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As the preface states, "The heart of American law lies in the cases." The heart of the American criminal justice system, therefore, lies in the way that these cases shape our understanding of crime and constitutionality. Criminal Procedure: Constitution and Society presents these issues fairly and thoroughly, with additional features that are uniquely tailored to students in criminal justice, criminology, sociology, and political science. The unique features of this text will make the study of criminal procedure a comprehensive, educational experience.
|About the Author||xvi|
|Chapter 1||The Meaning and Context of Criminal Procedure||1|
|Order and Liberty: The Meaning of Constitutional Criminal Procedure||2|
|The Context of Criminal Procedure||3|
|Law in Society: Criminal Procedure as a Political Issue||19|
|Justices of the Supreme Court--The Precursor Justices||25|
|Chapter 2||The Constitutional Foundation of Criminal Procedure||30|
|Overview of the Constitution||31|
|The Incorporation of the Bill of Rights||35|
|The Due Process Revolution and the Counterrevolution||47|
|Law in Society: The Original Intent Debate--The Politics of Constitutional Interpretation||51|
|Justices of the Supreme Court--The Adversaries||58|
|Chapter 3||The Fourth Amendment and The Exclusionary Rule||61|
|The Common Law Background||62|
|The Creation of the Fourth Amendment: Its Original and Current Understanding||63|
|Development of the Exclusionary Rule, 1886-1921||65|
|The Federalization of the Exclusionary Rule, 1949-1963||70|
|Undermining the Exclusionary Rule||76|
|Arguments Against the Exclusionary Rule||89|
|Theories of the Exclusionary Rule||90|
|Law in Society: Costs and Benefits of the Exclusionary Rule||93|
|Justices of the Supreme Court--Roosevelt's Liberals||102|
|Chapter 4||Essential Fourth Amendment Doctrines||107|
|The Search Warrant||108|
|Revolutionizing the Fourth Amendment||118|
|Probable Cause and the Fourth Amendment||127|
|Plain View and Related Doctrines||137|
|Law in Society: Police Perjury and the Fourth Amendment||154|
|Justices of the Supreme Court--Stalwart Conservatives, 1938-1962||163|
|Chapter 5||Arrest and Stop Under The Fourth Amendment||168|
|Overview of the Law of Personal Detention||169|
|The Arrest Warrant Requirement||178|
|Search Incident to Arrest||183|
|Stop and Frisk||191|
|Law in Society: Arrest and Domestic Violence||214|
|Justices of the Supreme Court--Thoughtful Conservatives||223|
|Chapter 6||Warrantless Searches||228|
|Hot Pursuit and Other Exigency Searches||229|
|The Automobile Exception||232|
|Automobile Inventory Searches||242|
|Special Needs and Regulatory Searches||250|
|Law in Society: Racial Profiling and Constitutional Rights||258|
|Justices of the Supreme Court--Warren Court Liberals||268|
|Chapter 7||The Right To Counsel||272|
|The Development of the Right to Counsel to 1961||275|
|Gideon v. Wainwright and Its Aftermath||278|
|The Right to Self-Representation||288|
|The Effective Assistance of Counsel||290|
|Law in Society: The Unmet Promise of Equal Justice||297|
|Justices of the Supreme Court--Enduring Liberals||306|
|Chapter 8||Interrogation and The Law of Confessions||309|
|The Miranda Decision||316|
|Miranda as a Constitutional Rule||323|
|Questioning After Formal Charging: The Sixth Amendment||339|
|Law in Society: The Social Reality of Confessions||345|
|Justices of the Supreme Court--Nixon's Conservatives||354|
|Chapter 9||Identification of Suspects: Lineups and Showups||357|
|Introduction: The Persistence of Mistaken Identification||357|
|Identification and the Right to Counsel||359|
|Identification and the Fifth Amendment||369|
|Due Process and Eyewitness Identification||369|
|Law in Society: Reducing the Error of Eyewitness Identification||373|
|Justices of the Supreme Court--The Nixon-Ford Moderates||380|
|The Subjective and Objective Tests of Entrapment||387|
|Other Tests: Due Process and Outrageous Conduct||394|
|The Entrapment Defense in the States||397|
|Law in Society: Undercover Policing and Its Control||399|
|Justices of the Supreme Court--Reagan's Conservative Legacy||407|
|Chapter 11||The Pretrial Process||411|
|The Bail Decision: Pretrial Release||414|
|The Grand Jury||424|
|The Preliminary Examination||427|
|Law in Society: Prosecutorial Misconduct||430|
|Justices of the Supreme Court--The Twenty-first Century Court||438|
|Chapter 12||The Trial Process||443|
|The Ideal of the Fair Trial||444|
|Important Constitutional Trial Rights||446|
|Law in Society: The Jury in Crisis?||464|
|A||Constitution of the United States: Selected Provisions||473|
|B||Selected Justices of the Supreme Court: Summary Information||482|
|Table of Cases||T1|
Criminal procedure is a dramatic subject. Each case tells a story of conflict that pits society's; vital need for the communal peace and order that makes life livable, against the right of each individual to be free from unreasonable invasions of privacy and freedom by officers of they state. Criminal procedure is also a technical subject. It encompasses many legal rules and doctrines, not all of which are perfectly logical. The drama of criminal procedure may be conveyed by a book that explores one important case, such as Gideon's Trumpet, Anthony Lewis' classic; story of Earl Clarence Gideon's fight for the right to counsel that took his case to the United States Supreme Court. Simply studying dramatic cases limits the student's exposure to many important topics.
Every law teacher knows that the heart of American law lies in the cases. Most law texts present the subject matter either in a casebook format or in a text-book format. Each has its advantages. Criminal Procedure: Constitution and Society is an effort to present the best of both methods, with additional features that are uniquely tailored to social science students in Criminal Justice, Criminology, Sociology, and Political Science. The unique features of this text will make the study of criminal procedure a comprehensive educational experience.
I begin with the premise that the task confronting a social science student studying law is; more difficult than that confronting a law student. The law student concentrates on the technicalities of law and is only incidentally concerned with how law fits into society. The social science student has to learn the law and discover how thelaw fits into a society that the student will confront as a police officer, probation officer, or as a lawyer. The challenge is to bring out the attributes of law and society in a way that does not overwhelm the student and is respectful of the student's intelligence yet does not water down the subject matter. This text seeks to achieve this balance with several pedagogical features that are not found in other texts.
The basic text. The longest portion of this book is devoted to presenting and explaining; the core knowledge that is constitutional criminal procedure. The topics have been selected to reflect those that are of greatest interest to criminal justice students. The chapters are organized by relevant topics, with four chapters being devoted to the critical Fourth Amendment: the exclusionary rule (Chapter 3), the search warrant and essential Fourth Amendment doctrines such as plain view (Chapter 4), arrest and Terry-stops (Chapter 5), and a chapter devoted to warrantless searches (Chapter 6). This focus also reflects the area in which the Supreme Court has; been most active in recent years. The chapters are divided into coherent sub-topics that give instructors the flexibility to cover a general area but omit specific topics within it as they see fit.
The third edition of Criminal Procedure: Constitution and Society has been completely revised. The number of chapters has been reduced and the content rearranged to fit into more coherent topic headings. Each line of text has been revised to ensure the greatest clarity.. Throughout the text I have attempted to show that, in most areas, there has been an ongoing dialogue between the justices adhering to the Due Process Model and those adhearing to the: Crime Control Model. The late Professor Herbert Packer's great organizing paradigm provides, a convenient way for students to grasp the overall subject matter and each case. Thus, both in, the text and in the "Case & Comments," the conflicting approaches to the law has been explicated.
It goes without saying that the purpose of education, reflected in this text, is not the rote. memorization of rules, but the understanding of the rules. To this end the text includes not just: statements of rules, but describes the facts out of which the rules emerge and the often conflicting views of the justices and the relevant historic and political factors that have influenced the decision. On occasion where a subject is overly complex (e.g., the incorporation doctrine in Chapter 2 or the automobile search doctrine in Chapter 6) 1 have tried to help students thread their way through the maze by providing an overview of the subject in the form of a list. On the other hand, I have with deliberation inserted a section on the theories of the exclusionary rule which presents students with an up-to-date philosophical discussion of the justification for the rule that is more abstract than the remainder of the text. Instructors who desire to challenge students are invited to cover this section, but it can be omitted without undermining a student's basic understanding of the topic.
The text includes two introductory chapters. Instructors who want to plunge directly into the substance of criminal procedure can skip these. Chapter 1 introduces basic information about law and courts that students may have learned from other courses. It also includes a more advanced section on reading cases designed to sharpen the skills portion of the subject, that makes most law classes among the most exciting in criminal justice programs. Many instructors, of course, have over the years developed their own approaches to introducing students to the intellectual challenge of reading cases and may wish to rely on their tried and true methods instead of using the sections in Chapter 1. The third function of Chapter 1 is to help a student see that criminal procedure is not a narrow subject or a simple matter of technical legal rules, but, instead, it is a component of a liberal arts education. Criminal procedure can be a gateway to the study of history, politics, political theory, judicial biography, and important societal currents, for all of these influence criminal procedure. Finally, Chapter 1 notes that the study of criminal procedure is the study of human rights, and may encourage students to broaden their horizons by the study of international human rights.
Chapter 2 is a detailed exploration of the historical development known as the incorporation doctrine. Some instructors may simply wish to acknowledge the fact and begin with the establishment of modern rules of criminal procedure in the 1960s. I find this a fascinating subject and a portal to help students develop an understanding of the ancient truth that rights are never handed to citizens on a silver-platter but must be fought for. In any event, the first two chapters are available for instructors who wish to explore these matters.
Case and Comments. In addition to the text, a major feature of this book is one or more "Case & Comments" in Chapters 2 through 12. Teachers who use the case method know how difficult the method can be for first year law students, let alone undergraduate students. The cases selected for the Case & Comments are the most important ones that all instructors of criminal procedure will emphasize. They have been carefully edited to provide not just a brief snippet of the holding but a fair amount of the reasoning of the justices, which, after all, is the main reason to read the cases. Furthermore, for complete understanding, in almost all of these cases relevant portions of the dissenting opinions have been included so that students can understand the law as a dialectical process.
To this familiar aspect of a case-book I have added comments that are noted by bracketed letters keyed to running comments. These are critical tools designed to assist the student, even one with no prior legal training, to read the case for himself or herself. These comments are written to achieve several goals: (1) to point out the meaning or importance of technical legal words; (2) to highlight disagreements among opposing justices; (3) to point out logical weaknesses or clever arguments; (4) to ask pointed questions of the students; (5) to highlight underlying value judgments in an opinion; (7) to indicate how the case advances or violates the doctrine of stare decisis.
Law in Society Sections. These sections in each chapter show the "law in action." It is too easy to view legal pronouncements about rights to mean that they are fully enjoyed. Unfortunately, there is a gap between the ideals of law and the reality of its application. Some sections, such as the accounts of police perjury, racial profiling, and prosecutorial misconduct, show criminal justice personnel at their worst. The first chapter indicates that valued constitutional rights can be treated as threats to safety and abused for political advantage. The unmet promise of equal justice shows that as a society we are not ready to pay for justice for indigents. Of course, most police officers do not commit perjury, most lawyers and prosecutors competently do their jobs, most judges do not buckle under political pressure, and most jurors do their best objectively to arrive at the proper verdict under the law. But this is not always the case and it is important to alert students to the gap between constitutional ideals and the reality on the street. Several Law in Society sections rely on social science research to indicate the complexity of the criminal process, and that simple statements or beliefs do not capture the full reality of the exclusionary rule, the use of mandatory arrest for domestic violence, or the belief that an eyewitness who is positive is therefore accurate. In these sections we get to see that innocent people confess to crimes they did not commit despite having been read their Miranda warnings, and see the dark side of undercover policing. By introducing information from the news and from social science research, we expand our knowledge of the social reality of the law.
Law in the States. A general course in criminal procedure inevitably stresses the provisions of the United States Constitution as interpreted by the United States Supreme Court. This is essential, since the Court took the lead of, and in a sense gave real life to, the subject with the incorporation of the Bill of Rights in the 1960s. Nevertheless, state courts have shaped criminal procedure most notably where they have departed from interpretations of the Supreme Court by granting state citizens greater individual protections. In this text, I have alerted students to the state cross-currents with Law in the States boxes that indicate areas in which there has been significant divergence. These brief inserts are an efficient way to alert students to this important complicating factor in American law, while indicating that the main thrust of constitutional criminal procedure still lies with the United States Supreme Court.
Supreme Court Justice Biographies. It is very difficult for beginning student' to appreciate the extent to which constitutional law is the product of the particular men and women who have been nominated and confirmed by the Senate to sit on the nation's highest court. Many instructors utilize this knowledge to assist students in understanding the law and cases. Because of this, the text includes brief biographical sketches that highlight each of the covered justice's contributions to criminal procedure and describes the justice's general approach to the law. This unique feature of the text has been revised for this edition. In addition to adding updated information, each biography has been rewritten, made more compact, and organized into the following headings: Life and Career, Contribution to Criminal Procedure, Signature Opinion, and Assessment. Also, at least one source of information is given for each justice and where possible a comprehensive biography. An interested student can follow up an interest in this regard, and as with the Suggested Readings, an instructor who gives extra-credit assignments may wish to consider these books as candidates for book reviews.
Appendix: Summary Information about Selected Supreme Court Justices. A one line summary of the typical voting style of each justice is given. Many students have no knowledge about the justices and this "scorecard" information provides a valuable tip about the judge's orientation.
Legal Puzzles. At the conclusion of each chapter, recent cases from the U.S. Courts of Appeal are presented that indicate how some of the basic doctrines covered in the chapter have been resolved by lower courts. The answers follow in a section, so that students can quickly see how the puzzles have been resolved. These are great for generating in-class discussions, in part because the solutions to the legal questions may be unexpected. These puzzles give students greater insight into the fact that in many cases the application of legal precedent is not mechanical, but requires lower courts to do a good deal of weighing and analysis to resolve issues.
Suggested Readings. In this edition, I have added three books at the conclusion of each chapter for further reading. I have kept this list short and have selected books that I have enjoyed reading. Although a handful are designed more for instruction, quite a few of these books are pleasurable reading from which a student can derive a deeper understanding of a particular subject. As a pedagogic tool, an instructor who gives extra-credit assignments may wish to consider these books as candidates for book reviews.
Key Terms and Phrases and Expanded Glossary. At the beginning of each chapter, students are alerted to key terms and phrases, which are bolded throughout the chapter. Each term is defined in an expanded glossary, which can be used by the instructor as a pedagogic tool. A student who knows these terms will have a good grasp of the content of the text.
Relevant Excerpts of the United States Constitution. An appendix includes carefully selected portions of the Constitution that are relevant to a course on criminal procedure. This may be used by the student and instructor as a handy reference, or it may be used as a teaching tool, with certain provisions as required reading. At the very least, it is useful for students to see the Bill of Rights in its entirety.
Wayne State University