1.1: Chapter 1 - What Is This Book?

This book introduces criminal procedure law in the United States, with a focus on the “investigation” stage of the criminal justice system. Specifically, the book focuses on legal constraints placed upon police and prosecutors, constraints largely derived from Supreme Court interpretations of the Fourth, Fifth, and Sixth Amendments to the Constitution. Major topics include searches and seizures, warrants and when they are required, interrogations, witness identifications of suspects, and the right to counsel during various stages of investigation and prosecution.

At the end of the semester, students should have a solid foundation in the “black-letter law” of criminal procedure. This material is tested on the bar examination, and it is the sort of information that friends and family will expect lawyers to know, even lawyers who never practice criminal law. For example, a lawyer lacking basic familiarity with the Miranda Rule risks looking foolish at Thanksgiving dinner. In addition, the legal issues covered in this book relate to some of the most intense ongoing political and social debates in the country. The law governing stop-and-frisk procedures, for example, is not merely trivia one should learn for an exam. It affects the lives of real people. The reliability of eyewitness identifications affects the likelihood of wrongful convictions, a phenomenon persons of all political persuasions oppose. In short, policing and prosecution affect everyone in America, and an informed citizen—especially a lawyer—should understand the primary arguments raised in major controversies in criminal procedure law.

To be sure, understanding the holdings of major cases is essential to more nuanced participation in these debates, and this book devotes the bulk of its pages to Supreme Court opinions, which your authors have edited for length. (To save space, we have omitted internal citations, as well as portions of court opinions, without using ellipses to indicate our edits.) The book then aims to go beyond the information available in majority opinions, concurrences, and dissents. To do so, it includes supplementary material on developments in law and policy. For example, advances in technology raise questions about precedent concerning what counts as a “search” under Fourth Amendment law. The book also provides perspectives on the practical implications of Supreme Court decisions, perspectives often given scant attention by the Justices. For example, state courts have grappled with scientific evidence about witness reliability that has not yet been addressed in Supreme Court opinions resolving due process challenges related to identifications.

Further, in addition to helping students identify situations in which constitutional rights may have been violated, the book explores what remedies are available for different violations. For a criminal defendant, the most desirable remedy will normally be exclusion of evidence obtained though illegal means—for example, drugs found in a defendant’s car or home during an unlawful search. Contrary to common misconceptions among the general public, however, not all criminal procedure law violations result in the exclusion of evidence. Students will read the leading cases on the exclusionary rule, confronting arguments on when the remedy of exclusion—which quite often requires that a guilty person avoid conviction—is justified by the need to encourage adherence by law enforcement to the rules presented in this book concerning searches, seizures, interrogations, and so on.

Your authors have attempted to create a book that presents material clearly and does not hide the ball. Students who read assigned material should be well prepared for class, armed with knowledge of what rules the Supreme Court has announced, along with the main arguments for and against the Court’s choices.

The remainder of this Introduction consists of further effort by your authors to convince you of the importance of the material presented later in the book. Many students possess this book because they are enrolled in a required course or know that this material is tested on the bar exam. Others of you plan to practice criminal law. Still others study criminal procedure to learn more about important societal controversies. Regardless, your authors do not take your attention for granted.

Why Is Criminal Procedure So Important?

In this 1936 unanimous opinion by Chief Justice Charles Evans Hughes, the Supreme Court reviewed a criminal case from Mississippi. Students will see immediately why the actions of police, prosecutors, and judges upset the Supreme Court Justices.

Supreme Court of the United States

Ed Brown v. Mississippi

Decided Feb. 17, 1936—297 U.S. 278 (1936)

MR. CHIEF JUSTICE HUGHES delivered the [unanimous] opinion of the Court.

The question in this case is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States.

Petitioners were indicted for the murder of one Raymond Stewart, whose death occurred on March 30, 1934. They were indicted on April 4, 1934 and were then arraigned and pleaded not guilty. Counsel were appointed by the court to defend them. Trial was begun the next morning and was concluded on the following day, when they were found guilty and sentenced to death.

Aside from the confessions, there was no evidence sufficient to warrant the submission of the case to the jury. After a preliminary inquiry, testimony as to the confessions was received over the objection of defendants’ counsel. Defendants then testified that the confessions were false and had been procured by physical torture. The case went to the jury with instructions, upon the request of defendants’ counsel, that if the jury had reasonable doubt as to the confessions having resulted from coercion, and that they were not true, they were not to be considered as evidence. On their appeal to the Supreme Court of the State, defendants assigned as error the inadmissibility of the confessions. The judgment was affirmed.

Defendants then moved in the Supreme Court of the State to arrest the judgment and for a new trial on the ground that all the evidence against them was obtained by coercion and brutality known to the court and to the district attorney, and that defendants had been denied the benefit of counsel or opportunity to confer with counsel in a reasonable manner. The motion was supported by affidavits. At about the same time, defendants filed in the Supreme Court a “suggestion of error” explicitly challenging the proceedings of the trial, in the use of the confessions and with respect to the alleged denial of representation by counsel, as violating the due process clause of the Fourteenth Amendment of the Constitution of the United States. The state court entertained the suggestion of error, considered the federal question, and decided it against defendants’ contentions. Two judges dissented. We granted a writ of certiorari.

The grounds of the decision were (1) that immunity from self-incrimination is not essential to due process of law; and (2) that the failure of the trial court to exclude the confessions after the introduction of evidence showing their incompetency, in the absence of a request for such exclusion, did not deprive the defendants of life or liberty without due process of law; and that even if the trial court had erroneously overruled a motion to exclude the confessions, the ruling would have been mere error reversible on appeal, but not a violation of constitutional right.

The opinion of the state court did not set forth the evidence as to the circumstances in which the confessions were procured. That the evidence established that they were procured by coercion was not questioned. The state court said: ‘After the state closed its case on the merits, the appellants, for the first time, introduced evidence from which it appears that the confessions were not made voluntarily but were coerced.’ There is no dispute as to the facts upon this point, and as they are clearly and adequately stated in the dissenting opinion of Judge Griffith (with whom Judge Anderson concurred), showing both the extreme brutality of the measures to extort the confessions and the participation of the state authorities, we quote this part of his opinion in full, as follows:

“The crime with which these defendants, all ignorant [Black people], are charged, was discovered about 1 o’clock p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

“The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed the crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.

“Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.

“All this having been accomplished, on the next day, that is, on Monday, April 2, when the defendants had been given time to recuperate somewhat from the tortures to which they had been subjected, the two sheriffs, one of the county where the crime was committed, and the other of the county of the jail in which the prisoners were confined, came to the jail, accompanied by eight other persons, some of them deputies, there to hear the free and voluntary confession of these miserable and abject defendants. The sheriff of the county of the crime admitted that he had heard of the whipping but averred that he had no personal knowledge of it. He admitted that one of the defendants, when brought before him to confess, was limping and did not sit down, and that this particular defendant then and there stated that he had been strapped so severely that he could not sit down, and, as already stated, the signs of the rope on the neck of another of the defendants were plainly visible to all. Nevertheless the solemn farce of hearing the free and voluntary confessions was gone through with, and these two sheriffs and one other person then present were the three witnesses used in court to establish the so-called confessions, which were received by the court and admitted in evidence over the objections of the defendants duly entered of record as each of the said three witnesses delivered their alleged testimony. There was thus enough before the court when these confessions were first offered to make known to the court that they were not, beyond all reasonable doubt, free and voluntary; and the failure of the court then to exclude the confessions is sufficient to reverse the judgment, under every rule of procedure that has heretofore been prescribed, and hence it was not necessary subsequently to renew the objections by motion or otherwise.

“The spurious confessions having been obtained—and the farce last mentioned having been gone through with on Monday, April 2d—the court, then in session, on the following day, Tuesday, April 3, 1934, ordered the grand jury to reassemble on the succeeding day, April 4, 1934, at 9 o’clock, and on the morning of the day last mentioned the grand jury returned an indictment against the defendants for murder. Late that afternoon the defendants were brought from the jail in the adjoining county and arraigned, when one or more of them offered to plead guilty, which the court declined to accept, and, upon inquiry whether they had or desired counsel, they stated that they had none, and did not suppose that counsel could be of any assistance to them. The court thereupon appointed counsel, and set the case for trial for the following morning at 9 o’clock, and the defendants were returned to the jail in the adjoining county about thirty miles away.

“The defendants were brought to the courthouse of the county on the following morning, April 5th, and the so-called trial was opened, and was concluded on the next day, April 6, 1934, and resulted in a pretended conviction with death sentences. The evidence upon which the conviction was obtained was the so-called confessions. Without this evidence, a peremptory instruction to find for the defendants would have been inescapable. The defendants were put on the stand, and by their testimony the facts and the details thereof as to the manner by which the confessions were extorted from them were fully developed, and it is further disclosed by the record that the same deputy, Dial, under whose guiding hand and active participation the tortures to coerce the confessions were administered, was actively in the performance of the supposed duties of a court deputy in the courthouse and in the presence of the prisoners during what is denominated, in complimentary terms, the trial of these defendants. This deputy was put on the stand by the state in rebuttal, and admitted the whippings. It is interesting to note that in his testimony with reference to the whipping of the defendant Ellington, and in response to the inquiry as to how severely he was whipped, the deputy stated, ‘Not too much for a [Black man]; not as much as I would have done if it were left to me.’ Two others who had participated in these whippings were introduced and admitted it—not a single witness was introduced who denied it. The facts are not only undisputed, they are admitted, and admitted to have been done by officers of the state, in conjunction with other participants, and all this was definitely well known to everybody connected with the trial, and during the trial, including the state’s prosecuting attorney and the trial judge presiding.”

1. The state stresses the statement in Twining v. New Jersey, 211 U.S. 78 (1908), that “exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution,” and the statement in Snyder v. Massachusetts, 291 U.S. 97 (1934), that “the privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state.” But the question of the right of the state to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter.

The state is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The state may abolish trial by jury.¹ It may dispense with indictment by a grand jury and substitute complaint or information. But the freedom of the state in establishing its policy is the freedom of constitutional government and is limited by the requirement of due process of law. Because a state may dispense with a jury trial, it does not follow that it may substitute trial by ordeal. The rack and torture chamber may not be substituted for the witness stand. The state may not permit an accused to be hurried to conviction under mob domination—where the whole proceeding is but a mask—without supplying corrective process. The state may not deny to the accused the aid of counsel. Nor may a state, through the action of its officers, contrive a conviction through the pretense of a trial which in truth is “but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.” And the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. The due process clause requires “that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.

2. It is in this view that the further contention of the State must be considered. That contention rests upon the failure of counsel for the accused, who had objected to the admissibility of the confessions, to move for their exclusion after they had been introduced and the fact of coercion had been proved. It is a contention which proceeds upon a misconception of the nature of petitioners’ complaint. That complaint is not of the commission of mere error, but of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. We are not concerned with a mere question of state practice, or whether counsel assigned to petitioners were competent or mistakenly assumed that their first objections were sufficient. In an earlier case the Supreme Court of the State had recognized the duty of the court to supply corrective process where due process of law had been denied. In Fisher v. State, 145 Miss. 116 (1926), the court said: “Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country. … The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.”

In the instant case, the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could be challenged in any appropriate manner. It was challenged before the Supreme Court of the State by the express invocation of the Fourteenth Amendment. That court entertained the challenge, considered the federal question thus presented, but declined to enforce petitioners’ constitutional right. The court thus denied a federal right fully established and specially set up and claimed, and the judgment must be reversed.

Notes, Comments, and Questions

As noted in the footnote we added to the Brown opinion, the Court included a statement about jury trials that is no longer accurate. States are required to provide trial by jury for crimes punishable by more than six months’ imprisonment. See Duncan v. Louisiana, 391 U.S. 145 (1968). In 1936, the Supreme Court had not yet “incorporated” many provisions from the Bill of Rights against the states, meaning that the states were free to ignore them. For purposes of this course, students should presume that constitutional provisions apply with equal force against the states and the federal government, unless instructed otherwise. One key criminal procedure provision not incorporated is the right to indictment by a grand jury. See Hurtado v. California, 110 U.S. 516 (1884). In Timbs v. Indiana, 139 S. Ct. 682 (2019), the Court unanimously held that the Excessive Fines Clause of the Eighth Amendment is incorporated against the states. In Ramos v. Louisiana, 140 S.Ct. 1390 (2020), the Court held that the Sixth Amendment requires states use only a unanimous jury verdict to convict defendants of serious offenses, setting aside a conviction based on a 10-to-2 vote. This continues the decades-long trend of incorporating the Bill of Rights through the Fourteenth Amendment.

Students may find one procedural aspect of Brown particularly upsetting, in addition to the terrible conduct that agents of the state committed against the defendants: After the defendants were convicted, they appealed to the highest court of their state, and the state court affirmed the convictions. Two dissenting members of that court set forth at length the terrible conduct—so carefully that the Supreme Court of the United States would later cut and paste much of the dissent. Whatever one’s position on theories related to federalism, one cannot avoid the conclusion that at least in this case, a state’s justice system was sorely in need of federal supervision. Throughout this course, students will notice an ongoing debate about how much Supreme Court oversight is necessary to protect Americans from police officers, prosecutors, and judges behaving badly. The Court’s assessment has changed over time, and justices serving together often disagree.

What to Look for when Reading Cases

As the semester progresses, students will learn to answer two key questions presented in every single criminal procedure case: First, were someone’s rights (usually constitutional rights) violated? Second, if so, so what?

Answering the first question requires knowledge of the Supreme Court’s decisions interpreting the Fourth, Fifth, and Sixth Amendments to the Constitution, among other provisions. For example, the Court has considered over several cases—decided over several decades—what counts as a “search” for purposes of the Fourth Amendment. It has debated what the Due Process Clauses of the Fifth and Fourteenth Amendments require of police officers conducting interrogations. And it has weighed how to protect the right to counsel guaranteed by the Sixth Amendment to all criminal defendants.

Answering the second question—“So what?”—requires knowledge of the remedies the Supreme Court has provided for violations of the rights of criminal suspects and defendants. For a defendant, the most desirable remedy is often the exclusion of evidence obtained illegally. When the “exclusionary rule” applies, evidence gained during an unlawful search or interrogation, for example, may become unavailable to prosecutors, which may lead to the dismissal of criminal charges. The proper scope of the exclusionary rule has been hotly debated for decades, and even its existence is not taken for granted by everyone on the Supreme Court. When exclusion of evidence is not available, the best remedy may be money damages, although that remedy has its own shortcomings. Students will learn the basics of when various remedies are available for violations of criminal procedure rules.

In a sense, the rules governing searches, seizures, interrogations, and so on can be considered the “substantive” law of criminal procedure. These rules constitute the bulk of most criminal procedure courses, and this one is no exception. Questions in this category include: When do police need a warrant? When must police give “Miranda warnings”? What must states provide for criminal defendants too poor to hire a lawyer?

The remedies are what one might call the “procedural” aspect of criminal procedure law. Questions in this category include: If police executing a search warrant break down someone’s door without justification, can the homeowner exclude evidence found during the ensuing search? Does the answer change if the warrant was somehow defective? When can prosecutors use confessions obtained in violation of the Miranda Rule? The portion of assigned readings explicitly devoted to remedies is far less than that given to “substantive” criminal procedure rights. Keep in mind, however, that rights without remedies are largely worthless,² and those students who one day prosecute crimes or represent defendants will care deeply about the practical consequences of Supreme Court doctrine.

The Scope of the Criminal Justice System

Before returning to the meat of criminal procedure law, let us consider for a moment just how large and important a system is being governed by nine Justices interpreting a handful of ancient clauses.

Beginning around 1970, the United States began a massive increase in incarceration. Between 1980 and 2010, the incarceration rate more than doubled. Despite a small drop in incarceration over the past decade, as of early 2022 the United States incarcerated about 2 million people, including inmates at prisons, local jails, and juvenile facilities, among other places. This chart (released to the public domain via Wikimedia Commons) shows how the incarceration rate (essentially, the number of inmates per 100,000 U.S. residents) was relatively flat for decades through the 1960s, began rising after 1970, and then increased rapidly after 1985. The rate has decreased slightly over the past few years.

The U.S. 2021 incarceration rate was 664 per 100,000 residents, exceeding every other country in the world. The states with the highest incarceration rates in 2021 were Mississippi (1,031), Louisiana (1,094), and Oklahoma (993). The states with the lowest rates were Rhode Island (289), Vermont (288) and Massachusetts (275). Even these states have higher incarceration rates than most countries, including Iran (228), South Africa (248), Israel (234), New Zealand (188), Singapore (185), Poland (188), Jamaica (137), Iraq (126), France (93), and Ireland (72).³

The next chart (provided courtesy of The Sentencing Project) shows the raw numbers of prisoners in America. Note that this does not include inmates in jails or juvenile facilities.

Nationwide, the total prison and jail population as of December 31, 2020 was 1,691,600.⁴ In addition, 3,890,400 persons were under supervision—on parole or probation—creating a total correctional system population of 5,500,600.

Because states house the overwhelming bulk of U.S. prisoners, state budgets fund the overwhelming bulk of U.S. correctional expenses. In 1985—just before the American prison population began its sharp increase—states spent a combined $6.7 billion on corrections. By 1990, the cost had risen to $16.9 billion. It was $36.4 billion in 2000, $51.4 billion in 2010, and $56.6 billion in 2019.⁵

The next chart (provided courtesy of the Prison Policy Initiative) shows where incarcerated women are housed and what offenses led them to confinement.

[The PPI also has a chart entitled “The Whole Pie,” which covers all incarcerated persons, male and female. Although we lack permission to include the chart in this book, students may (and should) find it online.]

The likelihood of imprisonment is not distributed evenly among different groups of Americans. Women constitute about half of the total U.S. population but only 7 percent of the total prison population. Racial disparities are also stark. In 2020, state and federal prisons housed (out of a total of 1,182,166 inmates) 389,500 Black inmates (33 percent of the total), 358,900 white inmates (30 percent of the total), and 275,300 Hispanic inmates (23 percent of the total).⁶ According to Census data taken around the same time (April 1, 2020), 76 percent of Americans described themselves as white alone (no other race), 13 percent as Black or African American alone, 3 percent as two or more races, and 18.5 percent as Hispanic or Latino.⁷ Although the demographic definitions—particularly for deciding who counts as Hispanic—used in various surveys are not always identical, the results are clear. Black and Hispanic Americans are significantly overrepresented among prisoners.

Despite the high U.S. incarceration rate, most Americans will never serve time. Instead, the majority of Americans encounter the justice system through their interactions with police officers. U.S. law enforcement agencies employ about 665,000 officers at the local, state, and federal level. That works out to about one officer for every 500 Americans. In 2019, officers performed about 10 million arrests. As was noted for incarceration, arrest rates exhibit disparities by race and sex. Of those arrested in 2019, 69.4 percent were white, and 26.6 percent were black. Males constituted 72.5 percent of those arrested in 2019. Young men are especially likely to be arrested.⁸

When suspects are arrested and prosecuted, states often provide legal counsel because the defendants otherwise could not afford it. The per capita expense on indigent defense varies tremendously among states. For example, in 2017 Wisconsin spent $86 million, or $14.83 per resident. That same year Texas spent $37 million, or $1.31 per resident.

A Few Recent Cases

We will return now to the discussion we set aside after reading Brown v. Mississippi.

“Yes, yes,” one might say, “the criminal justice system is important. As a nation we spend immense sums on police, prosecution, and prisons. And back in 1934, some goons in Mississippi abused criminal defendants, which required intervention by the Supreme Court. What about today?”

This is a fair question; otherwise, we would not have placed it in the mouths of our hypothetical students. We expect that by the end of the semester, few if any students will question whether police and prosecutors still require judicial oversight. The amount and proper form of that oversight will almost surely remain contested—indeed, the Justices themselves contest these issues every year—but the principle is likely to win near unanimous assent. To assuage skepticism without delay, however, we will present some evidence now.

In 2013, the State of California freed Kash Delano Register, whom the state had imprisoned for 34 years for a murder he did not commit.⁹ Mr. Register had been convicted on the basis of false identification testimony, and the lawyers who won his release produced proof that police and prosecutors had concealed from Register’s trial defense team evidence of his innocence, including reports of eyewitnesses who would have contradicted the testimony of prosecution witnesses, along with evidence of how police had used threats of unrelated criminal prosecution to pressure the witnesses against Register. Absent the work of students and faculty at Loyola Law School in Los Angeles, Register might remain incarcerated today. Prosecutors opposed his release until 2013. In 2016, the Los Angeles City Council approved a $16.7 million settlement payment to Register.¹⁰ The city has paid tens of millions of dollars in other recent settlements related to police conduct.¹¹

In 2012, the State of Missouri released George Allen, Jr., whom the state had imprisoned for 30 years for a St. Louis rape and murder he did not commit.¹² Although prosecutors could not explain how Allen could have travelled from his University City home to the murder scene—St. Louis was paralyzed that day by a 20-inch snowstorm—a jury eventually convicted Allen on the basis of his confession. Decades after his conviction, new lawyers for Allen—from the Bryan Cave law firm and the Innocence Project—produced evidence that police had elicited a false confession from Allen, who was mentally ill. Missouri courts found that prosecutors withheld exculpatory evidence, including lab results, fingerprint records, and information about bizarre interrogation tactics such as hypnosis of a key witness. Allen died in 2016, and the City of St. Louis and Allen’s family settled his civil rights lawsuit in 2018 for $14 million.

The National Registry of Exonerations, maintained by the University of Michigan, lists 3,176 exonerations, representing “more than 27,200 years lost.”¹³ Because it covers only exonerations, it does not include cases in which misconduct is uncovered in time to prevent a wrongful conviction.

In 2015, the Wall Street Journal reported that America’s “10 cities with the largest police departments paid out $248.7 million” in 2014 in settlements and court judgements in police misconduct cases.¹⁴ Students should keep in mind that because so much misconduct cannot be remedied through monetary damages, numbers like these understate the problem.

Chicago has settled several multi-million-dollar cases in recent years. Examples include: “A one-time death row inmate brutally beaten by police: $6.1 million. An unarmed man fatally shot by an officer as he lay on the ground: $4.1 million.”¹⁵ Another involved an officer who “posted messages on his Facebook page falsely calling [a] teen a drug dealer and criminal” and officers handcuffing this same teen without cause. (Settlement around $500,000.) More recent cases include “a police officer [who] pointed a gun at [the plaintiff’s] 3-year-old daughter’s chest during a 2013 raid of the family’s Chicago home” and a man who spent about 20 years in prison after being framed.¹⁶

As the Baltimore Sun noted—in its 2014 report of how the “city has paid about $5.7 million since 2011 over lawsuits claiming that police officers brazenly beat up alleged suspects”—the “perception that officers are violent can poison the relationship between residents and police.”¹⁷ The newspaper observed:

“Over … four years, more than 100 people have won court judgments or settlements related to allegations of brutality and civil rights violations. Victims include a 15-year-old boy riding a dirt bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman selling church raffle tickets, a 65-year-old church deacon rolling a cigarette and an 87-year-old grandmother aiding her wounded grandson.”

In multiple jurisdictions, class action lawsuits about unlawful strip searches have yielded large payments. In 2010, the Cook County (Illinois) Board of Commissioners agreed to a $55 million settlement with suspects stripped-searched at Cook County Jail. New York City reached a $50 million settlement in 2001 and another one for $33 million in 2010, both related to searches in city jails such as Rikers Island. Similar settlements (for smaller amounts) have been reached in places such as Kern County, California; Burlington County, New Jersey; and Washington, D.C. Massachusetts officials settled a suit concerning the Western Massachusetts Regional Women’s Correctional Center, agreeing to prohibit male guards from continuing their practice of videotaping the strip searches of female inmates.

Less sensational issues (nonetheless important to those involved) include the ongoing debate over “stop-and-frisk” tactics nationwide, in addition to racial profiling of motorists. These practices affect persons whose involvement with the criminal justice system might otherwise be fairly minimal. In New York City, a federal court found that NYPD officers violated the Fourth Amendment by performing unreasonable searches and seizures and further found that police violated the Equal Protection Clause of Fourteenth Amendment by stopping and frisking New Yorkers in a racially discriminatory manner.¹⁸ In Missouri, annual reports by the Attorney General regularly find racial disparities in vehicle stops.¹⁹ According to the 2017 report, Black motorists were far more likely to be stopped, despite police finding contraband less often when stopping Black motorists than when stopping white motorists. “African-Americans represent 10.9% of the driving-age population but 18.7% of all traffic stops …. The contraband hit rate for whites was 35.5%, compared with 32.9% for blacks and 27.9% for Hispanics. This means that, on average, searches of African-Americans and Hispanics are less likely than searches of whites to result in the discovery of contraband.”

In sum, the incidence of police and prosecutorial misconduct is not limited to dusty case files from the old Confederacy.

Meanwhile, crime remains a serious problem, one America has struggled with since colonial times. Since the 1800s, the United States has had a much higher murder rate than European countries otherwise similar to us in measures of economic power and educational attainment. Then, beginning around 1965, the U.S. homicide rate increased dramatically.²⁰ Although the increase was not uniform (different decades saw different trends, and different locations experienced trends differently), the United States as a whole suffered a big increase in crime from the mid-1960s through the early-1990s, with the nationwide homicide rate peaking at around 10 per 100,000 persons. Since then, crime has dropped significantly, returning over twenty years to what was observed in the early 1960s.²¹ By 2000, the homicide rate had dropped to around 5.5 per 100,000, which is close to the rates observed over the subsequent two decades.²² (Time will tell whether the rising homicide rates observed during 2020 and 2021—that is, during first years of the COVID pandemic—represent an aberration or a new normal.) In other words, American crime rates remain well above those of Western Europe, Canada, and Australia, but they are far better than American rates of a generation ago. The sharp increase in crime between the 1960s and 1990s may explain in part the rapid increase in American incarceration, as politicians offered “tough-on-crime” solutions. The causes of the huge increase in crime beginning around 1965, as well as of the subsequent decrease, are hotly disputed.²³ In any event, crime remains an important political and social issue in America. Court decisions about how police may behave will be better understood if given broader social context. For example, judicial decisions that prevent the convictions of undisputedly guilty defendants may be unpopular among voters, and voters elect the politicians who appoint and confirm Supreme Court Justices. Further, Justices may recognize their relative lack of expertise in the fields of policing and criminology, and they may hesitate to mandate practices (or to prohibit practices) without thoughtfully considering how their decisions could affect ongoing national efforts to fight crime. The debate over how much the Court should meddle in the affairs of police departments is a thread that runs through the course material.

Outline of the Book

After the first chapter, the book will proceed as follows: First, we will examine the Fourth Amendment, beginning with considering what counts as a “search” in Fourth Amendment cases. After studying the concepts of probable cause and reasonable suspicion, we will discuss warrants, including what police must do to obtain them, when they are required, and when the Supreme Court has said police may conduct searches and seizures without warrants. Having spent about a third of the book on searches, we will turn to seizures, including arrests and “stop and frisk.”

Around the halfway point of the book, we will move from the Fourth Amendment and begin our study of interrogations, examining how the Court has used the Fifth, Sixth, and Fourteenth Amendments to regulate police questioning of suspects. This portion of the book will cover the Due Process Clauses, the Miranda Rule, and regulations arising from the right to counsel.

Having studied “substantive” criminal procedure rules at some length—learning what the Court has told police officers they can and cannot do—we will turn to the remedies available when these rules are broken. Primarily, we will focus on the exclusionary rule, a judicially-created remedy that prevents prosecutors from using certain evidence obtained illegally. We will also consider when money damages are available as a remedy for violations of criminal procedure rules.

Near the end of the book, we will study the criminal defendant’s right to the assistance of counsel, which is guaranteed by the Sixth Amendment. In particular, we will learn when the state must provide counsel and how effective counsel must be to satisfy the constitutional guarantee.

Then we will study identification procedures, including how police can avoid mistaken identifications by victims and other witnesses, along with the limited requirements that have been imposed by the Supreme Court.

As the book ends, we will consider some new challenges presented by terrorism, such as torture, and by technological advances, such as electronic surveillance.

A Note on the Text

Universities exist to promote the search for knowledge and to transmit human knowledge to future generations. Public universities in particular have a tradition of sharing knowledge with the broader populace, not merely their own students, and they also have a tradition of providing excellent education at affordable prices. This book exists to further these important missions of the University of Missouri. Designed by MU professors, it suits the pedagogical preferences of its authors. Available at no cost, it reduces students’ cost of attendance.

In addition, this book is available under a Creative Commons license, meaning that anyone—inside or outside the university—can use it to study criminal procedure and can share it at will. Faculty at other universities are free to adopt it, and some have done so.

The project was inspired, in part, by an article one of your authors published in 2016, calling on law schools and law faculty to create free casebooks for students.²⁴ It turned out that calling upon others to create books did not in itself produce these books. Your authors have since become the change they wished to see in legal education. Because the book is relatively new—and is the first casebook produced by either of your authors—student feedback is especially welcome. Future students will benefit from any improvements.

To increase the book’s value as a free resource, the text when possible contains links to sources at which students can learn more at no cost. For example, Supreme Court cases are freely available online, and anyone who wishes to read the full unedited version of any case may do so. (Even when a link has not been provided, when naming cases we usually have included a full citation, which should allow students easy access to free versions of the text.) Your authors have edited cases so that reading assignments would be kept reasonable for a one-semester course; however, there is always more to learn.

In addition, this book aims to go beyond providing a “nutshell” summary of American criminal procedure law. From time to time, particularly when assigned cases raise issues about which there are important ongoing debates in American society, the readings will investigate these issues in greater depth than might be possible were the text confined to opinions written by Supreme Court Justices. More than one hundred years ago, Roscoe Pound—then dean of the University of Nebraska College of Law, later dean at Harvard—published the great legal realist article “Law in Books and Law in Action.”²⁵ If this book is successful, students will spend time considering the practical effects—the law in action—of the opinions contained in Supreme Court reporters.

The Key Constitutional Language

In this course, students will focus on Supreme Court cases arising from a handful of constitutional provisions. Four Amendments to the Constitution of the United States are reprinted here (three in full, one in part) for your convenience:

Amendment IV

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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

* * *

Savvy students will have noticed that the constitutional provisions reprinted above lack definitions for terms such as “unreasonable,” “search,” “seizure,” “probable cause,” “put in jeopardy,” “due process of law,” “confronted with the witnesses against him,” and “Assistance of Counsel.” The remainder of this book is, essentially, a summary of the Supreme Court’s ongoing efforts to provide the missing definitions.