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Summary: For courses in Criminal Procedure and Criminal Law.
This comprehensive book balances straightforward text and presentations of numerous historical and contemporary cases to provide students with a thorough and interesting introduction to criminal procedure. The numerous edited cases help bring criminal procedure to life, and the comments, notes and questions that follow each case help students bring key legal issues into focus. These cases vividly illustra ...show morete the concepts and theories presented in the text of each chapter.
The field of criminal procedure provides part of the matrix of fairness and justice which promotes equality of treatment for persons accused of crime and, therefore, occupies an important position in the field of criminal justice. Since its genesis comes from both the Constitution of the United States and the constitutions of the several States, its substance and application will vary in some fashion from jurisdiction to jurisdiction. The decisions made by the Supreme Court of the United States, when speaking on federal constitutional issues, are binding on state criminal justice practice. Although constitutional decisions are mandatory on the states, such decisions dictate the minimal legal protections required under our federal system. Every state may go beyond the basic federal guarantees by offering an accused greater state constitutional rights and may grant enhanced criminal procedure protections based on state constitutional and statutory law.
The constitutional and statutory rules that make up the body of law known as criminal procedure regulate the way both state and federal governments must treat persons accused or suspected of committing crimes, Rules dictating the way law-enforcement officials interact with individuals who are mere suspects for particular crimes restrain the activities and approaches that can be followed prior to the initiation of formal criminal prosecutions. When investigations have moved beyond their initial stages to the point where criminal suspects have been identified, the rules of criminal procedure provide a road map which all law enforcement officials must follow. Where law enforcement officials fail to observe recognized criminal procedural rules, such deviation may jeopardize any eventual successful criminal prosecution by opening the conviction to appellate attack.
Similarly, when the law enforcement officials have turned their work product over to the prosecutor's office, the personnel presenting the government's case must carefully follow additional rules regulating fair conduct in order to accord due process to criminal accused. Defense attorneys have a role within the rules of criminal procedure to insure that the government has played fairly during the investigation, pretrial and trial phases and the attorneys for defendants possess an obligation to provide a vigorous defense consistent with the Constitution and state rules and regulations.
During criminal trials, judges must carefully weigh the arguments of the contending parties, whether they are arguing over criminal procedural issues relative to the admission of evidence or whether the attorneys are contending over more traditional admission of evidence under evidence codes. Whether a judge presides over pretrial issues, the trial itself, post-trial motions, or serves on an appellate panel reviewing what trial level judicial decisions, every judge possesses a duty of due process to both the prosecution and to the defense. Roughly translated, due process implies fundamental fairness and fair dealing during all important portions of the criminal justice process.
The study of criminal procedure traditionally follows a case method of instruction where the students read previously decided criminal cases which instruct by using concrete examples covering criminal procedure issues. The largest developments and changes and corrections in the criminal procedure have generally come from landmark case decisions of the Supreme Court of the United States. Implementation of the rules contained within Supreme Court case decisions has largely been delegated to state legal systems where state courts have developed slightly divergent interpretations and applications of these legal principles. The Federal Rules of Criminal Procedure and state rules of criminal procedure owe much of their content to the codification of legal principles announced by the Supreme Court of the United States and to common law practice. While the Federal Rules of Criminal Procedure are fairly detailed, state process varies from very detailed rules to an outline system of procedural rules.
The study of criminal procedure has generally been approached from a case method of study or from a textual arrangement of material which references legal cases as appropriate. Either approach has its benefits and perhaps some drawbacks, since a textual pedagogy allows the introduction of more whole concepts and a case method usually introduces discrete legal principles that must be mentally organized and categorized as the student progresses through the material. The book has taken both the text and the case approach in an effort to introduce and place in context larger related blocks of material and it reinforces that understanding with relevant cases which are followed be relevant questions and other instructional material. Presenting material presents challenges concerning whether to follow a conceptual or a chronological approach since many legal rights and procedures do not always follow an orderly manner and do not always proceed in the same order. While the chapters generally follow a chronological order, where conceptually a different order made pedagogical sense, the author followed that deviation. For example, although Miranda warnings are often given very early in the criminal justice process, the book presents the Miranda material immediately prior to the section on the right against self-incrimination, since the two topics are conceptually interrelated.
Each of the fourteen chapters of this book begins with an outline of the topics covered in that chapter and includes crucial definitions and terms which are important to an understanding of the chapter. Chapters begin with an preview of the material covered that includes a broad overview of the legal principles. Each chapter offers detailed textual explanations that demonstrate the inter-relationship of various legal concepts. Where an understanding of the developmental history of a particular concept or legal theory seems important, effort has been made to trace the development from its genesis to the present time. For example, the exclusionary rule used to enforce the requirements of the Fourth Amendment is more fully comprehended by some historical background to its development. Likewise, historical knowledge and case law development facilitate an understanding of the Miranda warnings, since the warnings have experienced some evolution and clarification from the initial court decision to the present application in a variety of contexts. Footnotes and citations allow the reader avenues for additional study as well as provide some clarification for some of the more arcane areas of criminal procedure. The cases that follow the textual presentation have been selected for their prominence and for their influence in the particular sub-field of criminal procedure. In many instances, older cases have been presented because they represent the landmark decisions in that particular area or have been indicative of major departures or initiatives taken by the Supreme Court of the United States. The book presents many updated and current cases where there has been judicial activity that has changed the direction of a particular point of law or has refined it in a slightly different manner. There are some areas of criminal procedure where the concepts seem to be rather settled, such as the right to counsel under the Sixth Amendment, where the there has been little major judicial activity in recent years. Where settled legal principles exist, the text and the comments following the cases attempt to illustrate present application of those principles and to suggest or challenge the student to consider possible changes that should or could be made.
This book begins with an introductory section that theoretically could have been Chapter One, but the author felt that many students at this level will have covered most of that material during an introductory course in criminal justice or the legal process. The introduction provides an element of the history of criminal procedure from its basis in the federal constitution and case law cited by the United States Supreme Court. Clear effort has been made to indicate that we have a federal system of criminal justice were the states have historically possessed the primary responsibility for investigating and prosecuting criminal activity. This introduction reinforces the concept that the states and the federal government operate parallel criminal justice systems that have interfaces and possess overlapping jurisdiction in many instances. Crucial to an understanding of the evolution of criminal justice is the concept of the selective incorporation of the Bill of Rights into the Fourteenth Amendment and its effect on local criminal procedure. Included within this introduction is a review of the chronology of the typical criminal process from arrest to final adjudication.
Chapter One presents the initial materials dealing with the Fourth Amendment as it relates to searches, seizures, and the requirement of a warrant. This chapter covers matters relating to the specificity requirement of a warrant and the occasions when a warrant is an absolute necessity. Where the use of informants prove necessary to the development of probable cause, the chapter discusses some of the requirements necessary to obtain a warrant. Concepts of probable cause, knock and announce, and exceptions to the warrant requirement receive significant textual and case treatment.
Chapter Two covers the concept of stop and frisk and the development of its attendant case law. From the initial Terry v. Ohio case to the most recent situations in which it has been applied, the text explores the twist and turns and interesting nuances faced by a police officer when making the decision to stop a person for an initial investigation. The chapter presents the thought process and the factoring of the information that an officer must make to determine whether to conduct a subsequent frisk based on the correct level of suspicion that criminal activity may be afoot. Included within this chapter is the development of the stop and frisk concept to include "frisks" of motor vehicles, the plain feel doctrine, and the expansion of Terry to persons not under suspicion.
Chapter Three demonstrates the concept of arrest and illustrates its legal standards. While the plain meaning of the Fourth Amendment would indicate that a warrant is required for an arrest, case law and practice indicate otherwise. This chapter investigates the development of probable cause in an individual case, the sources of probable cause, the need for a warrant in some cases, the concept of stale probable cause, and arrests within the suspect's home. Exceptions to the warrant requirement such as hot pursuit and exigent circumstances are discussed and analyzed within this chapter.
Chapter Four cover searches of homes and motor vehicles as well as searches incident to arrest. Assuming the existence of probable cause, this chapter probes deeply into the reasonableness of searches and how they are conducted. It investigates the scope and extent of motor vehicle searches permitted with probable cause and illustrates the more limited the scope of search where probable cause does not exist. This section discusses the concept of consent searches in methods to determine whether the consent was voluntarily and freely given or whether coercion may have prevented the giving of voluntary consent. Searches of containers, inventory searches, consent searches, and searches of vehicles under forfeiture may not require warrants and in some cases may not include the requirement of probable cause for search. This chapter offers additional insights into the plain view doctrine allowing a search without probable cause and its corollary doctrine the plain feel doctrine.
Chapter Five considers a variety of searches that are different from and outside the usual scope of typical searches designed to produce evidence of criminal wrongdoing. Modern governments have needs to conduct surveys or searches in order to enforce zoning requirements and municipal programs; schools and governmental employers have reasonable needs to secure safe school environments or work situations which may include searching some of the students and employees in some contexts. This chapter notes that although the Fourth Amendment requires probable cause to search, and warrants in many cases, there are administrative situations where the concept of probable cause has been somewhat redefined downward to a lower standard, making search warrants easy to obtain. The Fourth Amendment regulates searches in the government workplace whether the workplace is deemed public or the private employer is required by the government to conduct a search. Chapter Five illustrates some of the legal justifications for airport passenger searches, international border searches, and various types of emergency searches.
Chapter Six teaches about the exclusionary rule promulgated by the United States Supreme Court in an effort to enforce the constitutional guarantees of the Fourth Amendment. It presents the developmental history of the exclusionary rule from the early federal rule applicable only in federal courts to the present-day standard that excludes evidence illegally seized from use in either state or federal courts. The theoretical basis for the exclusionary rule is explored along with the alternatives if the rule did not exist. This chapter covers situations where the exclusionary rule has an expansive effect where it excludes not only illegally seized evidence but removes from court consideration evidence that has been derived by using illegally seized evidence to secure other evidence. This chapter notes the existence of a variety of exceptions to the exclusionary rule and explains their legal and theoretical justifications. Alternative remedies to violations of the Fourth Amendment receive attention along with limitations introduced by the concept of standing.
Chapter Seven presents the warnings that are required to be offered to every person in custody for whom law-enforcement officials wished to interrogate. The Miranda warnings must be offered to anyone facing custodial interrogation or any evidence derived will generally be excluded from court for proof of guilt. This chapter devotes significant effort into determining when a person is in custody and to analyzing what the Supreme Court meant by the term, interrogation. This chapter notes the existence of a public safety exception to the Miranda warnings that have been construed somewhat differently in some jurisdictions. The most recent case to be decided by the Supreme Court of the United States indicated that the Miranda warnings possessed constitutional dimension and were required to be offered by the Constitution of the United States.
Chapter Eight covers the concept of the confession and the constitutional privilege against compelled testimonial self-incrimination. The authors of the Fifth Amendment intended the Amendment to limit the federal government and did not envision that it would be applied to limit state government practice. The Supreme Court of the United States deemed the self-incrimination portion of the Amendment so important to liberty and the fair administration of justice that the Court decided that by implication it should be incorporated into the due process clause of the Fourteenth Amendment. This chapter surveys the distinction between testimonial and nontestimonial evidence as well as the forums in which the privilege against self-incrimination may be asserted. Even where the privilege against self-incrimination has been appropriately raised, immunity from prosecution or its lesser cousin, use immunity, may operate in such a manner that the person must offer evidence that would have otherwise been incriminating. Where an accused chooses not to stand on constitutional rights, but instead desires to confess to crime, to be admissible, such confession must have been given freely and voluntarily. This section investigates the requirements for voluntariness of a confession and the procedural requirements for a court to follow in admitting the confession into evidence. Confessions taken in violation of Miranda may be admissible in court for impeachment purposes since they were not taken involuntarily when evaluated by the Fifth Amendment privilege.
Chapter Nine considers the use of identification procedures with view to ensuring that in a court identification, due process has been followed and that the identification offered meets a minimum standard of accuracy. Intimately involved in the identification process is the requirement that an attorney have represented the accused if the accused had been indicted or where the government had filed an information prior to the in person identification process. This chapter surveys the use of photographic arrays and in-person line ups and the requirement of fundamental fairness that must exist prior to allowing a jury to hear identification evidence. This section surveys the requirements necessary to admit to eyewitness testimony against a defendant under the Neil five factors test and demonstrates the process for determining whether an identification procedure may be discussed in court when a subject was not represented by counsel at an identification procedure.
Chapter Ten covers the methods and constitutional rules governing the initiation of serious and less serious criminal charges in both state and federal prosecutions. While this chapter discusses the grand jury and how it operates, it notes that the grand jury is not a federal constitutional requirement for state criminal justice since this part of the Fifth Amendment has never been applied to modify state criminal justice practice. Grand jury secrecy, its purposes, and its limitations are covered in this chapter along with the fact that a grand jury may hear and consider improperly seized evidence. Witnesses may be compelled to testify before a grand jury, but the prosecution may have to offer some level of immunity prior to requiring testimony. This section notes that occasionally, grand juries have been affected by racial discrimination, either in the initial selection or subsequently, and covers the constitutional remedy where proven or admitted racial discrimination has infected the charging portion of the criminal justice process.
Chapter Eleven covers plea bargaining, the remedy for breached plea bargains, and the procedure for entering a guilty plea to a criminal charge. As this section discusses, where a defendant decides to enter a plea of guilty to an indictment, information, or other formal charge, the defendant relinquishes various rights and privileges under the Constitution. This chapter notes that, as a general rule, a judge who accepts a guilty plea must address the defendant and be certain that the defendant understands the constitutional rights which are being relinquished. Where a government or a defendant breaches a plea bargain, both sides possess remedies which may have rather drastic effects on the other. This section notes that, in most jurisdictions, a defendant may plead guilty to the charges while at the same time continue to profess innocence without destroying the validity of the guilty plea.
Chapter Twelve introduces numerous pretrial procedures which may have significant impact on a criminal defendant and which generally must be pled and or initiated prior to the time of trial. Generally a defendant must raise speedy trial issues, collateral estoppel, and double jeopardy allegations prior to trial since, if these allegations are sustained, no trial will be necessary. Bail concerns and the desire for a preliminary hearing, where permitted, should be addressed in the period prior to trial. Pretrial procedures deemed to be mandatory involve issues which tend to become moot once a case proceeds to trial. This section introduces the concept of when jeopardy first attaches, when it ends, and what requirements need to be proved to demonstrate that a trial truly involves a second trial over the same offense. Using the Blockburger test for separate offenses, separate trials covering the same physical act, if prosecuted by two separate sovereignties, will not trigger a successful double jeopardy argument.
Chapter Thirteen encompasses various constitutional rights which have primary effect at a criminal trial. This chapter teaches that the right to a jury trial is not absolute in all situations and that a jury may not mean exactly the same thing in every jurisdiction. Juries are not routinely offered for petty offenses in all jurisdictions, but some offenses deemed rather petty may carry a right to a jury trial. Introduced in this section is the concept that a jury may vary from the traditional size of twelve and may lawfully involve merely six members. Some juries may not have to come to a unanimous decision to produce a valid verdict. A central concept of justice indicates that a jury would not enhance the chance of a fair trial if it were not selected from a fair cross section of the community and were, instead, representative of a stacked deck of cards. Although the right to counsel exists in various stages and in various specific contexts in the criminal justice system, it is primarily a right that exists during a criminal trial. Due process requires that the right to counsel be recognized in many pretrial proceedings, but the necessity of an attorney in those proceedings helps assure that a trial attorney can offer effective legal assistance. Although constitutional rights are important and desirable, this section accentuates the concept that constitutional and statutory rights can be waived by competent defendants.
Chapter Fourteen introduces the criminal procedural remedies that a convicted defendant may pursue following a conviction. Since no system of justice can be perfect and free from substantial errors in every case, methods of error correction permit convicted defendants to request an appellate court to review the proceedings that resulted in a criminal adjudication. This section introduces the concept that every person who has been convicted of a crime possesses the least one absolute right to have an appeals court review the conviction. The convicted defendant may pursue the first level of appeal as a matter of legal right, although no where in the Constitution of the United States is such a right specifically mentioned. This chapter teaches that to have an effective appeal, legal representation is a virtual necessity and for that reason case law from the Supreme Court of the United States has determined that in all serious cases, the right to the assistance of an attorney for an appeal involving incarceration is constitutionally mandated and free of charge to the indigent. During the trial, the attorney must make a clear effort to preserve the trial record for appellate purposes. While direct appeal beyond the first appeal rests within an appellate court's discretion, other avenues of relief involving habeas corpus may follow an unsuccessful appellate effort.
While every book has its limitations, every effort has been expended to include the text and appropriate case illustrations that clearly demonstrate the present requirements of criminal procedure from the initiation of a criminal prosecution to a conviction and on to the appellate stage. Although every little nuance and small deviation o fact pattern from those presented in these cases may dictate a different outcome, the cases have been selected to cover the most general situations and to present the rules for dealing with them. The major cases of all areas of criminal procedure covered within this book have been presented in an edited case format designed to isolate one primary issue. The author selected representative subsidiary cases which modify the major cases with the intention to offer continuity with the primary cases. The subsidiary cases offer more recent jurisprudence which takes the teaching of the primary case in a subtle new direction or reaffirms the basic decision with renewed clarity. When the text portion of each chapter has been digested along with the cases and other materials presented, the reader will have developed a basic understanding and appreciation of the principles presented with the section. The comments, notes and questions that follow each case have been designed to demonstrate the effect of subtle changes in fact patterns and to provide additional information in a more specific sense. The questions presented after each case have been designed to challenge the inquiring student with some additional food for thought and to foster the ability to make analogies among discrete concepts and to apply them in a novel fashion to future criminal procedural problems.
Since the text and cases presented here represent a point along the evolving path of criminal procedure, additional resources and updates are available on the Internet at various addresses. Just as criminal procedure changes and evolves, rendering some material obsolete, so is the Internet at the mercy of changes affecting validity of addresses and content. For all the Internet addresses that follow, be sure to delete any punctuation following the address. Some of the general addresses that are useful for criminal procedure students include www.findlaw.com, www.findlaw.com/casecode, www.law.cornell.edu, www.lawsource.com, www.lexisone.com. Many of these addresses contain links to more useful and specific information if the reader will probe a bit with your mouse. For access to the Constitution of the United States and the Amendments regulating some aspects of criminal procedure, point your browser to www.findlaw.com/casecode/constitution and click on the various entries of interest.
To access the Supreme Court of the United States point your browser to www.supremecourtus.gov and for Supreme Court Decisions since 1893, searchable by fill text, volume, year or citation, point your browser to www.findlaw.com/casecode/supreme.html. For Decisions since 1990, go to supct.law.cornell.edu/supct/ For decisions issued between 1937 and 1975, go to www.fedworld.izov/supcourt/index.htm. To consult cases of the federal courts of appeal, try www.aele.org/Lawlinks.html.
For the student desiring an up to date cd-rom containing all recent full text United States Supreme Court cases in a searchable database of at least 21, 699 of the cases of the Supreme Court since 1879 as well as some historic earlier classic cases, point your browser to www.usscplus.com where a cd-rom is available for a reasonable fee. All of the cases of the current term of the Supreme Court are available free in. both PDF and ASCII format.
Sources for state laws and constitutions and relevant links are available at www.law.cornell.edu/states where the information for a particular state can be obtained by a mouse click. In addition, state criminal procedure codes for most states are available by pointing your browser to www.law.cornell.edu/tonics/state statutes2.html#criminalprocedure and select the appropriate state criminal procedure code.
If the glossary at the rear of this book fails to cover an essential entry, please consult one of the following on line law dictionaries: dictionary. law. com, www.lectlaw.com/def.htm or http://www.lawinfo.com/lawdictionary. Each one has some significant differences in approach, but all of them will prove quite useful. Instructors adopting this book might want to consider adding one or more of the dictionaries to a web syllabus to further assist the student.
I wish to thank Susan Beauchamp of Prentice-Hall for assistance in organization and for managing blind reviews of portions of the manuscript. Suggestions contained from the reviewers have been incorporated within the text and suggestions have been followed in other ways. Susan Beauchamp offered strong suggestions in re-organization and supported keeping the project on a reasonable schedule. Many thanks go out to all the numerous Prentice-Hall associates who have placed the finishing touches on the book, who have done the copy editing, and all those who have had a part in bringing this book to its present state. The errors incorporated within are the full responsibility of the author, who has endeavored to minimize their presence and effect on the overall book.
Jefferson Ingram, August 2003
Introduction to the Criminal Process: History and Overview of Criminal Procedure.
1. Fourth Amendment Standards: Probable Cause to Search, Warrants and Exceptions.
Introduction and History: Generally. The Fourth Amendment: Probable Cause to Search. Specificity of Search; Particularity of Description. Requirement of a Warrant. Sources of Probable Cause: The Informant. The Demise of the Two-Pronged Test. Sources of Probable Cause: Police Officers and Others. The Affidavit for a Warrant. The Search Warrant: A Court Order. The Search Warrant: The Time of Execution. Fourth Amendment Requirement: Knock and Announce. Scope of Search. Stale Probable Cause. Warrant Not Always Required for Searches. Suspicionless Searches of Private and Government Employees. Warrantless and Suspicionless Searches at Schools. Warrantless Searches of Political Candidates Rejected.
2. Stop and Frisk: The Legal Standards.
Introduction to Stop and Frisk. Stop and Frisk. The Terry Legal Standard. Facts Indicating Unusual Conduct. Facts upon Seeing an Officer as Unusual Conduct. Frisk May Not Always Allow Additional Search. Terry Stops under a Drug Courier Profile. Subject Must Be Aware of Officer's Status. Officer Must Have Reason to Believe that the Person May Be Armed and Dangerous. Investigation Must Not Dispel the Fear that the Subject May Be Armed and Dangerous. The Plain Feel Doctrine. Expansion of Terry to Individuals not under Suspicion.
3. Arrest and Seizure of the Person.
Probable Cause Arrests: The Legal Standard. The Concept of Probable Cause for Arrest. Plain Meaning of the Fourth Amendment. Probable Cause Defined. Sources of Probable Cause to Arrest. Stale Probable Cause. Arrest Pursuant to a Warrant. Requirements for Arrest without a Warrant. Requirements for Arrests within the Home. Requirements for Arrests within a Third Party's Home.
4. Fourth Amendment Searches and Seizures: Houses, Persons, Motor Vehicles and Effects.
Searches of Houses. Warrant to Search and Arrest Inside the Home. Modern Technology and Warrantless Home Searches. Search Incident to Arrest. Searches of Motor Vehicles. Vehicle Searches Generally Do Not Require Warrants. Limited Vehicle Searches on Less than Probable Cause. Vehicle Inventory Searches. Scope of Motor Vehicle Search. Scope of Search of Containers within Motor Vehicles. Other Theories of Vehicle Searches and Seizures. Searches Following Vehicle Forfeitures. Searches Based on Consent. Requirements for the Plain View Doctrine. Inadvertent Discovery: No Longer Required. Officer Needs to be Lawfully Present. The Plain Feel Doctrine.
5. Special Problem Searches: Administrative, Inventory, School, Work, Airport, and Border searches.
Introduction to Administrative, Inventory, School, Airport, and Work Searches. Administrative Searches. Administrative Searches of Ordinary Businesses and Industries. Administrative Searches of Closely Regulated Industries. Ordinary Commercial Search: Warrant Required. Administrative Searches of Homes: No Warrant Originally Required. A Change in Requirements: Searches of Private Premises Require Warrants. Administrative Searches: Reasonable under the Fourth Amendment. Inventory Searches: Probable Cause not Required. Vehicle Inventory Searches. Inventory Searches of Motor Vehicles: Written Policy Required. Inventory Searches of Personal Property. School Searches Must Be Based on Fourth Amendment Reasonableness. Public School Drug Testing: An Extension of Acton. Government Searches in the Workplace. Government Mandated Private Employer Searches. Airport Searches. Border Searches. Border Search Summary.
6. Principles of the Exclusionary Rule: Remedies and Exceptions to Constitutional Violations.
Introduction to Remedies for Fourth Amendment Violations. Violation of the Fourth Amendment and the Exclusion of Evidence. The Fourth Amendment: Implementation Prior to 1914. The Exclusionary Rule: Enforcing the Fourth Amendment. Suppression of Illegally Seized Evidence. Basis for the Exclusionary Rule. Challenge to the Exclusionary Rule: The Silver Platter Doctrine. Application of the Exclusionary Rule to State Criminal Procedure. Exclusion of Derivative Evidence. Major Exceptions the Exclusionary Rule. Exclusionary Rule Exception: The Independent Source Rule. Exclusionary Rule Exception: The Rule of Inevitable Discovery. Exclusionary Rule Exception: The Doctrine of Attenuation. Exclusionary Rule Exception: The Good Faith Exception. Limitations on the Exclusionary Rule: Parole Revocation Hearings. Limitations on the Exclusionary Rule: Other Contexts. Alternative Remedies to Fourth Amendment Violations: The Bivens Civil Suit. Limits to Use of the Exclusionary Rule: The Concept of Standing. Vicarious Standing Not Permitted. Summary.
7. Miranda Principles: Fifth and Sixth Amendment Influences on Police Practice.
Introduction to Miranda Warnings. The Basis for the Warnings. The Road to Miranda. The Case of Miranda v. Arizona. Prerequisites for Miranda Warnings. Substance of the Warnings. Delivering the Miranda Warnings. When Miranda Warnings Are Required: The Triggering Events. When Interrogation Must Cease. Necessary Condition for Miranda Warnings: Custody. Necessary Condition for Miranda Warnings: Interrogation. Miranda Interrogation: The Functional Equivalent. Exigent Circumstance Exception to Miranda Interrogation. Right to Counsel under Miranda is Personal to Arrestee. Procedure for Waiver of Miranda Protection. Congressional Challenge to the Miranda Warnings. Miranda Warnings: Required by the Constitution. Miranda Summary.
8. Confession and the Privilege against Self-Incrimination.
Introduction to the Fifth Amendment Privilege. Original Intent and the Fifth Amendment. Privilege against Self-incrimination: Excludable Evidence. The Fourteenth Amendment Alterations. Required Production of Non-Testimonial Evidence and the Fifth Amendment. Assertion of the Privilege against Self-incrimination. Privilege against Self-incrimination Assertable in a Variety of Contexts. Prosecution Comment on Defendant's Use of Fifth Amendment. An Equivalent Substitute for the Fifth Amendment Privilege: Immunity. Waiver of the Fifth Amendment Privilege. Confession Practice Prior to the Warren Court Revolution. Evolution of Interrogation and Confession under the Warren Court. Modern Evolution of Interrogation and Confession. Personal Motivations for Confession Irrelevant. Involuntary Confession not Available for Proof of Guilt. Involuntary Confession not Available for Impeachment. Violation of Miranda: Use of Confession for Impeachment Purposes.
9. Eyewitness Identification Procedures: Due Process Considerations.
Identification Procedures: Introduction. Right to Counsel and Due Process Concerns. Right to Counsel under the Sixth Amendment. The Right to Counsel during Identification: Limitations. Photographic Arrays: No Sixth Amendment Right to Counsel. Due Process Concerns: Suggestiveness of Identification. Accurate Eyewitness Identification: The Neil</D> Five Factors Test. Current Application of Identification Procedures. Summary: Admissibility of Identification at Trial.
10. The Decision to Prosecute: Indictment and Information.
Introduction: Initiating Criminal Charges. The Indictment: Starting a Criminal Prosecution. General Grand Jury Procedure. The Information: Starting a Criminal Prosecution. Composition of the Grand Jury. Serious Federal Prosecutions Require Indictment. Grand Jury Secrecy. Purpose of Grand Jury Secrecy. Limits of Grand Jury Secrecy. Grand Jury Indictment. Pursuant to a Waiver, Federal Charges May Be Initiated by an Information. Fifth Amendment Grand Jury Requirement: Inapplicable to State Prosecutions. Grand Jury Hears Improperly Seized Evidence. Witnesses May Be Compelled to Testify Before a Grand Jury. Grand Jury Witness Immunity. Effect of Discrimination on the Grand Jury. The Decision to Prosecute: The Conclusion.
11. Plea Bargaining and Guilty Pleas: Constitutional Standards.
Introduction. Entry of Plea and Initial Negotiation. Plea Negotiations: Process and Effect. Negotiated Plea: Benefits to the Defense and to the Prosecution. General Requirements for Valid Plea Agreements. Waiving Other Constitutional Rights. Practice for Accepting a Guilty Plea. Accepting Guilty Pleas: Due Process Required. The Alford Plea: Pleading Guilty Claiming Innocence. Plea Bargain: Responsibilities for the Prosecution and for the Defense. Breach of the Plea Agreement: Remedies. Conclusion.
12. Pretrial Criminal Procedure: Preliminary Hearing, Bail, Right to Counsel, Speedy Trial, Double Jeopardy, and Collateral Estoppel.
Pretrial Criminal Procedure: The Initial Steps Toward Prosecution. Duties of the Prosecution: First Steps. The Preliminary Hearing. Bail Issues Presented at a Preliminary Hearing. General Bail Jurisprudence. Federal Bail Practice: Recent Considerations. Right to a Speedy Trial: Reasonable Time Requirements. Speedy Trial Statutes. speedy Trial: When the Time Begins to Run under the Sixth Amendment. To Determine Whether a Violation Exists: The Four Factors Test. Remedy for Violation of Sixth Amendment Right to Speedy Trial. Double Jeopardy: A Required Pretrial Motion. Requirements to Claim a Violation of Double Jeopardy. Alleging Double Jeopardy Violation: Requirement of Same Offense. Separate Offenses: The Blockburger Test. Dual Sovereignty Doctrine: Successive Prosecution for Same Acts Permitted. Collateral Estoppel. Conclusion of Double Jeopardy.
13. The Trial: Constitutional Rights and Trial Practice: Jury Trial, Right to Counsel, Due Process, and Equal Protection.
Trial by Jury: A Constitutional Right. Application of the Basic Jury Trial Right. Selective Incorporation of the sixth Amendment into the Due Process Clause. The Right to A Jury Trial: Petty Offenses Compared to Serious Offenses. Jury Selection: The Requirement of a Fair Cross-Section of the Jurisdiction. Proving Violation of Fair Cross-Section Requirement. Jury Size: Variety in State and Federal Juries. Experiments with Reducing Jury Size. Jury Unanimity: Variety in State Juries. Combination of Smaller Juries with Non-unanimous Verdicts. Trial by Jury: Racial and Gender Issues. Removal of Prospective Jurors: Rationales. Improper Rationales for Removal of Prospective Jurors. Waiver of the Right to a Trial by Jury. Development of the Sixth Amendment Right to Trial Counsel. Right to Appointed Counsel for Felonies. Right to Counsel: Where Possibility of Incarceration Exists.
14. Appellate Practice and other Post-Trial Remedies.
Appellate Practice and other Post-Trial Remedies. The Appeal Process: Generally. The First Appeal: The Court of Appeals. The Appellate Role of a State Supreme Court. Supreme Court of the United States: Only a Potential for Review. Appellate Assistance to the Defendant: The Right to Counsel. Appellate Assistance to the Defendant: The Indigent's Right to a Transcript. Laying the Groundwork for an Appeal: Preserving the Record. The Plain Error Rule: Ability to Appeal without Preserving the Record. Subject Matter Jurisdiction: Always an Appealable Issue. The Appellate Process: Making It Work. Adverse Appellate Results: The Next Step. Collateral Attack: The Writ of Habeas Corpus.
Appendix I: The Constitution of the United States and Amendments.
Glossary of Terms.
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Marketplace items do not qualify for free shipping. When ordering from the Marketplace, please specify whether you want the seller to send your book Standard ($3.99/item) or Express ($6.99/item). To get free shipping over $25, just order directly from Textbooks.com instead of through the Marketplace.
FREE UPS 2nd Day Air TermsRental and Marketplace items are excluded. Offer is valid from 1/21/2013 12:00PM to 1/23/2013 11:59AM CST. Your order must be placed by 12 Noon CST to be processed on the same day. Minimum order value is $100.00 excluding Rental and Marketplace items. To redeem this offer, select "FREE UPS 2ND DAY AIR" at checkout. Offer not is not valid on previous orders.