1.1: What Is This Book?

Introduction

This book introduces criminal procedure law in the United States, with a focus on the “investigation” stage of the criminal justice system. Specifically, the book focuses on legal constraints placed upon police and prosecutors, constraints largely derived from Supreme Court interpretations of the Fourth, Fifth, and Sixth Amendments to the Constitution. Major topics include searches and seizures, warrants and when they are required, interrogations, witness identifications of suspects, and the right to counsel during various stages of investigation and prosecution.

Additionally, the legal issues covered in this book relate to some of the most intense ongoing political and social debates throughout the United States. The law governing stop-and-frisk procedures, for example, is not mere trivia. These issues affect the lives of real people. The reliability of eyewitness identifications affects the likelihood of wrongful convictions, a phenomenon persons of all political persuasions oppose. In short, policing and prosecution impact everyone in America, and an informed citizen should understand the primary arguments raised in major controversies in procedural criminal law.

Certainly, understanding the holdings of major cases is essential to more nuanced participation in these debates, so this book devotes substantial space to Supreme Court opinions, which have been edited for length. (To save space, most internal citationsi.e., the court's citations to other precedent and authorities., as well as portions of court opinions, have been removed without using ellipses to indicate the edits.) Also, the book aims to go beyond the information available in majority opinions, concurrences, and dissents. To do so, it includes supplementary material on developments in law and policy. For example, advances in technology raise questions about precedent concerning what counts as a “search” under Fourth Amendment law. The book also provides perspectives on the practical implications of Supreme Court decisions, perspectives often given little attention by the Justices. For example, state courts have grappled with scientific evidence about witness reliability that the Supreme Court has not yet addressed to resolve due process challenges related to identifications.

Further, in addition to helping students identify situations in which constitutional rights may have been violated, the book explores what remedies are available for different violations. For a criminal defendant, the most desirable remedy will normally be the exclusion of evidence obtained through illegal means (such as drugs found in a defendant’s car or home during an unlawful search). Contrary to common misconceptions among the general public, however, not all criminal procedure law violations result in the exclusion of evidence. Students will read the leading cases on the exclusionary rule that governs evidence admissibility, confronting arguments about when the remedy of exclusion—which quite often requires that a guilty person avoid conviction—is justified by the need to encourage law enforcement to respect the constitutional protections involved in searches, seizures, interrogations, and so on.

Outline of the Book

After the first chapter, the book will proceed as follows: First, we will examine the Fourth Amendment, beginning with considering what counts as a “search” in Fourth Amendment cases. After studying the concepts of probable cause and reasonable suspicion, we will discuss warrants, including what police must do to obtain them, when they are required, and when the Supreme Court has said police may conduct searches and seizures without warrants. Having spent about a third of the book on searches, we will turn to seizures, including arrests and “stop and frisk.”

Around the halfway point of the book, we will move from the Fourth Amendment and begin our study of interrogations, examining how the Court has used the Fifth, Sixth, and Fourteenth Amendments to regulate police questioning of suspects. This portion of the book will cover the Due Process Clauses, the Miranda Rule, and regulations arising from the right to counsel.

Having studied “substantive” criminal procedure rules at some length—learning what the Court has told police officers they can and cannot do—we will turn to the remedies available when these rules are broken. Primarily, we will focus on the exclusionary rule, a judicially created remedy that prevents prosecutors from using certain evidence obtained illegally. We will also consider when money damages are available as a remedy for violations of criminal procedure rules.

Near the end of the book, we will study the criminal defendant’s right to the assistance of counsel, which is guaranteed by the Sixth Amendment. In particular, we will learn when the state must provide counsel and how effective counsel must be to satisfy the constitutional guarantee.

Then we will study identification procedures, including how police can avoid mistaken identifications by victims and other witnesses, along with the limited requirements that have been imposed by the Supreme Court.

As the book ends, we will consider some new challenges presented by terrorism, such as torture, and by technological advances, such as electronic surveillance.

Next

The next section introduces why this area of constitutional law is so important.