Disclosing and Suppressing Evidence
Discovery
Discovery - Pretrial procedure in which parties to a lawsuit ask for and receive information such as testimony, records or other evidence from each other
Makes sure that one side does not have an unfair advantage over the other
As Justice William Brennan asked “should this struggle at trial be a sporting event or a quest for the truth?”
Federal Rules of Civil Procedure makes sure that before trial, every party in a civil action is entitled to the disclosure of all relevant info in the possession of any person, unless the info is privileged
Law on the Books: Rules Requiring Disclosure
There are no constitutional right to discovery in a criminal case
but through court decisions, statues and rules there is now a framework for criminal discovery process
In State v Tune the court expressed concern that doo much prosecutorial disclosure might result int he defendants taking undue advantage
Rules are governed by the Federal Rules of Criminal Procedure Rules 12, 16, and 26
provide a defendant, upon motion, rights to discovery with tangible objects, tape recordings, books, papers, documents, statements, that are relevant to the case
Results and physical examinations, science testing, forensic comparisons, summaries of expert testimony are also allowed
Can be from a few items to boxes and boxes of papers
In state courts, the type of info that is discoverable varies from state to state
some only allow limited discovery
Others take a middle ground
Few states have adopted a liberal discovery rules
Exculpatory Evidence - Any evidence that may be favorable to the defendant at trial
Impeachment Evidence - Evidence that would cast doubt on the credibility of a witness
Discovery of Exculpatory Evidence
Brady v Maryland SCOTUS held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution”
The Brady Rule
Limited to admissible evidence
The prosecution has no obligation to provide the defense exculpatory information that would not be admissible in court
in Wood v Bartholomew, there is no requirement to turn over the results of a polygraph of a witness
The rule only applies to exculpatory evidence that is material
Evidence that has a reasonable probability that had it been given to the defense, the results of the trial would be different
Reasonable Probability is a probability sufficient to undermined confidence in the outcome
Requires judgement on the prosecutors
Courts have ruled that prosecutors have been to narrow in their interpretation
In Kyles V Whitley, the prosecutor failed to disclose the statements of 2 of the 4 witnesses and evidence relating to Kyles Car
5 - 4 decision, The test is a cumulative one, and you must look at all evidence that was not disclosed, not just isolated pieces
“The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence”
The prosecutor violated the Brady Rule
The prosecutor didn’t even know he had violated because the police had not revealed the two witness statements to the prosecutor
The prosecutor is still responsible for ensuring that all evidence is given to their office
Brady does not require prosecutor to make its files available to the defendant for an open ended “fishing expedition”
Also does not require the disclosure of inculpatory, neutral or speculative evidence
Discovery of Impeachment Evidence
Jencks v United States SCOTUS ruled that the government must disclose any prior inconsistent statements of a prosecutorial witness that way the defense can conduct a meaningful cross-examination of witnesses
The Jencks Act requires the prosecutor to disclose, after direct examination of a government witness and on the defendant’s motion, any statement of a witness in the government’s possession that relates to the subject’s matter of the witness’s testimony
Requires the disclosure of all prior statements of witnesses, even if the prior statements are not inconsistent with subsequent statements by the witness
The burden is placed on the defense counsel to ask for the material
Giglio v United States SCOTUS clarified that all impeachment evidence, even if not a prior statement by a witness, must be disclosed to the defense
Places the burden on the prosecutor to disclose any and all information that can impeach the credibility of their witnesses
Prior criminal records, acts of misconduct on prosecutorial witnesses, promises of leniency or immunity deals
Law in Action: Informal Prosecutorial Disclosure
Discovery Rules are super important to the defense
By learning the facts of the prosecutors case, the defense does not face the task of trying to force their client to voluntarily disclose this information
Saves hours of work
In Jurisdictions with limited discovery rights to the defense, Defense attorneys must be resourceful
Use a variety of proceedings (not designed for discovery purposes)
Preliminary Hearing: Defense hears part of the story of critical witnesses
Pretrial motion to suppress evidence: Testimony of gov witnesses give facts
Defense attorneys eventually confront their clients about inconsistences
Prosecutors can have an office policy that prohibits Assistant prosecutors from disclosing any information not required by law
Typically, Assistant DAs voluntarily disclose certain aspects of the state’s case to defense attorneys
Courtroom work group type shit
Defense attorneys can get frustrated at the prosecutors control over the discovery process
Informal prosecutorial discovery encourages guilty pleas
when prosecutors have a strong case
Courthouses where prosecutors have open discovery policies, guilty pleas are entered sooner
smaller backlog
Law and Controversy: Requiring Reciprocal Disclosure
Reciprocal Disclosure - Automatic discovery for certain types of evidence, without the necessity for motions and court orders
Who must disclose what to whom causes controversy
Defense want broader discovery laws
What extent should defense be required to disclose relevant info?
Constitutional limits in reciprocity discovery protects defendants against self-incrimination
Requirements that the defense turn over to the prosecutor statements from expert witnesses that it does not intend to call at trial would be unconstitutional
If the defendant intends to call an expert witness at trial, the Federal Rule of Criminal Procedure 16 require the defense to disclose the expert’s identity, qualification, conclusion, and basis for how their reached them
Few states allow the defendant access to discoverable info in the prosecutions’ possession without the defense having a duty to disclose any info to the prosecution
Alibi defense - A defense alleging that the defendant was elsewhere at the time of the crime with which he or she is charged was committed
Defense would have to disclose a list of witnesses to be called to support the alibi
Allows the prosecutor to investigate the backgrounds of the witnesses and be prepared to undermine their alibi
In Some states, “A defendant who issues a discovery request to the prosecutor thereby automatically incurs the duty to disclose information to the prosecutor. In still others, a defense discovery request gives the prosecutor the right - presumably almost certain to be exercised - to demand discovery from the defendant”
Current law tends seem to favor broadening the right of discovery for both the defense and prosecution
Suppressing Evidence
The Exclusionary Rule
Exclusionary Rule - a rule created by judicial decisions holding that evidence obtained through violations of the constitutional rights of the criminal defendant must be excluded from the trial
Weeks v United States: prohibition on the use of evidence illegally obtained by federal law enforcement officers
Wolf V Colorado: SCOTUS took the first step towards applying the exclusionary rule to the states by applying the 14th amendment’s due process clause
Left the enforcement to the discretion of the individual states
Mapp V Ohio: Exclusionary rule became the principal method to deter 4th amendment violations by law enforcement
The exclusionary rule not only applies to physical search and seizure of evidence
Interrogations, confessions that violate the 5 or 6 amendments
Dickerson v United States: Unreasonable searches under the 4th amendment are different from unwarned interrogations under the 5th amendment
Failure to give Miranda warnings before confession does not automatically trigger exclusionary rule to other, further incriminating statements
Confrontations - A process by which a witness “confronts” a suspect in a lineup, a photo array, or even in person for the purpose of attempting to identify a suspect
If the lineup was improperly conducted, the identification of the suspect can be excluded
Fruit of the Poisonous Tree
Not limited to evidence
Derivative Evidence - Secondary evidence derived from primary evidence obtained as a result of an illegal search or seizure
Fruit of the Poisonous Tree - The poisonous tree is evidence directly obtained as a result of a constitutional violation; the fruit is the derivative evidence obtained because of knowledge gained for the first illegal search, arrest, confrontation, or interrogation
Judges hate excluding derivative evidence under the exclusionary rule/fruit of the poisonous tree doctrine. 4 doctrines to mitigate the harsh effects
Good Faith Exception - An exception to the exclusionary rule that allows illegally seized evidence to be admitted at trial if law enforcement officers acted in good faith, relying on a defective search warrant or a law subsequently determined to be unconstitutional
Independent Source Doctrine - An exception to the fruit of the poisonous tree doctrine that allows the admission of tainted evidence that if evidence was also obtained through a source wholly independent of the primary constitutional violation
Inevitable Discovery Doctrine - A variation of the independent source doctrine allowing the admission of tainted evidence if it would inevitably have been discovered in the normal course of events. Under this exception, the prosecution must establish by a preponderance of the evidence that, even though the evidence was actually discovered as the result of a constitutional violation, the evidence would ultimately or inevitably have been discovered by lawful means, for example, as the result of the predictable and routine behavior of a law enforcement agency, some other agency, or a private person
Attenuation Doctrine - An Exception to the Fruit of the poisonous tree doctrine that allows the admission of tainted evidence if that evidence was obtained in a manner that is sufficiently removed or “attenuated” from unconstitutional search or seizure, thereby rendering the evidence admissible at trial
Interrogations and Confessions
The Voluntariness Standard
Traditional English common law admitted all confessions,
Changed in the mid - 1700 when they examined when the courts
Only confessions that were “free and voluntary” would be admitted at trial
Relying on the 14th amendment’s due process clause, SCOTUS adopted this approach in Brown v Mississippi
Confessions based on physical coercion are inadmissible in court based on Due Process
Lengthy Interrogations, psychological ploys, etc.
Confessions based on psychological coercion should be rejected just as if they were based on physical coercion Ashcraft V Tennessee
The Birth of Miranda Warnings
Miranda v Arizona
You have the right to remain silent
Anything you say can and will vibe used against you in the court of law
You have the right to talk to a lawyer and have him or her present with you while you are being questioned
if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish
Court shifted the burden of proof from the defense to the police and prosecutor
Based on the 5th amendment “no person… shall be compelled in any criminal case to be a witness against himself”
Miranda rights need to be provided to a suspect who is both in custody and being interrogated
Custodial Interrogations - Any questioning by law enforcement officers after a suspect has been arrested or otherwise deprived of his or her freedom in any significant way, thereby requiring that the suspect be informed of his or her 5th amendment rights as set forth in Miranda
Criminal defendant has a right to “not testify”
prosecutor may not ask a jury to draw an inference on guilt because the defendant does not testify in their own defense
Miranda only applies to “evidence of a testimonial or communicative nature”
Interrogations and the Sixth Amendment
“In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense”
Once this right has been asserted, authorities may not engage in any conduct that is designed to elicit an incriminating response from the defendant without the presence or waiver of counsel, Brewer v Williams
Bars the use of any secret investigatory techniques
A defendant can waive their right to counsel
Interrogations and the Fourteenth Amendment
Work in conjunction with the due process requirements
The failure to provide Miranda warnings in and of itself does not render a confession involuntary
Statements giver after Miranda warnings may be inadmissible if they were not given voluntarily but rather were coerced (The suspect was in pain/in ICU)
Applying the Law of Interrogation
Search and Seizure
First part of the fourth amendment is referred to the reasonableness clause
Search is when police intrude on an individual’s property to obtain info/discover something
Seizure is a meaningful interference with an individual’s possessory interest in that property
Unreasonable Search and Seizure - The Fourth amendment provides for protection against unreasonable search and seizure of the illegal gathering of evidence, but it was not very effective until the adoption of the adoption of the exclusionary rule, barring the use of evidence so obtained
Searches and seizures not supported by probable cause are illegal
If there is probable cause, a warrant that describes with particularly the items police intend to search/seize is required
Terry V Ohio if police have reasonable suspicion that the suspect is armed, they can frisk the suspect for weapons
Exigent circumstances would “cause a reasonable person to believe that entry was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts”
Search Warrant
Search Warrant - A written order, issued by judicial authority, directing a law enforcement officer to search for personal property and, if found, to bring it before the court
Applying for Search Warrants
Once the officer realizes a search warrant is needed, the officer goes to the stationhouse and prepares an application, affidavit, and warrant
Must have information to determine that there is “a fair probability that contraband or evidence of a crime will be found in a particular palace”
Affidavit - A written statement of facts, which the signer swears under oath are true
The applicant must then contact a neutral judicial officer to approve the warrant based on the application and the affidavit detailing the facts that establish probable cause
Must include the particularly describing the place or person to be searched, the items to be seized, and the details necessary to establish probable cause
Authority to Issue a Search Warrant
Only judicial officers who have been specifically authorized to do so many issue search warrants
Some jurisdictions have an “on duty judge” available to issue warrants 24 7
It is rare that a judge rejects a search warrant
The Requirement of Particularity
Warrants must describe “the place to be searched and the persons or things to be seized”
warrants should be incredibly detailed
Executing Search Warrants
Search warrants must be executing in a timely manner to prevent the info that established probable cause from going stale
The scope of law enforcement activities during the execution of the warrant must be strictly limited to achieving the objectives that are set forth with particularity in the warrant
Search Warrants must be executed at a reasonable time of day
Law enforcement officers are generally required to knock-and-announce their presence, authority and purpose before entering the premise to execute a search warrant
The police may remain on the premises only for as long as it is reasonably necessary to conduct the search
Officers executing a search warrant must be careful to use only a reasonable amount of force when conducting a search
After Search Warrants are Executed
After the items specified in a warrant are found, the legal justification for law enforcement’s intrusion comes to an end
Federal Rule of Criminal Procedure 41 say that proper execution of a search warrant entails several duties after the actual search is complete
Searching officers must inventory all the property seized
Leave a copy of the warrant and inventory with the occupants
The warrant itself, must be returned to the judicial officer designated in the warrant
Evidence seized during the search warrant must be secured in a manner that preserves the chain of custody
Chain of Custody - The chronological documentation of the seizure, control, transfer, analysis, and disposition of evidence
If evidence needs to be moved, then law enforcement document the dates and times when it was moved, identity of evidence holders, conditions of which the evidence was held under
Warrant Exceptions
Warrantless Searches - Search without a search warrant
unreasonable under the 4th amendment subject to a few specially established and well-delineated exceptions
Majority of searches are conducted without a warrant
Electronic Surveillance
Searches conducted using wiretaps, bugs, or other devices pose challenges for balancing privacy interests and law enforcement needs
Potential for abuse of individual rights
Omnibus Crime Control and Safe Streets Act of 1968 - A federal statute, Title III, which provides greater privacy protections than the fourth amendment by regulating both law enforcement and private searches and seizures of wire, oral, or electronic communications
Limiting who may apply for wiretaps
Requiring multiple levels of administrative and judicial review of wiretap applications
mandating that the wiretap procedures minimize the interception of communications not subject to the wiretap order
Requiring law enforcement officers who learn information by listening to intercepted communications to keep the content of what they hear confidential
Immediately upon the expiration of a wiretap order, both the interception order and all recordings made pursuant to it be delivered to the judge who issued the order to be sealed
Eavesdropping and Consent Surveillance
If a conversation takes place in public where other parties can overhear the conversation
there is no reasonable expectation of privacy
Recording a conversation would not violate the 4th amendment
Consent Surveillance - A situation in which one or more parties to a communication consents to the interception of the communication. Neither Title III nor the Fourth amendment prevents the use of such communications in court against a nonconsenting party to the communication
Allows a law enforcement officer or agent, an informant, accomplice, or a victim to wear a body microphone, act undercover without being wired, record a telephone conversation
A private citizen, may not intercept a communication “for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the united states or of any state
Electronically Stored Information
Searches of Electronically stored information are also governed by the fourth amendment
Stored Communications Act - A federal statute that governs law enforcement access to stored communications, such as those in e-mail, voice mail, computer files, and cell phones
Gives law enforcement access to stored communications older than 180 days
US department of justice recommended a set of practices to ensure compliance with the particularity requirement of 4th amendment
affidavit should list not only the specific hardware to be seized and searched but also explain the techniques that will be used to search only for the specific files related to the investigation and not every file on the computer
Video Surveillance
Video Surveillance - The use of video cameras that record only images, not sound, and therefore, is beyond the reach of Title III of the Omnibus Crime Control and Safe Streets Act of 1968
Legal analysis of video surveillance with audio are controlled by the fourth amendment
Intelligence Surveillance
Foreign Intelligence Surveillance Act (FISA) - A federal statute that regulates the electronic surveillance of foreign powers and their agents within the US where a “significant purpose” of the surveillance is to gather foreign intelligence information that cannot reasonably be obtained through normal investigative techniques. FISA also permits surveillance of “lone wolves” - any individuals or group that is not linked to a foreign government but who is suspected of terrorism or sabotage
Any federal agent can apply for a FIA warrant
must be approved by the US attorney general
Approved by assistant to president for National Security Affairs or deputy director of the FBI
Applying the Fourth Amendment
Historically, gathering physical evidence was governed under common law rule
if the police conducted a illegal search/seizure, the evidence obtained could still be used
No control over search and seizures
SCOTUS modified this tradition when it adopted the exclusionary rule
The Exclusionary Rule and the Courtroom Work Group
Police’s on the spot decisions can later be challenged in court
Pretrial Motions
When a defense attorney believes their client was subject to illegal police action has ways to fight it
Suppression Motions - Requests that a court of law prohibit specific statements, documents, or objects from being introduced into evidence at trial
made before trial
Defense Attorney must prove that the search or confession were illegal/coerced
only exception was an allegation that the Miranda warnings were not given, then the state must prove
Never an unbiased, independent evidence of what happened
everyone gives different accounts of what happened
Judges are umpires
Prosecutors play a passive role
Defense Attorneys as Prime Mover
Defense attorneys have the responsibility of protecting the rights of their clients
If the defense does not object, it is then assumed that the law enforcement behaved properly
If the motion is granted, the defense wins because the prosecutor will dismiss the case for lack of evidence
If the motion is denied, the defense is able to discover information that may later prove valuable at trial
Still have major barriers
violations of Miranda/4th amendment must be found in a court hearing
They must frame the issue and determine whether facts exist to support the conclusion
Influenced by the courtroom work group when deciding to make a motion to suppress evidence
The Defense Posture of the Prosecutor
Suppression motions are liabilities for prosecutors
means they must do extra work
May lose the case entirely
Prosecutors still have the upper hand
only need to defend because the burden of proof is on the defense attorney
Trial Judges as Decision Makers
Decision to supress evidence rests with the judge
key policymakers
Untimate discretion in making findings of fact
Higher courts examine whether the law was correctly applied by the trial judge if an appeal happens
Police Testimony
Most jurisdictions require police to tape interrogations
Police, prosecutors, and defense attorneys can be embroiled in disputes about what occurred during interrogation
Law and Controversy: Costs of the Exclusionary Rule
Debate over the exclusionary rule focuses on the cost
One study found that 30% of searches failed to pass constitutional muster
even though the officers knew they were being observed, they still committed illegal searches
The searches were not documented in records because they did not result in arrests
The lack of official action makes it difficult to calculate the cost of the exclusionary rule
Exclusionary rule leads to freeing of apparently guilty defendants
prosecutors can refuse to file charges
Case attrition can occur when judges grant pretrial motions to suppress
in reality, few pretrial motions to suppress are actually filed
If they are filed, they are rarely sucessful
0.57 of convictions were lost because of exclusionary rules
A panel of the ABA concluded that constitutional protections of the rights of defendants do not significantly handicap police and prosecutors