Discuss the standards used by the court in U.S. v.Toscanino (p. 459).

1. Should the exclusionary rule (used for evidence) also be applied to illegal arrests? Discuss the standards used by the court in U.S. v.Toscanino (p. 459).

2. A police officer is approached by a man on the street who tells the officer that he was just robbed. The man points out the robber, who is standing in a park just across the street. Must the officer obtain a warrant to make the arrest?

3. A police officer is approached by a man on the street who tells the officer that he was just robbed. Although he did not see where the robber fled, he knew the assailant’s name and address, as the two men “grew up together.” The officer and the victim went to the police station and completed an incident report. After a telephone call to one of suspect’s neighbors, they learned that he was at home. Must the officer obtain a warrant to make the arrest?

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4. What is a protective sweep?

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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.

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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.

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)

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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.

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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

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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

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)

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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.

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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)

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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

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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

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(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].

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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)

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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.

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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)

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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.

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Is there governmental action?

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

Exhibit 12–6 FOURTH AMENDMENT ANALYSIS

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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.

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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

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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

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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

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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.

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Exhibit 14–2 CRIMINAL COMPLAINT

AO 91 (Rev. 5/85) Criminal Complaint

United States District Court ______________________________ DISTRICT OF ______________________________

UNITED STATES OF AMERICA

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

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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)

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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

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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.

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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

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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.

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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.

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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 ______________________________

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)

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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

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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.

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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

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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.

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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.

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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.

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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).

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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.

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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)

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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

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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.

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Discuss the standards used by the court in U.S. v.Toscanino (p. 459).

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