Criminal Procedure Exam 3

Types of eyewitness identification

Lineups, Showups, and Photo Identification

Scientific identification serve to:

Identification, Exoneration, Indictment, Confidence in indictment and conviction

3 sets of factors that explain misidentifications

Crime Factors: the ability to perceive what occurred may be limited when the crime is committed quickly

Victim Factors: victims may be too nervous to focus on the perpetrator and can only offer a general description

Offender Factors: perpetrators may hide their features, there could be multiple offenders, or the crime could occur at night, making it hard to see them.

Identification also has threats to accuracy, such as

Selection, Suggestiveness, Closure

Goals of the identification process include

Police Influence, Pressure, Accuracy

Identification process can be

Double-blind: when neither the administrator of the identification process nor the eyewitness is aware of which individual in the lineup is the suspect.

Sequential presentation: participants in the lineup are presented to the witness one at a time, and the witness is asked to rank their degree of confidence in the decision.

Simultaneous lineup: all lineup members are shown to the witness at the same time

Composition of a lineup or photographic display should consider:

Balance, Distinctive Features, Number, Preservation, Photographs

The Wade-Gilbert Rule provides

Right to a lawyer, No post indictment results without lawyer, No in-court identification of defendant, Established by *United States v. Wade*

Critical stages of a criminal proceeding

the procedures following the initiation of criminal proceedings at which failure to provide the defendant a lawyer may prevent them from obtaining a fair trial

A lawyer present at the lineup provides the defendant two levels of protection

Protection at the identification: ensures the process is fair and reliable

Protection at the trial: the lawyer can point out to the jury that the lineup was unfair.

Kirby v. Illinois

The Supreme Court held that a showup following arrest but before the initiation of adversary criminal proceedings is not a critical stage.

Two reasons given: Efficiency and Prosecution

United States v. Wade

The Supreme Court held that an individual had no right to a lawyer to observe the taking of fingerprints, hair and blood samples, and other tests that relied on standard scientific techniques and procedures. The Court reasoned that the defense attorney and defense experts could examine the test results and procedures after the test and cross-examine the police laboratory technicians at trial.

United States v. Ash

The Supreme Court held that a postindictment photographic display is not a critical stage. The accused is not present and therefore has no need for a lawyer’s assistance.

Stovall v. Denno

The Supreme Court held that suspects in the preindictment phase are protected by the Due Process Clauses of the Fifth and Fourteenth Amendments

Due process test applies throughout the entire criminal justice process such as

Lineups, showups, and photographic displays both pre- and post-indictment

Mason v. Brathwaite

The Supreme court adopted a “totality of circumstances” test to the admission of identifications under the due process test.

Four steps involved in determining whether to admit identification evidence under this test:

Establish procedure was suggestive, Demonstrate procedure is reliable, How reliability is determined by judge, Judge rules admissibility

Perry v. New Hampshire

The law enforcement officials did not arrange for the suggestive circumstances surrounding the identification. Jury ultimately determines reliability, guilt/innocence. Judge may allow expert witnesses over expert testimony

Frye test

Asks if a scientific technique or approach is established enough to gain general acceptance in the particular field in which it belongs. Articulated in *Frye v. United States.*

Daubert test

Asks a judge to study the research and views of experts and reach their own conclusion to if the scientific technique is reliable. Established in *Daubert v. Merrell Dow Pharmaceuticals.*

DNA analysis can be used to

Detection, Investigation, Guilt or innocence

Flaws of DNA analysis include

Contamination, Laboratory procedures, Significance, Relevancy

DNA Analysis Backlog Elimination Act

Provides that persons convicted of certain federal crimes who are incarcerated or on parole, probation, or supervision must provide a bodily sample that can be used for DNA analysis. As seen in *United States v. Kincade.*

Maryland v. King

Many states authorized DNA samples from felons

The Supreme Court held that taking of DNA was

A routine administrative procedure following an arrest that constituted a reasonable search under the Fourth Amendment

Is polygraph considered admissible into evidence?

No because it is not scientific acceptability and reliability. The Supreme Court affirmed the constitutionality of the prohibition on polygraph evidence in *United States v. Scheffer.*

Exclusionary rule

Evidence that is obtained as a result of a violation of the Fourth Amendment prohibition on unreasonable searches and seizures is inadmissible in criminal prosecution

Weeks v. United States

The Supreme Court held that evidence seized in the course of an unreasonable search that violates the Fourth Amendment is to be excluded from evidence in federal courts

Wolf v. Colorado

The Supreme Court later held that requirements of the Fourth Amendment were incorporated into the Fourteenth Amendment and applicable to states.

In the same case, the Supreme Court also ruled that the exclusionary rule is not an explicit requirement for the states.

Silver platter doctrine

Practice in which federal officials get around the exclusionary rule by relying on evidence seized by state officials. This was ruled unconstitutional in *Elkins v. United States.*

Mapp v. Ohio

The Court later extended the exclusionary rule to the states in this court case, as it ensured judicial integrity

The Justification for the Exclusionary Rule

Constitutional rights, Deterrence, Judicial integrity, Social cost

Arguments against the Exclusionary Rule

Constitution, Deterrence, Judicial integrity, Truth seeking, Penalizing victims, Lack of flexibility, Limited application

Alternative Remedies to the Exclusionary Rule

Civil tort suits, Criminal prosecution of police, Police administrative procedures, Civilian review board, Judicial hearing

Invoking the Exclusionary Rule

Filing a pretrial motion to suppress can be used to challenge the reasonableness of a search.

The defense may appeal after a conviction whether the judge made the correct decision in admitting the evidence.

If the appellate court determined the decision was based on incorrect analysis of the law, the guilty verdict will be reversed, unless it is considered to be harmless error.

Standing

A defendant must have **standing** to challenge the introduction of evidence at trial.

The legal test for standing is whether the defendant has a subjective and objectively reasonable expectation of privacy in the area that is subject to the search.

Exceptions to the Exclusionary Rule: Collateral Proceedings

Unlawfully seized evidence use in non-trial proceedings. Evidence seized in an unreasonable search is admissible in various noncriminal proceedings

Exceptions to the Exclusionary Rule: Attenuation

An attenuated (weak) connection between the unlawful search and the seizure of evidence does not apply to the exclusionary rule; also referred to as purging the taint of the illegality. United States v. Boone is an example of attenuation.

Factors in determining attenuation include:

Temporal proximity: A lengthy period of time attenuates the taint.

Intervening circumstances: intervening events, such as voluntary acts of individuals, weaken the connection between the unlawful search and the evidence seized.

Intentional Violation: Judges resist finding attenuation where the police intentionally violate the law.

Exceptions to the Exclusionary Rule: Good Faith Exception

Based on case United States vs Leon

Reliance on a warrant.

Reliance on judge assurance of warrant standards.

Reliance on legislation

Reliance on court employee-entered data.

Reliance on apparent third-party authority to consent.

Exceptions to the Exclusionary Rule: Independent source doctrine

Evidence that is unlawfully seized is admissible where the police are able to demonstrate that the evidence was also obtained through independent and lawful means.

Seen in Murray v. United States.

Exceptions to the Exclusionary Rule: Inevitable Discovery Rule

Evidence that is seized unlawfully is admissible where the government can prove that the evidence would have been inevitably discovered in the same condition in a lawful fashion.

First articulated by the Supreme Court in *Nix v. Williams*.

Exceptions to the Exclusionary Rule: Impeachment

Evidence seized in an unlawful search may be used for the impeachment of a defendant who takes the stand.

The leading case on the impeachment exception is *Walder v. United States.*

Entrapment

The government’s inducement of an otherwise innocent individual to commit a crime. Two legal tests for entrapment were articulated by the Supreme Court in *Sherman v. United States.*

The Subjective test

Focuses on the defendant and asks whether the accused possessed the criminal intent to commit the crime, or whether the government created the crime.

The first step of the test is evaluating government inducement, which requires appeals to friendship, promises of material gain or sexual favors, or assistance in carrying out the crime.

The second step is whether the defendant possessed a predisposition to commit the crime.

Factors to establish predisposition:

Defendant character/reputation, Whether the government or the accused suggested the criminal activity, Defendant engagement in criminal activity for profit, Defendant reluctance, Inducement attractiveness

The Objective Test

Focuses on the conduct of the government rather than on the character of the individual

The Objective Test: Prohibited practices:

Taking advantage of weaknesses, Appeals to friendship/sympathy, Promising substantial economic gain, Pressure or threats, Providing crime equipment, False representations

The Due Process Test

Involves instances in which the government’s conduct was unfair and violates the Due Process Clause of the Fifth and Fourteenth Amendments.

Mathews v. United States

The Supreme Court held that a defendant is entitled to deny committing a crime and also rely on the “inconsistent defense” of entrapment.

Civil Remedies

Legal actions filed against officers, their supervisors, and local governments for money damages

Criminal Remedies

State and federal police officers may be criminally prosecuted and punished

Administrative remedies

Police officers may be subjected to internal administrative procedures for violating departmental regulations.

Two types of constitutional tort actions

State officers: state law enforcement officers who violate federal constitutional rights or right under federal law may be sued in a state or federal court under Title 42, Section 1983 of the U.S. Code along with a town, city, or county.

Federal officers: federal law enforcement officers who violate constitutional rights may be sued in federal courts in a Bivens legal suit.

Typically claim damages for torts such as

Assault and battery, false arrest and imprisonment, and intention infliction of emotional distress

Monroe v. Pape

The Supreme Court held that the “Ku Klux Klan Act” (section 1983) applied to police officers who abused their authority by depriving individuals of their constitutional rights

Three elements must be established for legal action under section 1983

Color of law: the defendant must have acted under the “color of state law.” under the authority of state law

Constitutional rights: the defendant’s act must have violated a plaintiff’s constitutional rights.

Immunity: a police officer possesses qualified immunity and is liable only when they violate a well-established constitutional right.

West v. Atkins

Requires the defendant exercise power that they possessed by the virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.

Rizzo v. Goode

The Supreme Court stated that the standard for supervisory liability is proof of an affirmative link between the actions/orders of supervisors and the allegations of misconduct.

Absolute immunity

Judges, prosecutors, witnesses, and jurors are protected against 1983 civil suits for acts undertaken during the judicial process.

Ensures the judicial process functions efficiently and smoothly

Qualified immunity

Other public officials are liable under 1983 for violations of clearly established rights.

The test for police is whether an officer is aware that their conduct is unlawful.

When the law is unclear, they have immunity.

The established legal principle

The police have no legal obligation to intervene to protect the general public. Based on several considerations: Legal claims, Causality, Discretion

Injunction

A court order that directs an individual or government to stop an unlawful activity.

Contempt

Violation of an injunction is punishable by contempt, resulting in a fine or imprisonment

Pattern-or-practice decree

A mechanism to address widespread practice of unlawful behavior rather than an isolated incident

Torts

Acts of harm to another individual, such as assault and battery, wrongful death, and false arrest and imprisonment.

Tort Actions

Are difficult to win because the police possess the defense of official immunity unless there is demonstration that they committed the tort in a willful or malicious fashion.

Bivens v. Six Unknown Named Agents

The Supreme Court held that federal law enforcement officers are responsible for constitutional torts that violate individuals’ Fourth Amendment rights.

The requirements for a *Bivens* suit are the same as the requirements for a section 1983 suit.

B*ivens* actions are brought against individuals, not the federal government itself.

Federal Tort Claims Act

A partial waiver of federal government’s sovereign immunity where the government is liable if a law enforcement officer commits assault and battery, false imprisonment, false arrest, abuse of process, or malicious prosecution

Considerations for civil vs. criminal cases

Remedy, Conviction, Jury, Costs

Title 18, Section 242 of the U.S. Code

Acts under color of any law, statute, ordinance, regulation, or custom that willfully subject an individual to deprivation of a right protected by the constitution or by a federal statute.

Title 18, Section 241 of the U.S. Code

Participation in a conspiracy to act under color of state law to deprive an individual of a constitutional right or right guaranteed under a federal statute.

Title 18, Section 245 of the U.S. Code

Interference, intimidation, or injury to an individual because of involvement in a federally protected activity, including a federal program or employment, service as a juror, or receipt of a federal benefit

Color-of-law investigation areas

Excessive force, Sexual assault, False arrest and fabrication of evidence, Deprivation of property, Failure to protect an individual from harm

Two major approaches to enforcing police department regulations:

Internal affairs: a unit of the police department that investigates misconduct.

Civilian review: agencies composed of private citizens with authority to investigate and, in some case, discipline the police.

Misconduct under regulations of most police departments include

Crime, Excessive force, False arrest, Illegal search, Harassment, Conduct unbecoming an officer, such as drinking on duty or neglect of duty, Minor uniform and disciplinary violations

Conclusions for investigations:

Unfounded: evidence does not support allegations

Exonerated: the incident occurred, but the officer’s conduct was consistent with policy

Not sustained: evidence is not sufficient to clearly prove or disprove the allegation

Sustained: the complaint is valid

Testilying

when police give false testimony at trial