Unit 5 Criminal Procedure

Danny Escobedo, a trouble-prone Chicago laborer, was suspected of murdering his brother-in-law. No weapon was found, and there were no witnesses. He was held for questioning for fourteen hours, released, and then picked up again. Escobedo had been in enough trouble before to have a lawyer on call, and when he was brought in the second time, he asked to see his attorney but was refused. Meanwhile, his lawyer was in the station house and waited there for more than four hours to see his client. The police told Escobedo that his lawyer was not there and did not want to see him anyway. An alleged accomplice who was apprehended said that Escobedo had offered him $500 to shoot the brother-in-law. When confronted by the accomplice, Escobedo said to him in front of the police that the accomplice had pulled the trigger. By Illinois law, Escobedo was equally guilty. The judge said that the confession had been voluntary and sentenced Escobedo to twenty years in prison.

On appeal to the U. S. Supreme Court, Escobedo's conviction was overturned, not on the basis of a coerced confession but because he had been refused the right to see his counsel during his interrogation. As the opinion of the majority of justices noted, the police viewed Escobedo as the accused, and the purpose of their interrogation was to get him to confess his guilt despite his constitutional right not to do so. The Court said that once an investigation into an unsolved crime begins to focus on a particular suspect, our adversary system with its rights of due process begins to operate, and the suspect has a right to be represented by counsel.

Danny Escobedo's troubles in Chicago serve to remind us that law is at the base of the criminal justice system. Law governs the conduct of officials, and law structures the behavior of citizens. Law thus performs two functions:（1）it defines those behaviors that are labeled criminal, and（2）it describes the procedures to be followed under our adversarial system by those with the responsibility for law enforcement, adjudication, and corrections. Persons may not be convicted of committing an illegal act unless the state is able to prove that the conditions specified in the law were followed.

This Supreme Court's decision was based on the procedural criminal law.Escobedo did not contend that the substantive elements of the case against him had not been met. His legal brief presented to the Court did not mention the absence of an actus reus，attendant circumstances, or mens rea, such that he should not have been charged with the murder of his brother-in-law. Rather, improper police procedures were the basis of his appeal. Escobedo argued that he had been denied due process because of a procedural violation.

Although the Supreme Court's opinion in Escobedo v. Illinois was issued in 1964, its foundation lies in the history of Anglo-American law, with precedent going back to the Magna Carta. In that document, considered to be the first written guarantee of due process, the king promised that“no free man shall be arrested, or imprisoned, or disseized, or outlawed, or exiled, or in any way molested; nor will we proceed against him unless by the lawful judgment of his peers or by the law of the land. ”Persons must be tried not through the use of arbitrary procedures but according to the process outlined in the law.

In the United States, procedural due process of law means that accused persons in criminal cases must be accorded certain rights as protections in keeping with the adversarial nature of the proceedings and that they will be tried according to legally established procedures. The Due Process Model is based on the premise that freedom is so valuable that efforts must be made to prevent erroneous decisions that would result in an innocent person's being deprived of it. From childhood, we have been taught that defendants are entitled to fair and speedy trials, to have counsel, to confront witnesses, and to know the charges brought against them. They are protected against having to serve as witnesses against themselves, being subjected to double jeopardy, and enduring cruel and unusual punishment. Underlying procedural criminal law is the assumption that there are limits to the government's powers to investigate and apprehend persons suspected of committing crimes.

Bill of Rights

Although the Bill of Rights was added to the U. S. Constitution soon after its ratification in 1789, the amendments had little impact on criminal justice until the mid-twentieth century. Under our system of federalism, most criminal acts are violations of state laws, but for most of our history the Bill of Rights has been interpreted as protecting citizens only from acts of the national government. Hence important amendments—such as the Fourth, which guards against unreasonable searches and seizures; the Fifth, which outlines the basic due process rights in criminal cases; and the Sixth and Eighth, which cover procedures for fair trial and punishment—have been viewed as having no bearing on cases that arise out of state law. When it was drafted, the Constitution delegated certain powers to the new federal government, but the power to safeguard the rights of individuals from unjust 79 enforcement of state laws was not among them. Historians have shown that at the time of the addition of the Bill of Rights, it was the power of the new national government that citizens feared; the constitutions of many of the states already contained protections against illegal procedures at the local level. This position was made clear in 1833 when the U.S. Supreme Court ruled in the case of Barron v. Baltimore that the first ten amendments to the Constitution were limitations only on the federal government and were not binding on the states. This ruling meant that when individual rights had been trampled upon, only the states, and not the Supreme Court, could interfere.

Fourteenth Amendment

The ratification of the Fourteenth Amendment following the Civil War began a new period in the protection of citizen's rights. This amendment declares that“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. ”

The idea that the Fourteenth Amendment“incorporated”the first ten amendments and made them applicable to the states was not immediately accepted by the Supreme Court, which realized that it would have to supervise the national standards for state justice. Although the Court used the Fourteenth Amendment to uphold property rights against state regulation, not until the 1920s did it begin to require adherence to the protections of the Bill of Rights in state criminal cases. Initially the justices used the Fourteenth Amendment to require that such fundamental democratic rights as freedom of speech, religion, and assembly, as specified in the First Amendment, be binding on the states. It was not until 1932, in the case of Moore v. Dempsey, that abuses of due process rights in Arkansas shocked them into reversing a decision of a state criminal court. Five black men had been convicted of murder and sentenced to death in a forty-five-minute trial dominated by a howling lynch mob outside the courtroom. Nine years later the court again invoked the due process clause in the famous Scottsboro case（Powell v. Alabama）, in which nine illiterate young blacks were convicted of raping two white women in an open railroad freight car. Because the defendants had not been given effective counsel, the Court overturned their convictions. In 1936 the justices threw out a confession for the first time（Brown v. Mississippi）, because the statements had been beaten out of two defendants by sheriff's deputies wielding metal-studded belt. In all these early cases, the barbaric nature of the offenses perpetrated by state authorities provided reason for moral outrage and demonstrated that due process had been denied. In the opinions of the Court one finds little analysis but rather a feeling that the fundamental requirements of fairness had not been met.

The Case of Frank Palko

In 1937 Justice Benjamin Cardozo posed a test for determining whether a citizen had been denied due process of law by state action. Frank Palko had been charged by Connecticut with first-degree murder for the shooting of two policemen. The jury, however, found him guilty of second-degree murder, which carried life imprisonment rather than death. Under Connecticut law at the time, it was possible for a retrial, and this time Palko was found guilty of first-degree murder and received the death penalty. He appealed to the U.S. Supreme Court on the grounds that his second trial was a violation of the Fifth Amendment's prohibition against double jeopardy.

In Palko v. Connecticut, the Supreme Court upheld the state's rules. Justice Cardozo said that the test turned on the question“Does it violate those‘fundamental principles'of liberty and justice which lie at the base of our civil and political institutions? ”Frank Palko died in Connecticut's electric chair, and until the mid-1960s the dominant attitude of the Supreme Court was that the Fourteenth Amendment did not incorporate all the provisions of the Bill of Rights, only those that were fundamental. As Justice Frankfurter had noted, the doctrine of fundamental fairness meant that any state action that included“tactics which offend the community's sense of fair play and decency—conduct that shocks the conscience”—would be a violation of the Fourteenth Amendment's requirement of due process.During those three decades, the Court slowly incorporated some of the provisions of the Bill of Rights, but only according to the fairness rule.

The Due Process Revolution

Throughout the years when the fairness doctrine was supported by a majority on the Supreme Court, Justice Hugo Black had argued that all the provisions of the Bill of Rights should be applied to the states through the incorporation of the due process clause of the Fourteenth Amendment. It was not until 1953, when Earl Warren became chief justice of the United States and a new liberal majority began to form on the Court, that the due process revolution reached its full stride. “The essence of the due process revolution was an attempt by the Supreme Court to reform American justice—and particularly, to police the police of the nation—by imposing rigid constitutional rules from the top and requiring that they be followed in all cases. ”

The Warren Court's revolution refined the meaning of the due process requirements of the Constitution, moving from the dictum that the state must observe“fundamental fairness”to a demand for absolute compliance by state and local officials with most of the specific provisions of the Bill of Rights. Where the fairness test had permitted states to fashion their own procedures, voiding only those that failed the fairness test, the new approach imposed in advance on state police and courts detailed and objective procedural standards. The justices were firm in their determination to void convictions obtained in violation of these rules.

The Case of Dolree Mapp

The change in the Supreme Court's attitude was probably first recognized in Mapp v. Ohio（1961）. On May 23,1957, Cleveland police officers entered the home of Dolree Mapp without a search warrant, saying they were looking for a suspect in a recent bombing who was thought to be hiding there. Miss Mapp demanded to see the search warrant. One of the officers held up a piece of paper, whereupon Miss Mapp grabbed it and tucked it into her bosom. In an ensuing struggle, the officer recovered it. Miss Mapp was then handcuffed—because she had been“belligerent”in resisting the rescue of the“warrant”from her person—and led to her bedroom, where the officers searched a dresser, to other rooms in her apartment, and finally to the basement, where obscene material were found in a trunk. At her trial no search warrant was produced, yet the Supreme Court of Ohio upheld the conviction because the evidence had not been taken from the defendant's person by the use of brutal or offensive physical force. By a narrow majority the Warren Court overturned Miss Mapp's conviction on the ground that the Fourth Amendment's injunction against unreasonable search and seizure, as applied to the states by the due process clause of the Fourteenth Amendment, had been violated. In the future, evidence gathered without a proper warrant was to be excluded from state trials.

As in most of the areas where the Warren Court broke fresh constitutional ground, federal procedures already guaranteed the specific right, and most of the states had placed on their books laws that met the Court's contemporary standards. The change was the new stricture that detailed procedural standards be followed by the states to ensure that rights were not violated. This new insistence on the Bill of Rights approach to criminal justice differed from the doctrine of fundamental fairness, which had allowed the states to develop their own procedures, voiding only those actions that violated the ideals of fairness.

The significance of the Mapp decision is not only that the Fourth Amendment was incorporated but also that for the first time the Supreme Court imposed detailed constitutional restrictions on the actions of state law enforcement officials. It was a milestone opinion in that it breached the precedent against the Court's supervision of the nuts and bolts of state justice. Beyond the Fourth Amendment lay the Fifth, with its protection against self-incrimination, and the Sixth, which guarantees the right to counsel. If these three amendments should be applied by the Court to the states, almost the complete range of activities in the criminal justice system would come under the detailed control of the federal judiciary. With the retirement of Justice Felix Frankfurter in 1962 and the appointment of Arthur Goldberg, a firm liberal majority began to complete the task of incorporation. From 1962 to 1972 the Supreme Court, under the chief justiceships of both Earl Warren and Warren Burger, applied most of the remaining criminal justice safeguards to the states;incorporation was virtually completed.

From Warren to Burger to Rehnquist

With the retirement of Chief Justice Earl Warren and the appointment by President Richard Nixon of Warren Burger in June 1969 to be the fifteenth chief justice of the United States, liberals feared that the emphasis supporting the rights of defendants in criminal cases would end. Their disquiet was intensified with four additional appointments to the Court by President Nixon and Gerald Ford, both Republicans. The Court did assume a much more conservative stance on social policy issues, especially those having to do with criminal justice. But most fears of civil libertarians were not realized during the seventeen-year period of the Court under Burger. It was not until Ronald Reagan's appointment of Sandra Day O'Connor and Antonin Scalia as associate justices and the 1986 elevation of William Rehnquist to the chief justiceship that significant shifts could be detected as the new six-to-three conservative majority began to consider such issues as preventive detention, the“good-faith exception”to the exclusionary rule, and administration of the death penalty. The appointment in 1988 of Anthony Kennedy strengthened the new direction of the Court. President Bush's nomination of Judge David Souter seemingly consolidated conservative power. With the remaining liberal justices now in their eighties, conservatives seem destined to retain power for the foreseeable future.

What can be said about the decisions of the Supreme Court since the due process revolution began under Warren? Will there be a retrenchment from the rights gained during the past three decades? In seeking answers to these questions, we must remember that even the newly reconstituted Court has upheld the basic thrust of rights dealing with counsel, fair trials, and juveniles. It is with regard to unreasonable searches and seizures, the exclusionary rule, and issues surrounding the death penalty that the Rehnquist Court can be expected to retreat from some of the positions of the Warren and Burger years. 83

Civil libertarians, however, have taken heart by the actions of some state courts. Law professor Ronald Collins has pointed to about 600 cases where state courts have interpreted their state constitutions to protect civil liberties more broadly than has the U.S. Supreme Court. States cannot provide fewer protections on rights than those granted by the U.S. Constitution but they can provide more. For example, the Supreme Court of New York, Connecticut, North Carolina, and New Jersey have refused to follow the Rehnquist Court with regard to the“good faith exception”interpretation of the Fourth Amendment's prohibition against unreasonable searches and seizures. It may be that during the new era of conservativism on the Supreme Court, state courts will continue the civil liberties revolution begun by Chief Justice Warren.

Legal Terms

accomplice n．共犯；同谋犯

confession n．认罪陈述；供认；供述

conviction n．有罪判决

adversary system 对抗制；抗辩制

adjudication n．审判，裁判；判决

correction n.（复）（通过监禁、缓刑或假释等刑罚制度对罪犯的）惩治；惩罚；教养；改造；矫正

double jeopardy 双重危境；双重追诉

Bill ofRights 权利法案

self-incrimination n．自证其罪；自我归罪

preventive detention 预防性监禁

Notes

1. This article is adapted from The American System of Criminal Justice by George F. Cole.

2. Magna Carta

[Latin“great charter”]The English charter that King John granted to the barons in 1215 and that Henry III and Edward I later confirmed; the Magna Carta is generally regarded as one of the great common-law documents and as the foundation of constitutional liberties.

3. Bill of Rights

A section or addendum, usu. in a constitution, defining the situations in which a politically organized society will permit free, spontaneous, and individual activity, and guaranteeing that government powers will not be used in certain ways; esp. , the first 10 amendments to the U.S. Constitution. For most of U.S. history, citizens were protected by the Bill of Rights only against violations by the federal government. The Warren Court began the process of interpreting portions of the Fourteenth Amendment （incorporation）so as to protect citizens from unlawful actions by state officials.

4. incorporation

The extension of the due process clause of the Fourteenth Amendment to make binding on state governments the rights guaranteed in the first ten amendments to the U.S. Constitution（Bill of Rights）.

Here are the constitutional rights of the accused：

5. Major incorporation decisions

Fourth Amendment: Mapp v. Ohio（1961）

Fifth Amendment: Malloy v. Hogan（1964）

Miranda v. Arizona（1966）

Benton v. Maryland（1969）

Sixth Amendment: Powell v. Alabama（1932）

Gideon v. Wainwright（1963）

Escobedo v. Illinois（1964）

In re Gault（1968）

Pointer v. Texas（1965）

Duncan v. Louisiana（1968）

Eighth Amendment: Robinson v. California（1962）

Furman v. Georgia（1972）

6. The U.S. Supreme Court under Earl Warren,1953-1969

Chief Justice Earl Warren's sixteen years on the bench were among the most dramatic, productive, and controversial in the history of the Supreme Court. Warren's tenure saw the Court render decisions that are still hotly debated today. Its rulings addressed such issues as school desegregation, separation of church and state, and freedom of expression. The Warren Court revolutionized constitutional law. In the entire history of the Supreme Court, only John Marshall's tenure can compare with Warren's in respect to the significance of its decisions and its impact on the development of American constitutional law. No other Court has had greater impact on American culture and mores than that of Earl Warren.

7. “Good-faith exception”to the exclusionary rule

The good-faith exception may allow some evidence gathered in violation of the Constitution if the violation results in only a minor or technical error. If a magistrate is erroneous in granting a police officer a warrant, and the officer acts on the warrant in good faith, then the evidence resulting in the execution of the warrant is not suppressible. However, there are a number of situations in which the good faith exception will not apply:no reasonable judicial officer would have relied on the affidavit underlying the warrant; the warrant is defective on its face for failing to state the place to be searched or things to be seized; the warrant was obtained based on an affidavit which, intentionally or recklessly, includes material falsehoods; the magistrate has“wholly abandoned his judicial role. ”

Exercises