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Crim Pro Outline 2009

Crim Pro Outline 2009

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Published by: The Lawbrary on Jun 25, 2009
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03/26/2013

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Criminal Procedure, 2009
PART I: SEARCH AND SEIZURE(A) E
NFORCING
C
ONSTRAINTS
 
ON
 
THE
S
TATE
 
1.
T
HE
E
XCLUSIONARY
ULE
 
AND
 
 M 
 APPS 
 
Exclusionary rule:
the fruits of searches conducted in violation of the 4
th
Amendment can’t be admitted intoevidence.
Weeks v US (1914):
created the exclusionary rule for federal courts; if evidence obtained in violation of the 4
th
Amendment’s protections against unreasonable search and seizure could be admitted at trial, thenthe 4
th
 becomes of no value. The exclusionary rule is the only meaningful way to assure that publicofficials respect the 4
th
and it preserves judicial integrity by not sanctioning illegal search/seizure
Wolf v CO (1949):
The protections against unreasonable search and seizure of the 4
th
apply to the Statesvia the 14
th
. However, the exclusionary rule, as a (federal) remedy/enforcement mechanism is not aconstitutional requirement upon States in the same way that it is required in fed cts
 Mapp v OH (1961):
overruled
Wolf 
, extended
Weeks
: exclusionary rule applies to the States
Justifications and Criticisms of the Exclusionary Rule
1.
Text: 4
th
offers no remedy at all, just says don’t perform unreasonable search/seizure; provides stds toobtaining a warrant
2.
Originalist History:
Mapp
Ct doesn’t look to context of adoption of 4
th
 —either it’s irrelevant or harmfulfor end goal3.Precedents
 A.Boy
i.
Links 4
th
and 5
th
; both spring from idea that all invasions by the govt or any forcible andcompulsory extortion of a man’s own testimony or of his private papers to be used as evidenceagainst him or to forfeit his goods goes against the 4
th
and 5
th
 b/c violation is similarly groundedin self-incrimination, the 5
th
’s “exclusionary” principle should also apply to violations of the 4
th
.
ii.
Response: remedy is explicit in 5
th
, why’s it left out in the 4
th
? (possibly b/c other remedies liketort/damages apply); 5
th
is about courts and cases while 4
th
is about another location or domain soconceptual nexus is weak 
 B.Weeks
i.
Said w/o exclusionary rule, 4
th
is of no valueii.Response: makes little sense considering there are other alternatives such as money damages4.Practice Outside of Cts:
A.
At the time of 
Wolf 
, 1/3 of the states used the exclusionary rule but since then, there’s been a slightincrease so that about 1/2 now use it—upward trend.B.Response: Conclusion depends on the moment in time the trend is looked at; prob is that don’t knowwhat evolution of trend will be; trend here may be one way but about evenly spread.5.Morality, Integrity, Legitimacy:A.Might undermine legitimacy of decision if factfinder knows that there’s more evidence but is notallowed to rely on it b/c it was improperly procured.B.Judges might be worried about letting in evidence that was improperly procured but might be morewilling if alternate remedies to compensate for the illegality of the process exist.C.Responses:i.Response: Vast majority of motions to suppress are denied; if that is true, then the exclusionaryrule has effectively compelled police to conform their investigations w/ the law; so while theremight be some loss of reliable evidence, police conduct has improveii.Even if a guilty defendant invokes the exclusionary rule, the rule acts to protect innocent personsfrom unlawful police conduct.
6.
Criticisms on Efficacy:
1
 
Criminal Procedure, 2009
A.
Unhelpful to the innocent victim who’s never charged but goes through ordeal w/ police or allows police to harass an innocent person b/c rule provides no meaningful deterrent FXi.Response: Yes incomplete, but if benefits on net, then that’s not a reason to dismiss the rule
B.
Blocks useful evidence; decreases respect for integrity of crim justice systemi.Response: Possible though vast majority of suppression motions are deniedii.Response: Benefits of restructuring police conduct to comply w/ the law might outweighC.Shifts resources away from guilt/innocenceD.Wrong on incentives—value of rule depends on the assumption that police care about conviction ratesas opposed to arrest/charging ratesi.Hard to knowii.Response: increased use of search warrants or increased cooperation b/t prosecutors and copsmight be evidence that the rule is restructuring police behavior E.Unlike damages, it’s a one-size-fits all, blanket rule that ensures only one outcome
F.
Under pressure, cts might be reluctant to exclude evidence or a find a 4
th
violation in the first placewhereas might be more willing to find a violation if the remedy weren’t as costly as the exclusion of evidence.
G.
Side FX: judges might create exceptions to the rule; police may lie about how they got the evidence
7.
Pragmatic Deterrence:A.Might be best answer to deter known constitutional violations esp in light of failure of other remedies,such as state tort actions.B.Goal might not be to punish the offending officer, but rather, to prevent or disincentivize him fromengaging in illegal activity if the evidence found is of no practical value.i.Increased use of search warrants might be evidence that the rule is working to alter police behavior.
ii.
Tort remedies don’t always work—payouts for violations come from insurance coffers, potential plaintiff-victims are unsympathetic and thus unlikely to win and it’s morally suspect to let thegovt pay its way out of a constitutional violation.
2.A
LTERNATIVES
 
TO
 
THE
E
XCLUSIONARY
ULE
 
Damages and §1983 Liability
Sources of Law(1)State law against state/local D’s: ordinary tort law, constitutional law, statute
(2)
Fed law against state/local D’s: Sec 1983
(3)
Fed law against fed D’s:
 Bivens
Actions, FTCA
Advantages of damages over exclusion(1)For example, Mapp probably has a decent Sec 1983 claim; if she wins she could recover attorneys’ fees and possibly sue for injunctions.
(2)
Might avoid some of the criticisms of the exclusionary rule:(A)Tailored remedy instead of a one-size-fits all rule(B)Applies even to people who aren’t charged or who never make it to court(C)State and federal law can form the basis of the remedy(D)Damages claims can involve other things including claims for recovering attorneys’ fees,injunctions etc.(E)Is an offensive weapon that highlights specific officers, perhaps makes them socially or  politically accountable
Disadvantages of damages(1)Rank ordering relative injuries might be relatively easy to get a consensus on (see classexperiment) but the more gradations of money damages makes valuation a prob(2)Monetary awards might be too small to justify litigation
(3)
Absolute/qualified immunity or indemnification might not lead to changed behavior;monetary awards often come out of insurance so the lack of direct liability reduces incentivesto change behavior.
2
 
Criminal Procedure, 2009
(i)Though FX on smaller communities/police forces might be greater b/c of larger impx onfewer resources(ii)Might be difficult to train out certain prejudices or behaviors(4)Victims-P’s are not always the most sympathetic plaintiffs, thereby reducing likelihood of winning
Sec 1983:
provides a federal cause of action for constitutional violations by a state or localofficial; state can’t be sued (b/c of sovereignty issues) but municipality can be held liable for  policies or customs that result in constitutional violations.
 Bivens
Actions:
akin to Sec 1983 liability for fed officers
 Anderson v Creighton (1987)
: damages are available against a police officer who has violated the4
th
only when he has behaved w/ something akin to gross negligence—where the governing lawand its application to the circumstances are clear and the officer has nonetheless disregardedthem.
Doctrine before getting to issue of QI: Ct must first determine if there was a 4
th
violation by looking at whether D’s conduct could reasonably have thought consistent w/ clearlyestablished law, based on the info that D possessed (note relp b/t doctrinal rules and stds.)
Rule:
“Clearly established”-more particularized inquiry; contours of the rightmust be sufficiently clear that a reasonable official would understand that whathe’s doing violates that right.
Rule:
the precise content of most of the constitution’s civil liberties guaranteesrest upon a reasonable balance of govt need and individual freedom.
If cop is going to err, err on the side of not violating:
Cops, acting in good faith, might be hesitant to act—they could perhaps be slowed down to the point where real harm to some invisible victimmaterializes—we want police discretion for the gray areas but nodiscretion if it’s something that the reasonable officer would’ve known.
The more rules a court generates, the easier to find violations and liability. But at some point, there will be too many rules for even the reasonable officer to know.
Cts are just one way to enforce constraints.
Tension in holding govt officials liable: damages actions might be the only realisticavenue for vindicating constitutional guarantees but permitting damages suits also entailssubstantial social costs including risk of personal liability and harassing litigation thatimpedes the discharge of an officer’s duties.
So does
Mapp
start to look better?
Exclusionary rule coupled w/ damages makes
Mapp
look better b/c now even if damagesdoesn’t force cops to change, the exclusionary rule is a backstop (provided that cops areoutcome-driven),
but only for people who are actually guilty or get to trial. For the trulyinnocent who don’t get charged or go to trial, the exclusionary value isn’t useful to them.
On the other hand, to say that it does nothing for innocent people is difficult because atthe outset, cops don’t know who is innocent or not.
Also, when a person is found guilty, he becomes less of a sympathetic plaintiff even if hehas a legit claim. When nothing is found, the innocent P looks like a sympathetic P.
Injunctions
 Lyons
Rule
: to get Art III standing to sue for an injunction, P must show that either he suffersfrom a real or immediate threat that he’ll be wronged again or that the wrongs or harms occur as aresult of a policy or custom.
 Los Angeles v Lyons
: In a suit for damages and an injunction, P alleged that D-police officers hadused a ‘chokehold’ on him during a traffic violation stop even though he posed no threat. B/c P
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