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Criminal Procedure: Theory and Practice, Second Edition

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The Constitution and the Bill of Rights: The Source of Protections for the Accused

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Criminal Procedure: Theory and Practice, Second Edition

by Jefferson L. Ingram

Publisher: Prentice Hall

Copyright Year: 2009

Publishing Date: 2008/05/21

eText ISBN-10: 0-13-812659-3

eText ISBN-13: 978-0-13-812659-9

Print ISBN-10: 0-13-135209-1

Print ISBN-13: 978-0-13-135209-4

Course: Criminal Law

Pages: 560

eTextbook $65.50

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Table of Contents | Description

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ABOUT THIS TITLE - TABLE OF CONTENTS

Part One. The Criminal Procedure Matrix, 1

1. The Constitution and the Bill of Rights: The Source of Protections for the Accused, 3

1. Historical Overview: The Basis of Rights for Persons Accused of Crime, 4

2. The Articles of Confederation, 5

3. The Constitution: Revision in National Government, 6

4. The Constitution: Challenges to Ratification, 7

5. The Rationale and Need for the Bill of Rights, 7

6. A Brief History of the Bill of Rights, 8

7. Constitutional Developments: The Civil War Era, 9

8. Constitutional Developments: The Thirteenth Amendment, 10

9. Constitutional Developments: The Fourteenth Amendment, 11

10. Constitutional Developments: The Fifteenth Amendment, 12

11. Criminal Procedure Prior to the Selective Incorporation Doctrine, 12

12. The Selective Incorporation Doctrine: Federalization of Criminal Procedure, 13

13. Fourth Amendment: Prohibition against Unreasonable Searches, 14

14. Fifth Amendment: Right to a Grand Jury Indictment, Privilege against Self-Incrimination, and Prohibition against Double Jeopardy as Part of the Right to Due Process, 15

15. Sixth Amendment: The Right to a Speedy and Public Jury Trial, the Right to Confront Witnesses, and the Right to Counsel, 20

16. Eighth Amendment: Prohibition of Excessive Bail, Excessive Fines, and Protection against Cruel and Unusual Punishment, 25

17. State Criminal Procedure: Beyond the Federal Constitutional Minimum, 26

18. Summary, 26

2. Criminal Courts: Organization, Function, Jurisdiction, and the Criminal Process, 33

1. An Introduction to the Criminal Justice System, 34

2. Organization of Courts, State and Federal: A Dual System, 38

3. Pretrial Criminal Procedure: The Initial Steps toward Prosecution, 42

4. Initiating a Criminal Case: Complaint and Summons, 43

5. The Charging Instruments: Indictment and Information, 45

6. Pretrial Hearings: Probable Cause, Arraignment, and Preliminary Hearing, 52

7. Pretrial Motion Hearings: Mandatory and Discretionary Pretrial Motions, 53

8. Plea Negotiations, 54

9. Jury and Nonjury Trials, 55

10. The Trial Process, 57

11. Selection of Jurors, 57

12. Opening Statements, 58

13. Prosecution’s Case in Chief, 61

14. Defense’s Case in Chief, 62

15. Prosecution Case in Rebuttal, 63

16. Defense Case in Rejoinder, 63

17. Motion for Judgment of Acquittal, 64

18. Closing Arguments, 64

19. Jury Instructions, 64

20. Verdicts, Sentencing Process, and Posttrial Motions, 65

21. Appellate Practice, 67

22. State and Federal Habeas Corpus, 69

23. Summary, 70

3. The Principles of the Mapp Exclusionary Rule, 77

1. Introduction to Remedies for Fourth Amendment Violations, 78

2. Violation of the Fourth Amendment and the Exclusion of Evidence, 79

3. The Fourth Amendment: Implementation Prior to 1914, 79

4. The Exclusionary Rule: Enforcing the Fourth Amendment, 80

5. Suppression of Illegally Seized Evidence, 81

6. Basis for the Exclusionary Rule, 82

7. Challenge to the Exclusionary Rule: The Silver Platter Doctrine, 82

8. Application of the Exclusionary Rule to State Criminal Procedure, 83

9. Exclusion of Derivative Evidence, 83

10. Major Exceptions to the Exclusionary Rule, 86

11. Exclusionary Rule Exception: The Independent Source Rule, 89

12. Exclusionary Rule Exception: The Rule of Inevitable Discovery, 91

13. Exclusionary Rule Exception: The Doctrine of Attenuation, 92

14. Exclusionary Rule Exception: The Good Faith Exception, 94

15. Limitations on the Exclusionary Rule: Parole Revocation Hearings, 95

16. Limitations on the Exclusionary Rule: Other Contexts, 96

17. Alternative Remedies to Fourth Amendment Violations: The Bivens Civil Suit, 97

18. Limits to Use of the Exclusionary Rule: The Concept of Standing, 98

19. Vicarious Standing Not Permitted, 102

20. Summary, 104

Part Two. Arrest, Stop and Frisk, and Search Warrant Practice, 111

4. Arrest and Seizure of the Person, 113

1. Probable Cause Arrests: The Legal Standard, 114

2. The Concept of Probable Cause for Arrest, 114

3. Plain Meaning of the Fourth Amendment, 114

4. Probable Cause Defined, 115

5. Sources of Probable Cause to Arrest, 117

6. Stale Probable Cause, 120

7. Arrest Pursuant to a Warrant, 121

8. Requirements for Arrest Without a Warrant, 123

9. Requirements for Arrests within the Home, 127

10. Requirements for Arrests within a Third Party’s Home, 129

11. Summary, 130

5. The Concept of Stop and Frisk, 135

1. Introduction to Stop and Frisk, 136

2. Stop and Frisk, 136

3. The Terry Legal Standard, 137

4. Facts Indicating Unusual Conduct, 141

5. Flight Upon Seeing an Officer as Unusual Conduct, 145

6. Frisk May Not Always Allow Additional Search, 146

7. Terry Stops under a Drug Courier Profile, 147

8. Subject Must Be Aware of Officer’s Status, 151

9. Officer Must Have Reason to Believe That the Person May Be Armed and Dangerous, 151

10. Investigation Must Not Dispel the Fear That the Subject May Be Armed and Dangerous, 153

11. The Plain Feel Doctrine, 154

12. Expansion of the Stop and Frisk Beyond Its Genesis, 155

13. Expansion of Terry-Like Stops to Individuals Not under Suspicion, 157

14. Summary, 158

6. Obtaining and Using Search Warrants: Practice, Execution, and Return, 163

1. The Fourth Amendment: Probable Cause to Search, 164

2. Specificity of Search: Particularity of Description, 167

3. Requirement of a Warrant: Physical Searches, 168

4. Requirement of a Warrant: Electronic Eavesdropping, 168

5. Sources of Probable Cause: The Informant, 172

6. Informant Probable Cause: The Totality of the Circumstances Test, 173

7. Sources of Probable Cause: Police Officers and Others, 176

8. The Affidavit for a Warrant: Written or Electronic, 177

9. The Search Warrant: A Court Order, 178

10. Fourth Amendment: Knock and Announce Requirement and Permissible Detention of Persons Present, 178

11. Scope of Search, 179

12. The Return of the Warrant, 182

13. Stale Probable Cause, 182

14. Warrantless Searches: Exceptions to the General Rule, 184

15. Summary, 184

Part Three. Searching Persons and Property, 191

7. Searches and Seizures: Houses, Places, Persons, and Vehicles, 193

1. Searches of Houses, 194

2. Warrant to Search and Arrest inside the Home, 195

3. Modern Technology and Warrantless Home Searches: Thermal Imaging Searches, 199

4. Search Incident to Arrest, 202

5. Search Incident to Arrest: No Warrant Requirement, 203

6. General Scope of the Search Incident to Arrest, 204

7. Inventory of Arrestee’s Property, 205

8. Traditional Requirements for the Plainview Doctrine, 206

9. Inadvertent Discovery: No Longer Required, 207

10. Officer Needs to Be Lawfully Present, 207

11. The Plain Feel and Plain Smell Doctrine, 210

12. Searches Based on Consent, 211

13. Searches of Motor Vehicles, 216

14. Vehicle Searches Generally Do Not Require Warrants, 217

15. Scope of Motor Vehicle Search, 218

16. Limited Vehicle Searches on Less Than Probable Cause, 219

17. Vehicle Inventory Searches, 220

18. Plainview Doctrine and Motor Vehicle Searches, 221

19. Scope of Search of Containers within Motor Vehicles, 222

20. Searches Following Vehicle Forfeitures, 226

21. Other Theories of Vehicle Searches and Seizures, 227

22. Summary, 228

8. Special Problem Searches: Administrative, Inventory, School, Airport, Work, Border, and National Security Searches, 237

1. Introduction to Administrative, Special Needs, Inventory, School, Airport, and Work Searches, 238

2. Administrative Searches, 241

3. Administrative Searches of Ordinary Businesses and Industries, 242

4. Administrative Searches of Closely Regulated Industries, 242

5. Ordinary Commercial Business: Search Warrant Required, 243

6. Administrative Searches of Homes: No Warrant Originally Required, 244

7. A Change in Requirements: Searches of Private Premises Require Warrants, 245

8. Administrative Searches: Reasonable under the Fourth Amendment, 250

9. Inventory Searches: Probable Cause Not Required, 251

10. Vehicle Inventory Searches, 251

11. Inventory Searches of Motor Vehicles: Written Policy Required, 254

12. Inventory Searches of Personal Property, 255

13. School Searches Must Be Based on Fourth Amendment Reasonableness, 256

14. Public School Drug Searches: Drug Testing of Athletes, 257

15. Public School Drug Searches: Suspicionless Testing of Nonathletes, 258

16. Government Searches in the Workplace, 262

17. Government-Mandated Private Employer Searches, 263

18. Airport, Subway, and Transportation Searches: Generally Founded on Theory of Consent, 264

19. Border Searches: Sovereignty and the Fourth Amendment, 269

20. National Security and Antiterrorism Searches, 270

21. Summary, 275

9. Searches of Open Fields and Abandoned Property, 283

1. Introduction to Open Fields: No Expectation of Privacy, 284

2. Genesis of the Open Fields Doctrine: The Hester Case, 284

3. The Dunn Case and Refining the Concept of the Curtilage, 288

4. Expectation of Privacy and Abandoned Property, 291

5. General Proof of Intent to Abandon, 294

6. Abandonment of Personal Property, 295

7. Abandonment of Motor Vehicles, 297

8. Police Misconduct and Abandonment of Personal Property, 298

9. Abandonment of Real Property, Land, Home, and Motel, 300

10. Summary of Abandonment, 301

Part Four. Miranda Warnings, Confessions, and Identification Procedures, 307

10. Miranda Principles: Fifth and Sixth Amendment Influences on Police Practice, 309

1. Introduction to Miranda Warnings, 310

2. The Basis for the Warnings, 311

3. The Road to Miranda, 311

4. The Case of Miranda v. Arizona, 314

5. Prerequisites for Miranda Warnings, 315

6. Substance of the Warnings, 316

7. Delivering the Miranda Warnings, 317

8. When Miranda Warnings Are Required: The Triggering Events, 317

9. When Interrogation Must Cease, 318

10. Necessary Condition for Miranda Warnings: Custody, 322

11. Necessary Condition for Miranda Warnings: Interrogation, 324

12. Miranda Interrogation: The Functional Equivalent, 324

13. Exigent Circumstance Exception to Miranda Interrogation, 328

14. Right to Counsel under Miranda Is Personal to Arrestee, 329

15. Procedure for Waiver of Miranda Protection, 330

16. Congressional Challenge to the Miranda Warnings, 332

17. Miranda Warnings: Required by the Constitution, 332

18. Summary, 336

11. Confession and the Privilege against Self-Incrimination, 343

1. Introduction to the Fifth Amendment Privilege, 344

2. Original Intent and the Fifth Amendment, 345

3. Privilege against Self-Incrimination: Excludable Evidence, 346

4. The Fourteenth Amendment Alterations, 346

5. Required Production of Nontestimonial Evidence and the Fifth Amendment, 347

6. Assertion of the Privilege against Self-Incrimination, 350

7. Privilege against Self-Incrimination Assertable in a Variety of Contexts, 350

8. Prosecution Comment on Defendant’s Use of Fifth Amendment, 351

9. An Equivalent Substitute for the Fifth Amendment Privilege: Immunity, 351

10. Waiver of the Fifth Amendment Privilege, 352

11. Confession Practice Prior to the Warren Court Revolution, 353

12. Evolution of Interrogation and Confession under the Warren Court, 355

13. Modern Evolution of Interrogation and Confession, 356

14. Personal Motivations for Confession Irrelevant, 356

15. Involuntary Confession Not Available for Proof of Guilt, 358

16. Involuntary Confession Not Available for Impeachment, 359

17. Violation of Miranda: Use of Confession for Impeachment Purposes, 361

18. Summary, 362

Part Five. Pretrial and Trial Criminal Procedure and Appellate Practice, 367

12. Pretrial Criminal Process: Pretrial Motions, Identification Process, Preliminary Hearing, Bail, Right to Counsel, Speedy Trial, and Double Jeopardy, 369

1. Pretrial Motions, 370

2. Identification Procedures: Introduction, 371

3. Due Process and the Right to Counsel at Identification Procedures, 372

4. Sixth Amendment Right to Counsel at Lineups, 373

5. Right to Counsel during Identification: Limitations, 375

6. Photographic Arrays: No Sixth Amendment Right to Counsel, 375

7. Due Process Concerns: Suggestiveness of Identification, 376

8. Accurate Eyewitness Identification: The Neil Five-Factors Test, 377

9. Current Application of Identification Procedures, 381

10. The Initial Appearance and the Preliminary Hearing, 382

11. Bail Issues Presented at a Preliminary Hearing, 386

12. General Bail Jurisprudence, 386

13. Federal Bail Practice: Recent Considerations, 389

14. Right to a Speedy Trial: Reasonable Time Requirements, 392

15. Speedy Trial Statutes, 393

16. Speedy Trial: When the Time Begins to Run under the Sixth Amendment, 393

17. To Determine Whether a Violation Exists: The Four-Factors Test, 394

18. Remedy for Violation of Sixth Amendment Right to Speedy Trial, 398

19. Double Jeopardy: A Required Pretrial Motion, 398

20. Requirements to Claim a Violation of Double Jeopardy, 399

21. Alleging Double Jeopardy Violation: Requirement of Same Offense, 400

22. Separate Offenses: The Blockburger Test, 400

23. Dual Sovereignty Doctrine: Successive Prosecution for Same Acts Permitted, 403

24. Summary, 405

13. Trial Procedure and Legal Rights, 413

1. Trial by Jury: A Constitutional Right, 414

2. Application of the Right to a Trial by Jury, 415

3. Selective Incorporation of the Sixth Amendment into the Due Process Clause, 415

4. Determining Whether the Right to a Jury Trial Exists, 418

5. Selecting Jurors from a Fair Cross Section of the Jurisdiction, 419

6. Violation of the Fair Cross Section Requirement: Proof and Remedy, 420

7. Waiver of the Right to a Trial by Jury, 421

8. Jury Size: Difference in State and Federal Requirements, 423

9. State Efforts to Reduce the Size of Juries, 424

10. The Concept of Jury Unanimity: Variety in State Juries, 427

11. Combination of Smaller Juries with Nonunanimous Verdicts, 428

12. Trial by Jury: Issues Involving Racial and Gender Discrimination, 428

13. Removal of Prospective Jurors: Proper and Improper Rationales, 430

14. Proving Improper Rationales for Using Peremptory Juror Challenges, 430

15. Evolution of the Sixth Amendment Right to Trial Counsel, 435

16. Constitutional Right to Counsel: Felonies and Misdemeanors, 436

17. Summary, 438

14. Appellate Practice and Other Posttrial Remedies, 445

1. The Right to Appeal, 446

2. The Appeal Process: Generally, 447

3. The First Appeal: The Court of Appeals, 448

4. The Appellate Role of a State Supreme Court, 448

5. Supreme Court of the United States: Only a Potential for Review, 449

6. Appellate Assistance to the Defendant: The Right to Counsel, 449

7. Appellate Assistance to the Defendant: The Indigent’s Right to a Transcript, 456

8. Laying the Groundwork for an Appeal: Preserving the Record, 459

9. The Plain Error Rule: Ability to Appeal Without Preserving the Record, 459

10. Subject Matter Jurisdiction: Always an Appealable Issue, 461

11. The Appellate Process: Making It Work, 461

12. Adverse Appellate Results: The Next Step, 464

13. Collateral Attack: The Writ of Habeas Corpus, 466

14. Summary, 468

Appendices, 475

Appendix A. The Constitution of the United States, 475

Appendix B. The Bill of Rights and Other Amendments to the Constitution, 485

Table of Cases, 513

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ABOUT THIS TITLE - DESCRIPTION

For courses in Criminal Procedure. This book balances straightforward text and presentations of numerous historical and contemporary cases to provide students with a thorough and interesting introduction to criminal procedure. Cases are now integrated into each chapter and comments, notes and questions accompany each case. This edition features three new chapters, How Would You Decide exercises and a companion website to support the text. Using a balanced text/case format it provides an overview of criminal procedure as well as a detailed analysis of areas of the law that require specialized consideration.

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