1

ATLANTA’S JOHN MARSHALL LAW SCHOOL CRIMINAL PROCEDURE

Spring 2013 Syllabus & Course Outline

Spring 2013 Prof. Jonathan Rapping Room 708 Room 809 Monday and Wednesday 9:00-11:00 jrapping@johnmarshall.edu

COURSE GOAL At the end of this course students will have a strong understanding of how constitutional criminal procedure limits the ability of law enforcement to investigate crimes and the practical implications of the evolution of the body of law stemming from our constitutional criminal procedure in this context.

STUDENT LEARNING OBJECTIVES

1. Understand and apply general concepts of criminal procedure relating to the investigation of crime derived from the Fourth, Fifth, and Sixth Amendments to the United States Constitution and critically assess the costs and benefits of the evolution of the applicable doctrines.

2. Appreciate the role of professionals in the legal system, including police, judges, prosecutors, and defense counsel, in ensuring constitutional protections are respected.

For each class I have listed the objective in the syllabus. There are problems assigned for most classes, either from the Casebook or posted on TWEN. These problems are designed to reinforce the learning objectives of each class. By the end of each class students will be expected to be able to identify, discuss, and analyze the assigned problems.

COURSE MATERIALS: Required:

TASLITZ, PARIS, and HERBERT, CONSTITUTIONAL CRIMINAL PROCEDURE (4th) (referred to in this syllabus as “Casebook”

Designated readings and handouts placed on TWEN (any required reading not in the Casebook will be placed on TWEN).

Recommended:

DRESSLER and MICHAELS, Understanding Criminal Procedure (5th) (referred to in this syllabus as “Understanding”)

STEIKER (ed.), Criminal Procedure Stories (referred to in this syllabus as “Stories”)

2

OFFICE HOURS: Monday and Wednesday 11:00 – 12:00; Tuesday 2:00 - 3:00; and by appointment. To arrange an appointment outside of normal office hours, please email me at jrapping@johnmarshall.edu.

THE GROUND RULES: Class will be taught using a combination of the Socratic method, lecture, presentations, and in-class student exercises. Active class participation and attendance are required. Accordingly, you must select a seat for the semester, sign the seating chart, and use that seat for the remainder of the semester. The casebook includes both questions and problems. You are only responsible for the problems assigned in the syllabus. You may skip any problems included in the assigned pages that are not assigned on the syllabus. I recommend that you read and think about all of the questions included in the assigned readings. However, we will likely only discuss the questions that are explicitly assigned in the syllabus. During class, I will randomly call on students to answer problems, brief cases, and discuss other assigned reading material. It is critical that you complete the assigned reading before class in order to be prepared. Students who are consistently unprepared, absent, or late may receive a step decrease in their final grade for the course (e.g., a decrease from a B to a B- or from a B- to a C+). This step decrease will be done in my discretion. I will invite any student whom I perceive to be at risk of receiving a step decrease to see me in my office at the point that I recognize any of the above as a problem. Lack of preparedness may include having not completed the assigned readings, failing to participate in a meaningful and thoughtful way in class, or using laptops for activities unrelated to class. Arrival to any class more than ten minutes late may result in receiving a half absence for that class. Arrival to any class more than forty minutes late may result in receiving an absence for that class. While I fully understand that on a rare occasion you may have an obligation that conflicts with the class from time to time, if you cannot attend class, it is your responsibility to obtain class notes, reading assignment, and any handouts from your fellow classmates and return ready to participate in the following class.

Class 1: Introduction to Criminal Procedure

Objective: The first objective of this class is to provide you with an overall introduction to this course. We will examine the text of the Fourth Amendment, the Due Process Clause and the Self-Incrimination Clauses of the Fifth Amendment, and the Right to Counsel Clause of the Sixth Amendment, as well as discuss how these protections are applied to the states through the Due Process Clause of the Fourteenth Amendment. Using Problem #1 we will examine your understanding of these protections based on the experiences you bring to this class and the plain text f the Amendments. The second objective of this Class is to prompt you to consider the frequent tension that exists between our desire for both individual liberty and

3

societal safety. We will discuss the role the constitution plays in helping to strike the appropriate balance.

Class Assignment:

1. Read Chemerinsky and Levenson, Chapter 1: Introduction to Criminal Procedure pages 1-27 (posted on TWEN) - all students must read Chapter 1 before the first class and be familiar with the concepts discussed therein

2. Read Casebook pages 4-6 (B. 1-5) 3. Download PROBLEM #1 (posted on TWEN) and identify any issues you think the

problem raises that implicate the relevant Clauses of the 4th, 5th, and 6th Amendments.

Class 2: What Is A Search? I: Basics, Location, and Assumption of Risk

Objective: The objective of this class is for you to understand the definition of a “search” under the Fourth Amendment and to begin to consider how this definition applies vis a vis one’s home and real property. Class Assignment:

1. Read Casebook, 96-120 (skip problems in book) 2. Download PROBLEMS #2 & #3 (posted on TWEN) – prepare Problem #2 and read

Problem #3 (we will work through #3 during the third class); also prepare problem 2-5 on page 121-2.

Class 3: What Is A Search (cont.)? Electronic Tracking Devices, Thermal Imaging, Video

Surveillance, Reduced Expectations Objective: The objective of this class is to further understand how the Court has defined “Reasonable Expectation of Privacy” and to develop a framework through which students may analyze when a search has occurred under the Fourth Amendment. Class Assignment:

1. Read Casebook, 123-46 2. Prepare PROBLEM #3 (posted on TWEN)

Class 4: Reasonable Expectation of Privacy Applied Objective: The objective of this class is to understand how the Court applies precedent relating to Reasonable Expectation of Privacy in reality.

4

1. Read Unites States v. Jones (posted on TWEN)

Class 5: Standing and Government Action Objective: The objective of this class is to understand what constitutes “government

action” for purposes of the Fourth Amendment and what factors determine whether a person has the right to contest a potential Fourth Amendment violation (aka “standing”).

Class Assignment:

1. Read Casebook 146-75 2. Prepare Casebook problems 2-18, 2-22, and 2-25.

Class 6: Probable Cause Objective: The objective of this class is for students to understand the concept of probable

cause and how law enforcement is to weigh information that contributes to the probable cause calculus. Students will consider how law enforcement is to weigh information the officer acquires through personal knowledge, through other members of the police department, and through informants. Students will understand how to evaluate this information and critically consider whether factual scenarios give rise to probable cause.

Class Assignment:

1. Read Casebook 186-211 2. Prepare Casebook problem 2-30 (on page 218) and Questions 1-3 (pp. 193-195)

CLASS 7: Warrant Basics, Illustrative Form Warrants, Warrant Execution

Objective: The objective of this class is to understand the requirements for the application,

issuance, and execution of a warrant and the interplay between the warrant requirement and the reasonableness requirement of the Fourth Amendment/

Class assignment:

1. Read Casebook 236-66 and 273-89 (stop before subsection D) 2. Skim the sample warrant at pp. 241-54 just so that you know what one looks like. 3. Prepare Casebook problems 3-1, 3-2, 3-4, 3-5

CLASS 8: Excessive Force, With-Warrant Versus Warrantless Arrests, Prompt

Arraignments

5

Objective: The objective of this class is to understand what law enforcement must consider when making an arrest including the seriousness of the offense at issue, the degree of force necessary to effectuate the arrest, whether a warrant is required, and whether exigent circumstances exist, as well as how judicial oversight comes into play when a warrantless arrest is effectuated.

Class assignment:

1. Read Casebook 302-323 2. Prepare Casebook problems 3-10 and 3-12. 3. Prepare Problem Set #4 (posted on TWEN)

Class 9: The Basic Stop-and-Frisk Rules and How to Distinguish Among Voluntary Encounters, Stops, Arrests, and Custodial Arrests

Objective: The objective of this class is to introduce students to the Terry Doctrine, to understand when law enforcement may engage in a seizure short of arrest (stop) or a brief search (frisk) in connection with a stop, and to recognize when a seizure has evolved from a stop into a full-blown arrest. Class Assignment:

1. Read Casebook 323-354 2. Prepare Casebook problems 3-13 and 3-14.

Class 10: Sufficiency of Facts for Stop-and-Frisk and Racial Profiling Introduced Objective: The objective of this class is to think critically about the policy implications of the

Terry doctrine and whether it strikes the right balance between our desire for both individual liberty and safety. Students will consider whether Terry gives too much power to law enforcement and whether there are ways to ensure this por is not abused.

Class Assignment:

1. Read Casebook 355-77 2. Watch, and be prepared to discuss, The Scars of Stop and Frisk at:

http://www.nytimes.com/2012/06/12/opinion/the-scars-of-stop-and-frisk.html 3. Prepare Casebook problems 3-16 and 3-17 (pages 376-77).

6

Exceptions to the Warrant Requirement Class 11: Searches Incident to Arrest, Protective Sweeps, and Exigent Circumstances

Objective: The objective of this class if to understand some of the situations when warrantless searches and seizures are nevertheless deemed reasonable (exceptions to the warrant requirement) and be able to discuss whether these exceptions strike the appropriate balance between individual liberty and safety. Students will discuss the Search Incident to Arrest, Protective Sweep, and Exigent Circumstances doctrines. Class Assignment:

1. Read Casebook 379-407 2. Prepare Casebook problems 4-2, 4-3, and 4-4

Class 12: Plain View, Vehicle Searches Objective: The objective of this class is to continue to understand when the Court has carved out exceptions to the warrant requirement, including the Plain View Doctrine and the Automobile Exception. Class Assignment:

1. Read Casebook 407-416 2. Watch, and be prepared to discuss, Breakfast in Collinsville at:

http://www.youtube.com/watch?v=rJqq6KCOkdM 3. Problem Set #5 (posted on TWEN) 4. Prepare Casebook problems 4-7, 4-8, 4-10, 4-11, and 4-12.

Class 13: Special Needs/Administrative Searches and Seizures Objective: The objective of this class is to understand when the government may conduct searches without individualized suspicion for non-law enforcement purposes. Class Assignment:

1. Read Casebook 416-67 2. Prepare problems 2-39 (at pages 231-33), 4-16, 4-17, 4-20, and 4-23.

Class 14: Consent and Actual Versus Apparent Authority

7

Objective: The objective of this class is to understand the issues surrounding the consent doctrine including who has the authority to consent to a search, the scope of a consensual search and how to resolve a dispute about whether consent was given. Class Assignment:

1. Read Casebook 467-492 2. Prepare Casebook problems 4-25, 4-26, and 4-27

The Exclusionary Rule and Other Remedies

Class 15: Exclusionary Rule I: Independent Source, Inevitable Discovery and Attenuation Objective: The objective of this class is to introduce the Exclusionary Rule and its justification. With that as background we will consider three doctrines that narrow the reach of the Exclusionary Rule and discuss whether, in light of the Rule’s justification, how these doctrines should be applied. Class Assignment:

1. Read Casebook 570-94 2. Prepare Casebook problems 7-1 and 7-2.

Class 16: Exclusionary Rule II: The Good Faith Exception, Impeachment, and Alternative

to Exclusion

Objective: The objective of this class is to introduce the Good Faith Exception to the Exclusionary Rule and to consider whether the application of this exception strikes the right balance between the interest in providing the jury reliable evidence and the interest in discouraging police misconduct. We will also examine the debate over whether the Exclusionary Rule is constitutionally based versus a judge created remedy. Finally we will also discuss the Impeachment Exception and Alternative remedies. Class Assignment: 1. Read Casebook 594-614; 623-627 2. Read excerpt from U.S v. Leon (posted on TWEN) 3. Prepare Casebook Problems 7-5 and 7-6 Class 17: Fourth Amendment and Herrera Case Objective: The objective of this class is to use the Hererra case to examine how many of the issues discussed in class to date apply in the context of this case with which the Class is familiar.

8

Class Assignment:

1. Review Herrera documents posted on TWEN and analyze Fourth Amendment issues. Class 18: Final Exam Prep Objective: The objective of this class is to practice writing essays using the IRAC menthod in the context of materials studied in class to date. Class Assignment

1. Prepare Practice Essay #1 (posted on TWEN)

Confessions and Self-Incrimination

Class 19: Confessions I: Due Process Voluntariness and the War on Terror Objective: The objective of this class (Parts 1 & 2) is to introduce the concept of

voluntariness as it relates to confessions, to consider the causes of coerced confessions, and to examine the role the Federal Constitution plays in limiting the likelihood of false confessions being used as evidence at trial.

Class Assignment: 1. Read Casebook 657-91 2. Watch, and be prepared to discuss, Anatomy of a Bad Confessions - watch all five

excerpts AND the subsequent interview with Nga Truong (approximately 20 minutes) http://www.wbur.org/2011/12/07/coerced-confession-videos

3. Prepare Casebook problems 8-1, 8-2, 8-3, and 8-4. Class 20: Confessions II: Miranda Basics Objective: The objective of this class is to introduce the Self-Incrimination Clause of the

Fifth Amendment and to discuss how its purpose with respect to confession evidence differs from the Due Process Clause. We will then read Miranda v. Arizona in order to facilitate a discussion about how the Court has come to define Self-Incrimination Clause violations in the context of custodial interrogations.

Class Assignment: 1. Read Casebook 691-725

9

Class 21: Confessions III: Miranda Thresholds: Custody, Interrogation, Adequacy of Warnings, and Basic Definition of Waiver

Objective: To explore more in depth the four components of Miranda that must be

understood in order to determine when its mandate is implicated and a subsequent confession is admissible.

Class Assignment: 1. Read Casebook 726-48; page 767 (I) 2. Prepare Casebook problems 8-11, 8-12, 8-21, 8-22, 8-23, and 8-26. Class 22: Confessions IV: Special Miranda Waiver Rules Where Miranda Rights Are

Invoked; Fruit of the Poisonous Tree Issues, and Miranda Exceptions Objective: To better understand special rules that help determine whether a Miranda waiver is valid and the remedy for a violation of the Miranda Rule. We will also explore some exceptions to the Miranda doctrine. Class Assignment: 1. Read Casebook 738-67 2. Except from Berghuis v. Thompkins (posted on TWEN) 3. Prepare Casebook problems 8-28, 8-30, 8-31, and 8-32. Class 23: Confessions V: Completing Miranda (Undercover Activities and Cultural

Factors) and Sixth Amendment Suppression Issues Objective: The objective of this class is to introduce the role that the Sixth Amendment Right to Counsel plays in protecting the accused against police interrogation and the remedy for a violation of the Sixth Amendment as it applies to confessions. Class Assignment: 1. Read Casebook 767-75, 787-14 2. Prepare Casebook problems 8-34, 8-35, 8-42, and 8-47. 3. Problem Sets #6 and #7 (posted on TWEN

Eyewitness Identification

Class 24: Identification Procedures

10

Objective: The objective of this Class (both Parts 1 & 2) is to introduce the class to the problems inherent in eyewitness identification and how police procedure can inadvertently render this evidence less reliable. We will discuss the social science behind eyewitness identification, consider how state actors can mitigate the potential problems, and examine the role of the Constitution in helping protect against convictions based on unreliable eyewitness identification evidence.

Class Assignment: 1. Read Casebook 886-914 2. Prepare Casebook problems 10-1, 10-2, and 10-3.

Class 25: Final Exam Prep Objective: The objective of this class is to practice writing essays using the IRAC menthod in the context of materials studied in class to date. Class Assignment 1. Prepare Practice Essay #2 (posted on TWEN) Class 26: Statements and Identification Issues and Herrera Case Objective: The objective of this class is to use the Hererra case to examine how many of the

issues discussed in class to date apply in the context of this case with which the Class is familiar. Class Assignment: 1. Review Herrera documents posted on TWEN and analyze issues relating to Statements

and Identification. Class 27: Final Exam Prep Objective: The objective of this class is to practice writing essays using the IRAC menthod in the context of materials studied in class to date. Class Assignment 1. Prepare Practice Essay #3 (posted on TWEN) CLASS 14 REVIEW