Procedure in Criminal Cases

The Exclusionary Rule

The Fourth Amendment to The Constitution of the United States reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

The Exclusionary Rule is available to a Defendant in a criminal case as a remedy for illegal searches that violate the rights set forth in the Fourth Amendment. When applicable, the rule dictates that the evidence illegally obtained must NOT be allowed at trial against the suspect who was illegally searched under the Fourth Amendment.

One important corollary to the Exclusionary Rule is the “fruit of the poisonous tree” doctrine. This rule holds that, in addition to the material uncovered during the illegal search being inadmissible, any evidence that is later gathered as an indirect result of the illegal search will also be excluded. 

There is an important exception to the Exclusionary Rule. When a search is conducted with a good faith (honest and reasonable) belief that it is a legal search, the evidence discovered may be admitted. So, if the officer conducts a search pursuant to a warrant which he believes to be valid, the officer can be said to be acting in good faith. On the other hand, if he knows or should have known of some defect in the warrant, the good faith exception will not apply.

EXAMPLE (1): The police illegally search D’s car and find drugs. The drugs will be excluded as evidence in the case against D in accordance with the Exclusionary Rule.

EXAMPLE (2): The police conduct an illegal search of D’s home and find a map showing the location of a well-hidden, remotely located outdoor marijuana field. The police go to the field and seize the marijuana. Under the doctrine of "fruit of the poisonous tree," the marijuana will be excluded as evidence in the case against D as it stemmed directly from an illegal search.

EXAMPLE (3): Officer Careful executes a search in accordance with a search warrant obtained from Judge Hatchet. Unknown to Officer Careful, Judge Hatchet issued the warrant after an incorrect finding of probable cause. Although the search was illegal, the evidence is not tainted and does not fall under the Exclusionary Rule because Officer Careful acted in good faith upon the Judge’s finding. If otherwise relevant and admissible, the evidence may be considered.

In general, to conduct a search of a person’s home or person, a police officer must first obtain a warrant to search the home or person. The warrant must be issued by a neutral judge or magistrate following a showing of probable cause supported by sworn testimony or an affidavit by a witness who has knowledge of the alleged criminal activity. 

However, there are some cases in which the warrant requirement does not apply. Some of those exceptions are:

1. A search incident to lawful arrest does not require issuance of a warrant. In other words, if someone is lawfully arrested, the police may search her person and any area surrounding the person that is within reach (within his or her “wingspan”).
2. “Plain View” Exception: No warrant is required to seize evidence in plain view if the police are legitimately in the location from which the evidence can be seen.
3. If consent is given by a person reasonably believed by an officer to have authority to give such consent, no warrant is required for a search or seizure.
4. “Stop and Frisk” Exception: Police may stop a suspect so long as there is a reasonable suspicion that the suspect is about to or is planning to commit a criminal act. The evidence necessary for “reasonable suspicion” here is something beyond mere suspicion, but is less than the level required for probable cause. If there is reason to believe that the person may be armed and dangerous, the police can also frisk the suspect.
5. Automobile Exception; Because vehicles are obviously highly mobile, a warrant is not required to search vehicles if police have probable cause to believe the vehicle contains evidence of a crime, the instrumentalities of crime, contraband, or the fruits of a crime. 
6. Emergencies/Hot Pursuit; The rationale here is similar to the automobile exception. Evidence that can be easily moved, destroyed or otherwise made to disappear before a warrant can be issued may be seized without a warrant. Furthermore, if a suspect enters private property while being pursued by officers, no warrant is required to enter that property in order to continue pursuit, even if the suspect is in no way connected with the property owner. 

Police Interrogation and Miranda Warnings

In the famous case of Miranda v. Arizona, the Supreme Court decided that prior to any questioning, a suspect in custody of the police must be warned that he has a right to remain silent, that any statement the suspect does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed by the court (for a person who cannot afford to hire an attorney); and that the defendant may waive these rights.

As a corollary to this rule, a defendant’s statement made while in custody, and in response to interrogation, cannot be used to establish the defendant’s guilt in a criminal trial, unless the defendant was appropriately advised of his Fifth Amendment privilege and voluntarily chose to waive that privilege.

The right to the presence of an attorney during questioning operates in a substantially different manner than does the right to remain silent. While the right to remain silent may be exercised by doing just that – remaining silent – a demand for counsel must be explicit. That is, the defendant must assert the right by requesting counsel and stating that she will not answer any further questions outside the presence of counsel. 

Other Rights of a Criminal Defendant

There are many rights a defendant enjoys at a criminal trial. Some of these are:

- The right to effective assistance of counsel:

Although not found in the Sixth Amendment itself, the right to effective assistance of counsel has been inferred. Convicts have clogged the courts for years appealing convictions by claiming that the counsel provided to them as indigents was ineffective. After all, the argument goes, if their counsel was so effective how did they get convicted? Obviously, this cannot be the test to determine whether counsel was effective. What then constitutes effective counsel?

Legal counsel will not be found to be ineffective simply because the attorney decided to use certain trial tactics which were unsuccessful – tactics are within the attorney’s discretion. Similarly, if the defendant insists that her attorney argue a specific issue or point, failure to make the argument will not automatically constitute ineffective assistance of counsel. Also, a rejected request for continuance, or the failure to raise a constitutional defense that is later invalidated, will not suffice. 

A conviction will only be reversed based on a claim of ineffective assistance of counsel if the defendant can show that:

1. the counsel acted in a manner that is less competent than is acceptable of the standard attorney; and
2. if it were not for the fact that the attorney was incompetent, the outcome of the trial likely would have been different. 

This last prong is, of course, the more difficult one to prove; and it is the reason that few claims of ineffective assistance of counsel end up generating new trials.

- The Confrontation Clause:

The Sixth Amendment gives the accused the right to confront witnesses adverse to his or her interests. This, of course, does not mean that a Defendant has the right to “get in a witness' face” or grill the witness under a hot light. It merely means that a defendant has the right to insist that the witness testify in the defendant's presence and that the defendant has the right, usually through his attorney, to cross-examine the witness.

- Burden of proof and presumption of innocence:

Every criminal defendant has the Constitutional right to be presumed innocent until proven guilty. In addition, the prosecution must prove beyond a reasonable doubt every element of a crime in order to convict a defendant. The burden of proof imposed on the prosecution and the presumption of innocence granted every defendant are based on the "Due Process" Clauses of the Fifth and Fourteenth Amendments. Note that this presumption only lasts until the defendant is found guilty by the jury. Once that happens, the defendant is no longer presumed to be innocent.

- Cruel and Unusual Punishment

The Eighth Amendment prohibits the use of “cruel and unusual punishment” by the federal and state governments. 

There is no set standard for determining what constitutes "cruel and unusual punishment." Instead, the concept is pliable and can change as society changes, generally broadening so that more and more forms of punishment that were once acceptable now fall into the realm of “cruel and unusual.”

In addition, a punishment is considered “cruel and unusual” when it is grossly disproportionate to the crime for which it is meted out, even if the punishment itself is not cruel or unusual. 

There is an ongoing debate in the United States as to whether capital punishment (the imposition of the death penalty) constitutes “cruel and unusual punishment.” The law, as it stands currently, holds that capital punishment is allowable under the Eighth Amendment for certain serious crimes, such as murder.