Archive | Criminal Procedure

The Machinery of Criminal Justice: Colonial Criminal Justice as a Morality Play

I’d like to thank Eugene and his fellow co-conspirators for graciously letting me guest-blog this week about my new book, The Machinery of Criminal Justice, which was just published by Oxford University press and is available here. In a nutshell, the book is about:

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater public involvement and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. But I hope to give you a sense of how far modern American criminal justice has drifted from its roots and the hidden costs of efficiently boosting the quantity of cases prosecuted at the expense of the quality of how we do it.

Let me start today and tomorrow by canvassing how, without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency.

In the seventeenth and eighteenth centuries, of course, most people lived in small towns and villages. Communities were very cohesive, as everyone knew everyone else and word of mouth traveled quickly. They were very often ethnically and religiously homogeneous, with a shared sense of what was and always had been wrong. The downside, of course, is that social and legal pressures to conform could be stifling.

But there were upsides too. Because [...]

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Yale Kamisar on the Rise and Fall of Miranda

My co-author Yale Kamisar helped found the field of constitutional criminal procedure in the 1960s, and his articles have been cited in dozens of Supreme Court cases as early as 1960 and as recently as 2009. He’s now in his 80s and remains active. Yale lectured on the law of police interrogations at the University of Washington Law School back in October in a lecture titled “The Rise Fall and Decline of Miranda.” You can watch the video of the event via Quick Time here; watch it via Windows Media Player here; download the mp3 here; or read the transcript here. [...]

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Thoughts on The Collapse of American Criminal Justice (Part 1 of 2)

I recently finished the new book by the late Bill Stuntz, The Collapse of American Criminal Justice. My co-blogger Paul Cassell reviewed it here in the Wall Street Journal, and I wanted to blog my own thoughts about the book. My basic take is that it’s a great book, with many important insights. It’s the most interesting book on the criminal justice system that I’ve read in a long time, and perhaps ever. At the same time, I’m not sure I’m entirely convinced: Stuntz makes a number of claims that strike me as questionable. Plus, his recommendations for reform stuck me as a bit utopian. In this post, I’ll introduce Bill’s basic theory, and then offer some thoughts in response. In a future post, I’ll turn to Stuntz’s recommendations, and again offer my own reaction.

I. The Basic Argument of Stuntz’s Book

Stuntz’s argument starts with a widely-heard set of complaints about today’s criminal justice system: Too many people are in prison, too many laws are too punitive, and criminal cases are generally resolved by guilty pleas guided by prosecutors rather than trials resolved by juries or judges. The question is, why? In Stuntz’s view, the major reason is that criminal justice has lost its local character.

In the 19th Century, Stuntz explains, criminal law and justice was largely local. There was a lot of variation by region, to be sure. But on the whole, local police captured local criminals, who were charged by local prosecutors and tried before local juries using criminal law standards from the common law that were vague and left considerable discretion to the jury. In Stuntz’s view, that system worked pretty well – much better than we realize today. Criminal punishment was relatively rare, and punishment reflected community norms and senses of justice. [...]

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LAT on Justice Scalia and Criminal Defendants

David Savage of the LA Times reports that many criminal defendants should be thankful for Justice Scalia.  In recent years he has led the charge for more strict enforcement of the Sixth Amendment‘s confrontation clause.  This is but one example of how originalist approaches to constitutional interpretation do not always produce “conservative” results.  Justice Scalia’s commitment to his understanding of the Constitution’s original meaning is not all that’s at work here, however.  His commitment to formalism, and the imposition of bright-line rules, is even greater.  Indeed, the best way to understand the current Court’s division on many (though not all) questions of criminal procedure is as a split between formalists and pragmatists — between those inclined to enforce a bright-line constitutional rule and those inclined to account for practical considerations. [...]

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Protecting (the Government’s) Right to a Jury Trial

State legislators in Ohio are considering legislation that would enable criminal prosecutors to insist on a jury trial even when a criminal defendant waives that rate and asks for a bench trial. The Cleveland Plain Dealer reports:

Ohio prosecutors want to change the law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury. . . .

“The whole jurisprudence system is based on the jury system,” [state legislator Lynn] Slaby said. “Until we do away with juries entirely, it’s more fair to have both sides have a right to a jury trial.”

As the article notes, this proposal is not revolutionary. Although criminal defendants have a constitutional right to trial by jury, they are not guaranteed the ability to waive this right. [...]

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E-Mail Accounts, The Warrant Requirement, and the Territorial Limits of Court Orders

My friend Jennifer Granick points me to an interesting new case, Hubbard v. Myspace (S.D.N.Y. June 1, 2011), that touches on a fascinating Fourth Amendment question: What are the territorial limits of search warrants for Fourth Amendment purposes? To be clear, the Hubbard case itself involved a statutory challenge, not a constitutional one. The plaintiff sued MySpace for complying in California with a state warrant issued in Georgia that was faxed to MySpace in California on the ground tat the Stored Communications Act, 18 U.S.C. 2703, did not allow MySpace to comply with the out-of-state warrant. As a statutory claim, the argument was pretty clearly incorrect. But at the end of his opinion (p.11) Judge Kaplan touches on a really interesting issue: What about the Fourth Amendment?

Specifically, the interesting issue is this: If the Fourth Amendment imposes a warrant requirement on government access to an e-mail account, which I think it does and the Sixth Circuit has expressly so held, is the warrant requirement satisfied by an out-of-state warrant from a jurisdiction far away with no authority to actually compel compliance with the warrant? Or is the warrant requirement only satisfied by a warrant issued locally, or at least in the same state or federal district? This issue generally doesn’t come up in traditional physical investigations because the police will get a local warrant to physically search a local location, and arrests generally don’t require warrants. But warrants for e-mail accounts are unusual: The police obtain the warrant and fax it to the ISP, and the Stored Communications Act contemplates out of state warrants. ISPs usually don’t have to comply with out of state warrants, as they are out of state and not binding on them: But the question I’m interested in here is, does the out [...]

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Dismissing a Holdout Juror in the Middle of Deliberations Because “His Mind Is Bent . . . Against the Prosecution”

That’s unconstitutional, says a Ninth Circuit panel in yesterday’s Williams v. Cavazos decision (which seems correct to me). An excerpt:

As a general matter, the Sixth Amendment does not prohibit the mid-deliberation dismissal of jurors who are unable to serve or who engage in misconduct. In Miller, for example, we found no constitutional violation in the dismissal of two jurors after deliberations had begun: one of whom was sick with the flu, and another who had been intoxicated the previous morning and had fallen asleep during the rereading of testimony. To the contrary, we held that the “California substitution procedure followed by the trial court” — Penal Code section 1089 — was constitutional because it “preserved the ‘essential feature’ of the jury required by the Sixth and Fourteenth Amendments.” …

It is just as clear, however, that the Sixth Amendment does not allow a trial judge to discharge a juror on account of his views of the merits of the case…. The jury is the only actor permitted to determine guilt — not the judge. It is well-established, of course, that “a judge may not direct a verdict of guilty no matter how conclusive the evidence” in a criminal case. It would similarly vitiate the “essential” role of a jury to act as a “safeguard” against both the power of the state and the court for a judge to selectively dismiss jurors based on the views of the merits of the case they express during deliberations. Such dismissals are thus prohibited as well, because a court cannot “do indirectly that which it has no power to do directly.”

Indeed, no one, including the judge, is even supposed to be aware of the views of individual jurors during deliberations, because a jury’s independence is best guaranteed by secret deliberations, such that

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Text of the FBI Memo on Miranda and Questioning of Terror Suspects:

Following up on my post from yesterday about the FBI’s new policy of using the “public safety” exception to Miranda to question terrorism suspects  — The NY Times has the text of the FBI’s memo, found here.

The larger interesting question is why should the new policy be limited to suspected terrorists.  Presumably FBI agents question many other suspects who pose a threat to the American people.  It seems to me that the FBI should use the recognized public safety exception in all circumstances where it is applicable, not just the relatively exotic situations where terrorism is involved. [...]

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Justice Department Guidelines Cut Back on Miranda Rights For Terror Suspects:

The Justice Department has just announced new guidelines, apparently expanding the “public safety” exception to Miranda to allow extended questioning of terror suspects.  The WSJ has the story here. Such extended questioning will require approval of Justice Department lawyers.

How does Eric Holder reconcile these new guidelines with the position that he supported in Dickerson in 2000 (that the Miranda warnings were constitutionally required)?  Bill Otis has an interesting analysis of the contradiction here.

Previous VC posts on the subject of Miranda and public safety can be found here. Questioning terror suspects seems to me to be  the classic example of the need for a public safety exemption.  It does seem desirable to have Congress add its backing to the exemption by passing a statute confirming its agreement with the Justice Department guidelines. [...]

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State-Law Journalist’s Privileges vs. Defendant’s Sixth Amendment Rights

People v. Diaz (N.Y. Sup. Ct. Jan. 11, 2011), has an interesting discussion of this issue (some paragraph breaks added):

Defendant Angelo Diaz stands charged with a number of felonies, including Attempted Murder in the Second Degree, on the theory that he was an accomplice in an attempt to shoot a police officer. The People intend to prove at trial that defendant shouted, in so many words, “shoot the cop” as his co-defendant, Angel Rivera, struggled with an officer for control of a pistol. However, the Daily News published an article just after the crime stating that, “according to authorities,” the co-defendant’s mother had shouted “shoot the cop.”

Defendant has served a subpoena on the Daily News in an effort to determine whether the source of the story’s report about the co-defendant’s mother was one of the two officers present at the time of the crime. Those officers are expected to testify about the “shoot the cop” statement. If they attribute the statement to defendant, and if one of the officers was the source for the Daily News article, defendant would seek to impeach the witness with his prior statement. If necessary, defendant would call a Daily News witness to attest that the officer had attributed the “shoot the cop” statement to someone other than defendant. [Footnote moved: The court offered the Daily News an opportunity to end this litigation by stating that the source of the report was not one of the two officers present at the time of the incident. The Daily News declined to accept the invitation, but in doing so did not indicate anything about who the source might be. -EV] …

[U]nder [New York's Press Shield Law (Civil Rights Law Section 79-h)], the identity of a confidential source is absolutely protected from disclosure…. If the [...]

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Federalist Society Debate about Miranda and Questioning Suspected Terrorists

 Professor Guiora (a colleague of mine at Utah) and I recently debate the appropriateness of Miranda warnings in the context of terrorism investigations.  Here’s a link to the Federalist Society’s podcast of the debate, which revolves around whether or not the “public safety” exception to Miranda  should apply in the context of questioning suspected terrorists.  I argue that, under current doctrine, the exception easily applies; Professor Guiora argues that using the exception would put us on a slippery slope, sliding toward the destruction of civil liberties. [...]

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Time to Codify a Miranda Exception for Terrorists?

Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists.  I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings.  I thought I’d briely lay out my argument a bit more fully now in anticipation of the debate.

The case of Umar Farouk Abdulmautallab (the so-called “Christmas Day Bomber”) usefully frames the issue.  According to public reports, Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation — questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a “clean team,” brought in to interrogate him after he was read his Miranda rights. The “clean team” began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

The policy question here is why would anyone want to give Abdulmautallab Miranda warnings?  As Stewart Taylor forcefully wrote here:  

But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.  Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.

The only reason that I can see for giving Miranda warning in such a situation is that the is a constitutional requirement to do so.  But Miranda has been interpreted (in [...]

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When the Innocent Confess

Do innocent suspects ever confess to crimes?  Yes, and sometimes with extensive detail about the crime.  How could this happen, short of police coercion?  The NYT reports on research by UVa law professor Brandon Garrett on the question.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation. . . .

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

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Iowa Constitution’s Due Process Clause Bars Propensity-to-Commit-Crime Evidence

State and federal evidence rules generally bar the prosecution from introducing evidence of defendant’s past crimes to show a propensity on the defendant’s part to commit similar crimes. If, for instance, the defendant is charged with child molestation, the prosecution can’t introduce evidence that defendant had molested other children to show that defendant likes molesting children and therefore to support the prosecution’s claim that he molested this child.

Past bad act evidence may be introduced for other purposes, such as to show motive (e.g., the defendant killed this victim because the victim witnessed another killing by defendant and was thus a threat to the defendant). But it may not be introduced simply to show propensity to commit this crime, even if it is relevant to do that (for instance, because it shows that defendant likes to commit such crimes, and thus is more likely than the average person to commit the crimes). And this isn’t just a rule of sufficiency of the evidence (i.e., that propensity evidence isn’t enough to prove guilty beyond a reasonable doubt) — it makes the evidence inadmissible even as one part of the prosecution’s broader case.

But that’s generally just a statutory or common-law rule, and many legislatures have changed it by statute in certain ways, especially for sex crimes. Iowa Code § 701.11, in particular, provides that,

In a criminal prosecution in which a defendant has been charged with sexual abuse [defined later in the section -EV], evidence [that constitutes clear proof] of the defendant’s commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of

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Is a Shoebox Like a Suitcase?

This morning the U.S. Court of Appeals for the Sixth Circuit issued an opinion in United States v. Taylor, affirming the district court’s suppression of evidence (a handgun and ammunition) found in a shoebox.  Judge Gilman wrote the opinion for the court, joined by Judge Daughtrey.  Judge Kethledge dissented.  His dissenting opinion begins:

The majority today extends to shoeboxes a degree of Fourth Amendment protection that our court has previously afforded to luggage. I agree that our precedents permit this extension, but I do not think they compel it. I dissent because I think the extension unwise.

The apartment’s tenant here gave consent for the officers to search it. I think that consent ought to be effective as to an unsecured container on the premises, absent a clear indication that some other person exclusively controls the container. Luggage might routinely meet that test, but shoeboxes I think should not, absent some unusual circumstance not present here. It should take more than a shoebox to vitiate a resident’s consent to search the premises.

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