Investigatory and Accusatory Police Procedure




The U.S. Constitution, the Federal Rules and the federal court system's interpretations of both provide guidance and procedural canons that law enforcement must follow. Failure to follow such procedure may result in the suppression of evidence or the release of an arrested suspect.

Substantive due process requires police to make criminal defendants aware of their rights prior to the defendant making any statements if the government intends to use those statements as evidence against the defendant. For example, law enforcement must ensure that the defendant understands the right to remain silent and the right to have an attorney present, as the Fifth and Sixth Amendments respectively provide. The defendant must knowingly, intelligently, and voluntarily waive those rights in order for the government to use any statements as evidence against the defendant. See Miranda v. Arizona, 384 U.S. 436 (1966).

Law enforcement also must abide by the confines of the Fourth Amendment, which prohibits the government from performing unreasonable searches and seizures. Courts ordinarily suppress evidence obtained during an unreasonable search or seizure and offered against the accused. See Mapp v. Ohio, 367 U.S. 643 (1961).

In order to avoid illegally searching or seizing the property of a suspect, law enforcement personnel typically obtain search warrants. To obtain a search warrant, law enforcement must show probable cause, must support the showing by oath or affirmation, and must describe in particularity the place they will search and the items they will seize. A judge can find probable cause only be examining the totality of the circumstances. Exceptions to the warrant requirement exist, however. These exceptions include searches made at or near the border; a search following a lawful arrest; a stop-and-frisk arrest; where the seized items are in plain view; where the articles are in an automobile; where the private individual makes the search; and under exigent circumstances, where the officer has probable cause for a search to find a crime or evidence relating to a crime.

The Fourteenth Amendment of the U.S. Constitution applies all substantive due process rights to state criminal defendants.

Pre-Trial Procedure

The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to a speedy trial. Consequently, prosecutors cannot wait an inordinate amount of time before filing charges or proceeding with the prosecution after filing charges. To create more precise rules for ensuring a speedy trial, Congress passed the federal Speedy Trial Act, which requires that a trial begin within 70 days of the prosecutor filing the indictment.

The Sixth Amendment also guarantees the right to a public trial by an impartial jury of one's peers. The criminal justice system provides for an impartial jury by permitting both sides to utilize peremptory challenges during jury selection. If a party exercises a peremptory challenge against a prospective juror, then the court must excuse that particular juror from the panel. These challenges occur during jury voir dire to root out bias. Neither side must explain their reasons for a challenge; however, a party may not strike a jury purely because of the juror's race or gender. Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting race-based challenges); J.E.B. v. Alabama, 511 U.S. 127 (1994) (prohibiting gender-based challenges).

Due Process requires that criminal defendants receive a fair trial. In high-publicity trials, trial judges have the responsibility to minimize effects of publicity, perhaps by implementing a gag-order on the parties and to eliminate outside influences during the trial. An interesting question of outside influence went to the U.S. Supreme Court in 2007 in Carey v. Musladin, 549 U.S. 70 (2006). After the victim's family wore pictures of the victim on buttons during the trial, the jury convicted Musladin of murder. The Supreme Court overturned the Ninth Circuit's grant of post-conviction habeas relief for a lack of due process because no clear federal rule existed regarding spectator conduct.

Due Process further commands that defendants have the right to call their own witnesses, mount their own evidence, and present their own theory of the facts. In order to properly mount a defense, the prosecution must turn over all evidence that will be presented against the defendant and have pre-trial access to depose all of the prosecution's witnesses.

Pre-trial would also be the point at which the defense might raise a defense of double jeopardy, if such a defense existed in the particular case. The Fifth Amendment, through the Double Jeopardy Clause prohibits states from charging the same defendant with substantially the same crime on the same facts.



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