vary across functions and hierarchical levels. For example, when considering functional differences related to a sales transaction, a marketing department manager may be interested in the demographic characteristics of buyers, such as their age, gender, and home address. A man- ager in the accounting department probably won’t be interested in any of these details, but instead wants to know details about the transaction itself, such as method of payment and date of payment.

Similarly, information needs may vary across hierarchical levels. These needs are summarized in Figure 1-7 and reflect the different activities performed at each level. At the supervisory level, activities are narrow in scope and focused on the production or the execution of the business’s basic transactions. At this level, information is focused on day-to-day activities that are internally oriented and accurately defined in a detailed manner. The activ- ities of senior management are much broader in scope. Senior management performs long-term planning and needs

Top Management I

Middle Management Supervisory and Lower-Level Management

—-·-··—-··—· — —–1 ·—·——·— I – ——— –· – ·- — —-j Time Horizon Long: years I Medium: weeks, months, years I Short: day to day I Level of Detail t Highly aggregated /. Summarized I Very detailed

I Less accurate : Integrated Very accurate j

Sourc~—-···-·–t~:~~fi~=!r!;~;l- -··-··········-··-···-; ~::r~::~~:~~al ~ith.li~ited ____ -tf l~~~~nfinan~~——1 I external I

–7,tremely judgmental \ Relatively judgmental j Heavily reliant on rules 1 1 , Uses creativity and analytical I 1

1 skills I I J _L:”_··—-·-···—-. —····· _____ L _______ ·····-· ··—-·—·-·-··–·—-..J.. –

Decision

FIGURE 1-7 Information characteristics across hierarchical levels. Source: G. Adapted from Anthony Gorry and Michael S. Scott Morton, “A Framework for Management Information Systems,” Sloan Management Review 13, no. 1, 55-70.

4., 6 Peter F. Drucker, “The Coming of the New Organization,” Harvard Business Review (January-February 1988), 45-53.

lfl Introduction information that is aggregated, externally oriented, and more subjective than supervisors require. The information needs of middle managers in terms of these characteristics fall between the needs of supervisors and of senior management. Because information needs vary across levels, a daily inventory report of a large manufacturing firm may serve as information for a low-level inventory manager whereas the CEO would consider such a report to be merely data. The context in which the report is used must be considered in determining whether it is information.

Knowledge is information that is synthesized and contextualized to provide value. It is information with the most value. Knowledge consists of a mix of contextual information, values, experiences, and rules. For example, the mash up of locations and housing prices means one thing to a real estate agent, another thing to a potential buyer, and yet something else to an economist. It is richer and deeper than information and more valuable because someone thought deeply about that information and added his or her own unique experience and judgment. Knowledge also involves the synthesis of multiple sources of information over time. 7 The amount of human contribution increases along the continuum from data to information to knowledge. Computers work well for managing data but are less efficient at managing information and knowledge.

Some people think there is a fourth level in the information hierarchy: wisdom. Wisdom is knowledge fused with intuition and judgment that facilitates the ability to make decisions. Wisdom is that level of the information hierarchy used by subject matter experts, gurus, and individuals with a high degree of experience who seem to “just know” what to do and how to apply the knowledge they gain. This is consistent with Aristotle’s view of wisdom as the ability to balance different and conflicting elements together in ways that are only learned through experience.

Economics of Information versus Economics of Things In their groundbreaking book, Blown to Bits, Evans and Wurster argued that every business is in the information business. 8 Even those businesses not typically considered information businesses have business strategies in which information plays a critical role. The physical world of manufacturing is shaped by information that dominates … ~ products as well as processes. For example, an automobile contains as much computing power as a personal com- ~ puter. Information-intensive processes in the manufacturing and marketing of the automobile include design, market research, logistics, advertising, and inventory management. The automobile itself, with its millions of lines of code, has become a computer on wheels with specialized computers and sensors alerting the driver of its health and road conditions. When taken in for service, maintenance crews simply plug an electronic monitor into the auto- mobile to analyze and identify worn parts or other areas in need of upgrades and repair.

As our world is reshaped by information-intensive industries, it becomes even more important for business strat- egies to differentiate the timeworn economics of things from the evolving economics of information. Things wear out; things can be replicated at the expense of the manufacturer; things exist in a tangible location. When sold, the seller no longer owns the thing. The price of a thing is typically based on production costs. In contrast, information never wears out, although it can become obsolete or untrue. Information can be replicated at virtually no cost without limit; information exists in the ether. When sold, the seller still retains the information, but this ownership provides little value if the ability of others to copy it is not limited. Finally, information is often costly to produce but cheap to reproduce. Rather than pricing it to recover the sunk cost of its initial production, its price is typically based on its value to the consumer. Figure I-8 summarizes the major differences between the economics of goods and the economics of information.

Evans and Wurster suggest that traditionally the economics of information has been bundled with the economics of things. However, in this Information Age, firms are vulnerable if they do not separate the two. The Encyclopedia Britannica story serves as an example. Bundling the economics of things with the economics of information made it difficult for Encyclopedia Britannica to gauge two serious threats. The first threat was posed by Encarta, an entire encyclopedia on a CD-ROM that was given away to promote the sale of computers and peripherals. The second was Wikipedia, which is freely available to all and updated on a nearly real-time basis continuously by thousands of

7 Thomas H. Davenport, Information Ecology (New York: Oxford University Press, 1997), 9-10. 8 Philip Evans and Thomas Wurster, Blown to Bits (Boston: Harvard Business School Press, 2000).

Economics of Information versus Economics of Things Ill

Things Information

Wear out Doesn’t wear out but can become obsolete or untrue !

~r=_n~_i:,licated at the expense of the manufacturer 1

Is replicate_ci_~_t almost_~=~~-~~;-:;_;i-t~~~!Ji~i~— — — — ~-j

.:~~l~~~:i~~:~~;~::,:haod~ ········= ·=~~::;::~:.:~;::::~~~d~;[~::~-.J FIGURE 1-8 Comparison of the economics of things with the economics of information.

volunteers; currently Wikipedia reports that it holds over 4.9 million articles, receives 10 edits per second globally, and boasts 750 new pages added each day. 9 In contrast, Encyclopedia Britannica published volumes every several years and the price was between $1,500 and $2,200, covering printing and binding ($250) and sales commissions ($500 to $600). 10

Britannica focused on its centuries-old tradition of providing information in richly bound tomes sold to the public through a well-trained sales force. Only when it was threatened with its very survival did Encyclopedia Britannica grasp the need to separate the economics of information from economics of things and sell bits of information online. Clearly, Encyclopedia Britannica’s business strategy, like that of many other companies, needed to reflect the difference between the economics of things from the economics of information.

Internet of Things

More recently, a new concept has emerged to describe the explosive growth in the data generated by sensors traveling over the Web. The Internet of things (loT) is the term used to refer to machines and sensors talking to each other over the network, taking Evans and Wurster’s concepts even further. Although the term IoT was coined in1999, 11 it was not widely discussed until the current decade. The earliest example of its functions was reported before the Internet even existed-in a Coke machine at Carnegie Mellon University in the mid-1970s. Staff mem- bers and students in the Computer Science Department were able to use a network connecting a minicomputer and sensors in the machine to monitor not only the machine’s inventory but even which button to push for the coldest bottles. 12

A more broadly used early application of IoT was provided by Otis Elevator in the late 1980s and later copied by most other elevator companies. 13 Sensors in elevators send alerts over a network to a service center’s computer when parts need replacing, and service technicians arrive without the builder owner knowing about the potential problem. Extending loT even further, today’s elevator systems alert handheld devices of nearby repair technicians who then visit the elevator to make the repair. Devices may connect to the Internet over a wireless connection or through a hard-wired connection.

Many say that we are on the brink of a new revolution that will be as impactful as the popularization of the World-Wide Web. The IoT has already been applied to large number of “things”–extending to home appliances, automobiles, thermostats, lighting, pets, and even people. 14 Many people can already perform futuristic functions using smartphone apps. They can remotely check the status of their heart monitor, tire pressure, or subway train’s location. They can locate a lost pet or valuable object. They can reset their thermostat, tum off lights, and record a program on their DVR even after having left for vacation.

9 Wikipedia Statistics. http://en.wikipedia.org/wiki/Wikipedia:Statistics (accessed August 18, 2015). ‘° Evans and Wurster, Blown to Bits. 11 K. Ashton, “That ‘Internet of Things’ Thing,” RFID Journal (June 22, 2009), http://www.rfidjournal.com/articles/view?4986 (accessed May 26, 2015). 12 Attributed to The Carnegie Mellon University Computer Science Department Coke Machine, “The ‘Only’ Coke Machine on the Internet,” https://www. cs.cmu.edu/-coke/history _long.txt (accessed May 26, 2015). 13 D. Freedman, “The Myth of Strategic IS,” C/0 Magazine (July l 991 ). 42–48. 6., ” Internet of Things, Whatis.com, http://whatis.techtarget.com/definition/Internet-of-Things (accessed May 26, 2015).

Ill Introduction

Social Business Lens

The explosion of consumer-based technologies, coupled with applications such as Facebook, Renren, Sina

Weibe, Twitter, Linkedln, You Tube, Foursquare, Skype, Pinterest, and more have brought into focus the concept of

a social business. Some call this trend the consumerization of technology. Consumerization means that technol-

ogies such as social tools, mobile phones, and Web applications targeted at individual, personal users are cre-

ating pressures for companies in new and unexpected ways. At the same time, technologies initially intended for

the corporation, like cloud computing, are being retooled and “consumerized” to appeal to individuals outside

the corporation.

In this text, we use the term social business to refer to an enterprise using social IT for business applications, activities and processes. We sometimes say that a social business has infused social capabilities into business

processes.

Social business is permeating every facet of business. There are new business models based on a social IT

platform that offer new ways of connecting with stakeholders in functions such as governing, collaborating, doing

work, and measuring results. In this book, we are particular about the terminology we use. Social /Tis the term we

use for all technologies in this space. We define social IT as the technologies used for people to collaborate, net- work, and interact over the Web. These include social networks and other applications that provide for interaction

between people.

Many use the term social media as an overarching term for this space, but increasingly, social media refers to the marketing and sales applications of social IT, and we use it that way. Social networks are a specific type of tool,

like Facebook, Ning, and similar tools. Social networking is the use of these types of social IT tools in a community. As of the writing of this text, the social space is still like the Wild West; there are no widely accepted conventions

about the terms and their meanings or the uses and their impacts. But we have enough experience with social

IT that we know it’s a major force bursting on to the enterprise scene and it must be addressed in discussions of

managing and using information systems.

Look in chapters for the feature “Social Business Lens” where we explore one topic related to that chapter from

1 a social business perspective. I

The reader might already be using the loT with one or more of these apps. However, vendors tell us we “ain’t seen nothing yet.” The potential impact of IoT is limited by the number of objects connected and apps available to monitor and control them. As the number of devices directly connected to the Internet increases, researchers and IT

Management

Information Systems

People Technology Process

FIGURE 1-9 System hierarchy.

Summary Ill professionals expect an exponential increase in IoT functionality and usage. 15 In the coming years, Internet traffic will dramatically increase along with an explosion in the amount of information generated by these devices.

System Hierarchy

Information systems are composed of three main elements: technology, people, and process (see Figure 1-9). When most people use the term information system, they actually refer only to the technology element as defined by the organization’s infrastructure. In this text, the term infrastructure refers to everything that supports the flow and processing of information in an organization, including hardware, software, data, and network components whereas architecture refers to the blueprint that reflects strategy implicit in combining these components. Information sys- tems (IS) are defined more broadly as the combination of technology (the “what”), people (the “who”), and process (the “how”) that an organization uses to produce and manage information. In contrast, information technology (IT) focuses only on the technical devices and tools used in the system. We define information technology as all forms of technology used to create, store, exchange, and use information. Many people use the terms IS and IT inter- changeably. In recent years, “IT” has been more fashionable, but that changes as fashions change.

SUMMARY

Aligning information systems and business decisions is no longer an option; it’s an imperative for business. Every business oper- ates as an information-based enterprise. In addition, the explosive growth of smart phones, tablets, social tools, and Web-based businesses provides all managers with some experience in information systems and some idea of the complexity involved in providing enterprise-level systems. This highlights the need for all managers to be skilled in managing and using IS.

It is no longer acceptable to delegate IS decisions to the management information systems (MIS) department alone. The general manager must be involved to both execute business plans and protect options for future business vision. IS and business maturity must be aligned to provide the right level of information resources to the business.

This chapter makes the case for general managers’ full participation in strategic business decisions concerning IS. It out- lines the skills required for such participation, and it makes explicit certain key assumptions about the nature of business, management, and IS that will underlie the remaining discussions. Subsequent chapters are designed to build on these concepts by addressing the following questions.

Frameworks and Foundations

• How should information strategy be aligned with business and organizational strategies? (Chapter 1)

• How can a business achieve competitive advantages using its IS? (Chapter 2)

• How do organizational decisions impact IS decisions? (Chapter 3)

• How is the work of the individual in an organization affected by decisions concerning IS? (Chapter 4)

• How are information systems integrated with business processes? (Chapter 5)

IS Management Issues

• What are the components of an IS architecture? (Chapter 6)

• How are IS kept secure? (Chapter 7)

• How is the IT organization managed and funded? (Chapter 8)

• How are IS decisions made? (Chapter 9)

• What source should provide IS services and how and where should they be provided? (Chapter 10)

II. ” Jared Newman. “Right Now, the Internet of Things Is Like the Internet of the 1990s,” Fast Company (March 27, 20151, http://www.fastcompany . .., com/3044375/sector-forecasting/the-future-of-the-internet-of-things-is-like-the-internet-of-the-1990s (last accessed May 26, 2015).

– Introduction • How are IS projects managed and risks from change management mitigated? (Chapter 11) • How is business intelligence managed within an organization? (Chapter 12)

• What ethical and moral considerations bind the uses of information in business? (Chapter 13)

KEY TERMS architecture (p. 14) data (p. 10) digital natives (p. 4) information (p. 11) information system (p. 14) information technology (p. 14)

infrastructure (p. 14) internet of things (p. 13) knowledge (p. 12) mashup (p. 11) social business (p. 15) social IT (p. 15)

social media (p. 15) social networking (p. 15) Web 2.0 (p. 3) wisdom (p. 12)

The Information Systems Strategy Triangle

The Information Systems Strategy Triangle highlights the alignment necessary between decisions regarding business strategy, information systems, and organizational design. This chapter reviews models of business strategy, organizational strategy and design, and information systems strategy. It concludes with a simple framework for creating a social business strategy.

In February 2015, 1 health care giant Kaiser Permanente named Dick Daniels to the CIO position and the leadership team for the next stage of the company’s business strategy: to provide better health care at lower costs. To achieve those goals, Kaiser Permanente, one of the nation’s largest not-for-profit health care systems with over 9.5 million members and 2014 operating revenue of $56.4 billion, invested in numerous information systems projects aimed at streamlining operations, offering new

._ services, and meeting government obligations. For example, in 2014, 13% of all the medical appoint- – ments were fulfilled digitally-through e-mail-to the delight of patients who did not have to make

a trip to the doctor’s office and to the delight of doctors who were able to check in on their patients, particularly those with chronic conditions, more frequently. Doctors particularly liked this because their annual bonuses were based, in part, on improvements in patient health metrics such as lower blood pressure, reduced blood sugar levels if at risk for diabetes, and improvement in cholesterol scores rather than on the number of tests they ordered or the total billing they brought in. The organi- zation invested heavily in video conferencing technology, mobile apps, and analytics as they finished implementing a $4 billion electronic health records system, KP HealthConnect.

KP HealthConnect began in 2003, but by 2008, all members had online access to their health records; by 2010, all system services were available at all medical offices and hospitals in the system; and by 2012, all members had access to their health records on mobile devices. Kaiser Permanente has been a regular innovator in the use of technologies, being one of the first health care organiza- tions to experiment with chat rooms, secure messaging, and private e-mail correspondence between patients, physicians, and care providers. The new system connects each member to all caregivers and services available at Kaiser Permanente. Further, it enabled patients to participate in the health care they received at a new level and access information directly from the system.

The organizational design supported the business strategy of better health care at lower costs. 2

At the core of this strategy was a shift from a “fix-me system” with which patients seek health care when something is broken and needs repair to a system that was truly proactive and focused on pro- moting health. Under the “fix-me system,” health care was expensive and often sought too late to

1 http://blogs.wsj.com/cio/2015/02/09/kaiser-permanente-names-richard-dick-daniels-cio/; http:/ !fortune .com/2015/04/29/kaiser- ceo-on-healthcare/; http:i/fortune.com/2014/07/24/a-health-care-model-thats-working/; Paul Gray, Omar Sawy. Guillermo Asper, and Magnus Thordarson, “Realizing Strategic Value Through Center-Edge Digital Transformation in Consumer-Centric Industries:· MIS Quarterly Executive 12, no. 1 (March 2013).

• 2 Note that the organizational design puts the organizational strategy into practice. For instance, rewarding billings, sharing little

– information. and late involvement with patients are organizational design elements of a “fix-me” organizational strategy.

chaJJler

1

m

ID The Information Systems Strategy Triangle fix the problem. Instead, the Kaiser Permanente strategy focused on promoting health, enabling identification of problems before they became serious issues. For example, those in need of more exercise may receive a prescription to take a walk and an e-mail reminder from health care providers to reinforce the new behavior. Staff incentive systems were aligned with this behavior, too. Physicians were all paid a flat salary and end-of-year bonuses if their patients achieved better health. All caregivers were rewarded for guiding people into making behavioral choices that were likely to keep them well.

The success at Kaiser Permanente was achieved in part because of the alignment between its business strategy, its information systems strategy, and its organization design. Physicians were part of the decision-making processes. Managers were involved in the design and implementation of the information systems. The decision to move from a “fix-me system” to a “proactive health system” was not made in isolation from the organization or the information systems.

The information systems (IS) department is not an island within a firm. Rather, IS manages an infrastructure that is essential to the firm’s functioning. Further, the Kaiser Permanente case illustrates that a firm’s IS must be aligned with the way it manages its employees and processes. For Kaiser Permanente, it was clear that not only did the physicians need a fast, inexpensive, and useful way to communicate with patients outside of regular in-person appointments but also incentive systems and patient service processes had to be updated. Information systems provided a solution in conjunction with new operational and control processes.

This chapter introduces a simple framework for describing the alignment necessary with business systems and for understanding the impact of IS on organizations. This framework is called the Information Systems Strategy Triangle because it relates business strategy with IS strategy and organizational strategy. This chapter also presents key frameworks from organization theory that describe the context in which IS operates as well as the business imperatives that IS support. The Information Systems Strategy Triangle presented in Figure 1.1 suggests three key points about strategy.

1. Successful firms have an overriding business strategy that drives both organizational strategy and IS strat- egy. The decisions made regarding the structure, hiring practices, vendor policies, and other components of .,,,,J the organizational design, as well as decisions regarding applications, hardware, and other IS components, are all driven by the firm’s business objectives, strategies, and tactics. Successful firms carefully balance these three strategies-they purposely design their organization and their IS strategies to complement their business strategy.

2. IS strategy can itself affect and is affected by changes in a firm’s business and organizational design. To perpetuate the balance needed for successful operation, changes in the IS strategy must be accompanied by changes in the organizational strategy and must accommodate the overall business strategy. If a firm designs its business strategy to use IS to gain strategic advantage, the leadership position in IS can be sustained only by constant innovation. The business, IS, and organizational strategies must constantly be adjusted.

3. IS strategy always involves consequences-intended or not-within business and organizational strategies. Avoiding harmful unintended consequences means remembering to consider business and organizational strategies when designing IS implementation. For example, deploying tablets to employees without an accompanying set of changes to job expectations, process design, compensation plans, and business tac- tics will fail to achieve expected productivity improvements. Success can be achieved only by specifically designing all three components of the strategy triangle so they properly complement each other.

Organizational Strategy

FIGURE 1.1 The Information Systems Strategy Triangle.

Business Strategy

Information Strategy

Brief Overview of Business Strategy Frameworks lfl Before the changes at Kaiser Permanente, incentives for doctors were misaligned with the goals of better health

care. Its IS Strategy Triangle was out of alignment at that time. Its organizational strategy (e.g., a “fix-me” system) was not supported by the IS strategy (e.g., tracking and reporting billable procedures). Neither the organizational strategy nor the IS strategy adequately supported their purported business strategy (helping patients at lower cost). For Kaiser Permanente, success could be achieved only by specifically designing all three components of the strategy triangle to work together.

Of course, once a firm is out of alignment, it does not mean that it has to stay that way. To correct the misalign- ment described earlier, Kaiser Permanente used on-line services to enable quick communications between patients, physicians, and care providers. Further, it changed its bonus structure to focus on health rather than billing amounts. The new systems realign people, process, and technology to provide better service, save time, and save money.

What does alignment mean? The book Winning the 3-Legged Race defines alignment as the situation in which a company’s current and emerging business strategy is enabled and supported yet unconstrained by technology. The authors suggest that although alignment is good, there are higher states, namely synchronization and convergence, toward which companies should strive. With synchronization, technology not only enables current business strategy but also anticipates and shapes future business strategy. Convergence goes one step further by exhibiting a state in which business strategy and technology strategy are intertwined and the leadership team members operate almost interchangeably. Although we appreciate the distinction and agree that firms should strive for synchronization and convergence, alignment in this text means any of these states, and it pertains to the balance between organizational strategy, IS strategy, and business strategy. 3

A word of explanation is needed here. Studying IS alone does not provide general managers with the appropriate perspective. This chapter and subsequent chapters address questions of IS strategy squarely within the context of business strategy. Although this is not a textbook of business strategy, a foundation for IS discussions is built on some basic business strategy frameworks and organizational theories presented in this and the next chapter. To be effective, managers need a solid sense of how IS are used and managed within the organization. Studying details of technologies is also outside the scope of this text. Details of the technologies are relevant, of course, and it is important that any organization maintain a sufficient knowledge base to plan for and adequately align with business priorities. However, because technologies change so rapidly, keeping a textbook current is impossible. Instead, this text takes the perspective that understanding what questions to ask and having a framework for interpreting the answers are skills more fundamental to the general manager than understanding any particular technology. That understanding must be constantly refreshed using the most current articles and information from experts. This text provides readers with an appreciation of the need to ask questions, a framework from which to derive the ques- tions to ask, and a foundation sufficient to understand the answers received. The remaining chapters build on the foundation provided in the Information Systems Strategy Triangle.

Brief Overview of Business Strategy Frameworks A strategy is a coordinated set of actions to fulfill objectives, purposes, and goals. The essence of a strategy is setting limits on what the business will seek to accomplish. Strategy starts with a mission. A mission is a clear and compelling statement that unifies an organization’s effort and describes what the firm is all about (i.e., its purpose). Mark Zuckerberg’s reflection on the mission of Facebook provides an interesting example. Originally conceived as a product rather than a service, the CEO of Face book commented, “after we started hiring more people and building out the team, I began to get an appreciation that a company is a great way to get a lot of people involved in a mission you’re trying to push forward. Our mission is getting people to connect.”4

In a few words, the mission statement sums up what is unique about the firm. The information in Figure 1.2 indi- cates that even though Zappos, Amazon, and L.L. Bean are all in the retail industry, they view their missions quite differently. For example, Zappos’ focus is on customer service, Amazon is about customer sets, and L.L. Bean is

‘ F. Hogue, V. Sambamurthy, R. Zrnud, T. Trainer, and C. Wilson, Winning the 3-Legged Race (Upper Saddle River, NJ: Prentice Hall, 2005). 4 Shayndi Raice, “Is Facebook Ready for the Big Time?” The Wall Street Journal (January 14-15, 2012), B 1.

El The Information Systems Strategy Triangle

; Company 1———· · Zappos

, Amazon

· L.L. Bean

! Mission Statement ! To provide the best customer service possible. Internally we call this our WOW philosophy.a

+···-··—–·-··· ·····-······–·-····-·· -·-· – ——– ·— —··

l We seek to be Earth’s most customer-centric company for three primary customer sets: consumer l customers, seller customers and developer customers.b : Sell good merchandise at a reasonable profit, treat your customers like human beings and they will · come back for more.c

‘http://about.zappos.com (accessed March 19, 2015). b http://www.amazon.com Mission Statement on Amazon Investor Relations page (accessed March 19, 2015). ‘http://www.llbean.com/customerService/aboutllBean/company_values.html (accessed March 19, 2015).

FIGURE 1.2 Mission statements of three retail businesses.

about the merchandise and treating people the right way. It’s interesting to note that although Amazon purchased Zappos in 2009, the acquisition agreement specified that Zappos would continue to run independently of its new parent. Today, Zappos continues to remain both culturally and physically separate from Amazon. Zappos is located near Las Vegas, Nevada, and Amazon is in Seattle, Washington.

A business strategy is a plan articulating where a business seeks to go and how it expects to get there. It is the means by which a business communicates its goals. Management constructs this plan in response to market forces, customer demands, and organizational capabilities. Market forces create the competitive context for the business. Some markets, such as those faced by package delivery firms, laptop computer manufacturers, and credit card issuers, face many competitors and a high level of competition, such that product differentiation becomes increasingly difficult. Other markets, such as those for airlines and automobiles, are similarly characterized by high competition, but product differentiation is better established. Customer demands comprise the wants and needs of the individuals and companies who purchase the products and services available in the marketplace. Organizational capabilities include the skills and experience that give the corporation a currency that can add value ‘fflll in the marketplace.

Consider Dell, originally a personal computer company. Initially Dell’s business strategy was to sell personal computers directly to the customer without going through an intermediary. Reaching customers in this way was less expensive and more responsive than selling the computers in retail stores. The Internet, combined with Dell’s well-designed IS infrastructure, allowed customers to electronically contact Dell, which then designed a PC for a customer’s specific needs. Dell’s ordering system was integrated with its production system and shared information automatically with each supplier of PC components. This IS enabled the assembly of the most current computers without the expense of storing large inventories, and inventory uncertainties were pushed back to the vendors. Cost savings were passed on to the customer, and the direct-to-customer model allowed Dell to focus its production capacity on building only the most current products. With small profit margins and new products quickly able to replace existing products, IS aligned with Dell’s business strategy to provide low-cost PCs. The cost savings from the IS was reflected in the price of systems. In addition, Dell executives achieved a strategic advantage in reducing response time, building custom computers that had one of the industry’s lowest costs, and eliminating inventories that could become obsolete before they are sold. Thus, this business strategy was consistent with Dell’s mission of delivering the best customer experience in the markets it serves.

But things aren’t always as they seem. If the direct-to-customer strategy was so effective, why is Dell now also selling its computers at major retail outlets such as Walmart, Staples, and Best Buy? It is likely that the sales figures and profit margins were not measuring up to Dell’s stated objectives and performance targets. And Dell has branched out to other hardware, such as printers and servers, and more recently, providing IT services. Con- sequently, Dell adjusted its business strategy, and we can expect to see changes in its organizational design and information systems to reflect its altered direction.

Now consider your favorite dot-com company. Every dot-com company has a business strategy of delivering its products or services over the Internet. To do so, the dot-corns need organizations filled with individuals and processes that support this business strategy. Their employees must be Internet savvy; that is, they must have

Brief Overview of Business Strategy Frameworks Bl

= Business Models versus Business Strategy Some new managers confuse the concept of a business model with the concept of a business strategy. The

business strategy, as discussed in this chapter, is the coordinated set of actions used to meet the business goals and objectives. It’s the path a company takes to achieve its goals. One of the components of the business strategy

is the business model, the design of how the business will make money and how customers will get value from its

products and services. Some might argue that a business model is the outcome of strategy.*

Some examples of business models commonly seen in the digital world includet:

• Subscription: Customers pay a recurring fee for the product or service. • Advertising: Customers access the product or service for “free,” and sponsors or vendors pay fees for

advertising that goes with the product or service. • Cost plus: Somewhat like a traditional retailer, customers purchase the product or service for a specific price

that is usually the cost plus some markup for profit.

Chapter 12: Searches, Seizures, and Arrests 447

# 151053 Cust: Cengage Au: Hall Pg. No. 447 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

In 2006, this decision was extended to parolees in Samson v. California,78 where the Supreme Court held that the Fourth Amendment does not prohibit suspicion- less, warrantless searches of parolees. On the continuum of punishment, the Court noted, a parolee enjoys less privacy than probationers and only slightly more than prisoners. Significant to the Court in Samson was the consent of the parolees, who were given the option of remaining in prison; the large number of parolees at large; the interest of the state in monitoring parolees for reintegration; and recidivism. The Court pointed to the likelihood of recidivism, as opposed to the general population, in its Knights opinion as further support for the decision to subject probationers to greater oversight.

Administrative Searches Although outside the content of this text, be aware that so-called administrative searches often require less than probable cause and a warrant to be conducted. This is largely because the purpose of such searches is not to detect and punish criminals. In- stead, it is to protect the public from health and welfare threats, the violation of which are typically punished with fines, the disciplining of a license, or a similar noncriminal sanction. For example, warrantless inspections of restaurants, groceries, other highly regulated industries, public school students, and the work areas of public employees must be reasonable under the Fourth Amendment, even though probable cause is not required for any of them.

In most instances, the Fourth Amendment’s reasonableness requirement is satisfied in the administrative context if there is either (1) reasonable suspicion or (2) a compre- hensive regulatory scheme in place. If the latter, the scheme shall define the authority of inspectors, define the inspection itself, and provide a rationale for the inspection.79

ArreST One of the most serious interferences with a person’s liberty is to be physically seized by a government. Equally, arrest plays an important role in effective law enforcement.

Because of the significant impact arrest has on a person’s life, the right to arrest is limited by the Fourth Amendment.

Defining Arrest Generally, an arrest is a deprivation of freedom by a legal authority. As you have already learned, seizures by the police take two primary forms. First, at the lower end of the spectrum is the Terry v. Ohio seizure. Such seizures occur whenever a person reasonably believes that he or she is not free to leave. In addition, the seizure must be as brief as possible and be of limited intrusion to the person detained. The Court addressed the question whether passengers of vehicles are seized during traffic stops in the 2007 case Brendlin v. California.

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

448 Part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 448 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Justice Souter delivered the opinion of the Court. When a police officer makes a traffic stop, the

driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may chal- lenge the constitutionality of the stop.

i

Early in the morning of November 27, 2001, Deputy Sheriff Robert Brokenbrough and his partner saw a parked Buick with expired registration tags. In his ensuing conversation with the police dispatcher, Brokenbrough learned that an application for re- newal of registration was being processed. The of- ficers saw the car again on the road, and this time Brokenbrough noticed its display of a temporary operating permit with the number “11,” indicating it was legal to drive the car through November. The officers decided to pull the Buick over to verify that the permit matched the vehicle, even though, as Brokenbrough admitted later, there was nothing unusual about the permit or the way it was affixed. Brokenbrough asked the driver, Karen Simeroth, for her license and saw a passenger in the front seat, petitioner Bruce Brendlin, whom he recognized as “one of the Brendlin brothers.” He recalled that either Scott or Bruce Brendlin had dropped out of parole supervision and asked Brendlin to identify himself (footnote omitted). Brokenbrough returned to his cruiser, called for backup, and verified that Brendlin was a parole violator with an outstanding no-bail warrant for his arrest. While he was in the patrol car, Brokenbrough saw Brendlin briefly open and then close the passenger door of the Buick. Once reinforcements arrived, Brokenbrough went to the passenger side of the Buick, ordered him out of the car at gunpoint, and declared him under

arrest. When the police searched Brendlin incident to arrest, they found an orange syringe cap on his person. A patdown search of Simeroth revealed sy- ringes and a plastic bag of a green leafy substance, and she was also formally arrested. Officers then searched the car and found tubing, a scale, and other things used to produce methamphetamine.

Brendlin was charged with possession and manufacture of methamphetamine, and he moved to suppress the evidence obtained in the searches of his person and the car as fruits of an unconsti- tutional seizure, arguing that the officers lacked probable cause or reasonable suspicion to make the traffic stop. He did not assert that his Fourth Amendment rights were violated by the search of Simeroth’s vehicle, but claimed only that the traf- fic stop was an unlawful seizure of his person. The trial court denied the suppression motion after find- ing that the stop was lawful and Brendlin was not seized until Brokenbrough ordered him out of the car and formally arrested him. Brendlin pleaded guilty, subject to appeal on the suppression issue, and was sentenced to four years in prison.

The California Court of Appeal reversed . . . By a narrow majority, the Supreme Court of California reversed. . . .

A person is seized by the police and thus en- titled to challenge the government’s action under the Fourth Amendment when the officer, “ ‘by means of physical force or show of authority,’ ” terminates or restrains his freedom of movement. Thus, an “unintended person . . . [may be] the ob- ject of the detention,” so long as the detention is “willful” and not merely the consequence of “an unknowing act.” A police officer may make a sei- zure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an

BrENDlIN V. CAlIFOrNIA 551 U.S. 249 (2007)

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 12: Searches, Seizures, and Arrests 449

# 151053 Cust: Cengage Au: Hall Pg. No. 449 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

BrENDlIN V. CAlIFOrNIA (c o nt i nu e d)

attempted seizure, so far as the Fourth Amend- ment is concerned.

When the actions of the police do not show an unambiguous intent to restrain or when an individ- ual’s submission to a show of governmental author- ity takes the form of passive acquiescence, there needs to be some test for telling when a seizure oc- curs in response to authority, and when it does not. The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver “even though the purpose of the stop is limited and the resulting detention quite brief.” And although we have not, until today, squarely answered the ques- tion whether a passenger is also seized, we have said over and over in dicta that during a traffic stop an officer seizes everyone in the vehicle, not just the driver.  .  .  .  The State concedes that the police had no adequate justification to pull the car over, but argues that the passenger was not seized and thus cannot claim that the evidence was tainted by an unconstitutional stop. We resolve this question by asking whether a reasonable person in Brendlin’s position when the car stopped would have believed himself free to “terminate the encounter” between the police and himself. We think that in these cir- cumstances any reasonable passenger would have understood the police officers to be exercising con- trol to the point that no one in the car was free to depart without police permission.

A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on “privacy and personal security” does not normally (and did not here) distinguish between passenger and driver. An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect

a police officer to allow people to come and go freely from the physical focal point of an investiga- tion into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.

It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, 519 U.S. 408 (1997), we held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. In fashioning this rule, we invoked our earlier statement that “ ‘[t]he risk of harm to both the police and the occupants is minimized if the of- ficers routinely exercise unquestioned command of the situation.’ ” What we have said in these opinions probably reflects a societal expectation of “‘un- questioned [police] command’ ” at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. . . .

Brendlin was seized from the moment Sime- roth’s car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest. It will be for the state courts to consider in the first instance whether suppression turns on any other issue. The judgment of the Supreme Court of California is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

450 Part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 450 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Any seizure that extends beyond the Terry standard is an arrest. A Terry investigatory detention may be transformed into an arrest if the person is detained for an unreason- able length of time or the police use intrusive investigatory tactics. Whether an officer intends to arrest is not dispositive, nor is an announcement to the citizen that he or she is or is not under arrest. The totality of the facts will determine whether the intrusion amounts to an arrest under the Fourth Amendment.

The requirements for a Terry stop were discussed previously in this chapter. The following is a discussion of the Fourth Amendment requirements for arrest.

The Warrant Preference Searches must be conducted pursuant to a valid warrant, unless an exception to the war- rant requirement can be shown. Arrests are quite different. Rather than a requirement for a warrant, in most instances, there is simply a preference for one. The “informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers.”80 As is the case with warrantless searches, probable cause determinations by magistrates will be supported on appeal with less evidence than those made by police officers.

Notwithstanding the preference, most arrests are made without first obtaining a warrant. The authority to make warrantless arrests has a long history. Under the com- mon law, a law officer could arrest whenever he had reasonable grounds to believe that a defendant committed a felony. Misdemeanants who breached the peace could be arrested without warrant if the crime was committed in the presence of an officer.

United States v. Watson, 423 U.S. 411 (1976), was the case in which the Supreme Court recognized that warrantless arrests in public places, based upon probable cause, did not violate the Fourth Amendment. There is no constitutional requirement that an officer obtain a warrant to effect an arrest in a public place—even if the officer has adequate time to get the warrant prior to making the arrest. However, the Fourth Amendment does require that probable cause exist before an arrest can be made.

For a warrantless arrest in a public place to be upheld, it must be shown that the of- ficer who made the arrest (1) had probable cause to believe that a crime was committed, and (2) that the person arrested committed that crime. As with searches and seizures, prob- able cause can be established in a number of ways: statements from victims and witnesses, personal knowledge and observations of the officer, reliable hearsay, and informant tips.

Most, if not all, states permit officers to arrest without a warrant if there is probable cause to believe that the suspect committed a felony. States vary in their treatment of misdemeanors, but most permit warrantless arrest only for a misdemeanor committed in an officer’s presence. Some states have a broader rule that permits the arrest of a mis- demeanant, even if the crime was not committed in the presence of an officer, provided there is both probable cause and an exigent circumstance.

An officer’s determination of probable cause may later be attacked by the defen- dant. If the officer was wrong, then the defendant may be successful in obtaining his or her freedom or suppressing any evidence that is the fruit of the illegal arrest.

When an officer does seek an arrest warrant, the requirements previously discussed concerning search warrants apply. That is, the warrant must be issued by a neutral and

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 12: Searches, Seizures, and Arrests 451

# 151053 Cust: Cengage Au: Hall Pg. No. 451 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

detached magistrate upon a finding of probable cause, supported by oath or affirma- tion. See Exhibit 12–5 for the formal federal arrest warrant.

Arrests in Protected Areas So far the discussion of arrests has been confined to arrests made in public. If the arrest is to be made in an area protected by the Fourth Amendment, such as a person’s home, a warrant must be obtained, unless an exception exists.

Exhibit 12–5 WARRANT FOR ARREST

AO 442 (Rev. 5/85) Warrant for Arrest

uniTed STATeS diSTricT courT

DISTRICT OF

UNITED STATES OF AMERICA

V.

WARRANT FOR ARREST

CASE NUMBER:

To: The United States Marshal and any Authorized United States Officer

YOU ARE HEREBY COMMANDED to arrest

Name

and bring him or her forthwith to the nearest magistrate to answer a(n)

■ Indictment ■ Information ■ Complaint ■ Order of Court ■ Violation Notice

■ Probation Violation Petition

charging him or her with (brief description of offense)

in violation of Title United States Code, Section(s)

Name of Issuing Officer Title of Issuing Officer

Signature of Issuing Officer Date and Location

(By) Deputy Clark

Bail fixed at $ by Name of Judicial Officer

(continued)

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

452 Part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 452 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

reTurn

This warrant was received and executed with the arrest of the above-named defendant at

DATE RECEIVED NAME AND TITLE OF SIGNATURE OF ARRESTING OFFICER ARRESTING OFFICER

DATE OF ARREST

The FoLLoWinG iS FurniShed For inFormATion onLY:

DEFENDANT’S NAME:

ALIAS:

LAST KNOWN RESIDENCE:

LAST KNOWN EMPLOYMENT:

PLACE OF BIRTH:

DATE OF BIRTH:

SOCIAL SECURITY NUMBER:

HEIGHT: WEIGHT:

SEX: RACE:

HAIR: EYES:

SCARS, TATTOOS, OTHER DISTINGUISHING MARKS:

FBI NUMBER:

COMPLETE DESCRIPTION OF AUTO:

INVESTIGATIVE AGENCY AND ADDRESS:

Source: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO442.pdf

Exhibit 12–5 (continued)

In Payton v. New York, 445 U.S. 573 (1980), it was held that a valid arrest warrant implicitly carries with it a limited right to enter the suspect’s home to effect the arrest, provided there is reason to believe the suspect is within. Under Payton, the search must be limited to areas where the suspect may be hiding. Because the entry is lawful, any evidence discovered in plain view may be seized.

Co py

ri gh

t © 2

01 5

Ce ng

ag e

Le ar

ni ng

® .

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 12: Searches, Seizures, and Arrests 453

# 151053 Cust: Cengage Au: Hall Pg. No. 453 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Arrest warrants do not authorize entry into the private property of third persons. In the absence of consent or exigent circumstances, a search warrant must be obtained before a search of a third person’s home or property may be conducted.81

The warrant requirement is obviated if the occupant gives consent to the search. Exigent circumstances, such as hot pursuit, also justify warrantless entries into homes to effect an arrest.

Misdemeanor Arrests The authority of law enforcement officers to arrest in cases where probable cause exists to believe an individual has committed a felony is clear. Similarly, the authority to arrest misdemeanants who breach the peace has been clear since the early common law. How- ever, whether the arrest authority extends to minor misdemeanors was not addressed by the Supreme Court until 2001.

In Texas, if a car is equipped with safety belts, a front-seat passenger must wear one, Tex. Tran. Code Ann. § 545.413(a) (1999), and the driver must secure any small child riding in front. Violation of either provision is ”a misdemeanor punishable by a fine not less than $25 or more than $50.” Texas law expressly authorizes “any peace officer [to] arrest without warrant a person found committing a viola- tion” of these seatbelt laws, § 543.001, although it permits police to issue citations in lieu of arrest.

In March 1997, Petitioner Gail Atwater was driv- ing her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a seatbelt. Respon- dent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over. According to Atwater’s complaint (the allegations of which we assume to be true for present purposes), Turek approached the truck and “yelled” something to the effect of “we’ve met be- fore” and “you’re going to jail.” He then called for backup and asked to see Atwater’s driver’s license

and insurance documentation, which state law re- quired her to carry. When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had “heard that story two-hundred times.”

Atwater asked to take her “frightened, upset, and crying” children to a friend’s house nearby, but Turek told her, “you’re not going anywhere.” As it turned out, Atwater’s friend learned what was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater’s “mug shot” and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond.

Atwater was charged with driving without her seatbelt fastened, failing to secure her children in seatbelts, driving without a license, and fail- ing to provide proof of insurance. She ultimately

ATWATEr V. CITY OF lAGO VISTA, ET Al. 532 U.S. 318 (2001)

(continued)

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

454 Part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 454 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

ATWATEr V. CITY OF lAGO VISTA, ET Al. (c o nt i nu e d)

pleaded no contest to the misdemeanor seatbelt of- fenses and paid a $50 fine; the other charges were dismissed.

Atwater and her husband, petitioner Mi- chael Haas, filed suit in a Texas state court under 42 U.S.C. § 1983 against Turek and respondents City of Lago Vista and Chief of Police Frank Miller. So far as concerns us, petitioners (whom we will simply call Atwater) alleged that respondents (for simplicity, the City) had violated Atwater’s Fourth Amendment “right to be free from unreasonable seizure,” . . . [the plaintiffs lost in the trial court, pre- vailed before a three-judge panel in the appellate court, and subsequently, the full appellate court sit- ting en banc reversed the three-judge panel.]

We granted certiorari to consider whether the Fourth Amendment, either by incorporating com- mon-law restrictions on misdemeanor arrests or otherwise, limits police officers’ authority to arrest without warrant for minor criminal offenses. We now affirm.

The Fourth Amendment safeguards “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In reading the Amendment, we are guided by “the traditional protections against un- reasonable searches and seizures afforded by the common law at the time of the framing,” since “an examination of the common-law understand- ing of an officer’s authority to arrest sheds light on the obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amend- ment might have thought to be reasonable.” Thus, the first step here is to assess Atwater’s claim that peace officers’ authority to make warrantless ar- rests for misdemeanors was restricted at common law (whether “common law” is understood strictly as law judicially derived or, instead, as the whole body of law extant at the time of the framing).

Atwater’s specific contention is that “founding-era common-law rules” forbade peace officers to make warrantless misdemeanor arrests except in cases of “breach of the peace,” a category she claims was then understood narrowly as covering only those nonfelony offenses “involving or tending toward violence.” . . .

We begin with the state of pre-founding English common law and find that, even after making some allowance for variations in the common-law usage of the term “breach of the peace,” the “founding- era common-law rules” were not nearly as clear as Atwater claims; on the contrary, the common-law commentators (as well as the sparsely reported cases) reached divergent conclusions with respect to officers’ warrantless misdemeanor arrest power. Moreover, in the years leading up to American inde- pendence, Parliament repeatedly extended express warrantless arrest authority to cover misdemeanor- level offenses not amounting to or involving any violent breach of the peace. . . .

On one side of the divide there are certainly eminent authorities supporting Atwater’s position. In addition to Lord Halsbury, quoted in Carroll, James Fitzjames Stephen and Glanville Williams both seemed to indicate that the common law con- fined warrantless misdemeanor arrests to actual breaches of the peace.

Sir William Blackstone and Sir Edward East might also be counted on Atwater’s side, although they spoke only to the sufficiency of breach of the peace as a condition to warrantless misdemeanor arrest, not to its necessity. Blackstone recognized that at common law “the constable . . . hath great original and inherent authority with regard to ar- rests,” but with respect to nonfelony offenses said only that “he may, without warrant, arrest any one for breach of the peace, and carry him before a jus- tice of the peace.” Not long after the framing of the

(continued)

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 12: Searches, Seizures, and Arrests 455

# 151053 Cust: Cengage Au: Hall Pg. No. 455 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

ATWATEr V. CITY OF lAGO VISTA, ET Al. (c o nt i nu e d)

Fourth Amendment, East characterized peace offi- cers’ common-law arrest power in much the same way: “A constable or other known conservator of the peace may lawfully interpose upon his own view to prevent a breach of the peace, or to quiet an affray.  .  .  .” The great commentators were not unanimous, however, and there is also consider- able evidence of a broader conception of common- law misdemeanor arrest authority unlimited by any breach-of-the-peace condition.  .  .  . We thus find disagreement, not unanimity, among both the com- mon-law jurists and the text-writers who sought to pull the cases together and summarize accepted practice. Having reviewed the relevant English de- cisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, we simply are not convinced that Atwa- ter’s is the correct, or even necessarily the better, reading of the common-law history. . . .

A second, and equally serious, problem for Atwater’s historical argument is posed by the “div- ers Statutes,” M. Dalton, Country Justice ch. 170, § 4, p. 582 (1727), enacted by Parliament well be- fore this Republic’s founding that authorized war- rantless misdemeanor arrests without reference to violence or turmoil. Quite apart from Hale and Blackstone, the legal background of any conception of reasonableness the Fourth Amendment’s Fram- ers might have entertained would have included English statutes, some centuries old, authorizing peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence. The so-called “nightwalker” statutes are perhaps the most no- table examples. From the enactment of the Statute of Winchester in 1285, through its various readop- tions and until its repeal in 1827, night watchmen were authorized and charged “as . . . in Times past” to “watch the Town continually all Night, from the

Sun-setting unto the Sun-rising” and were directed that “if any Stranger do pass by them, he shall be arrested until Morning. . . .”

Nor were the nightwalker statutes the only legislative sources of warrantless arrest authority absent real or threatened violence, as the parties and their amici here seem to have assumed. On the contrary, following the Edwardian legislation and throughout the period leading up to the framing, Parliament repeatedly extended warrantless arrest power to cover misdemeanor-level offenses not in- volving any breach of the peace. . . .

An examination of specifically American evi- dence is to the same effect. Neither the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to em- brace Atwater’s position.

Nor does Atwater’s argument from tradition pick up any steam from the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become “woven  .  .  .  into the fabric” of American law. The story, on the contrary, is of two centuries of uninter- rupted (and largely unchallenged) state and federal practice permitting warrantless arrests for misde- meanors not amounting to or involving breach of the peace. . . .

Finally, both the legislative tradition of granting warrantless misdemeanor arrest authority and the judicial tradition of sustaining such statutes against constitutional attack are buttressed by legal com- mentary that, for more than a century now, has al- most uniformly recognized the constitutionality of extending warrantless arrest power to misdemean- ors without limitation to breaches of the peace. . . .

Small wonder, then, that today statutes in all 50 States and the District of Columbia permit war- rantless misdemeanor arrests by at least some

(continued)

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

456 Part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 456 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

ATWATEr V. CITY OF lAGO VISTA, ET Al. (c o nt i nu e d)

(if not all) peace officers without requiring any breach of the peace, as do a host of congressional enactments. . . .

Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause “applies to all arrests, without the need to ‘balance’ the interests and circumstances involved

in particular situations.” If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender. . . .

The Court of Appeals’s en banc judgment is affirmed.

Search Incident to Arrest and the Protective Sweep As you learned earlier in this chapter, an officer may fully search an arrestee as incident to arrest. In addition, the area within the arrestee’s immediate control may also be searched. The scope of a search incident to arrest, however, is limited to areas where a weapon might be obtained by the person arrested. Clearly, a search of any room other than the one where a defendant is being held is not supported by the doctrine of search incident to arrest.

The search-incident-to-arrest doctrine does not consider the possibility that other potentially dangerous persons may be present, but out of sight, when an arrest is made. Must police take the risk that no other dangerous persons are on the premises when making a lawful arrest? This question was answered by the Supreme Court in Maryland v. Buie.

It is important to note that the protective sweep may not be automatically con- ducted by the police, unlike a search incident to arrest. An officer must have a reason- able belief, supported by specific and articulable facts, that a dangerous person may be hiding in the home, before a protective sweep may be conducted. There need not be a belief of dangerousness to conduct a search incident to arrest.

A protective sweep must be limited to searching those areas where a person might be hiding. How far this will be permitted to go remains to be seen. Justice Brennan, dissenting in Buie, made this statement:

Police officers searching for potential ambushers might enter every room including base- ments and attics, open up closets, lockers, chests, wardrobes, and cars; and peer under beds and behind furniture. The officers will view letters, documents and personal effects that are on tables or desks or are visible inside open drawers; books, records, tapes, and pictures on shelves; and clothing, medicines, toiletries and other paraphernalia not care- fully stored in dresser drawers or bathroom cupboards. While perhaps not a “full-blown” or “top-to-bottom” search . . . a protective sweep is much closer to it than to a “limited patdown for weapons” or a “frisk” [as authorized by Terry v. Ohio].

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 12: Searches, Seizures, and Arrests 457

# 151053 Cust: Cengage Au: Hall Pg. No. 457 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

A “protective sweep” is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. In this case we must decide what level of justification is required by the Fourth and Fourteenth Amend- ments before police officers, while effecting the arrest of a suspect in his home pursuant to an ar- rest warrant, may conduct a warrantless protective sweep of all or part of the premises. . . .

On February 3, 1986, two men committed an armed robbery of a Godfather’s Pizza restaurant in Prince George’s County, Maryland. One of the robbers was wearing a red running suit. The same day, Prince George’s County police obtained ar- rest warrants for respondent Jerome Edward Buie and his suspected accomplice in the robbery, Lloyd Allen. Buie’s house was placed under police surveillance.

On February 5, the police executed the arrest warrant for Buie. They first had a police department secretary telephone Buie’s house to verify that he was home. The secretary spoke to a female first, then to Buie himself. Six or seven officers proceeded to Buie’s house. Once inside, the officers fanned out through the first and second floors. Corporal James Rozar announced that he would “freeze” the base- ment so that no one could come up and surprise the officers. With his service revolver drawn, Rozar twice shouted into the basement, ordering anyone down there to come out. When a voice asked who was calling, Rozar announced three times: “this is the police, show me your hands.” Eventually, a pair of hands appeared around the bottom of the stairwell and Buie emerged from the basement. He was arrested, searched, and handcuffed by Rozar. Thereafter, Detective Joseph Frolich entered the

basement “in case there was someone else” down there. . . . He noticed a red running suit lying in plain view on a stack of clothing and seized it.

The trial court denied Buie’s motion to suppress the running suit, stating in part: “The man comes out from a basement, the police don’t know how many other people are down there.” . . .

It goes without saying that the Fourth Amend- ment bars only unreasonable searches and sei- zures.  .  .  .  Our cases show that in determining reasonableness, we have balanced the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. . . . Under this test, a search of the house or office is generally not reasonable without a warrant issued on probable cause. There are other contexts, however, where the public interest is such that nei- ther a warrant nor probable cause is required. . . .

The Terry case is most instructive for pres- ent purposes. There we held that an on-the-street “frisk” for weapons must be tested by the Fourth Amendment’s general proscription against unrea- sonable searches because such a frisk involves “an entire rubric of police conduct—necessarily swift action predicated upon the on-the-spot observa- tions of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” . . .

The ingredients to apply the balance struck in Terry and Long are present in this case. Possess- ing an arrest warrant and probable cause to believe Buie was in his home, the officers were entitled to enter and to search anywhere in the house in which Buie might be found. Once he was found, how- ever, the search for him was over, and there was no longer that particular justification for entering any rooms that had not yet been searched.

MArYlAND V. BUIE 494 U.S. 325 (1990)

(continued)

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

458 Part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 458 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

MArYlAND V. BUIE (c o nt i nu e d)

That Buie had an expectation of privacy in those remaining areas of his house, however, does not mean such rooms were immune from entry. In Terry and Long we were concerned with the immediate interest of the police officers in taking steps to as- sure themselves that the persons with whom they were dealing were not armed with or able to gain immediate control of a weapon that could unexpect- edly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which the suspect is being or has just been arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in the on-the- street or roadside investigatory encounter. . . .

We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspi- cion of danger and in any event no longer than it takes to complete the arrest and depart from the premises. . . .

The Fourth Amendment permits a properly limited protective sweep in conjunction with an in- home arrest when the searching officer possesses a reasonable belief based on specific and articu- lable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Executing Arrest Warrants Arrest warrants may be executed at the officer’s discretion, whether day or night. How- ever, common sense dictates that warrants be served at a reasonable hour, unless an exigency exists.

In Ker v. California, 374 U.S. 23 (1963), an unannounced entry into a person’s home was found to be violative of the Fourth Amendment. Therefore, the general rule is that officers must knock and announce their reason for being there. A number of exceptions to this rule have been recognized, including

1. When the safety of the police or others will be endangered by the announcement. 2. When the announcement will allow those inside to destroy evidence or escape. 3. When the occupants know the purpose of the officers.

The Court has said that the knock-and-announcement requirement applies whether the police gain entry by force or not. It is not important whether the police gain entry through using a key, opening an unlocked door, smashing a window, or breaking a door down. Police may obtain no-knock warrants in exceptional circumstances.

Illegal Arrests Does the exclusionary rule apply to people as it does to things? That is, should a defen- dant be excluded from trial because he or she has been arrested unlawfully? Generally, the Supreme Court has answered no.82 Therefore, the fact that a defendant is kid- napped has no bearing on whether the criminal proceeding will continue.

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 12: Searches, Seizures, and Arrests 459

# 151053 Cust: Cengage Au: Hall Pg. No. 459 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

There may be an exception to this rule. If the conduct of the government is out- rageous, shocking, and a gross invasion of a defendant’s constitutional rights, he or she may be set free. This is known as a Toscanino case, named after the defendant in a Supreme Court case involving such a claim.

Francisco Toscanino appeals from a narcotics con- viction entered against him in the Eastern District of New York. . . .

Toscanino does not question the sufficiency of the evidence or claim any error with respect to the conduct of the trial itself. His principal argument . . . is that the entire proceedings in the district court against him were void because his presence within the terri- torial jurisdiction of the court had been illegally ob- tained. . . . He offered to prove the following:

“On or about January 6, 1973 Francisco To- scanino was lured from his home in Montevideo, Uruguay by a telephone call. This call has been placed by or at the direction of Hugo Campos Her- media. Hermedia was at that time and still is a member of the police in Montevideo, Uruguay. . . .

“The telephone call ruse succeeded in bringing Toscanino and his wife, seven months pregnant at the time, to an area near a deserted bowling alley in the City of Montevideo. Upon their arrival there Hermedia together with six associates abducted Toscanino. This was accomplished in full view of Toscanino’s terrified wife by knocking him unconscious with a gun. . . .

“At no time had there been any formal or in- formal request on the part of the United States or the government of Uruguay for the extradition of Francisco Toscanino nor was there any legal basis to justify this rank criminal enterprise. . . .

“Later that same day Toscanino was brought to Brasilia.  .  .  .  For seventeen days Toscanino was incessantly tortured and interrogated. Throughout this entire period the United States government and the United States Attorney for the Eastern District of New York . . . did in fact receive reports as to its progress. . . . [Toscanino’s] captors denied him sleep

and all forms of nourishment for days at a time. Nourishment was provided intravenously in a man- ner precisely equal to an amount necessary to keep him alive. Reminiscent of the horror stories told by our military men who returned from Korea and China, Toscanino was forced to walk up and down a hallway for seven or eight hours at a time. When he could no longer stand he was kicked and beaten but all in a manner contrived to punish without scar- ring. When he could not answer, his fingers were pinched with metal pliers. Alcohol was flushed into his eyes and nose and other fluids . . . were forced up his anal passage. Incredibly, these agents of the United States government attached electrodes to To- scanino’s earlobes, toes, and genitals. Jarring jolts of electricity were shot throughout his body, render- ing him unconscious for indeterminate periods of time but again leaving no physical scars. . . .

[Toscanino was eventually drugged and brought to the United States to stand trial.]

Since Frisbie, the Supreme Court in what one distinguished legal luminary describes as a “con- stitutional revolution,” . . . has expanded the inter- pretation of “due process.” No longer is it limited to the guarantee of “fair” procedure at trial. In an effort to deter police misconduct, the term has been ex- tended to bar the government from realizing directly the fruits of its own deliberate and unnecessary law- lessness in bringing the accused to trial. . . .

Accordingly, we view due process as now re- quiring a court to divest itself of jurisdiction over the person of a defendant where it has been ac- quired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the ac- cused’s constitutional rights.

UNITED STATES V. TOSCANINO 500 F.2d 267 (2d Cir. 1974)

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

460 Part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 460 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Later, the Second Circuit Court of Appeals reiterated that the Toscanino reason- ing applies only to situations in which the government’s conduct is both shocking and outrageous, as was true of the allegations in Toscanino.83 Be aware that not all courts have followed the Second Circuit’s lead. Rather than deal with the thorny legal issue, most courts factually distinguish their cases from Toscanino. The Supreme Court has not yet addressed the issue.

Even though a defendant’s person may not be excluded because of an illegal arrest, the evidence obtained pursuant to that arrest may be. For example, if there is a causal connection between an illegal arrest and a subsequent confession, then the statement must be excluded.84 Or, if evidence is obtained through a search incident to an illegal arrest, it must also be suppressed. In short, any evidence obtained as a result of an illegal arrest must be excluded, unless an independent basis for its discovery can be shown by the government.

Analyzing Fourth Amendment Problems Search and seizure problems can be complex. This area of the law is highly fact-sensi- tive. It is also an area where one must be careful and precise in analysis. Often search and seizure issues will be numerous in a single case, with all of the issues interrelated and interdependent.

Fourth Amendment analysis is ordered and sequential (Exhibit 12–6). In many instances, the validity of a search or seizure will depend on the validity of an earlier search or seizure. Therefore, if the government fails at an earlier stage, it may likely fail again later. For example, the police arrest Barry Burglar and conduct a search incident to arrest. During that search they discover burglar tools and other evidence of the alleged burglary. If it is determined that the arrest was invalid, then the fruits of the search incident to arrest must be suppressed. If the evidence discovered from the search led to other evidence, it may also be excluded.

Often officers obtain evidence in stages—each stage increasing the governmen- tal interest in crime prevention, and concurrently increasing the officer’s suspicion— thereby permitting a greater invasion of a person’s privacy.

Even though search and seizure laws can be complex, do not forget to use common sense when analyzing Fourth Amendment issues. The exceptions to the search warrant requirement are not surprising (Exhibit 12–7); common sense tells a person that an officer may continue to pursue a fleeing murderer into the suspect’s home without first obtaining a warrant. Similarly, it is not shocking that illegally obtained evidence may not be used to convict a defendant.

Two important, sometimes competing, policy objectives are at play in Fourth Amendment problems: crime detection and prevention versus the citizen’s right to be free from intrusive governmental behavior. Consider these concerns when contemplat- ing Fourth Amendment problems.

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 12: Searches, Seizures, and Arrests 461

# 151053 Cust: Cengage Au: Hall Pg. No. 461 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Is there governmental action?

No

Yes

Fourth Amendment inapplicable

Is there a search or seizure intruding upon a reasonable

expectation of privacy?

Does the Fourth Amendment impose probable cause

and/or warrant requirements?

Were the probable cause/warrant

requirements satisfied?

Fourth Amendment

violated

Fourth Amendment

violated

No Fourth Amendment inapplicable

Yes

No No

Yes

Was the action reasonable?

Yes

Fourth Amendment satisfied

Yes

No

Exhibit 12–6 FOURTH AMENDMENT ANALYSIS

Co py

rig ht

© 2

01 5

Ce ng

ag e

Le ar

ni ng

® .

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

462 Part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 462 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Exhibit 12–7 SUMMARY OF WARRANT RULES AND EXCEPTIONS

SeArcheS

RULE: Pursuant to the Fourth and Fourteenth Amendments, in both federal and state cases, a warrant to search must be obtained, unless one of the following exceptions is established.

EXCEPTIONS and LIMITATIONS:

1. Consent

2. Terry frisks

3. Plain view

4. Plain feel

5. Incident to arrest

6. Preservation of evidence

7. Emergencies and hot pursuit

8. Borders

9. Motor vehicles

10. Vehicle inventories

11. Prisoners, probationers, and parolees

12. Protective sweeps

13. Open fields

14. Administrative inspections

ArreSTS

RULE: The Fourth and Fourteenth Amendments govern arrests by both federal and state officials. Arrests in public areas may be warrantless. Arrests made in the home or other property of the defendant must be supported by either an arrest warrant or a search warrant for the defendant’s person. Arrests in the homes or other property of third parties must be supported by a search warrant authorizing the search for the defendant at the particular property.

Co py

rig ht

© 2

01 5

Ce ng

ag e

Le ar

ni ng

® .

POlICE ETHICS

Law enforcement officers are bound by departmental rules and local, state, and federal laws. The Constitution itself plays a role in defining police ethics. For example, the exclusionary rule is both an evidentiary rule and an ethical directive.

Ethical Considerations

19/12/13 5:14 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

523

Chapter 14 Chapter Outline Introduction Discovery and Investigation

of Criminal Activity Arrest The Complaint Initial Appearance Pretrial Release and Detention

Types of Release Eighth Amendment Detention

Preliminary Hearing The Formal Charge

Indictment and Grand Jury Information

Arraignment Pretrial Activity

Discovery Motion Practice Pretrial Conference

Extradition and Detainers Removal Ethical Considerations: Lawyer

Competence and Computers

Chapter Objectives

After completing this chapter, you should be able to:

• outline the process of a criminal case from discovery of the criminal act to preparation for trial.

• describe the two formal criminal charges that are filed against defendants in the United States.

• discuss the history, purpose, and procedures of grand juries, and contrast that with contemporary grand juries.

• describe and apply to fact scenarios the law of pretrial release of defendants.

• identify the material facts and legal issues in nearly all of the cases you read, describe the courts’ analyses and conclusions in the cases, and demonstrate the ability to synthesize and think critically about the law of the subject.

the pretrial proCess

19/12/13 5:34 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

524 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 524 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

IntroductIon What follows is an outline of the basic process a case goes through, from before arrest to after trial. As previously mentioned, each state and the federal government have different processes. The federal process is used for illustration. Exhibit 14–1 provides a visual summary of the process. You may find it helpful to refer to it as you learn the different stages of the process.

dIscovery and InvestIgatIon of crImInal actIvIty The process begins when law enforcement officials learn of a crime that has been com- mitted (or is to be committed). Police learn of criminal activity in two ways: They may discover it themselves, or a citizen may report such activity.

Once police are aware of criminal activity, the pre-arrest investigation begins. There are two objectives to this stage. First, police must determine whether a crime

Exhibit 14–1 VISUAL SUMMARY OF THE BASIC CRIMINAL PROCESS

Charges Dismissed

or Dropped

Charges Dismissed

or Dropped

Initial Appearance

Arrest Crime

Discovered Preliminary

Hearing Grand Jury

Investigation Indictment

Trial

Guilty Pleas/ Nolo Contendere Pleas

Acquittal

Not Guilty Plea

Arraignment Guilty Verdict

Presentence Investigation

Sentencing

Information

No Indictment

Co py

rig ht

© C

en ga

ge L

ea rn

in g®

.

19/12/13 5:34 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 525

# 151053 Cust: Cengage Au: Hall Pg. No. 525 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

has been committed. Second, if a crime has been committed, police attempt to gather sufficient evidence to charge and convict the person believed to have com- mitted the crime.

arrest Once adequate evidence exists, an arrest is made in most cases. However, in some mis- demeanor cases a defendant is asked to come to the police station, and an arrest is not made unless the defendant refuses. The arrest may be made without an arrest warrant in some situations. In others, an ex parte hearing may be held to determine if probable cause exists to believe that the person under investigation committed the crime. If so, the judge may issue an arrest warrant.

At the time of arrest, police ordinarily search the defendant. Once at the police station, the defendant is “booked.” Booking consists of obtaining biographical infor- mation about the defendant (name, address, etc.), fingerprinting the defendant, and taking the defendant’s photograph, commonly known as a “mug shot.” The defendant is usually permitted to make a telephone call at this stage.

The defendant is then searched (sometimes deloused and showered) and held in jail until further arrangements are made. For minor offenses, the defendant may be able to post bail prior to appearing before a judge. In such cases, defendants are out of jail within hours. All others have to wait for a judge to set a bail amount at an initial appearance. During and after this stage, law enforcement investigation and gathering of evidence may continue.

the complaInt At this stage, a police officer, or in some instances a prosecutor, files a complaint, which acts as the charging instrument. Fed. R. Crim. P. 3 states: “The complaint is a written statement of the essential facts constituting an offense charged. It shall be made upon oath before a magistrate.” The complaint need not be written upon per- sonal knowledge. That is, an officer may use hearsay and circumstantial evidence in a complaint. Affidavits from those who have personal knowledge, such as witnesses and victims, are often attached to the complaint.

When a warrant is sought to arrest a defendant, the complaint is often produced in support of the request for a warrant. This occurs at the ex parte hearing mentioned earlier. Federal law requires that a warrant be issued if probable cause is established by the complaint and its accompanying affidavits. Upon the request of the government, a summons (an order to appear) may be issued rather than an arrest warrant.1

If the defendant was arrested without a warrant, the complaint serves as the charg- ing document at the initial appearance or preliminary hearing.

For traffic violations and some lesser misdemeanors, the complaint acts as both a summons to appear in court and the charging document. In such cases the defendant appears in court on only one occasion, and the ticket is used in place of an information or indictment. See Exhibits 14–2 and 14–3.

arrest

■ The official taking of a

person to answer criminal

charges. This involves at

least temporarily depriving

the person of liberty and

may involve the use of

force. An arrest is usually

made by a police officer

with a warrant or for a

crime committed in the

officer’s presence.

complaint

■ A criminal complaint is a formal document that

charges a person with

a crime.

19/12/13 5:34 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

526 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 526 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Exhibit 14–2 CRIMINAL COMPLAINT

AO 91 (Rev. 5/85) Criminal Complaint

United States District Court ______________________________ DISTRICT OF ______________________________

UNITED STATES OF AMERICA

V.

crImInal complaInt

CASE NUMBER:

(name and address of defendant)

I, the undersigned complainant being duly sworn state the following is true and correct to the best of my knowledge and belief. On or about __________ in __________ county, in the __________ District of __________ defendant(s) did,

(Track Statutory Language of Offense)

in violation of Title __________ United States Code, Section(s) ______________. I further state that I am a(n) ______________ and that this complaint is based on the following facts:

Continued on the attached sheet and made a part hereof: Yes No

_____________________________

Signature of Complainant

Sworn to before me and subscribed in my presence,

___________________________________ at ___________________________________

Date City and State

________________________________ ________________________________

Name & Title of Judicial Officer Signature of Judicial Officer

Source: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO091.pdf

19/12/13 5:34 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 527

# 151053 Cust: Cengage Au: Hall Pg. No. 527 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Exhibit 14–3 SUMMONS IN A CRIMINAL CASE

AO 83 (Rev. 5/85) Summons in a Criminal Case

United States District Court ______________________________ DISTRICT OF ______________________________

UNITED STATES OF AMERICA

summons In a crImInal case

CASE NUMBER:

(name and address of defendant)

YOU ARE HEREBY SUMMONED to appear before the United States District Court at the place, date and time set forth below.

Place Room

Date and Time Before:

To answer a(n)

Indictment Information Complaint Violation Notice Probation Violation Petition

Charging you with a violation of Title ______ United States Code, Section _______.

Brief description of offense:

___________________________________ ___________________________________

Signature of Issuing Officer Date

___________________________________

Name and Title of Issuing Officer

(continued)

19/12/13 5:34 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

528 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 528 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

AO 83 (Rev. 5/85) Summons in a Criminal Case

Exhibit 14–3 (continued)

return of servIce

Service was made by me on:1 Date

Check one box below to indicate appropriate method of service

Served personally upon the defendant at:

Left summons at the defendant’s dwelling house or usual place of abode with a person of suitable age and discretion then residing therein and mailed a copy of the summons to the defendant’s last known address. Name of person with whom the summons was left: ____________________________

Returned unexecuted:

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Return of Service is true and correct.

Returned on ________________________ ________________________________ Date Name of United States Marshal

________________________________ (by) Deputy United States Marshal

1) As to who may serve a summons see Rule 4 of the Federal Rules of Criminal Procedure

Source: http://www.nvd.uscourts.gov/Files/AO_083_0109.pdf

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 529

# 151053 Cust: Cengage Au: Hall Pg. No. 529 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

InItIal appearance After arrest, the defendant is taken “without unnecessary delay” before the nearest available federal magistrate.2 In most cases this means that a defendant will be brought before the judge within 24 hours. However, if a defendant is arrested on a weekend, it may be the following Monday before the defendant has the initial appearance, unless a weekend session of court is held.

The first appearance is brief. If the arrest was executed under an arrest warrant, it is the duty of the presiding judge to make sure that the person arrested is the per- son named in the warrant. The defendant is also informed of various rights, such as the rights to remain silent and to have the assistance of counsel. If the defendant is indigent, the court will appoint counsel. The right to counsel is discussed more fully later. If the arrest was warrantless, an initial probable cause determination must occur.

In 1991, the United States Supreme Court examined the need for prompt probable cause determinations in warrantless arrest situations. In County of Riverside v. McLaughlin,3 the Court held that persons arrested without a warrant must have a probable cause determination within 48 hours after arrest or quicker if reasonable. A defendant who asserts unreasonable delay, but was held less than 48 hours before a probable cause hearing was conducted, bears the burden of proving that the delay was unreasonable under the Fourth Amendment. If a defendant is held longer than 48 hours without a probable cause hearing, the burden of showing a bona fide emergency or other extraor- dinary circumstance falls on the government.

Time to gather additional evidence, ill will, or the fact that the defendant was ar- rested on a weekend are not sufficient to delay the probable cause determination longer than 48 hours.

Finally, a preliminary hearing date is set, and if the defendant is in jail, the court determines whether he or she should be released prior to trial.

pretrIal release and detentIon In many cases, defendants are released prior to trial. A court may order many types of release, but the predominantly used methods are cash bail, surety bond, property bond, and personal recognizance.

Types of Release The most obvious method of gaining release is to post bail. A defendant who has the resources may simply pay into the court the amount of the bail.

Whenever a third party, usually a professional bondsman, agrees to pay the bond for a defendant, a surety bond is created. The common practice is for the defendant to pay the surety 10 percent or more of the bond amount in exchange for the bondsman making the defendant’s bail. The 10 percent is not refunded to the defendant after the case is concluded.

bail

■ The money or property

given as security for a

defendant’s appearance

in court. The money,

often in the form of a bail

bond, may be lost if the

defendant released does

not appear in court.

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

530 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 530 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Some sureties require security (collateral) before a bond will be issued. Defendants may pledge cars, houses, or other property to obtain release. This is a property bond.

For many misdemeanors and a few felonies, a defendant may be released on per- sonal recognizance. To gain such a release, a defendant need only promise to appear.

Regardless of the type of release, courts frequently impose conditions upon the defendant. Defendants who are arrested or caught intimidating witnesses or interfering with the judicial process may be jailed until trial.

Eighth Amendment The Eighth Amendment proscribes the imposition of “excessive bail.” This provision may be applicable to the states through the Fourteenth Amendment. The purpose of imposing money bail is to assure the defendant’s appearance at trial, not to inflict pun- ishment. Bail set higher than necessary to accomplish this purpose is deemed excessive.4 In practice, courts have significant discretion in setting bail and are rarely reversed.

The Supreme Court has held that the mere fact that a defendant cannot pay the amount set by a court does not make it excessive. Additionally, the Court has stated that not all defendants have a right to bail. Defendants who are a danger to the com- munity or unlikely to appear for trial may be held without bail.

The exact meaning of the Eighth Amendment has not been spelled out by the Supreme Court. Whether pretrial detention laws, especially those that create a pre- sumption of detention, are constitutional remains to be seen.

Detention The federal government (and presumably most states, if not all) provides for detention of some defendants prior to trial.

Pretrial detention may not be used to punish a person. To do so violates a person’s due process right to be free from punishment without a fair trial. However, a defendant may be detained if there is reason to believe that he or she will not appear for trial or if he or she poses a threat to others.

In the federal system, the defendant is entitled to an adversary hearing concerning pretrial detention, and the government must prove by clear and convincing evidence that the defendant is either dangerous or unlikely to appear for trial.5 The adversary hearing must be held at the initial appearance; or upon the motion of the defendant or the government, it may be continued.

Although the general rule is that the government bears the burden of proving that a defendant must be detained, there are exceptions. There are two classes of presumptions in the federal statute. One presumes that certain defendants will not appear for trial, and another presumes that certain defendants are a danger to the community. For example, defendants charged with crimes of violence who have a prior conviction for a crime of violence, which was committed while the defendant was released pending trial, are pre- sumed to be dangerous to the community. It is also presumed that defendants charged with drug crimes that carry 10 years or more imprisonment will flee. These presump- tions also apply to many other defendants.6 The presumption is rebuttable, and the

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 531

# 151053 Cust: Cengage Au: Hall Pg. No. 531 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

defendant has the burden of disproving it. Some question the constitutionality of such presumptions, and it remains to be seen whether such statutes will be reversed or upheld.

Many states have statutes that require detention of persons charged with crimes punishable by life imprisonment or death, provided that the proof of guilt is great.

prelImInary hearIng The defendant’s second appearance before a judge is the preliminary hearing. How this stage is handled by the states varies significantly. At the preliminary hearing, the court determines if probable cause exists to believe the accused committed the crime. If probable cause is found, the defendant is “bound over” to the next stage of the process. The next stage is either trial or review by grand jury. If probable cause is not established, the defendant is released.

If indictment by grand jury is required, the case is bound over to the grand jury. The grand jury is not bound by the judge’s decision that probable cause exists; it makes an independent decision whether to charge the defendant. If grand jury review is not required, the defendant is bound over for trial.

The purpose of the preliminary hearing is to have an impartial third party review the facts to be sure that probable cause exists. There is no constitutional requirement for a preliminary hearing.7 However, many states do provide for preliminary hearings.

It is common to permit prosecutors to bypass the preliminary hearing either by submitting the case to a grand jury or by directly filing an information. Defendants often waive the preliminary hearing. In some states, prosecutors may demand a pre- liminary hearing over the objection of the defendant.

The preliminary hearing can be quite lengthy compared to a defendant’s initial ap- pearance. The hearing is adversarial. Witnesses are called, and the attorneys are allowed to make arguments. Rules of evidence are applied in modified form, so hearsay and illegally obtained evidence are often considered. Defendants have a right to counsel and may also be allowed to cross-examine the prosecution witnesses and to present defense witnesses. The right to counsel is a matter of federal constitutional law. The other two rights are granted by state laws. The preliminary hearing can be an important asset to both prosecution and defense, as it can serve as a source of discovery.

The preliminary hearing is different from the initial probable cause determination required by County of Riverside v. McLaughlin. The initial determination is constitu- tionally required, whereas the preliminary hearing is not. Further, although the same terminology is used (i.e., probable cause), less evidence is needed to satisfy the govern- ment’s obligation at the initial determination than at the preliminary hearing. Probable cause at the initial hearing equates with the probable cause required to obtain a warrant, which is generally recognized as requiring less proof than does probable cause at the later preliminary hearing. Also in contrast is the fact that the probable cause hearing required by County of Riverside will likely be one-sided. That is, only the gov- ernment will present evidence. Some states, however—such as California—permit de- fendants to present evidence at preliminary hearings.

preliminary hearing

■ The first court

proceeding on a criminal

charge, in federal courts

and many state courts, by

a magistrate or a judge to

decide whether there is

enough evidence for the

government to continue

with the case and to

require the defendant to

post bail or be held for trial.

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

532 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 532 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Fed. R. Crim. P. 5 requires that the date for “preliminary examination” be scheduled at the defendant’s initial appearance. It shall be held within 10 days of the initial appear- ance if the defendant is in custody and within 20 days if the defendant has been released.

In federal courts and in many states, probable cause may be founded upon hearsay evidence.8 Motions to suppress illegally seized evidence are made after the preliminary hearing, so such evidence may be considered at the preliminary examination stage. If a grand jury has issued an indictment, the preliminary hearing may be dispensed within the federal system.9 Many states have a similar rule.

the formal charge There are two formal charges: the information and the indictment. Informations are charges filed by prosecutors. Indictments are charges issued by grand juries. Once filed, an information or indictment replaces the complaint and becomes the formal charging instrument.

Indictment and Grand Jury Purpose of the Grand Jury In early American history, grand juries were used to guard against unfair and arbitrary government prosecutions and to preserve the reputation of persons investigated but not indicted. The Framers of the U.S. Constitution believed grand jury review so im- portant that they stated in the Fifth Amendment: “[N]o person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a Grand Jury.”

Grand juries consist of 12 to 23 persons who are usually selected in the same method as petit juries (juries that determine guilt or innocence). Grand juries sit for longer periods of time and are called to hear cases as needed.

The primary objective of grand jury review is the same as that of the preliminary hearing: to determine whether there is probable cause to believe that a target of the investigation committed the alleged crime. The grand jury, therefore, was intended to protect individuals from unwarranted prosecutions. Because the grand jury pro- ceedings are closed, individuals investigated but not charged are not subjected to the public humiliation and damage to reputation that often results from a more public investigation. The secondary objective of the grand jury has become its primary pur- pose, as defined by prosecutors: to facilitate investigation. See Exhibit 14–4.

Procedures of the Grand Jury First, grand juries are closed. The public, including the defendant, is not entitled to at- tend. Second, the prosecutor runs the show before the grand jury, and the defendant has no right to present evidence or to make a statement. Third, the actions of grand juries are secret. Those who attend are not permitted to disclose what transpires. Defendants have no right to know what evidence is presented to a grand jury, unless it is exculpatory (tends to prove the defendant’s innocence). Fourth, those who testify before the grand jury are not entitled to have counsel in the jury room.10 In most states witnesses are permitted to

information

■ A formal accusation of

a crime made by a proper

public official such as a

prosecuting attorney.

indictment

■ A sworn, written

accusation of a crime,

made against a person by a

prosecutor to a grand jury.

grand jury

■ Persons who

receive complaints and

accusations of crime, hear

preliminary evidence on

the complaining side, and

make formal accusations or

indictments.

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 533

# 151053 Cust: Cengage Au: Hall Pg. No. 533 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Exhibit 14–4 SUBPOENA TO TESTIFY BEFORE GRAND JURY

AO 106 (Rev. 5/85) Subpoena to Testify Before Grand Jury

United States District Court

______________________________ DISTRICT OF ______________________________

To

SUBPOENA TO TESTIFY BEFORE GRAND JURY

SUBPOENA FOR:

PERSON DOCUMENT(S) OR OBJECT(S)

YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date, and time specified below.

PLACE COURTROOM

DATE AND TIME

YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s):1

Please see additional information on reverse

This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court.

CLERK DATE

(BY) DEPUTY CLERK

This subpoena is issued NAME, ADDRESS AND PHONE NUMBER OF

on application of the ASSISTANT U.S. ATTORNEY

United States of America

(1)If not applicable, enter “none” (continued)

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

534 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 534 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Exhibit 14–4 (continued)

AO 110 (Rev. 5/85) Subpoena to Testify Before Grand Jury

RETURN OF SERVICE(1)

RECEIVED DATE PLACE BY SERVER

SERVED DATE PLACE

SERVED ON (NAME)

SERVED BY TITLE

STATEMENT OF SERVICE FEES

TRAVEL SERVICES TOTAL

DECLARATION OF SERVER(2)

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Return of Service and Statement of Service Fees is true and correct.

Executed on ________________ Date Signature of Server

Address of Server

ADDITIONAL INFORMATION

(1) As to who may serve a subpoena and the manner of its service see Rule 17(d), Federal Rules of Criminal Procedure, or Rule 45(c), Federal Rules of Civil Procedure.

(2) “Fees and mileage need not be tendered to the witness upon service of a subpoena issued on behalf of the United States or an officer or agency thereof (Rule 45(c), Federal Rules of Civil Procedure Rule 17(d), Federal Rules of Criminal Procedure) or on behalf of certain indigent parties and criminal defendants who are unable to pay such costs (28 USC 1825, Rule 17(b) Federal Rules of Criminal Procedure).”

Source: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO110.pdf

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 535

# 151053 Cust: Cengage Au: Hall Pg. No. 535 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

leave the proceeding to confer with counsel waiting directly outside. Because statements made to a grand jury can be used later, the Fifth Amendment right to be free from self- incrimination is available to witnesses. Grand juries can overcome Fifth Amendment claims (refusals to testify) by granting witnesses immunity from prosecution. Also, wit- nesses may not refuse to testify because the inquiry is the result of illegally seized evidence. To permit refusal or exclusion would not further the objective of the exclusionary rule (to deter police misconduct) and would substantially interfere with the grand jury process.11

Grand juries possess the power to order people to appear, to subpoena documents, to hold people in contempt, and to grant immunity in order to procure testimony.

As a general proposition, prosecutors control grand juries. For the most part, grand juries convene only when called by the prosecutor. The prosecutor decides what wit- nesses need to be called and who should be given immunity. Nearly all people targeted (the person the prosecutor believes guilty) by prosecutors are indicted. Many criticize the grand jury system for this reason: The government has too much control over the grand juries. The argument is reasonable when one considers the historical purpose of grand jury review.

The proponents of abolishing the grand jury system argue that grand juries have not only lost their independence, but they also now act to the benefit of prosecutors by allowing discovery of information that may otherwise have been unavailable.

The Indictment After a grand jury has completed its investigation, a vote on whether to charge is taken. In the federal system, grand juries consist of 16 to 23 people. At least 12 must vote for indictment.12 In many cases indictments are sealed until the indicted defendant is arrested.

The Constitution requires that all federal prosecutions for capital and infamous crimes be by indictment. However, if a defendant waives the right to grand jury review, he or she may be charged by information. The waiver of indictment form used in fed- eral court is shown in Exhibit 14–5. Crimes punishable by 1 year or longer in prison are “infamous.”13 A defendant may not waive indictment in federal capital cases. It is always proper to charge corporations by information, as imprisonment is not possible.

The United States Supreme Court has ruled that grand jury review is not a fun- damental right; therefore, the Fifth Amendment requirement for indictment is not applicable against the states. However, many states have grand juries and require that serious charges be brought by indictment.

Indictments must be written and state in “plain and concise” terms the essential facts constituting the offense charged.14 Indictments are liberally read, and technical errors do not make them invalid. However, an indictment must contain all the essential elements of the crime charged. If an indictment charges more than one crime, each crime must be made a separate count.15 Jurisdiction must be noted, and the law upon which the charge is made must be cited. It was upon this indictment that Ted Bundy was prosecuted, convicted, and executed.

If a defendant believes that an indictment is fatally deficient, it may be attacked by a motion to quash. Indictments are not quashed because of technical errors. An example of a valid reason to quash is failure to allege an essential element of the crime

motion

■ A request that a judge

make a ruling or take some

other action.

quash

■ Overthrow; annul;

completely do away with.

Quash usually refers to a court stopping a subpoena,

an order, or an indictment.

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

536 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 536 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Exhibit 14–5 WAIVER OF INDICTMENT

AO 455 (Rev.5/85) Waiver of Indictment

United States District Court ______________________________ DISTRICT OF ______________________________

UNITED STATES OF AMERICA V.

WAIVER OF INDICTMENT

CASE NUMBER:

I, ________, the above named defendant, who is accused of being advised of

the nature of the charge(s), the proposed information, and of my rights, hereby

waive in open court on _________________ prosecution by indictment and con-

sent that the proceeding may be by information rather than by indictment.

Defendant

Counsel for Defendant

Before _____________________________

Judicial Officer

Date

Source: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO455.pdf

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 537

# 151053 Cust: Cengage Au: Hall Pg. No. 537 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

charged. It is not violative of the Fifth Amendment’s Double Jeopardy Clause for a grand jury to issue a second indictment after the first has been quashed or dismissed.

In some jurisdictions, a prosecutor may refuse to prosecute, even though an indict- ment has been issued. In that situation, the prosecutor must assist the jury in preparing the document and must usually explain why a prosecution will not be maintained. In other instances, the prosecutor must pursue the case. The former situation represents federal law; that is, the decision on whether to prosecute falls within the purview of the federal pros- ecutor, who may properly refuse to sign an indictment and prosecute the case.16

plea BargaInIng

Statistics vary, but it is widely accepted that approximately 90 percent of all felony cases are disposed of by guilty pleas. The number is probably higher for misdemeanors. There is no question that plea bargaining greatly reduces the amount of time expended on trials. Warren Burger, past Chief Justice of the United States Supreme Court, estimated that judicial resources in the United States would have to be doubled if only 20 percent of all criminal cases went to trial. This conclusion was largely a matter of simple math and has been criticized. In any event, plea bargaining is an important part of the criminal justice system. It is so important that the Supreme Court has stated that it “is not only an essential part of the process but a highly desirable part,” Santobello v. New York, 404 U.S. 257, 261 (1971).

In Boykin v. Alabama, 395 U.S. 238 (1969), it was announced that all de- fendants who plead guilty do so voluntarily and knowingly, the latter term meaning that the defendant understands the rights that are waived by enter- ing a plea of guilty.

The plea negotiation involves the defendant and the prosecutor. Judges do not participate in plea negotiations. After a bargain is reached, it is pre- sented to the trial court. The court may then accept the agreement and sen- tence the defendant accordingly. With good cause, the court may also reject the agreement. Some states permit defendants to withdraw their guilty pleas if the judge rejects the bargain. In others the judge has the discretion of allowing the defendant to withdraw the guilty plea or sentencing the defendant contrary to the bargain.

Sources: Burger, “The State of the Judiciary,” 56 A.B.A. J. 929 (1970) and Note, “Is Plea Bargaining Inevitable?” 97 Harv. L. Rev. 1037 (1984).

Information The second formal method of charging someone with a crime is by information. Infor- mations are filed by prosecutors without grand jury review. The current trend is away from indictments and toward charging by information.

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

538 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 538 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

If a defendant has been initially charged by complaint, the prosecutor must inde- pendently review the evidence and determine whether a prosecution is warranted. If not, a prosecutor may file a nolle prosequi. If so, the information is filed.

Informations serve the same function as indictments. Under the federal rules, in- formations must take the same form as indictments. They must be plain, concise, and in writing. All essential elements, as well as the statute relied upon by the government, must be included.17 (See the sample criminal information in Chapter 4.) As is true of indictments, informations must be filed with the appropriate court.

Defendants may seek to have defective informations quashed or dismissed. The rules regarding defectiveness are the same for informations as for indictments. Techni- cal errors are not fatal.

arraIgnment After the formal charge has been filed, the defendant is brought to the trial court for arraignment. This is the hearing at which the defendant is read the formal charge and is asked to enter a plea.

Defendants may plead guilty, not guilty, or nolo contendere. By pleading guilty a defendant admits all the charges contained in the charging document, unless a plea agreement has been reached with the government. A plea agreement, also known as a plea bargain, is the product of negotiations between the prosecutor and the defendant. It is common for the prosecution to dismiss one or more charges of a multi-count charge or to reduce a charge in exchange for a defendant’s plea of guilty. Judges are not permitted to participate in plea negotiations and a judge’s involvement, including urg- ing a defendant to plead guilty, can be cause for a reversal of a conviction.18

Plea bargaining is an important aspect of criminal procedure. More than 90 per- cent of all felony cases are disposed of by pleas of guilty. Most guilty pleas are the result of plea bargaining.

By pleading guilty, defendants waive a host of rights. The right to a jury trial and to be proven guilty beyond a reasonable doubt are two of the rights waived by a guilty plea. Due to the significance of such waivers, courts must be sure that guilty pleas are given knowingly and voluntarily. To be knowing, a defendant must understand his or her rights and that he or she is waiving them by making the plea. The plea must be free of coercion or duress to be voluntary. Of course, the inducement of a plea bargain is not coercion.

The court must also find that a factual basis exists before a plea of guilty can be ac- cepted. This means there must be sufficient facts in the record to support the conclusion that the defendant committed the crime. A defendant has no right to plead guilty to a crime he or she did not commit. The factual basis may be established by the testimony of the investigating officer or by the defendant recounting what transpired. Once the plea is taken, the court will either impose sentence or set a future date for sentencing.

If a defendant enters a not-guilty plea, the court will set a trial date. In some in- stances, courts will set a pretrial schedule, which will include a pretrial conference date and a deadline for filing pretrial motions.

arraignment

■ The hearing at which

a defendant is brought

before a judge to hear the

charges and to enter a plea

(guilty, not guilty, etc.).

plea

■ The defendant’s formal answer to a criminal

charge. The defendant

says: “guilty,” “not guilty,”

or “nolo contendere”

(no contest).

plea bargain (plea agreement)

■ Negotiations between a

prosecutor and a criminal

defendant’s lawyer, in

the attempt to resolve a

criminal case without trial.

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 539

# 151053 Cust: Cengage Au: Hall Pg. No. 539 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Finally, a plea of nolo contendere may be entered. Nolo contendere is a Latin phrase that translates to “I do not contest it.” The defendant who pleads nolo contendere nei- ther admits nor denies the charges and has no intention of defending himself or herself.

Nolo contendere is treated as a plea of guilty. That is, the government must estab- lish that a factual basis exists to believe the defendant committed the offense, and the court accepting the plea must be sure that the plea is made voluntarily and knowingly. In most jurisdictions a defendant may plead nolo contendere only with the court’s ap- proval. This is true in the courts of the United States.19

The advantage of a no-contest plea over a guilty plea is that the no-contest plea cannot be used in a later civil proceeding against the defendant, whereas a guilty plea may be used. If the case is not disposed of by a plea of guilty or nolo contendere, the parties begin preparing for trial.

pretrIal actIvIty Discovery Discovery refers to a process of exchanging information between the prosecution and defense. Discovery is not as broad in criminal cases as in civil.

The amount of discovery that should be allowed is heavily debated. Those favoring broad discovery contend that limited discovery leads to “trial by ambush,” which is not in the best interests of justice. The purpose of a trial is to discover the truth and achieve justice, not to award the better game player. Proponents of this position claim that un- expected evidence at trial is inefficient, costly, and unfair. It is inefficient because trials often have to be delayed to give one party time to prepare a response to the unexpected evidence. Such tactics lead to time problems for the parties as well as the trial court. They may also be unfair. Evidence that was once available may not be so at trial. If the party surprised at trial had known about the unexpected evidence, other contrary evidence could have been secured and a proper defense or response could have been prepared.

Finally, it appears unfair to subject defendants to the possibility of surprise when the government is insulated from certain surprises. For example, affirmative defenses must be specially pled. Intent to rely on alibi and insanity defenses must be provided to the government in most jurisdictions, often with strict enforcement of time require- ments. The purpose of these rules is to prevent surprises to the government at trial. Those who support expanded discovery feel that it is unfair to place such requirements upon defendants, but not upon the government.

Those opposed contend that expansive discovery increases the likelihood that de- fendants will manipulate the system. In particular, defendants might intimidate gov- ernment witnesses. Additionally, opponents contend that it is easier for a defendant to skillfully plan his or her testimony, even if false, if a defendant knows the government’s entire case. For example, if a defendant originally planned to assert an alibi but finds out through discovery that the government has a witness placing him at the location of the crime, he has been provided an opportunity to change his defense. Today, discovery in criminal proceedings is quite limited in many jurisdictions, including federal courts. A few states have enlarged what information may be obtained prior to trial.

discovery

■ The formal and informal

exchange of information

between the prosecution

and the defense.

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

540 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 540 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

What follows is an examination of the federal rules, as well as constitutional requirements for discovery.

Bill of Particulars One method that defendants have to obtain information about the government’s case is through a bill of particulars. The purpose of bills of particulars is to make general indictments and informations more specific. Fed. R. Crim. P. 7(f ) allows district courts to order prosecutors to file a bill of particulars.

Bills of particulars are not true discovery devices. If the charging instrument is suf- ficiently clear and detailed, the court will not grant a defense motion for particulariza- tion of the charge. A bill of particulars is intended to provide a defendant with details about the charges that are necessary for the preparation of a defense and to avoid preju- dicial surprise at trial.20 The test is not whether the indictment is sufficiently drawn; the question is whether the information is necessary to avoid prejudice to the defendant.

Statements of the Defendant Fed. R. Crim. P. 16(a) (1) (A) states that upon request the government must allow the defendant to inspect, copy, or photograph all prior relevant written and recorded statements made by the defendant. This includes testimony that defendants give before grand juries—an exception to the rule of secrecy of grand jury proceedings.

Prosecutors are required to allow inspection of all statements made by the defendant that are in the possession of the prosecution or that may be discovered through due dili- gence. Hence, if a defendant makes a statement to an arresting officer and the statement is recorded or reduced to writing, the prosecutor must allow defense inspection even though the statement may be in the possession of the officer and not the prosecutor.

In addition to recorded statements and writings, the government is required to inform the defendant of “the substance of any oral statement that the government intends to offer in evidence.” This means that statements made by a defendant that are summarized by the police (or other government agent), but not verbatim or signed by the defendant, are also discoverable. However, such evidence is discoverable only if the prosecution intends to use it at trial. This is not true of written and recorded statements of a defendant.

Criminal Record of the Defendant Fed. R. Crim. P. 16 also requires prosecutors to furnish a copy of the defendant’s crimi- nal record to the defendant. This includes not only the records known to the prosecu- tor but also those that can be discovered through due diligence.

Documents and Tangible Objects Under Rule 16, defendants are also entitled to inspect and copy photographs, books, tan- gible objects, papers, buildings, and places that are in the possession of the government if:

1. The item is material to preparation of the defendant’s defense, or 2. The item is going to be used by the government at trial, or 3. The item was obtained from, or belongs to, the defendant.

bill of particulars

■ A detailed, formal,

written statement of

charges or claims by a

plaintiff or the prosecutor

(given upon the

defendant’s formal request

to the court for more

detailed information).

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 541

# 151053 Cust: Cengage Au: Hall Pg. No. 541 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

The situations in which this rule might apply are countless. For example, if the police take pictures of the scene of a crime, this provision allows the defendant to view and copy those pictures prior to trial. Or, if the police seize a building that was used to manufacture drugs, the defendant can invoke this rule to gain access to the premises.

This section of Rule 16 has a reciprocal provision. That is, defendants must allow the government to inspect and copy defense items. However, the rule is not as broad for government discovery. Defendants only have to permit inspection and copying of those items intended to be used at trial.

Scientific Reports and Tests All scientific reports and tests in the possession of the government (or that can be discovered through due diligence) must be turned over to the defendant, if requested.

This provision includes reports and conclusions of mental examinations of the defendant, autopsy reports, drug tests, fingerprint analysis, blood tests, DNA (genetic) tests, ballistic tests, and other related tests and examinations.

The defendant must accord the government reciprocity, if requested. For example, if a defendant undergoes an independent mental examination, the government is entitled to review the report of the evaluator prior to trial.

Statements of Witnesses/Jencks Act Many jurisdictions require that the prosecution, and in some the defense, provide a list of intended trial witnesses. It is common to require additional information about expert witnesses, such as background and reports they have prepared.

In the federal system, defendants are not entitled to inspect or copy statements of prosecution witnesses prior to trial. However, a federal statute, commonly known as the Jencks Act,21 permits a defendant to review a prior written or recorded state- ment after the witness has testified for the government. Reviewing such statements may prove important to show that a witness is inconsistent, biased, or has a bad memory.

This procedure often causes trial delay, as defendants usually request time between direct examination and cross-examination to review such statements. For this reason, some federal prosecutors provide such information prior to trial. The Jencks Act is a matter of federal statutory law and does not apply in state criminal prosecutions.

Depositions A deposition is oral testimony given under oath, not in a court. In civil procedure, depositions are freely conducted. Upon notice to a party or subpoena to a witness, an attorney can call a person to testify prior to trial. This is not so in criminal practice.

Fed. R. Crim. P. 15 allows depositions only when “exceptional circumstances” ex- ist. Expected absence of a witness at trial is an example of an exceptional circumstance. If such a circumstance is shown, the deposition may be ordered by the trial court, and the deposition may be used at trial. Of course, both the defendant and government have the opportunity to question the witness at the deposition.

deposition

■ The process of taking

a witness’s sworn out-

of-court testimony. The

questioning is usually done

by a lawyer, and the lawyer

from the other side is given

a chance to attend and

participate.

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

542 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 542 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

Brady Doctrine Although most discovery occurs under the authority of statutes and court rules, the Constitution also requires disclosure of information by the government in some situa- tions. In Brady v. Maryland, the Supreme Court announced what is now referred to as the Brady doctrine.

Obviously, Brady applies to both state and federal prosecutions. Note that only exculpatory evidence must be provided. Evidence that tends to prove a defendant’s in- nocence is exculpatory. Brady does not stand for the proposition that prosecutors must reveal incriminating evidence to defendants. Failure to disclose to a defendant will re- sult in reversal of a conviction if there is a reasonable probability that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.22

Petitioner and companion, Boblit, were found guilty of murder in the first degree and were sentenced to death.  .  .  .  Their trials were separate, petitioner being tried first. At his trial Brady took the stand and admitted his participation in the crime, but he claimed that Boblit did the actual killing. And, in his summation to the jury, Brady’s counsel conceded that Brady was guilty of murder in the first degree, asking only that the jury return that verdict “with- out capital punishment.” Prior to the trial petition- er’s counsel had requested the prosecution to allow him to examine Boblit’s extrajudicial statements. Several of those statements were shown to him; but one dated July 9, 1958, in which Boblit admit- ted the actual homicide, was withheld by the pros- ecution and did not come to petitioner’s notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed.

Petitioner moved the trial court for a new trial based on the newly discovered evidence that had been suppressed by the prosecution. Petitioner’s appeal from a denial of that motion was dismissed by the Court of Appeals without prejudice to relief under the Maryland Post Conviction Procedures Act.  .  .  .  The petition for post-conviction relief was dismissed by the trial court; and on appeal the Court

of Appeals held that suppression of the evidence by the prosecution denied petitioner due process of law and remanded the case for a retrial of the ques- tion of punishment, not the question of guilt. . . .

We now hold that the suppression by the pros- ecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespec- tive of the good faith or bad faith of the prosecution.

[This principle] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated un- fairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.

BRADY V. MARYLAND 373 U.S. 83 (1962)

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 14: The Pretrial Process 543

# 151053 Cust: Cengage Au: Hall Pg. No. 543 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

In most situations, disclosure at trial will satisfy Brady. However, if disclosure at trial would prejudice a defendant, pretrial disclosure may be constitutionally required. As is sometimes the case with Jencks Act materials, prosecutors may provide such in- formation prior to trial as a courtesy.

In a case related to Brady, the Supreme Court found that it is violative of due process for prosecutors to use perjured testimony or to deceive juries. This is true even if the perjury was unsolicited by the prosecuting attorney. As such, a prosecutor has a duty to correct any testimony of a witness that he or she knows is false.23

Although Brady and related cases are law in both state and federal prosecutions, the other discovery rules differ. Be sure to check local law to determine what your client has a right to discover.

Freedom of Information Laws The federal government and most, if not all, states have statutes requiring the public disclosure of files, documents, and other information in the possession of the govern- ment.24 The federal statute is known as the Freedom of Information Act (FOIA).25

There are nine exemptions to the federal FOIA. If a request for information falls into one of the nine exemptions, the government may withhold disclosure. Otherwise, disclosure is mandated.

One of the exemptions provides that law enforcement records may be withheld if disclosure will:

1. Interfere with enforcement proceedings. 2. Deprive a person of a fair trial or an impartial adjudication. 3. Constitute an unwarranted invasion of personal privacy. 4. Disclose the identity of a confidential source. 5. Disclose investigative techniques and procedures. 6. Endanger the life or physical safety of law enforcement personnel.

The FOIA is not a discovery device. It is a statute of general applicability, and any person may request inspection or production of documents under its authority. The purpose of the FOIA, which is unrelated to litigation, is the promotion of democracy by having an informed citizenry; it keeps the governors accountable to the governed.

Even though the FOIA was not specifically intended to be used for discovery in litigation, it does not foreclose that use. However, although the FOIA may be used to obtain information, it is not intended to displace or supplement the recognized forms of discovery.26 Nor shall the process of obtaining information through the FOIA be cause for delaying a criminal proceeding. Therefore, requests for information under the FOIA are separate from a defendant’s discovery requests in a criminal case.27

Hence, defendants may seek information under the FOIA, but such requests are not part of the criminal discovery process, and criminal proceedings will not be delayed to wait for such requests to be answered or disputes over disclosure to be adjudicated.

The same principles apply to other disclosure laws. For example, the federal Privacy Act28 provides that individuals have a right to discover the contents of files containing

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S

544 part ii Criminal Procedure

# 151053 Cust: Cengage Au: Hall Pg. No. 544 Title: Criminal Law and Procedure Server: __________________

K Short / Normal

DESIGN SERVICES OF

S4-CARLISLE Publishing Services

information about them. Again, requests for information under this law are aside from, not in addition to, criminal discovery rules.

Reciprocal Discovery The Fifth Amendment’s freedom from self-incrimination clause, as well as due process, greatly limits what can be expected of defendants in discovery. Requiring defendants to give notice of affirmative defenses, such as alibi and insanity, is common and constitutional. Many jurisdictions also expect defendants to provide witness lists, pretrial statements of the witnesses, and to detail expert testimony and reports that will be offered at trial.

Motion Practice In both civil and criminal practice, a motion is a request made to a court for it to do some- thing. In most cases a party that files a motion is seeking an order from the court. Gener- ally, when a person desires something from a court, a formal motion must be filed and copies sent to opposing counsel. On occasion, oral motions are made. This is most com- mon during trials and hearings. Some of the most common motions are discussed here.

Motion to Dismiss/Quash If a defendant believes that the indictment or information is fatally flawed, the ap- propriate remedy is a motion to dismiss. In some jurisdictions, this would be called a motion to quash. Examples of fatal flaws in the charging instrument are as follows: the court lacks jurisdiction; the facts alleged do not amount to a crime; an essential element is not charged; or the defendant has a legal defense, such as double jeopardy.

If the form of the charging instrument is attacked, courts often permit prosecutors to amend the charge rather than dismissing it entirely. Dismissal of an indictment or information does not mean that the defendant cannot be recharged. A person is not in “jeopardy” under the Fifth Amendment until later in the proceeding.

Motion to Suppress You have already learned that evidence obtained in an unconstitutional manner may not be used at trial. Objection at trial to the admission of such evidence is one method of excluding such evidence. Another is by way of a motion to suppress prior to trial.

A separate hearing is conducted prior to trial to determine whether the motion to suppress should be granted. Defendants may testify at suppression hearings, and their testimony may not be used against them at trial.29 To allow a defendant’s testimony from a suppression hearing to be used at trial would place the defendant in a position of choosing between the right to suppress evidence and the right to be free from self- incrimination. The best alternative is to allow the defendant to testify and to prohibit that testimony from being used later.

Who has the burden of proof in suppression hearings varies by jurisdiction and on what the defendant wishes to be suppressed. For example, most jurisdictions place the burden of proving that a search pursuant to a warrant was unconstitutional on the defendant. The opposite is true if there was no warrant; the government bears the bur- den of proving the propriety of the search. Most jurisdictions also place the burden of proving that a confession was voluntary upon the prosecution.

19/12/13 5:35 PM

9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

F O S T E R , C E D R I C 1 6 9 2 T S