Due Process in Contemporary American

Due Process in Contemporary American Criminal Justice

What is the difference between reasonable suspicion and probable cause? How is reasonableness determined?

Reasonable suspicion is the legal standard of certainty required to permit police and government law enforcement authorities to detain an individual for criminal investigation (Zalman, 2008). Reasonable suspicion is insufficient to conduct a complete interrogation or physical search of subjects, with the exception of external "pat downs" of clothing and effects necessary to ensure the safety of police officers, but merely entitles police to briefly detain an individual for questioning either in the investigation of past crimes or to prevent imminent crimes (Zalman, 2008).

Probable cause is a much higher standard of certainty required for formal arrest or for the application for a search or arrest warrant, pursuant to the specific language of the Fourth Amendment to the United States Constitution that provides: "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" (Conlon, 2004; Freidman, 2005;

Zalman, 2008).

To satisfy the standard of reasonable suspicion, police must be able to articulate an objectively reasonable cause for suspecting that an individual subject to police questioning or investigatory detention has either recently been involved in criminal

conduct, is in the process of criminal conduct, or is about to perpetrate a crime (Conlon,

2004). In that regard, the mere "hunch" on the part of police officers is insufficient; what is required is an objective basis for their suspicion in relation to specific circumstances, which can include (among many other things), the presence of an individual in restricted

areas, the apparent possession of particular tools or instrumentalities associated with criminal activity, and even very general inconsistencies and behaviors that could reasonably suggest criminal intent or activity Schmalleger, 2007; Zalman, 2008).

Typical examples of the required "totality of circumstances" (Freidman, 2005)

justifying reasonable suspicion but not the higher standard of probable cause necessary for arrest would include observing an individual dressed in inappropriately warm winter clothing in warm climate or a raincoat on a clear day. Neither is necessarily indicative of criminal conduct justifying an arrest or a thorough search or interrogation of the subject by itself; but both would provide adequate justification for police to approach the individual and detain him briefly to determine whether or not more extensive investigatory detention is justified, up to and including full arrest. In circumstances

where police are actually aware that the neighborhood has experienced incidents of shoplifting or public ludeness (i.e. "flashing"), establishing reasonable suspicion would

be very easy (Conlon, 2004).

The reasonableness of the suspicion must be such that a reasonable person, or a "reasonable police officer" would form a suspicion of criminal activity or intent based on the totality of the circumstances surrounding the individual at the time police develop their suspicion (Conlon, 2004; Dershowitz, 2002). In that regard, ordinary experiences suffice in many cases, such as in the case of inappropriate dress for the weather; in other

situations, the specific training and experiences of police may give rise to the development of reasonable suspicion, such as where a subject is observed in possession

of a specific implement typically used in the perpetration of crimes in the community patrolled by the police officers in question (Conlon, 2004; Dershowitz, 2002).

Define and discuss the Fifth Amendment requirement of Due Process. Include in your response the purpose of the Due Process clause and describe when it comes into play in a criminal action?

According to the specific wording of the Due Process Clause of the Fifth

Amendment to the United States Constitution, "No person ... 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 ... " in modern times, the principal embodiment of Fifth

Amendment due process prohibition against compelled testimony is the requirement emanating from the Supreme Court case Miranda v. Arizona (1966), pursuant to which individuals arrested by government authorities may not be questioned once in police

custody without being advised of their Fifth Amendment due process right to refuse to provide a statement of any kind (Scmalleger, 2007).

In practice, the Miranda decision (in conjunction with other related decisions before and since) eliminated the use of confessions and other inculpating testimony elicited by arresting authorities through coercion of any kind. Previously, it was not at all uncommon, especially in certain geographical regions in the American South, for police to routinely employ intimidation, deprivation of food and water, and even outright

physical abuse to exact confessions from arrested individuals in their custody (Conlon,

2004; Dershowitz, 2002).

The deprivation of liberty element of Fifth Amendment protections come into play the moment police or federal law enforcement authorities seek to impose upon the freedom of the individual to exercise the option not to participate in any investigative process. Without an objectively reasonable basis for detaining an individual pursuant to any law enforcement investigation, police may not require that any person entertain their

inquiries at all (Dershowitz, 2002; Zalman, 2008). Objectively reasonable suspicion of criminal activity is required for police to detain, search, or subject any individual to criminal investigatory questioning against his will. Due process also defines and limits the period of time and other circumstances to which an individual must submit to investigatory detention by police before police must either execute a valid arrest based on probable cause or release the individual from detention against his will (Dershowitz,

2002; Schmalleger, 2007).

Strictly speaking, police are not necessarily under any affirmative obligation to provide so-called "Miranda warnings" in conjunction with arrest, simply because Fifth

Amendment rights merely protect the individual from being interrogated or questioned once in custody (Hoover, 2005). Without any interrogation or questioning, there is no

Fifth Amendment violation for failing to issue Miranda warnings in conjunction with arrest. Generally, the remedy imposed by the Supreme Court for Fifth Amendment

violations is the exclusion of any evidence either obtained or subsequently developed by that information under the "fruit of the poisonous tree" doctrine (Conlon, 2004;

Dershowitz, 2002; Freidman, 2005).

In order to avoid conflicts with Fifth Amendment due process issues, police cannot interrogate criminal suspects after their arrest without first advising them that they have the right to refuse to answer any questions or to make any statements, that any of their statements can be used as evidence against them at trial, and that they are entitled to legal representation at the state's expense, if necessary (Freidman, 2005). Furthermore,

police may not purposely manipulate the timing and circumstances of issuing Miranda

warnings for tactical purposes, such as by questioning subjects extensively "outside of Miranda" first, and then using information obtained thereby as the basis for developing admissible testimony after issuing Miranda warnings (Hoover, 2005).

When does the Sixth Amendment right to counsel exist? How is that right different from the Fifth Amendment right to counsel?

Strictly speaking, there is no right to counsel in the Fifth Amendment: rather, the protections provided by Fifth Amendment due process in modern times merely limits the use of testimony elicited by police or prosecutorial authorities in violation of the requirements of the Miranda decision. With respect to the Sixth Amendment in practice,

the Fifth Amendment requires arresting authorities to advise arrested persons that the Sixth Amendment right to the assistance of legal counsel in connection with a defense to criminal charges.

If such an advisement is omitted, any custodial questioning or interrogation is

rendered inadmissible as a Fifth Amendment violation (Conlon, 2004; Schmalleger,

2007; Zalman, 2008). The Fifth Amendment itself contains no specific right to counsel, or even any specific right to explanations of constitutional rights of any kind, unless or until police or prosecutorial authorities seek to conduct an interrogation or questioning of the suspect for the purpose of securing admissible testimony for introduction at trial or other information for criminal investigative purposes (Conlon, 2004).