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Exclusionary Rule excludes tainted evidence from some criminal proceedings, the rationale being protection of 4th, 5th and 6th Amendment rights by control of law enforcement behavior. However, there are a number of exceptions to the Rule for various reasons, as well as alternative remedies for law enforcement's unconstitutional actions. Nevertheless, the Supreme Court created the Exclusionary Rule for several well-founded reasons.
Analysis of the Rationale and Purpose of the Exclusionary Rule, Along ith any Exceptions
The Exclusionary Rule is a rule of evidence excluding evidence from criminal proceedings when that evidence is collected in violation of the defendant's Fourth Amendment Constitutional rights against "unreasonable searches and seizures" by law enforcement, Fifth Amendment Constitutional rights against self-incrimination, and/or Sixth Amendment Constitutional right to legal counsel (Cammack, 2013, p. 3) . Evidence obtained by law enforcement in violation of these Amendments is unconstitutional and cannot be used against the Defendant. In addition,…… [Read More]
The U.S., however, is the only industrial democracy, common law or otherwise, in which courts must throw out tainted evidence in criminal trials. The U.S. Supreme Court decisions establishing and expanding on this principle have collectively come to be known as the "exclusionary rule." Although the rule had its origins in arguments about the morality of obtaining a conviction while relying on improperly obtained evidence, its primary modern justification is that it deters illegal conduct by the state. However, an unexamined premise of this belief is that if illegally acquired evidence may be thrown out, decreasing the probability of conviction, then the police, prosecuting attorneys and other law-enforcement officials have an increased incentive to obey the rules.... improper conduct is assumed to be socially costly. Illegal searches, fabricated confessions, and other violations subject to the exclusionary rule are assumed to be worthy of deterrence in their own right. (Osborne 1999:381)…… [Read More]
For example, one provision of the Patriot Act "permitted law enforcement to obtain access to tapping stored voicemails by obtaining a basic search warrant rather than a surveillance warrant," even though "obtaining the former requires a much lower evidentiary showing" and wiretapping more accurately seems to mirror surveillance technology, rather than single-incident searches of the premises for specific items (Fourth amendment, 2009, ex Law). Another provision of the Patriot Act allowed law enforcement to use sneak-and-peak warrants, which meant that they could "delay notifying the property owner about the warrant's issuance" although this was struck down as unconstitutional (Fourth amendment, 2009, ex Law).
The Patriot Act itself for many Americans highlighted the fragility of American's rights during times of national fear. It also showed the importance of the exclusionary rule, given how even well-intentioned zeal can result in innocent Americans having their privacy being violated by law-enforcement personnel. As surveillance…… [Read More]
An exception to this is a search conducted by officer acting in objective "good faith" and wit the inclusion of a warrant obtained on the basis of probable cause.
A further provision holds that, if a jury has reasonable reason to believe that the evidence was obtained in violation of the Article, it should disregard the evidence obtained. The Texas Penal Code works in tandem with the exclusionary rule, in that it concerns the falsification of evidence; the false presentation of records or documents in an attempt to affect the outcome of the investigation is an offence, unless such a document is privileged or the work product of parties to the investigation.
It therefore appears that the Texas rule provides a broader basis of protection for its citizens, rather than the single dimension of police searches as provided by the U.S. Constitution. Indeed, the implication is that no person is…… [Read More]
Exclusionary rule exists to protect the rights of citizens to due process when accused or suspected of criminal activities. There are therefore certain constitutional specifications according to which incriminating information can be seized. Without adhering to these specifications, seized items cannot be allowed as evidence against an accused person in a criminal trial. There are, however, certain exceptions to the exclusionary rule, including fleeing suspects and the good faith exception.
In the case of a fleeing suspect for example, pursuit of a suspect may cause the person to enter a residence in order to avoid arrest, since the usual rule is that evidence acquired without a warrant cannot be submitted in a court of law. However, an officer in pursuit of such a suspect may enter the residence without a search warrant to prevent the suspect from destroying or discarding the evidence. One example of this is flushing drugs down…… [Read More]
The Court cited language from Boyd in support of its proposition. The Boyd Court had held that the Fourth and Fifth Amendments "apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property" (116 U.S. 616, 530). In other words, it is not the physical act of violating someone's home that forms the root of the violation of privacy; it is more the intangible fact that, having done so, the police have taken away the idea of security and privacy for that individual.
The Court also mentioned eeks. In eeks, the Court held that:
If letters and private…… [Read More]
Exclusionary Rule and a Possible Alternative
Under the exclusionary rule, as created by United States Supreme Court legal precedent, "illegally obtained evidence has been inadmissible in federal criminal courts since 1914." From the onset of its codification in legal and police protocol, proponents of this rule hoped that it would help eliminate police misconduct and protect individual rights. Of course, to this day, opponents of the exclusionary rule have stated that the only beneficiaries of the exclusionary rule have been guilty criminals, and an innocent American society has punished, as criminals merely from errors made by the police. Regardless of one's personal opinion, it is also important to note, in reviewing the history of the exclusionary rule that in the 1961 case of Mapp v. Ohio extended to the rule to all of the states. ("Landmark Cases of The Supreme Court," 2003)
In its ideal, theoretical formulation, the exclusionary rule…… [Read More]
The Exclusionary Rule is a significant and difficult to consider and discuss. The Exclusionary Rule is a rule that holds law enforcement accountable to the legal system and the justice system. The Exclusionary Rule essentially mandates that all evidence to be permissible in a court of law must be obtained legally and through actions of relevant law enforcement agencies lawfully. This rule may seem like it is in favor of criminals or alleged criminals, but in a system, there need to be checks and balances. The American justice system is predicated on an attitude of "guilty until proven innocent" not, "when they seem fairly guilty they probably are." The Exclusionary Rule holds the police accountable for their actions. Frankly, there is evidence and a long history of corruption within law enforcement in the United States. This corruption sometimes has to do with evidence tampering; sometimes it…… [Read More]
Exclusionary Rule be Abolished?
The exclusionary rule states that evidence that has been illegally obtained may not be used within the confines of a criminal trial to convict a party, even if that party was clearly guilty of the crime in question (Exclusionary, 2006). There have been many cases where this rule has been used, and because of that, too many guilty people have gone free. The most significant case, and the one that holds the strongest argument as to the idea that the exclusionary rule should be abolished, is Mapp v. Ohio (1961). The facts of this case are important to a clear understanding of why the exclusionary rule should be abolished, and those facts are as follows:
Cleveland police came to Mapp's home on 23 May, 1957, acting on information that someone was hiding there. This person was wanted for questioning and the police had information that not…… [Read More]
The foundation of these limits is the need to protect the privacy of the individual and control police behaviors.
In the three cases, the application of the provisions of the Fourth Amendment could have been helpful in ensuring that the officers conducted their searches more efficiently. In Weeks vs. U.S. And Mapp vs. Ohio, they could have avoided using forceful and illegal means to obtain evidence. Similar to these two cases, they could have conducted more efficient search and seizure in ochin vs. California by respecting the person's privacy and avoiding use of force.
Dempsey, J.S. & Forst, L.S. (2011). Police and the law. In Police (1st ed., pp. 179-193). Delmar,
Ohio: Cengage Learning.
"Evaluation of the Exclusionary ule." (n.d.). Essortment -- Your Source for Knowledge.
etrieved June 5, 2012, from http://www.essortment.com/evaluation-exclusionary-rule-50665.html
"The Exclusionary ule." (n.d.). Cliff's Notes. etrieved June 5, 2012, from http://www.cliffsnotes.com/study_guide/the-Exclusionary-ule.topicArticleId-10065,articleId-9964.html
"Understanding Search and Seizure…… [Read More]
The Future of the Exclusionary Rule
The first 10 amendments to the U.S. Constitution, otherwise known as the Bill of Rights, were designed to protect citizens against abusive state power. These protections include preventing the government from entering and seizing property without just cause or stripping citizens of their rights without due process (Oaks 665). These protections are encoded within the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.
Enforcing these rights, paradoxically, is also the responsibility of the government. Fortunately, the Constitutional framers created three independent branches of the government, thereby providing a mechanism through which one branch could limit the power and reach of the other two branches. hen it comes to the protections encoded in the Bill of Rights, the judicial branch has taken the leading role in checking the powers of the legislative and executive branches of the federal government, as well…… [Read More]
United States, 116 U.S. 616 (1886). In Boyd, a defendant had been compelled to produce his business papers. The Court determined that the compulsory production of those papers amounted to requiring the defendant to provide testimony against himself. The holding in Boyd was limited to the facts in that case. In Bram v. United States, 168 U.S. 532 (1897), the Court held that involuntary confessions were inadmissible. These two early cases stressed the importance of the Fifth Amendment's prohibition against compelled testimony.
However, it took a significantly longer period of time for the United States to develop a more comprehensive version of the Exclusionary ule, and many states had developed their own heightened versions of the Exclusionary ule prior to that time. Finally, in 1914, the Court developed a comprehensive and strong version of the Exclusionary ule. In Weeks v. United States, 232 U.S. 383 (1914), the Court held that…… [Read More]
The nature of the crime the defendant is accused of will also determine the amount of bail. A relatively minor offense will garner a lower sum of money than a serious crime like murder.
Q4. State and explain the two (2) types of immunity that might be offered to an individual when that individual is compelled to testify before a Grand Jury.
Two types of immunity that exist are use and transactional immunity. Immunity is conferred to protect the witness from being indicted and thus protected from testifying based upon the witnesses' Fifth Amendment right to not incriminate him or herself. "The states grant either form of this immunity, while the federal government grants only use immunity. A witness with use immunity may still be prosecuted, but only based on evidence not gathered from the protected testimony" (Use immunity, 2011, Legal Dictionary). Use immunity prohibits the witness's testimony from being…… [Read More]
Exclusionary ule prevents the admission of evidence that was gathered in an unconstitutional way as specified by the Fourth Amendment of the Constitution, which covers the parameters of searches and seizures. In fact, officers of the law who conducted unlawful searches or seizures of property could be subject to prosecution under state or statutory law, and in some rare cases, may face criminal charges ("Alternatives to the Exclusionary ule," n.d.). The exclusionary rule does sometimes constrain police behavior in criminal cases, potentially preventing the acquisition of evidence in "good faith," in the presence of "exigent circumstances," or even when probable cause can be retroactively determined ("Alternatives to the Exclusionary ule," n.d.). Therefore, the Exclusionary ule should not be banned; quite the contrary, it prevents abuses of power or misconduct by law enforcement. The Exclusionary ule also ensures that criminal trials are conducted in accordance with Constitutional values and laws.
Prior…… [Read More]
TX Innocence Project
The problem with scientific evidence
There is an upsurge in the scientific means of conducting investigations into issues, and the use of the latest technologies that are geared towards making things easier when it comes to unraveling the mysteries surrounding the evidence required in courts of law for prosecution. This is a trend that is global and has deeply taken root in the U.S.A.
However, from the look of various cases as those found in The Texas Tribune (2012) it is apparent that there are various errors that can accompany the scientific evidence hence they cannot be relied upon on an absolute accuracy or implementation basis.
There are various problems that are associated with the scientific evidence as presented by obert D. Meyers et.al (1999) numerated as below:
The problem of cost: this is one of the first and foremost prohibitive facts about the scientific evidence. It…… [Read More]
Contingency Exclusionary Rule
LAW AND JUSTICE
Contingent Exclusionary Rule
Dripps' Model in the Real World
The Fourth Amendment of the American Constitution protects the individual from illegal searches and seizures by law enforcers (Dripps, 2001). This is at the heart of the Contingent Exclusionary Rule. ut the lack of concrete explanation as to how this is to be implemented has led to continuous debates. One side has come up with numerous suggestions on how it should be implemented only to be opposed by the other side (Dipps).
The Rule states that any evidence obtained through illegal search or seizure is inadmissible as evidence in any court of law (Dipps, 2001). It is a time-honored guarantee, which gives an individual that sense of security against invasion of his privacy except when a warrant is produced. The law enforcer will also be liable for the act. Opponents argue, however, that most police…… [Read More]
Supreme Court Bill of Rights Case
Terry v. Ohio introduce the Terry frisk into police procedure, allowing officers to have the right to stop and frisk or do a surface search of individuals on the street even without probable cause. All the officer would need would be to have a reasonable suspicion that the person being searched had committed, was about to commit or was in the act of committing a crime. The Supreme Court stated that the officer's suspicion had to be "specific" and able to be put into words -- that is to say, the officer could not just say he had a "hunch" that the person searched was about to violate the law: the officer would have to be able to point to a specific characteristic that made him suspect the individual in question.
However, this Supreme Court case eventually led to the allowance of the detainment…… [Read More]
The Burger Court held that the prosecution simply needed to establish by a preponderance of the evidence that the evidence illegally obtained would have been lawfully and inevitably discovered. The Burger Court did not think that a police officer would act illegally on the 'off' chance that the evidence might be admissible under the inevitable discovery doctrine, and could not reasonably calculate if the evidence would inevitably be discovered (Hendrie 1997:2).
The Nix v. illiams finding is an important counterweight to the restrictions the exclusionary rule imposes upon law enforcement officials. In contrast to the arren Court, the Burger Court accepted that, although protecting constitutional rights is important, the exclusionary rule is often a "drastic and socially costly remedy" because it often results in obviously guilty people going free, meaning that the cost of releasing illiams back into the world would have been high, while the gain to society of…… [Read More]
Rule: Any out-of-court statement offered to prove the truth of the matter asserted is generally inadmissible as hearsay. (801-802) However, hearsay may be admitted, in a prosecution for homicide or in a civil case, if the declarant, while believing the declarant's death to be imminent, made the statement about its cause or circumstances. (804(b)(2).
Application: Here, the defense attorney's objection is premised on the fact that the deceased Sam's statements are I inadmissible as hearsay, as an out-of-court statement by a person unavailable for trial, offered to prove that the other driver was driving on the wrong side of the road. However, Trooper Jones may offer this statement because it falls under the (804(b)(2) hearsay exception, as a statement in a civil case that the declarant made while his death was imminent.
Conclusion: The basis for the defense attorney's objection is hearsay because the deceased Sam's statement is an out-of-court…… [Read More]
Miranda ule's effectiveness in America today [...] why the Miranda is well tailored to guard against constitutional violations, and will present an argument for the Miranda rule. The Miranda ule, first adopted in 1966, is still a contentious ruling in today's criminal justice system. While some critics of the rule feel it is not a deterrent to coercion of information from a suspect, most experts believe the Miranda ule was created with a solid foundation to help ensure a suspect's rights are not violated and the information from any suspect is admissible in court. The Miranda ule guards the criminal justice system just as well as it guards against rights violations and because of this, it is vital to the quick and efficient trying of cases. The Miranda ule is controversial, but it is a necessity in modern policing, and it helps both the suspect and the police.
The Miranda…… [Read More]
The definition for "subversives" is a bit vague, but Fagen explains that in Argentina and elsewhere in Latin American dictatorships the victims of violent repression tended to be union leaders, liberal political leaders, artistic people in cultural circles, student protest leaders and media personalities (p. 41). The whole point of these horrendous repressive policies was to inspire fear, confusion and "distrust" among the general population. For those who believe the United States' military always stands on the side of democratic movements it may come as something of a shock that the U.S. funded and trained many military outfits during the time of dictators in Latin America.
"An entire generation of Latin American military officers and police were armed, trained, and 'professionalized'" by American police and military leaders (Fagen, 1992, p. 43). Fagen says the repression in Argentina was, in part, designed to "Purge ideological infection"; Argentine present General Jorge Rafael…… [Read More]
List and explain five (5) ways that show how authentication or identification of physical evidence can be accomplished (also called "laying the foundation").
Authentication of physical evidence can be accomplished by:
Testimony of a witness who has first-hand knowledge. This is enough for authentication if the person involved has personal diligence that a matter is what is claimed to be.
A non-expert person who must have been well-acquainted with the specimen and did not acquire the knowledge for the purpose of betrayal, such as a spouse or roommate.
Allowing the jury or an expert to put in comparison the evidence purported with the specimens which have been authenticated is enough for authentication.
Distinctive qualities and associated circumstances such as sending a bill to a particular address and getting payment from the bill or other appearance, contents, substance, as well as other internal design qualities when admitted together with…… [Read More]
Acquainted With the Law
Various Law Terms-3
This is either legal or illegal (Priebe, 2012). It is legal and legitimate when corporate officers, directors and shareholders of at least 10% of the outstanding stock of the business. They file the required information with the Securities and Exchange Commission at regular periods (Priebe).
Illegal Insider Trading
This is conducted by trusted person but violates that company's trust (Priebe, 2012). The person is usually someone who enjoys fiduciary trust in working for and keeping the best interest of the company or its shareholders. He may be an officer, a director or an outsider who has access to confidential information about the company. That outsider may be the company's banker, auditor, or lawyer. In general, he is an insider who gives or receives inside information or tips (Priebe).
Characteristics of the Inside Information
It must be important and private (Priebe, 2012).…… [Read More]
Mapp V. Ohio
Over the centuries, there has been considerable debate as to the application of the Bill of ights when it comes to the states. This is because a series of court cases decided it was only relevant when it came to the federal government (i.e. Barron v. Baltimore and United States v. Cruickshank). However, with the passage of the Fourteenth Amendment, these states were obligated to follow them. This has shifted the debate as to if this aspect of the Constitution is relevant to state and local officials. To determine if this is correct requires examining a fictional case in contrast with Mapp V. Ohio. This will be accomplished by carefully studying the facts of the case, the Fruit of the Poisonous Tree Doctrine (under Mapp V. Ohio), the application of the rule of law and discussing how this would affect the ruling from the fictitious scenario. Together,…… [Read More]
The purpose of the exclusionary rule is to afford the defendant all his or her rights of privacy and to maintain fair proceedings in the gathering of evidence. Unlawful search and seizure is a serious offence, committed by investigators and regardless of the value of the evidence recovered there is no clear acceptance of the principle as a tactic in a "fair" proceeding. If the police and/or prosecution was given free reign to gain and submit evidence in whatever manner they could the accused would surely not have a fair trial. This is why in fact the police are separate from the prosecution in any case, to ensure that both are not somehow responsible for actions that can violate the rights of the defendant.
Many people have argued against the exclusionary rule, as it frequently results in overturned or unattained convictions of presumably guilty parties and is said…… [Read More]
To the extent that crime is a function of larger social issues, it is unrealistic to expect those underlying social problems to be rectified by law enforcement efforts. Even with respect to specific incidence of criminal behavior, law enforcement authorities must address two competing interests that fall within the purview and responsibility of law enforcement.
Specifically, poverty, unwanted pregnancy, lack of educational and vocational opportunities, and perceived social "disenfranchisement" within communities contribute heavily to crime in those areas but none of those social factors are capable of being redressed directly by law enforcement authorities. Likewise, even within the realm of law enforcement responsibilities, emphasis on quality-of-life-oriented policing and crime prevention-oriented policing conflict with the goal of preventing crime in light of empirical evidence and anecdotal experience demonstrating that efforts directed at the former do not necessarily achieve the goals of the latter appreciably.
In that regard, directed police patrols and…… [Read More]
Bill of ights defines the protections afforded individual citizens under the Constitution against excessive government intrusions into private lives and arbitrary prosecutions. These rights are contained in the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Since these Amendments were first adopted by the ratifying states the courts have interpreted the intent of each and created rules that attempt to keep the government from running roughshod over these rights. In 1944, the Federal ules of Criminal Procedures were generated by the Supreme Court and Congress turned them into law (LII, 2010).
One of the most important rights is to be free from unreasonable searches and seizures under the Fourth Amendment (LII, 2010). A warrant issued by a magistrate or judge is typically required before a police officer can enter a private citizen's residence or other property and conduct a search. In addition, the focus…… [Read More]
Moreover, the risks posed by felons with known propensities (or stated intentions) to respond violently to law enforcement apprehension efforts are usually subject to judicially approved no-knock arrest warrants; therefore, they can be excepted from this particular element of analysis.
However, a subject who is forewarned of officers' intention to breach his home's entrance by the amount of time required by knock and announce standards presents the worst case scenario for all involved: he may be insufficiently startled to preclude any response on his part in the manner of a subject who is completely surprised (or fast asleep) at the moment of entry; but he may have just enough time to reach reflexively for stowed or secreted weapon while at the same time being deprived of sufficient reaction time and/or cognitive awareness to perceive the inadvisability of doing so under the circumstances, with deadly results. Stated very simply, a startled…… [Read More]
It is a traditional belief in America that a man's home is his castle, meaning that he is lord and master of his home and no one may enter, not even the government, without his permission. This was such an important issue among the American colonists that it was included into the Constitution when they broke away from Great Britain. In short, the fourth amendment states that no private property could be searched or seized without a proper warrant; and a warrant could not be issued without due cause. Over time belief in this absolute principle has gradually softened and a number of exceptions to this rule have come into place. Police and other authorities have been given exceptions to this rule in certain circumstances and it is not uncommon for evidence, that was gathered without a warrant, to be accepted in a trial. This is the situation…… [Read More]
If police officers are not sufficiently deterred by the prospect of evidence being suppressed at a hearing where a person's liberty is in jeopardy, it is a fortiori that they will not be deterred by the possibility of suppression at a civil forfeiture hearing where only the person's property is in jeopardy.
Law enforcement officials have much to gain in the outcome of the issues raised in Scott, and will likely bring challenges to the exclusionary rule in civil forfeiture. While the court's trend is moving away from applying the exclusionary rule in civil contexts, law enforcement agencies are increasingly relying on civil tools to attack crime. At the forefront of this movement is the use of civil forfeiture to seize the fruits and instrumentalities of the narcotics trade. Civil forfeiture statutes allow law enforcement officers to seize privately held assets that have been used in a crime, a practice…… [Read More]
The officer stopped and searched the three men, and recovered arms from two of them. Terry was found guilty of having covered arms and was send to prison for three years. Is the investigation and confiscation of Terry and other men against the Fourth Amendment? The Court in an 8-to-1 decision held that the investigation done by the officer was sensible under the Fourth Amendments and that the arms captured can be presented as a proof against Terry. The Court found that the officer performed based on his intuition and that a sensibly cautious man would have been reasonable in thinking that Terry was having weapons and thus pose a risk to the officer's safety while he was searching. The Court found out that the investigation done was in a restricted level and was intended to safe guard the officer's security during the search. (Terry v. Ohio: (www.oyez.org)
Fourth…… [Read More]
Federal Grand Jury
The Fifth Amendment to the U.S. Constitution provides that charges for all capital and "infamous" crimes be brought through an indictment by a grand jury. Although the founding fathers had envisaged the primary function of the federal grand jury as protection of the citizens against tyranny by the government, its protective role has eroded over the years -- making its current function in the criminal system highly controversial. This paper outlines the basic duties of a federal grand jury and discusses some of the controversial issues facing it.
The provision of the Fifth Amendment regarding grand juries has been interpreted to mean that an indictment by a federal grand jury is required for charging federal felonies. The Supreme Court has held that this part of the Fifth Amendment is not binding on the States; hence the use of grand juries is not binding on the…… [Read More]
Many states, such as Virginia, are training private security officers in order to ensure smooth cooperation and coordination between security companies without police powers and the police and sheriff's departments. In Washington D.C., the municipal police department requires private security officers to be licensed as "special police" officers in order to legally search or arrest people. Cooperation can reach significant proportions, as in the case of the Minneapolis Police Department's "SafeZone" program, which place private security officers downtown who now outnumber Minneapolis Police Department officers there 13 to 1.
4. Industries and organizations that use special and/or commissioned officers and for what purposes
a. There is a truly broad range of industries and organizations which use special police officers. These organizations tend to have significant financial resources, large premises, and sensitive security needs which they believe cannot be met by the existing public police force. These often involve the need…… [Read More]
The fact that Fred was eventually allowed to leave is less important in that determination than Fred's state of mind and reasonable belief about whether or not he was still free to leave once the police informed him that he was actually a suspect in Wilma's murder (Dershowitz, 2002; Zalman, 2008).
Search and Seizure and Unlawful Arrest Issues:
The fact pattern does not make clear whether or not the police actually conducted a search of Fred's home or were merely "bluffing" to induce cooperation from Fred. Assuming that no such unwarranted search was actually being conducted, there was no impermissible search and seizure of Fred's home. Provided Fred still (reasonably) believed that he was free to terminate the interview and leave when he volunteered the confession, that evidence should not be excluded under Miranda (and related) doctrine and principles.
However, the police did seize Fred's vehicle, which was an impermissible…… [Read More]
Manson v. Brathwaite, the government prosecuted respondent and he was convicted of possession and sale of heroin. The United States Court of Appeals for the Second Circuit reversed the dismissal of respondent's petition for habeas corpus relief, with orders to issue the writ unless the government gave notice to retry respondent and the new trial took place within a reasonable time. The government sought certiorari review.
Respondent, on a claim for habeas relief, proposed a per se rule of barring that he claimed was dictated by the demands of the Fourteenth Amendment's guarantee of due process. The Court used the entirety of the conditions test and concluded that the criteria appropriate in determining the acceptability of evidence offered by the prosecution in relation to identification were suitably met and complied with in respondent's case. The Court reasoned that the factors that had to be measured included the occasion of the…… [Read More]
4th Amendment's evolution and history, together with the "search and seizure" law.
4th Amendment Background
People's rights of being secure in personal effects, papers, houses and persons, against unreasonable seizures and searches, may not be breached, nor shall any warrants be issued, but in case of probable cause, which is supported by affirmation or oath, and describes, particularly, the place that must be searched, or the things or individuals that should be seized, under the 4th Amendment. Like most fields in U.S. law, the English common law forms the principal basis of the 4th Amendment. Broadly, it was created for limiting governmental powers and their capacity of enforcing legal actions upon citizens (4th Amendment - constitution -- Laws.com). Amendment IV was implemented in immediate reaction to the historical writ of assistance's abuse. This writ was a sort of general governmental search warrant employed in the American evolution's era. Amendment IV…… [Read More]
Fourth Amendment by the United States Supreme Court has sometimes been characterized by several controversies. One of the controversies associated with Supreme Court's interpretation of the Fourth Amendment is the belief that it's a demonstration of the challenges in determining a fair balance. As a result of this interpretation, a public-order advocate may argue that the exclusionary rule has restricted the capabilities of law enforcement officers to effectively safeguard the community. In contrast, an individual-rights advocate may claim that the changes have contributed to positive police reforms, which necessitates the expansion of such rights. Therefore, the exclusionary rule continues to generate various debates regarding its impact and relevance in the modern society.
Generally, the exclusionary rule is a right to be free from the Fourth Amendment's unreasonable searches and seizures, which in turn provides a dilemma for the society. For some people, this rule gives every individual the right to…… [Read More]
Michigan, in which police officers had failed to satisfy the knock requirement of a "knock and announce" search warrant before obtaining incriminating evidence. The Court decided that technical violations of proper warrant execution in "good faith" of the nature described in Hudson would not trigger the exclusionary rule (Schott, 2006)..
Ultimately, as constitutional criminal procedure developed since Mapp, a balance arose between the need to safeguard the constitutional rights of the accused with the need to preserve the admissibility of evidence when violations associated with its procurement do not rise to the level necessitating its exclusion. More than any other factor, this balance also allowed police the appropriate freedom to perform their assigned function of preventing crime, apprehending criminal suspects, and collecting evidence without having to compromise their ethics and violate their sworn oaths to do so effectively.
Cloud, M. (1994) Emory Law Journal, the Dirty Little Secret. Accessed…… [Read More]
Decisions of ehnquist & Warren
The field of constitutional law, at least in the area of criminal procedure, has been an interesting study for the past fifty years. Unlike other areas of the law, the study of criminal procedure has undergone major transformations as a result of the decisions of the last three courts, the Warren, Burger and ehnquist courts. These three courts have changed the legal landscape in the cases involving criminal procedure and, in the process; have created a great deal of controversy (Bloom, 2010).
The application of the Bill or ights to the states has been an acrimonious issue in the U.S. Supreme Court for a number of years. It all began when the Warren Court began applying the Fourth, Fifth, and Sixth Amendments directly against the states, under a doctrine that became to be known as selective incorporation. The Warren Court used the selective incorporation method…… [Read More]
K. Comment: I agree with the majority opinion. The Constitution is the absolute guiding law of the land, and the Fourteenth Amendment guarantees that its protections will be extended to state actions. The Fourth Amendment guarantees a right to privacy and assures citizens that they will be free from unreasonable searches and seizures. The Fourth Amendment also imposes a warrant requirement for the majority of searches, so that most searches that occur without a warrant violate the Fourth Amendment. The search in this case certainly violated the Fourth Amendment, but whether or not the constitutional violations were as egregious as in this case should not be the determinant of whether evidence is excluded, because the Constitution absolutely bans all unreasonable searches and seizures. hile the dissent suggests that other remedies can help a defendant who has been subjected to an unreasonable search and seizure, the fact is that none of…… [Read More]
Mapp v. Ohio
Citation of Case: 367 U.S. 643; 81 S. Ct. 1684; 6 L.Ed.2d 1081 (1961)
Facts: Cleveland police came to Mapp's home on 23 May, 1957, acting on information that someone was hiding there. This person was wanted for questioning and the police had information that not only the person but the equipment used for a recent bombing was hidden in the home. They demanded to enter but Miss Mapp refused because her attorney advised that she not allow them to enter without a search warrant. The officers contacted headquarters and begin a surveillance of the house. Three hours later there were more officers on the scene and they once again asked for entrance to the home. She did not answer the door immediately and one of her doors was then forced open by police. Miss Mapp's attorney arrived and officers would not let him come in or…… [Read More]
The privilege against self-incrimination originally came to pass through colonial history. It went against both the moral and physical compulsion of taking an oath to what was believed to be a vengeful God and having a pious soul. It also became a defensive weapon against society and the laws and proceedings that often took place, in that it allowed a person to insist that they did not have to and were not going to answer a particular question that was asked of them, and what was more, they did not have to answer the question because they were protected under the law.
Somewhere along the way, though, this protection that was designed for a very specific purpose began to be extended to other purposes, therefore 'watering down' the importance of the 5th amendment and making it into somewhat of a joke as opposed to a serious legal matter that can…… [Read More]
American Government Politics. Discussed is the fourth amendment and the current policies of searches and seizures. Four sources used. Footnotes.
Americans hold very dear the Bill of Rights. Among the ten amendments that make up the Bill of Rights is the Fourth, one many refer to as the most ambiguous of the all the amendments. Search and seizure law is drawn from the Fourth and over the years the Supreme Court has come to view that its main purpose is the protection of a citizen's property and privacy. However, according to the conclusion of the Court, the Fourth Amendment does not "protect all property interests or apply to all situations where people might wish to protect their privacy." Perhaps, never has this amendment felt more threatened than today. The attacks on the orld Trade Center on September 11th, spurred the hite House Administration to create the office of…… [Read More]
Mapp v. Ohio
Facts: suspicious that the petitioner (Dollree Mapp) was hiding a bombing suspect and some paraphernalia that that may have been used to carry out a bombing in the state, Cleveland police went to her residence demanding to be allowed to conduct a search in regard to the same. The petitioner, after consulting with her attorney, refused to let them in because they did not have a warrant to that effect. The officers left, but returned several hours later holding up a sheet of paper that they claimed was a search warrant. They forcibly made their way into the house, conducted a thorough search, and seized a trunk containing obscene materials in the basement. They then charged the defendant for the possession of obscene materials in violation of state law. The defendant filed an appeal on grounds that the search conducted by police in her boardinghouse violated the…… [Read More]
For all Americans, the Fourth Amendment is an essential element of the U.S. Constitution that protects everyone's rights. This has influenced the way that the criminal justice system is interacting with defendants and the tactics that are utilized by law enforcement when conducting investigations. To fully understand how this is impacting society and legal proceedings requires studying various sources. This will be accomplished using academic information (i.e. books, case law and journal articles) to highlight the issues. In the future, this paper will contribute to a greater understanding as to how it requires maintaining a balance in protecting individual rights and giving the government effective tools for enforcing the law. (McInnis, 2009) (Lively, 1999)
The Fourth Amendment is designed to provide Americans with protections against unreasonable search and seizure. It has several different provisions that have been subject to various legal interpretations to include: the use of…… [Read More]
2004 case of Missouri v. eibert that was appealed to the U.. upreme Court to generate a new rule prohibiting a specific practice often used by, and taught to police officers. That technique involved a two-tiered interrogation strategy expressly designed and intended to circumvent the Fifth Amendment constitutional protections guaranteed by the Miranda rule. The way the strategy worked was that police would deliberately delay reading Miranda warnings to question suspects for the purpose of acquiring information about their culpable conduct. Afterwards, they would Mirandize the same subject and then re-open the discussion, referencing that information. The suspects invariably made admissions of guilt after being Mirandized because they knew they had already provided the information and were unaware of the legal distinction of statements "inside" and "outside" of Miranda warnings.
The first admission is absolutely inadmissible. At the time it was made, the suspect was already participating in a custodial…… [Read More]
S. Supreme Court's decisions in Escobedo v. Illinois (Escobedo v. Illinois, 1964) and Miranda v. Arizona (Miranda v. Arizona, 1966). These two cases dramatically altered how police treated criminal defendants subsequent to their arrests and forced police agencies throughout the United States to develop new procedures. The reading of what have become to be popularly known as Miranda rights has become a routine part of every arrest. Like it has in many areas of criminal procedure, the U.S. Supreme Court has narrowed the application of Miranda and gradually chipped away at the rights originally granted by the Court that decided the case. Two of the more significant cases were decided in 1984 when the Court allowed an exception to Miranda in the case of New York v. Quarles (New York v. Quarles, 1984) so that police can use Miranda statements in situations involving public safety. Additionally, in a companion case…… [Read More]
From the beginning of the 19th Century, the criminal justice system has basically revolved between two models that are geared towards reducing crime through distinct approaches. As part of their different approach, the crime control and due process models have separated the individuals that work in the criminal justice system. The crime justice structure has used more of crime control model than the due process model which has enabled the Supreme Court to rule on a number of court cases that extends the rights of culprits. These court cases include absolute defense against search and arrest as well as providing attorneys to unlawful defendants at the cost of state. It was noted that after a certain period of time, the rate of crime started to increase, the economy failed and people lost confidence with the government.
The purpose of the due process model was to maximize on powers…… [Read More]
According to Stefanie Olson (2001), the Act provides government with increased electronic surveillance, search and data gathering power. Under the guise of tracking down "potential" terrorists, the expansion of Internet eavesdropping technology provides the government with full viewing rights into any private life they choose. In this way, immigrants who enter the country and conduct their business in a perfectly legal manner are now targeted for such surveys (White, 2008).
Local and National Changes in Law Enforcement - the basic mission of law enforcement and foreign/defense policy in the United States has dramatically changed since the events of 9/11 and the subsequent "War on Terrorism." Since 9/11, policies across the United States and abroad have changed from being reactive to being intensely proactive. There, are, however, several challenges faced by law enforcement and the legal issues of defense and foreign policy regarding this new approach to terrorism (Simonson, 2006).
Even…… [Read More]
"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" (Cornell University Law School. N.D.). As with a preponderance of Constitutional issues the meaning of the Fourth Amendment has undergone an evolvement from its original intent and purpose as set forth in its composition by the founders and inclusion in the Bill of Rights. "The framers of the Constitution adopted the amendment in response to the writ of assistance (a type of blanket search warrant) that was used during the American Revolution" (Reed, J. May 24, 2011.). The Supreme Court in its role as Constitutional explicator has addressed the scope and boundaries of the…… [Read More]
Stop and Frisk: The Efficacy of This Technique
Stop and frisk is one of the most controversial techniques used by the NYPD to reduce crime. Stop and frisk, as its name suggests, is when police officers stop pedestrians on the street and frisk them for drugs, weapons, and other illegal substances. On the surface, it might seem as if this is a violation of the Fourth Amendment which prohibits searches and seizures without probable cause. Almost by definition, stop and frisks are conducted without adhering to usual standards of probable cause since they are usually made relatively randomly at police discretion with only minor evidence of an infraction. Furthermore, the NYPD's specific stop and frisk program was recently declared unconstitutional but not primarily based on the Fourth Amendment. According to the district court judge the policy was "discriminatory, and showed little regard for the requirement that stops be based on…… [Read More]
English Right of Set-Off and Combination in the Circumstance of Insolvency
The right of combination and set-off, as developed under English law offer a number of safeguards to banks and creditors in general. These rights were expanded under the principles that they were necessary to effect substantial justice and that they would stimulate economic growth and trade. In the following paper, I suggest that the judicial application of these rights has tended to unfairly favor banks at the expense of the individual customer, which may initially stimulate growth by encouraging banks to provide loans, but in the long-term may serve to deteriorate trade, particularly at the international level. Customers in other countries, particularly civil law countries, experience much more risk when they do business with an English bank, and hence may be better off refraining from bringing their enterprises there, or at any rate must be extremely careful in drawing…… [Read More]
They also had the power to decide the merits of evidence and arguments. In the 19th century, judges gained greater control over juries and the role of juries became what it is currently; hearing evidence presented on both sides and determining the guilt or innocence of the accused.
The advantages of the jury system lie in the foundational elements articulated and supported by amendments and the Supreme Court. The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial" (Landsman & Hastings 1992). A speedy trial was emphasized to avoid the accused languishing in prison for extended periods of time prior to a trial, or have the accused fate put off for an indeterminate amount of time. Further, the Sixth Amendment guarantees every citizens right to an impartial jury. The intent is that the prospective juries not enter into the…… [Read More]
Dershowitz and others have pointed out, rightfully, that Miranda principles were designed to prevent the use at trial of evidence obtained improperly and that the prevention of mass casualties may constitute a sufficiently important goal to suspend certain constitutional issues. In that regard, even the terrorist is entitled to the same protections against self-incrimination and prosecution using illegally-obtained evidence of guilt. However, the legitimate need to protect the public from wide-scale death and destruction may be another matter entirely.
Dershowitz (2002) outlined the principles for designing a "torture warrant" in connection with which authorities may interrogate suspects known to possess information necessary to prevent mass casualties and loss of innocent life in imminent terrorist attacks through means ordinarily strictly prohibited by the Constitution and the laws applicable to all fifty American states. The fundamental distinction is that those efforts would relate to securing information for the purposes of preventing mass…… [Read More]
Indeed, even the most outspoken critics of law enforcement will likely be the first to dial "9-1-1" when their homes are being burglarized or members of their families are being attacked, but the fact remains that many police department remain primarily white and male in composition. The impetus for effecting substantive changes in the composition of the nation's police forces will therefore need to be mandated in order for things to change in any meaningful way. The desirability of developing a more diverse police force that reflects the demographic composition of the larger communities they serve has been recognized as an important element in this regard. For instance, as Hood, othstein and Baldwin (2004) emphasize, "Any geographically extended political system can set standards from the center, but diversity in law enforcement is often seen as both necessary and desirable" (p. 175). Although it may be necessary and desirable, there are…… [Read More]
On appeal, Terry argued that the conviction should be thrown out because the search that produced the evidence of the weapon in his possession was improper because it was an impermissible search of his person without a warrant or probable cause as required by the 4th Amendment (Schmalleger, 2009).
The Supreme Court decided that the type of search the police officer conducted was not prohibited by the 4th Amendment. Instead, it was a reasonable and appropriate means of ensuring the safety of the officer from concealed weapons in a tactical situation in which that concern was appropriate in light of the totality of the circumstances in which it occurred. While the 4th Amendment does prohibit more invasive searches with the intention of finding evidence of crimes, (such as for concealed contraband or of small containers), it does not prelude an external frisk now known as a Terry frisk or Terry…… [Read More]
Administrative Search Exception
Administrative Search Exemption
Administrative search exception: Why it applies to airport searches
The 'administrative search exception' has often been called the TSA's attempt to circumvent the Fourth Amendment. However, "while the new TSA enhanced pat downs may violate the Fourth Amendment on the surface, what most people are not aware of is that the 9th Circuit Court of the United States ruled on the search of passengers in airports back in 1973, which effectively suspends limited aspects of the Fourth Amendment while undergoing airport security screening" (Frischling 2010). The U.S. Supreme Court case which established the exclusionary rule as a rule of law (the idea that 'fruit of the poisonous tree' evidence obtained illegally could not be used against a defendant in a court of law) was not found to be applicable in this particular category of searches. The U.S. Supreme Court had already established in 1968…… [Read More]
Troy Stone is showing how the police engaged in questionable tactics. This is based upon the fact that they have a witness who identified him. Yet, they were not able to come up with any corroborating evidence to directly link him to the murder. To make matters worse, they violated his constitutional rights in the process. These issues are highlighting how there were questionable tactics used to obtain the confession. To fully understand what is occurring requires focusing on: possible arguments which can be raised on Stone's behalf, if there was a violation of his constitutional rights and case law that supports these claims. Together, these elements will illustrate how Stone's civil rights were violated during the course of the investigation.
Discuss the arguments you think Taylor will raise on Stone's behalf regarding the lineup, interrogation, and confession.
There are a number of arguments which can be raised that will…… [Read More]
Based on the foregoing considerations, it is suggested that the DCMP restructure their existing training programs and administration so that a more unified and centralized plan is in place, as well as providing for better instructor qualifications, evaluation, learning retention and more efficient and effective use of resources which are by definition scarce.
These broad general issues were refined for the purposes of this study into the research questions stated below.
What is the background of the District of Columbia area policy and community relations since World War II?
What are some major problems preventing positive relations between communities and the District of Columbia Metropolitan area police?
Can training programs of the District of Columbia Metropolitan Police Department enhance community relations?
What training modules can be used to enhance relations between surrounding communities in the District of Columbia Metropolitan area law enforcement?
Significance of the Study
esearch Design…… [Read More]
It has even been shown that there is a psychological basis for the formation and perpetuation of racism in a society (Feinberg 2009). This makes it clear how the problem has been allowed to persist for so many years and so many generations.
Some suggest that reverse discrimination now takes place in this country, with unfair advantages being handed out to minorities (Brown 2009). Until these minorities have an equal say, however, the advantage definitely does not belong to them.
Feinberg, M. (2009). "acism and psychology." Accessed 16 October 2009. http://www.apa.org/pi/oema/racism/homepage.html
Brown, M. (2009). "everse racism is wrong, too." Accessed 16 October 2009. http://www.baltimoresun.com/news/opinion/letters/bal-naacpletter1015a,0,7732476.story
Marshall, S. (2009). "The fight against racism today." Accessed 16 October 2009. http://race.eserver.org/fight-against-racism-today.html
and, a. (1963). "acism." Accessed 16 October 2009. http://freedomkeys.com/ar-racism.htm
Shah, a. 9204). "acism in North America." Accessed 16 October 2009. http://www.globalissues.org/article/165/racism#acisminNorthAmerica… [Read More]