David W. Neubauer Henry F. Fradella Joe Morris Northwestern State University, Natchitoches, LA Cherly Gary North Central Texas College, Corinth, TX Chapter Twelve: Disclosing and Suppressing Evidence

Discovery Informal and formal exchange of information between parties Criminal Cases Examples include: lab reports; statements of witnesses; confessions police reports

Law on the Books: Rules Requiring Disclosure No general constitutional right to discovery in a criminal case too much prosecutorial disclosure may result in defendant’s taking undue advantage Court decisions, statues, and court rules require disclosure Federal Rules of Criminal Procedure provide defendant with rights to discovery Tape recordings, books, papers, results of testing, summaries of expert witnesses

Discovery of exculpatory evidence Evidence which may be in favor of the defendant at trial Brady v. Maryland (1963) exculpatory evidence must be given to defense Brady Rule is limited to admissible evidence Brady does not require the prosecution to make all files available to the defense Post Brady revisions have narrowed the requirement to evidence that is “material” and would have been “persuasive and produced a reasonable doubt about guilt”

Discovery of impeachment evidence Jencks v. United States (1957) Inconsistent statements must be provided for a fair cross-examination The Jencks Act Prosecutor must disclose any witness statement in the government’s possession that relates to the subject matter of the witness’s testimony Congress placed the burden on the defense to ask for the information Giglio v. United States (1972)- clarified all impeachment evidence falls under the Brady Rule

Law in Action: Informal Prosecutorial Disclosure Discovery Rules are Important to Defense Attorneys Save time Eases the attorney client relationship Greatly encourages guilty pleas Guiding Principle: Trial Should be a Level Playing Field Alibi Defense Insanity Plea Constitution limits reciprocal discovery

The Exclusionary Rule and The Supreme Court Prohibits the prosecutor from using illegally obtained evidence at trial Justified on Three Grounds Courts should not participate in illegal conduct Deters law enforcement misconduct Other remedies (civil) are unworkable Developed in Weeks v. U.S. and incorporated to the states in Mapp v. Ohio

Three distinct exclusionary rules Pretrial confrontations: identification of suspects or confessions/interrogations Searches/seizures “Fruit of the poisonous tree” – derivative evidence that is indirectly obtained as a result of a constitutional violation is also inadmissible

The Exclusionary Rule and Confessions The Warren Court Changes the Rules Miranda v. Arizona (1966) You have the right to remain silent Anything you say can and will be used against you in a court of law You have the right to talk to a lawyer and have him or her present with you while you are being questioned If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish

The Exclusionary Rule and Confessions The Burger and Rehnquist Courts Limit Miranda Statements made under Miranda are inadmissible as substantive evidence Public safety consideration Incriminating statements Questioning does not need to stop when ambiguous statement for counsel are made Police can question based on an additional case

The Exclusionary Rule and Search and Seizure The Fourth Amendment prohibits the use of evidence secured through an illegal search and seizure Applies only to Federal Law Enforcement Officials (Weeks v. U.S., 1914 ) Court refused to extend exclusionary rule to the states (Wolf v. Colorado, 1949) Exclusionary rule extended to the states (Mapp v. Ohio, 1961)

Exceptions A person running at the sight of a police officer could justify the police conducting a stop-and frisk search (Illinois v. Wardlow 2000) Police officers do not have to advise suspects that they have a right not to consent to a search ( U.S. v. Drayton 2002 ) The Exclusionary Rule and Search and Seizure

Limitations Police cannot use a thermal imagining device to scan a building to detect the presence of high-intensity lamps used to grow marijuana (Kyllo v. U.S. 2001) Police cannot stop and search a person for a gun solely on the basis of an anonymous tip (Florida v. J. L. 2000) The Exclusionary Rule and Search and Seizure

Search Warrants Issued by a neutral judge Supported by oath or affirmation asserting probable cause Specifically describe the place to be search & people/things to be seized Warrant review process does not operate as intended

Warrantless Searches Most common type of search Three forms of warrantless searches Consent Plain view Incident to a lawful arrest