Criminal Procedure : Constitution and Society

by Zalman, Marvin

• ISBN13: 9780131777088
• ISBN10: 0131777084
• Edition: 4th
• Format: Hardcover
• Copyright: 2005-01-01
• Publisher: Prentice Hall

Summary

Criminal Procedure: Constitution and Society, Fourth Edition, illustrates the best of both textbook and casebook formats. It soars past other texts by giving the reader a deeper understanding of criminal procedure and the cases that have shaped American criminal justice. The fourth edition includes new and valuable material on justice in a time of terror. As the preface states, "The heart of American law lies in the cases." The heart of the American criminal justice system therefore lies in the way these cases shape crime control and constitutionality. Criminal Procedure: Constitution and Society presents these issues fairly and thoroughly, with additional features that are uniquely tailored to students in criminal justice, criminology, sociology, and political science. The unique features of this text will make the study of criminal procedure a comprehensive, educational experience.

Table of Contents

Preface	xi
Acknowledgments	xv
About the Author	xvii
The Meaning of Criminal Procedure	1	(36)
Order and Liberty	2	(4)
The Two Models of Criminal Justice	2	(1)
Order and Liberty in a Time of Terror	3	(2)
The Dangers of Injustice	5	(1)
The Context of Criminal Procedure	6	(9)
The Criminal Justice System	6	(1)
The Court System	7	(1)
Law	7	(2)
Federalism	9	(1)
Political Theory	10	(2)
History	12	(1)
Politics	13	(1)
Race and Racism	13	(1)
Judicial Biography	14	(1)
Human Rights	14	(1)
Law and Society	15	(1)
The Incorporation of the Bill of Rights	15	(10)
Overview	15	(1)
Before the Civil War	16	(1)
The Growth of Federal Judicial Power	16	(1)
The Dred Scott Case and the Fourteenth Amendment	17	(1)
The Anti-Incorporation Cases, 1884--1908	17	(1)
Adopting the Due Process Approach	18	(1)
The Incorporation of First Amendment Civil Liberties	19	(1)
Resistance to Incorporation and Growing Support, 1937--1959	19	(2)
The Due Process Revolution	21	(1)
Table 1-1: Rights, Enumerated in Bill of Rights (Amendments I--VIII)	22	(1)
The Counterrevolution	23	(2)
Summary	25	(1)
Further Reading	26	(1)
Endnotes	26	(4)
Appendix to Chapter 1--How to Read and Brief Cases	30	(3)
Notes on Precedent	30	(1)
The Components of an Opinion	31	(1)
Briefing a Case	32	(1)
Justices of the Supreme Court--The Precursor Justices	33	(4)
John M. Harlan I	33	(1)
Oliver Wendell Holmes, Jr.	34	(1)
Louis Dembitz Brandeis	35	(1)
Benjamin Nathan Cardozo	36	(1)
The Fourth Amendment and the Exclusionary Rule	37	(42)
The Common Law Background	38	(1)
The Structure of the Fourth Amendment	39	(2)
Development of the Exclusionary Rule, 1886--1921	41	(4)
State Action Doctrine	42	(1)
Fruits of the Poisonous Tree Doctrine	43	(2)
The Federalization of the Exclusionary Rule, 1949--1963	45	(6)
The Movement to Incorporate	45	(2)
Incorporating the Exclusionary Rule	47	(1)
Case & Comments: Mapp v. Ohio	48	(3)
Undermining the Exclusionary Rule	51	(8)
Good Faith Exceptions	52	(1)
Case & Comments: United States v. Leon	53	(5)
Standing	58	(1)
Arguments Against the Exclusionary Rule	59	(1)
Alternative Remedies	60	(4)
Civil Lawsuits for Damages	61	(1)
Injunctions	62	(1)
Criminal Prosecution	62	(1)
Administrative Remedies	63	(1)
Theories of the Exclusionary Rule	64	(2)
Searches in a Time of Terror	66	(1)
Law in Society: Costs and Benefits of the Exclusionary Rule	67	(3)
The Deterrent Effect of the Exclusionary Rule	67	(1)
The Educative Effect of the Exclusionary Rule	68	(1)
Costs of the Exclusionary Rule	68	(1)
The Effectiveness of Tort Remedies	69	(1)
Summary	70	(1)
Legal Puzzles	71	(1)
Further Reading	72	(1)
Endnotes	72	(4)
Justices of the Supreme Court--The Adversaries	76	(3)
Hugo L. Black	76	(1)
Felix Frankfurter	77	(2)
Essential Fourth Amendment Doctrines	79	(55)
Introduction	80	(1)
The Search Warrant	80	(8)
Search Warrant Values: A Neutral and Detached Magistrate	80	(2)
Obtaining a Search Warrant	82	(1)
Particularity	83	(2)
Anticipatory Warrants	85	(1)
Challenging a Search Warrant Affidavit	85	(1)
Execution of the Search Warrant	86	(2)
Inventory and Return	88	(1)
Revolutionizing the Fourth Amendment	88	(7)
Modernizing Search and Seizure Law	89	(1)
Creating the Expectation of Privacy Doctrine	89	(2)
Application of the Expectation of Privacy Doctrine	91	(3)
Undercover Agents and the Fourth Amendment	94	(1)
Surveillance and Electronic Eavesdropping in a Time of Terror	95	(1)
Probable Cause and the Fourth Amendment	96	(4)
The Concept of Evidence Sufficiency	96	(1)
Defining Probable Cause	96	(1)
Table 3-1: Standards of Evidence Sufficiency	97	(1)
Probable Cause Based on Informers' Tips	97	(2)
Conservative Revisions	99	(1)
Plain View and Related Doctrines	100	(12)
Plain View	100	(1)
Case & Comments: Illinois v. Gates (1983)	101	(5)
Case & Comments: Arizona v. Hicks (1987)	106	(2)
Curtilage and Open Fields	108	(2)
Airspace	110	(1)
Enhancement Devices	111	(1)
Consent Searches	112	(9)
Voluntariness Requirement	112	(1)
Case & Comments: Kyllo v. United States (2001)	113	(3)
Knowledge of One's Rights	116	(1)
Third-Party Consent	116	(1)
Case & Comments: Schneckloth v. Bustamonte (1973)	117	(3)
Scope of Consent	120	(1)
Law in Society: Police Perjury and the Fourth Amendment	121	(3)
Summary	124	(1)
Legal Puzzles	125	(1)
Further Reading	126	(1)
Endnotes	126	(4)
Justices of the Supreme Court--Roosevelt's Liberals	130	(4)
William O. Douglas	130	(1)
Frank Murphy	131	(1)
Robert H. Jackson	132	(1)
Wiley B. Rutledge	133	(1)
Arrest and Stop Under the Fourth Amendment	134	(54)
Arrest in a Time of Terror	135	(1)
Overview of the Law of Personal Detention	136	(2)
Arrests and Investigative Stops	136	(1)
Detention to Investigate	137	(1)
Detention and Search During the Execution of a Search Warrant	137	(1)
Arrest	138	(6)
Consequences of Arrest	138	(1)
Defining a Fourth Amendment Seizure and Arrest	139	(1)
Probable Cause to Make an Arrest	140	(3)
The Use of Force	143	(1)
The Arrest Warrant Requirement	144	(4)
Arrest in Public	144	(1)
Case & Comments: United States v. Watson (1976)	145	(2)
Arrest in the Home	147	(1)
Search Incident to Arrest	148	(7)
Scope of the Search Incident to Arrest	149	(1)
Case & Comments: Chimel v. California (1969)	150	(2)
The Protective Sweep Exception	152	(1)
Searching at the Station House	153	(2)
Stop and Frisk	155	(20)
Establishing the Constitutional Authority to Stop	155	(1)
Case & Comments: Terry v. Ohio (1968)	156	(4)
The Sources of Reasonable Suspicion	160	(1)
Terry on the Streets	161	(2)
Case & Comments: California v. Hodari D. (1991)	163	(3)
Terry on the Road	166	(4)
Terry in Tight Places	170	(2)
Terry at the Airport: Drug Stops and Drug Courier Profiles	172	(3)
Law in Society: Arrest and Domestic Violence	175	(2)
Changing Norms and Laws about Domestic Violence	175	(1)
Impediment to Change: Police Discretion and Domestic Violence	175	(1)
Impediment to Change: Warrantless Misdemeanor Arrests	176	(1)
The Minneapolis Experiment and the Replication Experiments	176	(1)
A Response to the Replication Studies	177	(1)
Mandatory Arrest Laws and Policies	177	(1)
Conclusion	177	(1)
Summary	177	(2)
Legal Puzzles	179	(1)
Further Reading	180	(1)
Endnotes	180	(3)
Justices of the Supreme Court--Stalwart Conservatives	183	(5)
Stanley F. Reed	183	(1)
Fred M. Vinson	184	(1)
Harold Burton	185	(1)
Sherman Minton	185	(1)
Charles E. Whittaker	186	(2)
Warrantless Searches	188	(44)
Introduction	189	(1)
Hot Pursuit and Other Exigency Searches	189	(3)
The Automobile Exception	192	(12)
An Overview of Vehicle Search Rules	192	(1)
The Automobile Exception	193	(4)
Searches of Containers in Mobile Vehicles	197	(4)
Case & Comments: Wyoming v. Houghton (1999)	201	(3)
Automobile Inventory Searches	204	(2)
Border Searches	206	(2)
Extraterritorial Law Enforcement in a Time of Terror	208	(2)
Kidnapping and Illegal Arrests	208	(1)
Extraterritorial Application of the Fourth Amendment	209	(1)
Extraterritorial Application of the Fifth Amendment and Miranda	210	(1)
The Special Needs Doctrine and Regulatory Searches	210	(9)
Origins of the Doctrine and Administrative Searches	210	(1)
Early Special Needs Cases: The Creation of a Doctrine	211	(2)
Fire Inspections	213	(1)
Drug Testing	214	(5)
Law in Society: Racial Profiling and Constitutional Rights	219	(3)
The Prevalence of Racial Profiling	219	(1)
Motivations for Racial Profiling	220	(1)
Racial Profiling and the Law	221	(1)
The Political Reaction to Racial Profiling	222	(1)
Summary	222	(2)
Legal Puzzles	224	(1)
Further Reading	225	(1)
Endnotes	225	(3)
Justices of the Supreme Court--Thoughtful Conservatives	228	(4)
Tom. C. Clark	228	(1)
John M. Harlan II	229	(1)
Potter Stewart	230	(1)
Byron R. White	231	(1)
The Right to Counsel	232	(33)
Introduction	233	(1)
The Development of the Right to Counsel to 1961	234	(3)
Powell v. Alabama: The Scottsboro Case	234	(1)
After Powell: Toward Incorporation	235	(2)
The Equal Protection Approach	237	(1)
Gideon V. Wainwright and its Aftermath	237	(8)
Case & Comments: Gideon v. Wainwright (1963)	237	(2)
Does Gideon Apply to Misdemeanor Trials?	239	(1)
When Does the Right to Counsel Attach? Pretrial: The Critical Stage and Formal Charge Rules	239	(2)
When Does the Right to Counsel Attach? Postconviction and Other Processes	241	(1)
Limitations on the Right to Counsel	242	(1)
The Right to Counsel on Appeal	243	(2)
The Right to Self-Representation	245	(2)
Self-Representation and the Waiver of Counsel	245	(1)
Faretta v. California	245	(1)
Standby Counsel	246	(1)
Counsel in a Time of Terror	247	(1)
The Effective Assistance of Counsel	248	(6)
Case & Comments: Strickland v. Washington (1984)	248	(4)
Applying the Strickland Test	252	(2)
Conflict of Interest	254	(1)
Law in Society: The Unmet Promise of Equal Justice	254	(3)
The Expense of Private Criminal Defense	255	(1)
Funding for Indigent Defense	255	(1)
The Crisis in Death Penalty Cases	256	(1)
Causes of Ineffective Counsel	257	(1)
Solving the Problem of Ineffective Counsel	257	(1)
Summary	257	(1)
Legal Puzzles	258	(2)
Further Reading	260	(1)
Endnotes	260	(2)
Justices of the Supreme Court--Warren Court Liberals	262	(3)
Earl Warren	262	(1)
Arthur J. Goldberg	263	(1)
Abe Fortas	264	(1)
Interrogation and the Law of Confessions	265	(50)
Introduction	266	(6)
The Privilege against Self-Incrimination	266	(3)
Confessions Law before Miranda	269	(3)
The Miranda Decision	272	(6)
Case & Comments: Miranda v. Arizona (1966)	272	(6)
Voluntariness after Miranda	278	(1)
Miranda as a Constitutional Rule	278	(7)
The Consequences of the Miranda Ruling: Attacking Its Constitutional Basis	278	(2)
The Public Safety Exception	280	(1)
Rehabilitating Miranda?	281	(4)
Interpreting Miranda	285	(8)
Adequacy of Warnings	285	(1)
Waiver of Rights	286	(1)
Termination and Resumption of Questioning	286	(1)
Invoking the Right to Counsel	287	(3)
Defining Custody	290	(2)
The Nature of Interrogation	292	(1)
The Use of Deception	293	(1)
Interrogation in a Time of Terror	293	(2)
Questioning After Formal Charging: The Sixth Amendment	295	(6)
Case & Comments: Brewer v. Williams (1977)	296	(4)
Undercover Policing and the Right to Counsel	300	(1)
Law in Society: The Social Reality of Confessions	301	(4)
The Acceptance of Miranda	301	(1)
Police Interrogation Today: Adapting to Miranda	301	(2)
Why Do Innocent People Confess?	303	(2)
Summary	305	(1)
Legal Puzzles	306	(3)
Further Reading	309	(1)
Endnotes	309	(3)
Justices of the Supreme Court--Enduring Liberals	312	(3)
William J. Brennan, Jr.	312	(1)
Thurgood Marshall	313	(2)
Identification of Suspects: Lineups and Showups	315	(22)
Introduction: The Persistence of Mistaken Identification	316	(1)
Identification and the Right to Counsel	317	(7)
The Right to Counsel at Postindictment Lineups	317	(1)
Case & Comments: United States v. Wade (1967)	318	(4)
When Does the Right to Counsel at Lineups Attach?	322	(1)
Does the Right to Counsel Apply to Photographic Identification?	323	(1)
Identification and the Fifth Amendment	324	(1)
Due Process and Eyewitness Identification	325	(2)
Law in Society: Reducing the Error of Eyewitness Identification	327	(1)
Understanding Memory and Recall	328	(1)
Toward More Accurate Identification	329	(1)
Improving Lineups	330	(1)
Establish Double-Blind Procedures	330	(1)
Conduct Lineups in a Sequential Manner, Not Simultaneously	330	(1)
Use ``Lineup Context Clues''	330	(1)
Construct Lineups Fairly	330	(1)
The Officer Who Constructs a Lineup Should Be the Same Race as the Suspect	330	(1)
Use Expert Witnesses or Closing Arguments to Rebut Errors about Eyewitness Identification	330	(1)
Summary	331	(1)
Legal Puzzles	331	(2)
Further Reading	333	(1)
Endnotes	333	(2)
Justices of the Supreme Court--Nixon's Conservatives	335	(2)
Warren Earl Burger	335	(1)
William H. Rehnquist	336	(1)
Entrapment	337	(23)
Introduction	338	(2)
Classification and Origins of the Entrapment Defense	338	(1)
Covert Policing: Encouragement and Undercover Agents	339	(1)
The Subjective and Objective Tests of Entrapment	340	(6)
Development of Federal Entrapment Law	340	(1)
The Entrapment Tests in Action	341	(1)
Case & Comments: Jacobson v. United States	342	(4)
Other Tests: Due Process and Outrageous Conduct	346	(1)
The Entrapment Defense in the States	347	(2)
Selecting the Subjective and Objective Tests	347	(1)
The Hybrid Approach	348	(1)
Conclusion	349	(1)
Law in Society: Undercover Policing and its Control	349	(3)
The Nature and Growth of Undercover Policing	349	(2)
Problems with Covert Policing	351	(1)
Judicial and Administrative Control of Undercover Policing	352	(1)
Summary	352	(1)
Legal Puzzles	352	(2)
Further Reading	354	(1)
Endnotes	354	(3)
Justices of the Supreme Court---The Nixon Ford Moderates	357	(3)
Harry A. Blackmun	357	(1)
Lewis F. Powell, Jr.	358	(1)
John Paul Stevens	359	(1)
The Pretrial Process	360	(28)
Introduction: Pretrial Justice	361	(1)
The Bail Decision: Pretrial Release	362	(5)
The Eighth Amendment and the Right to Bail	363	(1)
Modern Forms of Pretrial Release	363	(1)
Case & Comments: United States v. Salerno (1987)	364	(3)
Pretrial Detention in a Time of Terror	367	(1)
Prosecutorial Charging	368	(6)
Discretion and the Separation of Powers Doctrine	368	(1)
Constitutional Limits: Selective and Vindictive Prosecution	369	(1)
Case & Comments: United States v. Armstrong (1996)	370	(4)
Screening: The Grand Jury and Preliminary Examination	374	(4)
The Grand Jury	374	(1)
Grand Jury Functions and Powers	375	(1)
Misuse of the Grand Jury and the Calls for Reform	376	(1)
The Preliminary Examination	376	(1)
Preliminary Examination Procedures	376	(1)
The Functions of the Preliminary Examination	377	(1)
Law in Society: Prosecutorial Misconduct and Convicting the Innocent	378	(2)
The Prosecutor's Power, Misconduct, and Ethics	378	(1)
Prosecution Error and Wrongful Conviction	378	(1)
Prosecution Policy and the Conviction of Innocents	379	(1)
Examples of Egregious Prosecutorial Misconduct	379	(1)
Correcting Prosecutorial Misconduct	380	(1)
Summary	380	(1)
Legal Puzzles	381	(1)
Further Reading	382	(1)
Endnotes	382	(3)
Justices of the Supreme Court--Reagan's Conservative Legacy	385	(3)
Sandra Day O'Connor	385	(1)
Antonin Scalia	386	(1)
Anthony Kennedy	387	(1)
The Trial Process	388	(41)
The Ideal of the Fair Trial	389	(2)
Steps in the Jury Trial	390	(1)
Trial in a Time of Terror	391	(1)
Important Constitutional Trial Rights	392	(7)
The Right to Be Present	393	(1)
The Right to Compulsory Process	393	(1)
Prosecutorial Misconduct and False Evidence	394	(1)
Due Process and the Preservation of Evidence	394	(2)
Right to Silence	396	(1)
Confrontation, Hearsay, and Cross-examination	396	(1)
Confrontation in Child Sex-Abuse Cases	397	(1)
Presumption of Innocence and Proof Beyond a Reasonable Doubt	398	(1)
The Jury	399	(9)
Constitutional Requirements	399	(2)
Selecting an Unbiased Jury	401	(2)
Voir Dire and Fairness	403	(1)
Case & Comments: Batson v. Kentucky (1986)	404	(3)
Batson's Aftermath	407	(1)
Law in Society: Jury Trials and Wrongful Convictions	408	(2)
Convicting the Innocent	408	(1)
Why Trials Do Not Stop Wrongful Convictions	409	(1)
Is the Civil Law Trial System Better?	409	(1)
Summary	410	(1)
Legal Puzzles	411	(1)
Further Reading	412	(1)
Endnotes	413	(2)
Justices of the Supreme Court--The Twenty-First Century Court	415	(4)
David H. Souter	415	(1)
Clarence Thomas	416	(1)
Ruth Bader Ginsburg	417	(1)
Stephen G. Breyer	418	(1)
APPENDICES
A Constitution of the United States: Selected Provisions	419	(8)
B Selected Justices of the Supreme Court	427	(2)
Glossary	429	(12)
Table of Cases	441	(12)
Index	453

Excerpts

Criminal procedure is a dramatic subject. Each case tells a story of conflict that pits society's vital need for the communal peace and order that makes life livable, against the right of each individual to be free from unreasonable invasions of privacy and freedom by officers of the state. Criminal procedure is also a technical subject. It encompasses many legal rules and doctrines, not all of which are perfectly logical. The drama of criminal procedure may be conveyed by a book that explores one important case, such asGideon's Trumpet,Anthony Lewis's classic story of Earl Clarence Gideon's fight for the right to counsel, that took his case to the United States Supreme Court. Simply studying dramatic cases, however, limits the student's exposure to many important topics. The heart of American law lies in the cases of appellate courts. Textbooks about legal subjects present the subject matter either in a casebook format or in a textbook format. Each has its advantages.Criminal Procedure: Constitution and Societyis an effort to present the best of both methods, with additional features that are uniquely tailored to social science students in criminal justice, criminology, sociology, and political science. The unique features of this text will make the study of criminal procedure a comprehensive educational experience. This text is designed to do three things: (1) provide essential information about the law of constitutional criminal procedure for students of criminal justice; (2) present Supreme Court cases in a format that is sufficiently substantial so as to provide the benefits of the case-method, while adding study aids that make the cases more comprehensible to undergraduate students; and (3) provide materials that help the student to appreciate criminal procedure in its social, political, and historical contexts. The basic text.The longest portion of this book presents and explains the core knowledge of constitutional criminal procedure. The topics covered are those of greatest interest to criminal justice students. Four chapters are devoted to the Fourth Amendment: the exclusionary rule (Chapter 2), the search warrant and essential Fourth Amendment doctrines such as plain view (Chapter 3), arrest andTerry-stops (Chapter 4), and warrantless searches (Chapter 5). The text is up to date, including discussions of cases decided in early 2004. The chapters are divided into coherent subtopics, giving instructors the flexibility to cover a general area but omit specific topics within it as they see fit. Throughout the text I attempt to show that in most areas of criminal procedure there is an ongoing dialogue between justices adhering to the Due Process Model and those whose decisions better reflect the Crime Control Model. The late Professor Herbert Packer's great organizing paradigm provides a convenient way for students to grasp the overall subject matter and each case. Thus, both the text and the "Case & Comments" explicate these conflicting approaches. The purpose of education, of course, is not the rote memorization of rules butunderstanding.To this end the text includes not just statements of rules, but describes the facts out of which the rules emerge and the often conflicting views of the justices. The relevant historic, social, and political factors that have influenced the decision are frequently provided. On occasion, where a subject is overly complex (e.g., the incorporation doctrine in Chapter 1 or-the automobile search doctrine in Chapter 5), I help students thread their way through the maze by providing an overview of the subject in the form of a list. I have not, however, avoided presenting students with challenging theoretical materials in this text. For example, Chapter 2 includes materials on theories of the exclusionary rule that present students with recent philosophical discussions about the justification for the rule. Instructors who