Chapter Twelve: Disclosing and Suppressing Evidence

Discovery The informal and formal exchange of information between prosecution and defense, i.e., witness statements, confessions, police reports, laboratory reports, and defendant statements.

Disclosure Rules - Civil Federal Rules of Civil Procedure (1938) state that every party in a civil action is entitled to the disclosure of any information in the possession of any person, unless that information is privileged. (Applicable in most states).

Disclosure Rules - Criminal There is no general constitutional right to discovery in criminal cases. (Weatherford v. Bursey) However, prosecutors cannot suppress inconsistent and exculpatory evidence; and the materiality of the evidence shall be considered in its entirety. (Jencks v. U.S.; Brady v. Maryland; Kyles v. Whitley)

Criminal Discovery Law

Questions Why is “discovery” important to the defense attorney? Why does the prosecutor look favorably upon “informal” disclosure? What is “reciprocal” disclosure? and, what is the danger to the defendant?

Disclosing and Suppressing Evidence

Exclusionary Rule Applies to: Identification of Suspects (Line-Ups)Confessions (5 th amendment) Searches and Seizures (4 th amendment)

How Can Eyewitness Testimony Contribute to Wrongful Convictions? At a trial, eyewitness testimony which incriminates an offender is one of the most influential pieces of evidence, however, since DNA technology has developed, eyewitness error has been identified as a frequent cause of wrongful convictions.* * Psychological studies show that there is extreme variation with false * Psychological studies show that there is extreme variation with false identifications in both controlled field studies and actual studies. identifications in both controlled field studies and actual studies.

How Important is Eyewitness Testimony in Criminal Cases? The Police Crimes most likely to be cleared by arrest are those in which the offenders were captured within minutes or those in which an eyewitness provided a specific piece of information.

Supreme Court Decisions Simmons v. U.S. (1968): Court recognized “dangers” in the way police utilize lineups and photo arrays. Simmons v. U.S. (1968): Court recognized “dangers” in the way police utilize lineups and photo arrays. United States v. Wade (1967) and Gilbert v. California (1967): The Court held that a suspect has the “right to counsel” during lineups (note: the suspect has no right to counsel during photo arrays). United States v. Wade (1967) and Gilbert v. California (1967): The Court held that a suspect has the “right to counsel” during lineups (note: the suspect has no right to counsel during photo arrays). Stovall v. Denno (1967) and Neil v. Biggers (1972): The Court acknowledges the danger of “suggestive” procedures. Stovall v. Denno (1967) and Neil v. Biggers (1972): The Court acknowledges the danger of “suggestive” procedures. Neil v. Biggers (1972) and Manson v. Braithwaite (1977): The Court articulated five minimal factors which could increase the likelihood of an accurate identification. Those factors were: opportunity, length of time, level of certainty, degree of attention, the accuracy of the witness’s prior description of the criminal. Neil v. Biggers (1972) and Manson v. Braithwaite (1977): The Court articulated five minimal factors which could increase the likelihood of an accurate identification. Those factors were: opportunity, length of time, level of certainty, degree of attention, the accuracy of the witness’s prior description of the criminal. * Major issues: no consideration of system or estimator variables and; the correlation between accuracy and high confidence levels are only somewhat more likely to be correct than those who have a low confidence level.

Exclusionary Rule The prosecutor is prohibited from using illegally obtained evidence during a trial. “No person…shall be compelled in any criminal case to be a witness against himself.” (5 th Amendment)

Confession A confession by a defendant – an admission of guilt – is the most damaging evidence that can be presented at the defendant’s trial.

Confessions Use of physical coercion to obtain confessions violates the due process clause of the 14 th Amendment. (Brown v. Mississippi) Psychologically coerced confessions are not voluntary and therefore not admissible in court. ( Ashcraft v. Tennessee)

Interrogative ‘Coercion’ Tactics That Are Considered Illegal And Are Both Physical and Psychological Physical force Physical force Abuse Abuse Torture Torture Threats of harm or punishment Threats of harm or punishment Prolonged isolation Prolonged isolation Deprivation of food or sleep Deprivation of food or sleep Promises of leniency Promises of leniency Failure to notify the suspect of their Miranda rights Failure to notify the suspect of their Miranda rights Certain types of psychological influences Certain types of psychological influences

Confessions A coerced confession does not automatically overturn a conviction. “harmless error” Arizona v. Fulminante (1991)

Confessions “…the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained.” (Justice William Brennan; Colorado v. Connelly, 1986)

The Supreme Court and Confessions The fundamental question asked by judges is whether the confession was ‘free and voluntary.’ The U.S. Supreme Court has ruled that voluntariness of a confession is determined by the “totality of circumstances.” (Culombe v. Connecticut, 1961)

Three Types of False Confessions Voluntary false confessions : willful, without elicitation. Voluntary false confessions : willful, without elicitation. Coerced-compliant confessions : public admission versus private knowledge of innocence. Example: Third-degree tactics. Coerced-compliant confessions : public admission versus private knowledge of innocence. Example: Third-degree tactics. Coerced-internalized confessions : heightened suggestibility; truth and falsehood become confused in the suspect’s mind. Coerced-internalized confessions : heightened suggestibility; truth and falsehood become confused in the suspect’s mind.

Police can use trickery, and they can lie to suspects and otherwise mislead them. Allowable tactics: Allowable tactics: Misrepresentation of the facts. Misrepresentation of the facts. Use of techniques that take unfair advantage of emotions, beliefs, or medical condition of the defendant. Use of techniques that take unfair advantage of emotions, beliefs, or medical condition of the defendant. Failure to inform the suspect of some important fact or circumstance that might make the suspect less likely to confess. Failure to inform the suspect of some important fact or circumstance that might make the suspect less likely to confess.

Supreme Court and Trickery Frazier v. Cupp, (1969) Police misrepresentation, while relevant, is insufficient to make a voluntary confession inadmissible under a “totality of the circumstances” analysis.

Custodial Interrogation Miranda v. Arizona (1966) Chief Justice Earl Warren expressed concerns over the “police-dominated” concerns over the “police-dominated” atmosphere of interrogation rooms. Chief Justice Warren further held that warnings were required to counteract the inherently coercive nature of stationhouse questioning.

Miranda “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Chief Justice Rehnquist Dickerson v. U.S. (2000)

Confession Questions: Who has the burden to prove that a confession was not “free and voluntary?” How has the impact of Miranda changed under the influence of the Burger and Rehnquist courts?

Search and Seizure “the right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.” (4 th amendment) Weeks v. U.S. (1914) Mapp v. Ohio (1961)

Search Warrants A search warrant is a written document, signed by a judge or magistrate, authorizing a law enforcement officer to conduct a search. “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.” (4 th Amendment)

Questions: What is the “Leon” ruling? (U.S. v. Leon; 1984) (see also: Illinois v. Krull; 1987) Who prepares the warrant, signs the warrant, and, executes the warrant? What is a warrantless search? Give an example.

Pretrial Motions The role of the courtroom workgroup during suppression motions: Defense Attorney: Catalyst, bear the burden of proof. Prosecutors: Passive role, control the evidence and the case. Judges: Final arbiter, key policy-maker, and great discretion concerning findings of fact.

Questions: Are the Court’s decisions in Mapp and Miranda major sources of case attrition? What is the major argument against the “exclusionary rule?” Has the “exclusionary rule” had a major effect on the criminal justice system?