250 word discussion including two references

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CHAPTER 9 Chapter Outline Introduction Double Jeopardy Self-Incrimination and Immunity Due Process and Equal Protection Vagueness and Overbreadth Analyzing Constitutional Claims Ex Post Facto and Bills of Attainder First Amendment and Religion First Amendment and Speech Privacy and Other Unenumerated Rights Privileges and Immunities Ethical Considerations: Are Federal

Prosecutors Subject to State Ethics Rules?

Chapter Objectives

After completing this chapter, you should be able to:

• identify and describe specific rights discussed in the chapter, such as freedom from double jeopardy, to speak, to practice one’s religion, from the establishment of a religion by the government, to privacy, to be treated equally, and to substantive and procedural due process.

• identify and explain the landmark Supreme Court cases featured in the chapter.

• apply the basic principles learned in the chapter to fact scenarios.

• identify the material facts and legal issues in two-thirds of the cases you read, and describe the court’s analyses and conclusions in these cases.

ConsTiTuTionAl DEfEnsEs

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IntroductIon By its nature, a constitutional right is also a constitutional defense. After all, a right is something that may be asserted by person without suffering reprisal from the govern- ment. Inherently, a right stands as a limit on government. So, when a government inter- feres with speech, one defense may be the protection of speech itself. A variety of defenses arise from rights secured by the U.S. Constitution. Most of these rights are found in the first nine, as well as the Thirteenth, Fourteenth, and Fifteenth Amendments. You have already learned a few of these, such as the First Amendment’s protection of expression. In addition, many rights that are procedural, such as the right to a speedy trial, are discussed later. A few critical defenses have been chosen for discussion in this chapter. The big dogs of criminal procedure, the Fourth, Fifth, and Sixth Amendments, are not examined in this chapter because they receive considerable attention in the chapters that follow.

Be aware that each state has its own constitution, which may provide greater protection than the U.S. Constitution. During this discussion you may want to refer to the U.S. Constitution, which is reprinted as Appendix A of this text.

double Jeopardy The Fifth Amendment to the U.S. Constitution provides that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” The principle of not punishing someone twice for the same act can be found as far back as Black- stone’s Commentaries in the 1700s.1 The Double Jeopardy Clause applies only to criminal proceedings.

There are actually two prohibitions in the Double Jeopardy Clause. The clause prevents: (1) a second prosecution for the same offense and (2) a second punishment for the same offense.

Often the legal question in double jeopardy cases is whether a prior “jeopardy” occurred. It is generally held that a person has been put in jeopardy once a plea of guilty has been entered and accepted by a court. An unapproved plea will not suffice, and a subsequent prosecution will not be prohibited by the Double Jeopardy Clause. In jury trials, jeopardy attaches once a jury has been selected and sworn. States treat bench trials differently, although the prevailing view is that jeopardy attaches when the first witness has been sworn.

Once jeopardy attaches, the defendant may not be tried again. However, there are a few exceptions. A defendant may be retried if the first trial was terminated by a properly declared mistrial. Mistrials may be declared for a variety of reasons. Death of the trial judge or one of the participating attorneys would likely result in a mistrial. If a witness blurts out an answer to a question before the judge has an opportunity to sustain an objection to the question, and the answer is extremely prejudicial, a mistrial may be declared. The causes of a mistrial are endless. Note that the mistrial must be proper. That is, if an appellate court later determines that a mistrial should not have been declared, the defendant has been put into jeopardy. It is always proper to retry

double jeopardy clause

■ A second prosecution

by the same government

against the same person

for the same crime (or for

a lesser included offense)

once the first prosecution

is totally finished and

decided. This is prohibited

by the U.S. Constitution.

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a defendant whose prior trial was declared a mistrial upon the defendant’s motion. If a defendant objects to a government motion for a mistrial, there must be a “manifest necessity” (darn good reason) for the mistrial.2

It is also not a violation of the Fifth Amendment to prosecute a defendant who was previously charged but whose charges were dismissed prior to jeopardy attaching. Addi- tionally, if a defendant appeals a conviction and prevails, the defendant may be retried, unless the appellate court finds that insufficient evidence exists to retry the defendant. However, if defendants are acquitted on a serious charge and convicted on a lesser and then prevail on appeal, they may be retried only on the lesser. It is violative of the Fifth Amendment to retry the defendant on the more serious offense. Whether a defendant may be retried following government appeals has been an issue in many cases. Clearly, the government may not win a new trial following an acquittal. However, a conviction may be reinstated by an appellate court if a trial court’s order setting aside the convic- tion is found invalid.3 But an appellate court may not order a new trial where the trial judge entered a judgement of acquittal following a hung jury.4 The outcomes in this area of law are dependent upon what judgement is first entered by the trial court. If it is a conviction, then an appellate court may tamper with trial judge reversals of convic- tions. If it is an acquittal, then double jeopardy bars acting further against the accused.

The Supreme Court has also held that double jeopardy does not bar correcting a sen- tence on appeal or rehearing because such a procedure is not retrial of an “offense.” However, the outcome may be different if resentencing results in the application of the death penalty.5

The Fifth Amendment only forbids retrial for the same offense. Determining whether two acts constitute the same offense is not always an easy task. Two offenses are the same unless one requires proof of a fact that the other does not.6 This is the “same evidence test.” The civil law concept of collateral estoppel, or the preclusion of relitigating the same issue, applies in criminal cases as well. The Supreme Court first announced this in Ashe v. Swenson.

Sometime in the early hours of the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson at Lee’s Summit, Missouri. Suddenly three or four masked men, armed with a shotgun and pistols, broke into the basement and robbed each of the poker players of money and various articles of per- sonal property. The robbers—and it has never been

clear whether there were three or four of them— then fled in a car belonging to one of the victims of the robbery. Shortly thereafter the stolen car was discovered in a field, and later that morning three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. The petitioner was arrested by another officer some distance away.

ASHE V. SWENSON 397 U.S. 436 (1970)

(continued)

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The four were subsequently charged with seven separate offenses—the armed robbery of each of the six poker players and the theft of the car. In May 1960 the petitioner went to trial on the charge of robbing Donald Knight, one of the par- ticipants in the poker game. At the trial the State called Knight and three of his fellow poker players as prosecution witnesses. Each of them described the circumstances of the holdup and itemized his own individual losses. The proof that an armed robbery had occurred and that personal property had been taken from Knight as well as from each of the others was unassailable. The testimony of the four victims in this regard was consistent both internally and with that of the others. But the State’s evidence that the petitioner had been one of the robbers was weak. Two of the witnesses thought that there had been only three robbers al- together, and could not identify the petitioner as one of them. Another of the victims, who was the petitioner’s uncle by marriage, said that at the “pa- trol station” he had not positively identified each of the other three men accused of the holdup, but could say only that the petitioner’s voice “sounded very much like” that of one of the robbers. The fourth participant in the poker game did identify the petitioner, but only by his “size and height, and his actions.”

The cross-examination of these witnesses was brief, and it was aimed primarily at exposing the weakness of their identification testimony. Defense counsel made no attempt to question their testi- mony regarding the holdup itself or their claims as to their losses. Knight testified without contradic- tion that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the posses- sion of one of the three other men accused of the robbery, was admitted in evidence. The defense of- fered no testimony and waived final argument.

The trial judge instructed the jury that if it found that the petitioner was one of the par- ticipants in the armed robbery, the theft of ‘any money’ from Knight would sustain a conviction (citation omitted). He also instructed the jury that if the petitioner was one of the robbers, he was guilty under the law even if he had not per- sonally robbed Knight (citation omitted). The jury—though not instructed to elaborate upon its verdict—found the petitioner “not guilty due to in- sufficient evidence.” . . .

Six weeks later the petitioner was brought to trial again, this time for the robbery of another par- ticipant in the poker game, a man named Roberts. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. The witnesses were for the most part the same, though this time their testimony was substantially stronger on the issue of the petitioner’s identity. For example, two wit- nesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice. The State further refined its case at the second trial by declin- ing to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. The case went to the jury on instructions virtually identical to those given at the first trial. This time the jury found the petitioner guilty, and he was sentenced to a 35-year term in the state penitentiary. . . .

“Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue

ASHE V. SWENSON (c o nt i nu e d)

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cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an es- tablished rule of federal criminal law at least since this Court’s decision more than 50 years ago. . . .

Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceiv- able issue in dispute before the jury was whether the

petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible.

The ultimate question to be determined . . . is whether this established rule of federal law is em- bodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is (citation omitted). For whatever else that consti- tutional guarantee may embrace, it surely protects a man who has been acquitted from having to “run the gantlet” a second time. . . .

ASHE V. SWENSON (c o nt i nu e d)

The Double Jeopardy Clause is fully applicable to the states through the Fourteenth Amendment. However, the clause does not prevent second punishments for the same offense by different sovereigns. For example, a person who robs a federally insured bank may be prosecuted by both the state where the bank resides and the United States. This is true even though the offenses arise from the same acts. Although the Double Jeopardy Clause does not prohibit two sovereigns from prosecuting for the same of- fense, many states prohibit this by statute. In practice, and sometimes by policy, most prosecutors do not pursue a defendant who has been previously prosecuted in another jurisdiction for the same crime. The Model Penal Code incorporates this approach in certain circumstances.7 Municipalities are not independent beings; they owe their existence not to the Constitution of the United States, but to a state. Accordingly, pros- ecutions by cities are treated as being brought by the state, and it is a violation of the Double Jeopardy Clause for a state and city to punish one for the same offense.

Self-IncrImInatIon and ImmunIty The Fifth Amendment also states that no person “shall be compelled in any criminal case to be a witness against himself.” The following passage explains why the framers of the Constitution included a privilege against self-incrimination.

Perhaps the best-known provision of the Fifth Amendment is the clause against forced “self-incrimination,” whose origin goes back to England where persons accused of crimes before ecclesiastical courts were forced to take an ex officio oath. That is, they had to swear to answer all questions even if the questions did not apply to the case at trial. This requirement was later adopted by the Court of Star Chamber. One of the

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victims of the Court was a printer and book distributor named John Lilburne, charged in 1637 with treason for importing books “that promoted Puritan dissent.” Lilburne told his accusers, “I am not willing to answer to you any more of these questions because I see you go about by this examination to ensnare me. For seeing the things for which I am imprisoned cannot be proved against me, you will get other material out of my examination; and therefore if you will not ask me about the thing laid to my charge, I shall answer no more. . . . I think by the law of the land, that I may stand upon my just defense.” Lilburne was convicted, fined, whipped, pilloried, gagged, and imprisoned until he agreed to take the oath. . . .

One notorious instance of forced self-incrimination in the American colonies occurred in the Salem witch trials. In 1692, Giles Corey, an elderly Massachusetts farmer, was accused of witchcraft. He knew whether he pleaded guilty or not guilty he would be convicted and executed and his property confiscated. So to assure that his heirs inherited his property, he refused to plead and thus could not be convicted. The judges ordered him strapped to a table, and stones were loaded upon his chest to force the plea out of him. Corey’s final words were “more weight.” Then his chest caved in.8

John Bradshaw, John Lilburne’s attorney, stated it best when he said that “It is con- trary to the laws of God, nature and the kingdom for any man to be his own accuser.”

Generally, the Fifth Amendment prohibits the government from compelling people to testify when incrimination is possible. Most people have heard of “pleading the Fifth.” However, if immunity from prosecution is granted to a witness, he or she may be com- pelled to testify. If a witness refuses to testify because of the fear of self-incrimination, the government may offer the witness immunity from prosecution so that the testimony may be compelled. There are two types of immunity: transactional and derivative use.

Transactional immunity shields witnesses from prosecution for all offenses re- lated to their testimony. For example, if a witness testifies concerning a robbery, the government may not prosecute the witness for that robbery, even though the govern- ment may have evidence of guilt independent of the witness’s testimony. Transactional immunity gives more protection to the witness than is required by the Constitution, so when it is granted, a witness may be ordered to testify.

The minimum immunity that must be provided a witness to overcome a Fifth Amendment claim is derivative use immunity. This prohibits the government from using the witness’s testimony or any evidence derived from that testimony to prosecute the witness. However, all evidence that is independently obtained may be used against the witness.

Use immunity only prohibits the government from using the witness’s testimony against him or her. Statutes that provide only for use immunity are unconstitutional, as derivative use is the minimum protection required by the Fifth Amendment.

States vary in how immunity is granted. Some permit the prosecutor to give the immunity; others require both the request of the prosecutor and the approval of the trial judge.

A person may also waive the Fifth Amendment privilege against self-incrimination. Generally, once a person testifies freely, the privilege is waived as to the subject discussed

transactional immunity

■ Freedom from

prosecution for all crimes

related to the compelled

testimony, so long as the

witness tells the truth.

use immunity

■ Freedom from

prosecution based on

the compelled testimony

and on anything the

government learns from

following up on the

testimony.

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during the same proceeding. A witness (or defendant) may not testify s electively concerning a subject. It is often said that testifying to a fact waives to the details. This principle prevents witnesses from testifying only to the information beneficial to one party and then refusing to testify further, even though they may have omitted impor- tant facts. However, witness may not be compelled to testify if there is a chance of incriminating themselves beyond the original testimony.

The fact that a witness may waive the Fifth Amendment privilege against self- incrimination on one occasion does not mean it is waived forever. First, a defendant (or witness) may speak to the police during the investigative stage and later refuse to testify at trial, provided such testimony may be incriminating. Second, it is generally held that a person who testifies before a grand jury without claiming the Fifth does not waive the right to raise the defense at trial. Third, even within the same proceeding a person may invoke the Fifth Amendment privilege against self-incrimination if the two hearings are separate and distinct. For example, a defendant may testify at a suppression hearing without waiving the privilege not to testify at trial.

Finally, the Fifth Amendment applies to all proceedings, whether civil, criminal, or administrative.9 Therefore, a person called to testify in a civil proceeding may invoke the Fifth Amendment’s privilege and refuse to testify.

due proceSS and equal protectIon The Fifth Amendment to the U.S. Constitution prohibits the government from depriv- ing a person of life, liberty, or property without due process of law. This amendment acts to constrain the power of the federal government. You have previously learned that the Fourteenth Amendment has similar language and constrains the power of state governments.

The Fourteenth Amendment expressly requires the states to extend equal protec- tion of the laws to the people. There is no express equal protection clause in the Fifth Amendment, but the Supreme Court has found it to be implied in the Due Process Clause. Equal protection concerns classifications and discrimination.

Discrimination is not inherently evil. Students discriminate between professors, possibly due to grading policy or teaching skill, when deciding what courses to enroll in. Governments also discriminate and make classifications, most of which are sensible and acceptable. For example, those who commit homicides are divided into groups: murderers, manslaughterers, and those who are excused or justified in killing. When classifications are based upon meaningful criteria (e.g., mens rea), the law is valid. However, our society has decided that certain classifications are improper and viola- tive of equal protection. A classification between those who exercise a constitutional right and those who do not, if it results in prosecution or increased punishment for the former, is unconstitutional. Classifications based on race, religion, gender, and other immutable conditions are suspect and possibly violative of equal protection.

These clauses are important to criminal law and particularly to criminal proce- dure. Due process requires the government to treat people fairly; therefore, whenever

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a law or other governmental action appears to be unfair, there is a due process issue. In a sense, due process is a safety net, protecting the individual when another specific constitutional provision does not.

Due process has two aspects, substantive and procedural. The protection of pri- vacy discussed later in this chapter is an example of substantive due process. On the procedural side, due process is the constitutional source of the principle of legality, which requires that criminal laws (and punishments) be written and enacted before an act may be punished. This is a notice concept. It would be unfair to announce that an act is illegal, or increase its punishment, after that act has been committed. You will learn later in this chapter that overly broad or vague laws may be violative of due process.

Through the Fourteenth Amendment’s Due Process Clause, most of the provi- sions of the Bill of Rights, which initially applied only against the federal govern- ment, have been extended to the states. Today, the Fourth Amendment’s right to be free from unreasonable searches and seizures, the Fifth Amendment’s right to be free from self-incrimination, the Sixth Amendment’s right to counsel at critical stages of criminal adjudications, and the Eighth Amendment’s prohibition of cruel and un- usual punishment are among the many rights that are now available to defendants in state courts.

In some instances, due process or equal protection increases the scope of a right found in the Bill of Rights. For example, the Sixth Amendment’s right to counsel is limited to the critical stages of criminal proceedings. Appeals are not critical stages, and therefore the Sixth Amendment does not mandate counsel. But the Supreme Court has held that if a state provides for felony appeals by right, then the Equal Protection Clause requires that indigent defendants receive appointed counsel. To hold otherwise would unfairly discriminate against the indigent.10

Although the Fourteenth Amendment is the source of the incorporation of most of the Bill of Rights, its importance extends further. Any time an issue of fairness surfaces, due process should be examined. If the issue concerns one of improper classifications, equal protection law should be considered. The Supreme Court stated of substantive due process:

The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree: yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed: “Due process has not been reduced to any formula: its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has rep- resented the balance which our Nation, built upon postulates of respect for liberty of the individual, has struck between that liberty and the demands of organized society.”

principle of legality

■ The procedural side

of due process, which

requires that criminal laws

(and punishments) be

written and enacted before

an act may be punished.

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VagueneSS and oVerbreadth The Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Con- stitution are the foundation of the void-for-vagueness and overbreadth doctrines.

A statute is void for vagueness whenever “men of common intelligence must necessarily guess at its meaning and differ as to its application.”11 As to the meaning of a statute, confusion among lower courts, resulting in varying interpretations, is evidence of vagueness.12 The Supreme Court has held that uncertain statutes do not provide notice of what conduct is forbidden and are violative of due process. The Court has also found statutes that permit arbitrary or discriminatory enforcement void. That is, if the police or courts are given unlimited authority to decide who will be prosecuted, the statute is invalid.

It is under the void-for-vagueness doctrine that many vagrancy laws have been attacked. If not for the doctrine, legislatures could draft statutes so that nearly everyone would be engaged in criminal activity at one time or another, and police and prosecutors would have the unfettered discretion to decide who to arrest and prosecute.

A closely related doctrine is overbreadth. A statute is overbroad if it includes within its grasp not only unprotected activity but also activity protected by the Constitution. For example, in one case a city ordinance made it illegal for “one or more persons to assemble” on a sidewalk and conduct themselves in an annoying manner. The United States Supreme Court found that the law was unconstitutional not only because it made unprotected activity illegal (fighting words or riotous activity) but also because it included activity that is protected by the First Amendment’s free assembly and association provisions.13 It is possible for a statute to be clear and precise (not vague) but overbroad.

analyzIng conStItutIonal claImS The United States Supreme Court has developed standards of judicial review for claims that constitutional rights are violated. The first standard is generally known as strict scrutiny. A court applies the strict scrutiny test in one of two circumstances: (1) when the government burdens a fundamental right; and (2) when the government groups people into suspect classes.

As the first of the two, nearly all the rights found in the Constitution are “fundamental,” and as such, laws that limit or set them aside are tested by the strict scrutiny test. Remember these standards as you read about the rights—e.g., speech, religion—discussed in this chapter. For the second condition to apply, the government must classify people by race, national origin, or religion.

Laws or actions that burden a fundament right or have a suspect classification are invalid unless the government can demonstrate compelling governmental interest.

vagueness doctrine

■ The rule that a

criminal law may be

unconstitutional if it does

not clearly say what is

required or prohibited,

what punishment may be

imposed, or what persons

may be affected. A law that

violates due process of

law in this way is void for vagueness.

overbreadth doctrine

■ A law will be declared

void for overbreadth if it attempts to punish speech

or conduct that is protected

by the Constitution and if it

is impossible to eliminate

the unconstitutional part of

the law without invalidating

the whole law.

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The government must also show that the law is narrowly tailored to achieve its objectives; that is, it is not overly broad.

Laws that don’t encroach upon individual rights and don’t classify along suspect lines are tested under an easier standard. They are valid if rationally related to a legiti- mate government objective. There is a third standard that applies to classifications based upon sex and when certain rights are at issue. This standard falls between strict scrutiny and rational relationship: Laws are valid if they are substantially related to a legitimate governmental objective. Most—but not all—laws tested under strict scrutiny fail and most laws—but not all—survive review under the rational relationship test.

ex poSt facto and bIllS of attaInder Article I of the U.S. Constitution prohibits the state and federal governments from enacting both ex post facto laws and bills of attainder.

An ex post facto law is one that (1) makes an act illegal after the act was taken, (2) increases the punishment or severity of a crime after it occurred, and (3) changes the procedural rules so as to increase the chances of conviction after the crime occurs. In short, a government may not make criminal law retroactive, if doing so is detrimental to the defendant. However, changes that benefit a defendant may be applied retroac- tively. So, if a legislature increases the prosecution’s burden of proof after a defendant has committed a crime, but before trial, the legislature may make the change applicable to the defendant. The clause advances the notice theory (due process) and prevents malicious legislative action from being taken against a particular person.

A bill of attainder is a legislative act punishing a person without a judicial trial. This provision reinforces the concept of separation of powers. It is the duty of the leg- islative branch to make the laws, and it is the duty of the judicial branch to determine who has violated those laws. Alexander Hamilton, in support of the prohibition of bills of attainder, wrote:

Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, dis- franchisement, and banishment by acts of the legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense.14

In a few instances, however, Congress may act in a judicial role. Congress may punish those who disrupt its functions for contempt. In addition, Congress is autho- rized by the Constitution to conduct impeachment hearings of the president, federal judges, and other federal officers and to discipline its own members.

ex post facto law

■ (Latin) After the fact.

An ex post facto law is one that retroactively attempts

to make an action a crime

that was not a crime at the

time it was done, or a law

that attempts to reduce a

person’s rights based on

a past act that was not

subject to the law when it

was done.

bill of attainder

■ A legislative act

pronouncing a person

guilty (usually of treason)

without a trial and

sentencing the person

to death and attainder.

This is now prohibited

by the U.S. Constitution.

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fIrSt amendment and relIgIon The First Amendment contains many protections, including freedom of the press; freedom to choose and practice a religion; freedom of speech; and freedom to peaceably assemble. Although the First Amendment is directly applicable only against the na- tional government, the Fourteenth Amendment extends its prohibitions to the states. The Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Concerning freedom of religion, the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Free Exercise Clause is of the most importance in criminal law. The free- dom to believe is, of course, absolute. Any law prohibiting a certain religious belief is void. However, the Supreme Court has held that some religious practices may be regulated.

To determine whether a specific religious act may be criminalized, the governmental interest in regulating the behavior is balanced against the First Amendment infringement. If the governmental interest is greater than the infringe- ment, then a state may regulate the conduct. For example, it has been held that the Mormon practice of polygamy may be regulated.15 Also, a parent who depends upon prayer to save a dying child may be charged with manslaughter for failing to seek competent medical care. In this instance the state’s interest in protecting the child’s life outweighs the parent’s interest in practicing his or her religion in such a manner.

On the other side, the California Supreme Court disallowed the conviction of a member of the Native American Church for possession of peyote, a drug made from cactus. The court found that peyote was an important part of worship in the Native American Church, and, as such, California’s interest in regulating the use of the drug was outweighed by the drug’s religious significance.16 Note that the United States Supreme Court took the opposite view concerning the use of peyote in Department of Human Resources v. Smith, 494 U.S. 872 (1990), wherein the Court stated that

[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

Note further that Congress reacted to this decision by exempting the use of peyote by Native Americans from the Controlled Substance Act. In the Hialeah case, the Supreme Court invalidated several ordinances that prohibited the adherents of Santeria from sacrificing animals as part of their religious rites.

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This case involves practices of the Santeria religion, which originated in the nineteenth century. When hundreds of thousands of members of the Yoruba people were brought as slaves from eastern Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism. The re- sulting syncretion, or fusion, is Santeria, “the way of the saints.” The Cuban Yoruba express their devo- tion to spirits, called orishas, through the iconogra- phy of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments. . . .

The Santeria faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of orishas. The basis of the Santeria religion is the nurture of a personal relation with the orishas, and one of the principal forms of devo- tion is an animal sacrifice. . . . The sacrifice of ani- mals as part of religious rituals has ancient roots. . . . Animal sacrifice is mentioned throughout the Old Testament . . . and it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem. . . . In modern Islam, there is an annual sacrifice commemorating Abra- ham’s sacrifice of a ram in the stead of his son. . . .

According to Santeria teaching, the orishas are powerful but not immortal. They depend for sur- vival on the sacrifice.

Santeria adherents faced widespread perse- cution in Cuba, so the religion and its rituals were practiced in secret. The open practice of Santeria and its rites remains infrequent. . . . The religion was brought to this Nation most often by exiles from the Cuban revolution. The District Court estimated that there are at least 50,000 practitioners in South Florida today.

Petitioner Church of Lukumi Babalu Aye, Inc. (Church), is a not-for-profit corporation organized

under Florida law in 1973. The Church and its congregants practice the Santeria religion. The president of the Church is petitioner Ernesto Pichardo, who is also the Church’s priest and holds the religious title of Italero, the second highest in the Santeria faith. In April 1987, the Church leased land in the city of Hialeah, Florida, and announced plans to establish a house of worship as well as a school, cultural center, and museum. Pichardo indicated that the Church’s goal was to bring the practice of the Santeria faith, including its ritual of animal sacrifice, into the open.

The Church began the process of obtaining utility service and receiving the necessary licensing, inspec- tion, and zoning approvals. Although the Church’s ef- forts at obtaining the necessary licenses and permits were far from smooth . . . it appears that it received all needed approvals by early August 1987.

The prospect of a Santeria church in their midst was distressing to many members of the Hialeah community, and the announcement of the plans to open a Santeria church in Hialeah prompted the city council to hold an emergency public session on June 9, 1987. [The city council enacted ordinance] 87–66, which noted the “concern” expressed by residents of the city “that certain religions may pro- pose to engage in practices which are inconsistent with public morals, peace or safety,” and declared that “[t]he City reiterates its commitment to a pro- hibition against any and all acts of any and all re- ligious groups which are inconsistent with public morals, peace or safety.” Next, the council approved an emergency ordinance, Ordinance 87–40, that incorporated in full, except as to penalty, Florida’s animal cruelty laws. . . . Among other things, the incorporated state law subjected to criminal pun- ishment “[w]hoever . . . unnecessarily or cruelly . . . kills any animal.”

CHURCH OF LUKUMI BABALU AYE, INC. V. HIALEAH 508 U.S. 520 (1993)

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CHURCH OF LUKUMI BABALU AYE, INC. V. HIALEAH (c o nt i nu e d)

[In September 1987, the city council adopted three additional ordinances prohibiting owning or possessing an animal for purpose of sacrifice and regulating the slaughtering of animals.] Violations of each of the four ordinances were punishable by fines not exceeding $500 or imprisonment not exceeding 60 days, or both.

Following enactment of these ordinances, the Church and Pichardo filed this action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Southern District of Florida. Named as de- fendants were the city of Hialeah and its mayor and members of its city council in their individual ca- pacities. [The defendants prevailed at the trial and appellate levels.] . . .

The city does not argue that Santeria is not a “religion” within the meaning of the First Amend- ment. Nor could it. Although the practice of animal sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection. . . . Given the historical as- sociation between animal sacrifice and religious worship . . . petitioners’ assertion that animal sac- rifice is an integral part of their religion “cannot be deemed bizarre or incredible.” . . . Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons. We must consider petitioners’ First Amendment claim.

In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a com- pelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. . . . Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely

indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance the interest. These ordinances fail to satisfy the [constitutional] requirements. . . .

There are, of course, many ways of demon- strating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutral- ity is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious prac- tice without a secular meaning discernable from the language or context. Petitioners contend that three of the ordinances fail this test of facial neu- trality because they use the words “sacrifice” and “ritual,” words with strong religious connotations. . . . We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words “sacrifice” and “ritual” have a religious origin, but current use admits also of secular meanings. . . .

We reject the contention advanced by the city . . . that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids subtle departures from neutrality.” . . . The Free Exercise Clause protects against governmen- tal hostility which is masked, as well as overt. “The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.” . . .

The record in this case compels the conclu- sion that suppression of the central element of the Santeria worship service was the object of the ordinances. First, though the use of the words “sacrifice” and “ritual” does not compel a finding

(continued)

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of improper targeting of the Santeria religion, the choice of these words is support for our conclusion. . . . [One of the ordinances] recited that “residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and “reiterate[d]” the city’s commitment to prohibit “any and all [such] acts of any and all religious groups.” No one sug- gests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria.

It becomes evident that these ordinances target Santeria sacrifice when the ordinances’ operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object. To be sure, adverse impact will not always lead to a finding of impermissible targeting. . . .

It is a necessary conclusion that almost the only conduct subject to [the ordinances] is the religious exercise of Santeria Church members. The texts show that they were drafted in tandem to achieve this purpose. . . . [One of the ordinances] prohibits the sacrifice of animals but defines sacrifice as “to unnecessarily kill . . . an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting Kosher slaughter. . . .

The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice, which is proscribed because it occurs during a ritual or ceremony and its primary purpose is to make an offering to the orishas, not food consumption. Indeed, careful drafting ensured that, although Santeria sacrifice is prohibited, kill- ings that are no more necessary or humane in al- most all other circumstances are unpunished.

Operating in similar fashion [is another ordi- nance] which prohibits the “possess[ion], sacrifice, or slaughter” of an animal with the inten[t] to use such animal for food purposes.” This prohibition, extending to the keeping of an animal as well as the killing itself, applies if the animal is killed in “any type of ritual.” . . . The ordinance exempts, however, “any licensed [food] establishment” with regard to “any animals which are specifically raised for food purposes,” if this activity is permitted by zoning and other laws. This exception, too, seems intended to cover Kosher slaughter. Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others. . . .

We also find significant evidence of the ordi- nances’ improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends. . . .

The legitimate governmental interests in pro- tecting the public health and preventing cruelty to animals could be addressed by restrictions stop- ping far short of a flat prohibition of all Santeria sacrificial practice. If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the dis- posal of organic garbage. It did not do so. Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santeria sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. . . . Thus, these broad ordinances prohibit Santeria sacrifice even when it does not threaten the city’s interest in the public health. . . .

Respondent claims that [the ordinances] ad- vance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive for those ends. They fail to pro- hibit nonreligious conduct that endangers these in- terests in a similar or greater degree than Santeria sacrifice does. The underinclusion is substantial, not

CHURCH OF LUKUMI BABALU AYE, INC. V. HIALEAH (c o nt i nu e d)

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inconsequential. Despite the city’s proffered inter- est in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice. Many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provi- sion. For example, fishing . . . is legal. Extermination of mice and rats within a home is also permitted. Florida law incorporated by [the ordinances] sanc- tions euthanasia of “stray, neglected, abandoned, or unwanted animals . . . and the use of live animals “to pursue or take wildlife or to participate in any hunting.” . . .

The ordinances are underinclusive as well with regard to the health risk posed by consumption of uninspected meat. Under the city’s ordinances, hunters may eat their kill and fisherman may eat their catch without undergoing governmental in- spection. . . .

A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the com- mands of the First Amendment, a law restrictive of religious practice must advance “interests of

the highest order” and must be narrowly tailored in pursuit of those interests . . . The compelling i nterest standard [applies].

. . . As we have discussed . . . all four ordi- nances are overbroad or underinclusive in substan- tial respects. . . .

Respondent has not demonstrated, moreover, that, in the context of these ordinances, its govern- mental interests are compelling. . . .

The Free Exercise Clause commits govern- ment itself to religious tolerance, and upon even slight suspicion that proposals for state interven- tion stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must en- sure that the sole reasons for imposing the bur- dens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles and they are void. Reversed.

CHURCH OF LUKUMI BABALU AYE, INC. V. HIALEAH (c o nt i nu e d)

Smith can be distinguished from Hialeah because Smith involved a law of general applicability. That is, use of the drugs, including peyote, was generally prohibited to everyone. Clearly, the laws were not enacted solely to regulate religious worship. How- ever, in the Hialeah case, the Court determined that the regulation was intended to target the Santeria’s religious practices. Congress and the White House responded to the Supreme Court’s decisions voiding religious practices that are prohibited by laws of general applicability. First, Native American use of peyote as a religious ritual was specifically exempted from The Controlled Substance Act. Second, the Religious Free- dom Restoration Act was enacted.17 Through this statute, courts are required to apply the strict scrutiny test when applying statutes of generally applicability to religious practices. So, a government must demonstrate both a compelling reason and that there is no less restrictive way to accomplish the governmental objective. The new standard was applied in the following 2006 case.

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STATE V. HODGES 695 S.W.2d 171 (Tenn. 1985)

In January, 1983, defendant was charged in a mul- tiple count indictment with tampering with utility metering devices. His lawyer appeared before the trial judge on February 22, 1983, asking for a trial date for the misdemeanors with which defendant was charged. The trial judge informed defendant’s counsel on that occasion that he would not “put up with [defendant’s] foolishness” and if “he comes in here dressed like a chicken, I am going to order him out of here under guard.”

On June 28, 1983, defendant appeared for trial, with the same counsel, and to say that he was dressed “like a chicken” as the trial judge had an- ticipated, is a mild description of the outrageous at- tire in which defendant barely covered himself. [In a footnote the court described his appearance. The “defendant appeared for trial dressed in a grossly shocking and bizarre attire, consisting of brown and white fur tied around his body at his ankles, loins and head, with a like vest made out of fur, and com- plete with eye goggles over his eyes. He had col- ored his face and chest with a very pale green paint for coloring. He had what appeared to be a human skull dangling from his waist and in his hand he car- ried a stuffed snake. . . .] (T)he so-called vest con- sisted of two pieces of fur that covered each arm but did not meet in front and back, leaving defen- dant’s chest and back naked to his waist. His legs were also naked from mid-way between his knee and waist to his ankles. He appeared to be carry- ing a military gas mask and other unidentifiable ornaments.”

The trial judge first addressed defendant’s at- torney and asked him to have his client appear in proper clothes. Defendant’s attorney responded by informing the court that defendant wished to exer- cise his right of “freedom of expression.” The trial judge then directed his remarks to defendant and ordered him to put on “regular clothes” for the trial scheduled that day. The trial judge sought a yes or no

answer, but defendant responded with the following assertion:

“This is a spiritual attire and it is my religious belief

and I have never worn anything else in court but this

when I am on trial.”

Whereupon, the trial judge found him to be in contempt of court, revoked his bond, and ordered him committed to jail for ten days or until he agreed to appear for trial in proper clothes.

Defendant’s counsel asked the court to allow him to “build a record for appeal” which was denied. Motions were filed the following day, June 29, 1983, on behalf of defendant for a new trial, for reconsideration of the finding of contempt, and for bail pending appeal. At the hearing held the same day, defense counsel again sought an evidentiary hearing on the issue of defendant’s religious belief which was again denied. . . . The court of Criminal Appeals reversed the contempt adjudication, hold- ing that the trial judge erred in failing to inquire into the “nature and sincerity of appellant’s beliefs, the denomination of his religion, its origin, organi- zation and the length of time which appellant has espoused it.”

We agree that the trial judge erred in failing to inquire into the religious belief of defendant and in failing to allow a full record to be developed for appeal. However, we think the intermediate court’s instructions on remand, quoted above, may be mis- leading and not entirely in conformity with United States Supreme Court opinions.

A Rhode Island litigant appeared in court wear- ing a white, knitted skull cap and the trial judge or- dered him to remove it or leave the courtroom and refused to consider the litigant’s claim that he was a Sunni Muslim, that he was wearing a prayer cap that was a religious symbol of that sect, that indi- cated that the wearer was in constant prayer. . . . On appeal, the Supreme Court of Rhode Island

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STATE V. HODGES (c o nt i nu e d)

accurately summarized the first amendment prin- ciple enunciated by the United States Supreme Court applicable where a religious belief or practice collides with a state law or regulation, as follows:

Despite the exalted status so rightly afforded to re-

ligious beliefs and activities that are motivated and

embody those beliefs, the freedom of an individual to

practice his religion does not enjoy absolute immunity

from infringement by the state. Individuals have been

subject to mandatory inoculations despite religious ob-

jections to such medical care. . . . Thus while the free-

dom to hold religious beliefs and opinions is absolute,

the freedom to act in harmony with these religious be-

liefs and opinions is not beyond state regulation where

such restriction serves the public interest by promoting

public health and safety or preserving order. We must

then accommodate the right to exercise the religious

freedoms safeguarded by the first amendment with

the right of the state to regulate those individual free-

doms for the sake of societal interests. The problem is

one of balance and degree—the courts are called upon

to determine when the societal interest becomes so

important as to justify an incursion by the state into

religious activity that is otherwise protected by the free

exercise clause of the first amendment. . . .

After discussion of the United States Supreme Court’s application of the balancing test to the facts . . . the Supreme Court of Rhode Island contin- ued as follows:

We believe that because petitioner claimed that his

act was protected by the free exercise clause, in order

to justifiably curtail the exercise of the alleged right

the trial justice should have first allowed petitioner to

display the sincerity of his religious belief, and then

should have . . . [balanced] petitioner’s first amend-

ment right with the interest of the court in maintain-

ing decorum in its proceedings by regulating dress in

the courtroom. . . .

Thus, the threshold inquiry is whether or not the religious belief or practice asserted qualifies

for the protection of the free exercise clause of the first amendment. The record in this case, though meager, clearly indicates that that issue may be decisive, particularly if it proves to be true that defendant is the sole adherent to his asserted religious belief and practice. . . .

Although a determination of what is a “reli- gious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes al- lowing every person to make his own standards of matters of conduct in which society as a whole has important interests. . . .

Paraphrasing an additional observation of the Court that involved Thoreau’s isolation at Walden Pond, the Court made it clear that a belief which is philosophical and personal rather than religious, does not rise to the demands of the free exercise clause of the first amendment. . . .

Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion. . . . The determination of what is a “religious” belief or practice is more often than not a difficult and delicate task. . . . However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.

One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the First Amendment. . . .

This case is clearly illustrative of what Mr. Justice Jackson had in mind when he said, “The price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.” . . .

The judgment of the Court of Criminal Appeals is affirmed and this case is remanded to the trial court for further proceedings consistent with this opinion.

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fIrSt amendment and Speech The First Amendment also protects speech. Refer to the text of the First Amendment, which provides that “Congress shall make no law . . . abridging the freedom of speech.” In spite of the plain language of this clause, several words mean something different than what is plain. First, the clause limits the authority of Congress, but in reality it limits all three branches of the federal government. Because the Amendment has been incorporated, state and local governments are prohibited from abridging free speech as well. Second, the term speech is used. Regardless, the Supreme Court has held that more than the spoken word is protected. All forms of expression, nonverbal, artistic, written, and visual, are protected by the Free Speech Clause. Third, as is true of all the amendments, there are exceptions – even though not recognized by the text of the Amendment. As you already learned, any law that burdens speech must be narrowly tailored and it must be supported by a compelling governmental interest. Underlying the First Amendment’s protection of speech is the philosophical belief that a free market of ideas will advance both democracy and a society’s development. The price of free market speech is the protection of provocative, annoying, offensive, and insult- ing speech.

You have already learned that fighting words and those words that create a clear and present danger or the likelihood of imminent lawlessness may be regulated be- cause the government has a compelling interest in preventing these dangers. Although the lawlessness and clear and present danger exceptions commonly refer to violence, there are examples of speech that may be prohibited because it creates a likelihood of imminent non-violent lawlessness. Encouraging jurors to not follow the law dur- ing deliberations is an example. The Julien Heicklin case illustrates the line between protected speech and jury tampering.

Kimba M. Wood, USDJ:

On November 18, 2010, a grand jury indicted Julian Heicklen, charging him with attempting to influence the actions or decisions of a juror of a United States Court, in violation of 18 U.S.C. § 1504, a federal jury tampering statute. The Indict- ment states that, from October 2009 through May 2010, in front of the entrance to the United States Court for the Southern District of New York (the

“Courthouse”), Heicklen distributed pamphlets that advocated jury nullification. . . .

Heicklen advocates passionately for the right of jurors to determine the law as well as the facts. The Government states that, in advocating these views, Heicklen has on several occasions stood outside the entrance to the Courthouse, holding a sign reading “Jury Info” and distributing pamphlets from the Fully Informed Jury Association (“FIJA”).

UNITED STATES V. JULIAN HEICKLIN (Order Dismissing Indictment, U.S. District Court, S.D. NY April 19, 2012)

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(Government’s Memorandum of Law in Opposition to Defendant’s Motions (“Govt.’s Mem.”) at 1.) The pamphlets state that a juror has not just the respon- sibility to determine the facts of a case before her on the basis of the evidence presented, but also the power to determine the law according to her conscience.

In opposition to Heicklen’s motion, the Govern- ment quotes an excerpt of a transcript of a recorded conversation that it alleges Heicklen had with an undercover agent from the Federal Bureau of In- vestigation (“FBI”), in which the agent specifically identified herself as a juror; the agent was not actu- ally a juror. The Government alleges that Heicklen handed that “juror” a FIJA pamphlet and a single- sided, typewritten handout. The handout states in relevant part that “[i]t is not the duty of the jury to uphold the law.

It is the jury’s duty to see that justice is done.” The FIJA pamphlet is entitled “A Primer for Prospec- tive Jurors” and contains 13 questions and answers for jurors regarding what FIJA characterizes as jurors’ rights and responsibilities. . . .

The Court understands the statute [under which the defendant was charged] to contain three elements:

1. that the defendant knowingly attempted to influence the action or decision of a juror of a United States court;

2. that the defendant knowingly attempted to influence that juror (a) upon an issue or matter pending before that juror, or pending before the jury of which that juror is a member; or (b) pertaining to that juror’s duties; and

3. that the defendant knowingly attempted to influence that juror by writing or sending to that juror a written communication in relation to such issue or matter. . . .

The statute thus prohibits a defendant from trying to influence a juror upon any case or point in dispute before that juror by means of a written communication in relation to that case or that point in dispute. It also prohibits a defendant from trying to influence a juror’s actions or decisions pertain- ing to that juror’s duties, but only if the defendant made that communication in relation to a case or point in dispute before that juror. The statute there- fore squarely criminalizes efforts to influence the outcome of a case, but exempts the broad catego- ries of journalistic, academic, political, and other writings that discuss the roles and responsibilities of jurors in general, as well as innocent notes from friends and spouses encouraging jurors to arrive on time or to rush home, to listen closely or to de- liberate carefully, but with no relation to the out- come of a particular case. Accordingly, the Court reads the plain text of the statute to require that a defendant must have sought to influence a juror through a written communication in relation either to a specific case before that juror or to a substan- tive point in dispute between two or more parties before that juror.

Although “political speech by its nature will sometimes have unpalatable consequences, . . . in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.” The First Amendment reflects “a pro- found national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” “Indeed, the Amend- ment exists so that this debate can occur—robust, forceful, and contested. It is the theory of the Free Speech Clause that ‘falsehood and fallacies’ are exposed through ‘discussion,’ ‘education,’ and ‘more speech.’” That is because “speech concern- ing public affairs is more than self-expression; it is the essence of self-government.” . . .

UNITED STATES V. JULIAN HEICKLIN (c o nt i nu e d)

(continued)

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Decisions applying the clear and present dan- ger test articulated in Bridges and Wood have con- sistently held that speech may be restricted only if that speech “is directed to inciting or producing” a threat to the administration of justice that is both “imminent” and likely to materialize. . . .

The relevant cases establish that the First Amendment squarely protects speech concerning judicial proceedings and public debate regarding the functioning of the judicial system, so long as that speech does not interfere with the fair and im- partial administration of justice. In Wood, the Su- preme Court held that even speech to a grand juror may be protected by the First Amendment if it does not present a clear and present danger to the func- tioning of the courts (370 U.S. at 395). At the same time, the First Amendment does not create a right to influence juries outside of official proceedings because “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences.” . . .

Based upon the plain meaning of the text of 18 U.S.C. § 1504, reinforced by relevant judicial interpretations and the doctrine of constitutional avoidance, the Court holds that a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror or per- taining to that juror’s duties by means of written communication made in relation to a specific case pending before that juror or in relation to a point in dispute between the parties before that juror. . . .

Heicklen’s alleged actions do not violate 18 U.S.C. § 1504. The Indictment alleges that Heick- len “distributed pamphlets urging jury nullifica- tion, immediately in front of an entrance to the United States District Court of the Southern District of New York.”

Both pamphlets discuss the role of juries in society and urge jurors to follow their conscience

regardless of instructions on the law. Heicklen’s pamphlets self-evidently pertain to a “juror’s duties,” satisfying the requirements for liability under the second element of 18 U.S.C. § 1504. To satisfy the requirements for liability under the third element of 18 U.S.C. § 1504, however, the pamphlets must have been written or distributed in relation to an “issue or matter” pending before that juror. The two pamphlets do not relate to an “issue” pending before a juror, because a juror’s duties are not a point in dispute between the par- ties to a suit.

Understanding “matter” to mean “case,” the pamphlets could trigger liability under the statute’s third element if they were distributed in relation to a particular case pending before a juror. But unlike in [a prior case], there is no allegation that Heick- len distributed the pamphlets in relation to a spe- cific case. Indeed, the Government concedes that it “does not allege that the defendant targeted a par- ticular jury or a particular issue.”

The Court’s holding merely maintains the exist- ing balance that federal courts have found between freedom of speech and the administration of justice. Attempts to tamper with a jury in order to influence the outcome of a trial or a grand jury proceeding are still clearly prohibited under 18 U.S.C. § 1503 and 18 U.S.C. § 1504. Efforts to distribute leaflets to jurors in the immediate vicinity of courthouses may still be sanctioned through reasonable time, place, and manner restrictions such as those pro- mulgated pursuant to 40 U.S.C. § 1315 and 41 C.F.R. § 102-74.415(c). The Court declines to stretch the in- terpretation of the existing statute prohibiting com- munications with a juror in order to cover speech that is not meant to influence the actions of a juror with regard to a point in dispute before that juror or the outcome of a specific case before that juror. For the foregoing reasons, the Defendant’s motion to dismiss the Indictment is GRANTED.

UNITED STATES V. JULIAN HEICKLIN (c o nt i nu e d)

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Slanderous and libelous statements also fall outside the protection of the First Amendment. Fighting words, obscenity, some threats, and slanderous and libelous words are all content-based doctrines; that is, the substance of what is being said is regulated. There is a huge body of First Amendment free speech law. The application of the First Amendment to regulations of obscenity and the Internet are discussed in Chapter 6. You may want to refresh yourself with the content of that chapter before continuing. See Exhibit 9–1 for an illustration of the limits of free expression.

In some instances, a state may regulate speech, not because of its content, but by its time, place, and manner of being expressed. Here, a balancing of interests is conducted: does the government’s interest in enforcing the statute outweigh the First Amendment interest? For example, it is unlawful to stand in the middle of the street to make a speech. The interest in maintaining a safe, consistent flow of traffic outweighs the First Amendment interest. However, the result would be different if a state attempted to prohibit all speeches made in a public place. Such a statute would be overbroad, as it includes not only activity that the state may regulate (standing in traffic), but also lawful activity. Commercial speech is also protected by the First Amendment, but is subject to greater control than other speech, particularly political speech.

Not only is the actual spoken word protected: Expression of ideas through acts is also protected, although to a lesser degree than pure speech. Picketing is an example of protected expression, as is flag burning.

After publicly burning the American flag as a means of political protest, Gregory Lee Johnson was con- victed of desecrating a flag in violation of Texas law. This case presents the question whether his con- viction is consistent with the First Amendment. We hold that it is not.

While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration dubbed the “Republican War Chest Tour.” As explained in literature distributed by the demonstrators and in speeches made by them, the purpose of this event was to protest the policies of the Reagan adminis- tration and of certain Dallas-based corporations. The demonstrators marched through the Dallas streets, chanting political slogans and stopping at

several corporate locations to stage “die-ins” in- tended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protester who had taken it from a flag pole outside one of the targeted buildings.

The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protesters chanted, “America, the red, white, and blue, we spit on you.” After the demonstrators dispersed, a witness to the flag- burning collected the flag’s remains and buried them in his backyard. No one was physically injured

TEXAS V. GREGORY LEE JOHNSON 491 U.S. 397 (1989)

(continued)

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or threatened with injury, though several witnesses testified that they had been seriously offended by the flag-burning. . . .

Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting words. That fact somewhat complicates our consid- eration of his conviction under the First Amendment. We must first determine whether Johnson’s burning of the flag constituted expressive conduct, permit- ting him to invoke the First Amendment. . . . If his conduct was expressive, we next decide whether the State’s regulation is related to the suppression of free expression. If the State’s regulation is not related to expression, then the less stringent standard . . . for reg- ulations of noncommunicative conduct controls. . . . If it is, then we are outside of the O’Brien test, and we must ask whether this interest justifies Johnson’s conviction under a more demanding standard. . . .

The First Amendment literally forbids the abridgment only of “speech,” but we have long rec- ognized that its protection does not end at the spo- ken or written word. While we have rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person en- gaging in the conduct intends thereby to express an idea,” . . . we have acknowledged that conduct may be “sufficiently imbued with elements of com- munication to fall within the scope of the First and Fourteenth Amendments.” . . .

In deciding whether particular conduct pos- sesses sufficient communicative elements to bring the First Amendment into play, we have asked whether “[a]n intent to convey a particularized mes- sage was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” . . . Hence, we have recog- nized the expressive nature of students’ wearing of black armbands to protest American military in- volvement in Vietnam . . . of a sit-in by blacks in a “whites only” area to protest segregation. . . .

The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. At his trial, Johnson explained his reasons for burning the flag as follows:

“The American Flag was burned as Ronald Reagan

was being nominated as President. And a more power-

ful statement of symbolic speech, whether you agree

with it or not, couldn’t have been made at that time.

It’s quite a just position [juxtaposition]. We had new

patriotism and no patriotism.” In these circumstances,

Johnson’s burning of the flag was conduct “suffi-

ciently imbued with elements of communication.” . . .

In order to decide whether the O’Brien test ap- plies here, therefore, we must decide whether Texas has asserted an interest in support of Johnson’s conviction that is unrelated to the suppression of expression. If we find that an interest asserted by the State is simply not implicated on the facts before us, we need not ask whether O’Brien applies. . . . The State offers two separate interests to justify his conviction: preventing breaches of the peace, and preserving the flag as a symbol of nationhood and national unity. We hold that the first interest is not implicated on this record and that the second is related to the suppression of expression. . . .

The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohib- ited on this basis. Our precedents do not counte- nance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dis- pute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dis- satisfaction with conditions as they are, or even stirs people to anger.” . . .

The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity. . . .

TEXAS V. GREGORY LEE JOHNSON (c o nt i nu e d)

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Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values. . . .

Moreover, Johnson was prosecuted because he knew that his politically charged expression would cause “serious offense.” If he had burned the flag as a means of disposing of it because it was dirty or torn, he would not have been convicted of flag desecration under the Texas law; federal law desig- nates burning as the preferred means of disposing of a flag “when it is in such condition that it is no longer a fitting emblem for display.” . . .

If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . .

We are tempted to say, in fact, that the flag’s de- servedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of free- dom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. . . .

The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. . . . And, precisely because it is our flag that is involved, one’s response to the flag-burner may exploit the uniquely persuasive power of the flag it- self. We can imagine no more appropriate response to burning a flag than waving one’s own, no bet- ter way to counter a flag-burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its re- mains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so

we dilute the freedom that this cherished emblem represents. . . . Justice Kennedy, concurring.

I write not to qualify the words Justice Brennan chooses so well, for he says with power all that is necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that his case, like others before us from time to time, ex- acts its personal toll. This prompts me to add to our pages these few remarks.

The case before us illustrates better than most that the judicial power is often difficult in its exer- cise. We cannot here ask another branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are pre- sented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.

The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermin- ing a valued principle that dictates decision. This is one of those rare cases.

Our colleagues in dissent advance powerful ar- guments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag into battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.

With respect to those views, I do not believe the Constitution gives us the right to rule as the dis- senting members of the Court urge, however pain- ful this judgment is to announce. . . . It is poignant but fundamental that the flag protects those who hold it in contempt.

TEXAS V. GREGORY LEE JOHNSON (c o nt i nu e d)

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First Amendment free exercise of speech claims also arise in the context of hate crime legislation. Such legislation either makes it illegal to express prejudicial opin- ions or enhances the penalty for a crime that is motivated by prejudice. The former is unconstitutional. As to the latter, most states enhance the penalties for crimes such as trespass, assault, battery, and harassment if the motive of the crime was the victim’s race, religion, color, or other characteristic.

Two Supreme Court opinions, only one year apart, set the limits of hate crime laws. Both are excerpted here. In the first, the Court held an ordinance unconstitu- tional. In the second, the Court upheld the law.

Exhibit 9–1 THE LIMITS OF FIRST AMENDMENT FREE SPEECH

Threats/fighting words

Child pornography/ indecent exposure

Advocacy of violence/ disturbing the peace

Time, manner, and place restrictions on public speech

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358

CHAPTER 11 Chapter Outline Introduction Incorporation Expansion of Rights Exclusionary Rule Fruit of the Poisonous Tree

Exceptions Standing State Constitutions and the

“New Federalism” Ethical Considerations: Should Judges

Follow Public Opinion?

Chapter Objectives

After completing this chapter, you should be able to:

• identify and describe the major provisions in the Constitution of the United States and its amendments that apply in the criminal context.

• explain why the U.S. Constitution’s prominence in criminal justice has increased in recent decades.

• define, identify the landmark cases, and explain the underlying theory and rationale of the exclusionary rule, fruit of the poisonous tree, and related doctrines.

• describe the authority of the states to increase individual liberties through their constitutions and describe the relationship of federal and state constitutional and statutory law in this context.

• identify the material facts and legal issues in two-thirds of the cases you read, describe the courts’ analyses and conclusions in the cases, and demonstrate the ability to synthesize and think critically about the law of the subject.

ConsTiTuTionAl AsPECTs of CRiminAl PRoCEduRE

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IntroductIon Criminal justice is a policy subject that belongs largely to the states. Nearly 95 percent of all criminal prosecutions occur in state courts. Not only do the states conduct most criminal prosecutions, but each state is free, with few limitations, to design its criminal justice system in any manner it chooses. This was especially true in the early years of the United States. For the most part, the national government did not involve itself in state criminal law for 150 years.

This situation began to change in the 1950s, with significant changes occuring in the 1960s. Today the United States plays a major role in defining the rights of criminal defendants in state prosecutions, as well as federal. The source of federal in- volvement is the U.S. Constitution, and two developments account for its increased role in state criminal law. First, the reach of the Constitution has been extended to the states through what is known as incorporation. Second, the rights found in the Bill of Rights have significantly expanded.

IncorporatIon Prior to the adoption of the Fourteenth Amendment, the Bill of Rights guarantees were interpreted by the Supreme Court as restricting the authority of the federal government only. The history of the amendments on the subject was so clear that Chief Justice Marshall opined that the question was one of great importance but could be decided without difficulty in the 1833 decision Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). Accordingly, fundamental rights in the U.S. Constitution, such as the right to counsel and the right to be free from unreasonable searches and seizures, were guaranteed to a defendant only when prosecuted in federal court. If a state did not have a constitutional or statutory provision granting the right, the defendant was not entitled to its protection when prosecuted in state court.

In 1868 the Fourteenth Amendment to the U.S. Constitution was adopted. One objective of the Fourteenth Amendment is to protect certain civil liberties from state action. Section One of that amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due pro- cess of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The language of the Fourteenth Amendment is similar to that found in the Fifth Amendment, insofar as they both contain a Due Process Clause. It is through the Due Process Clause and the Equal Protection Clause that the powers of the states are limited. However, what is meant by due process has been the subject of great debate among jurists and Supreme Court justices.

Note that the language of the Fourteenth Amendment does not include any of the specific guarantees found in the Bill of Rights, except that it requires the states to afford

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due process whenever depriving a person of life, liberty, or property. Thus, one of the most important issues raised in the context of the Fourteenth Amendment is whether it includes the rights found in the Bill of Rights, such as the rights to counsel, to freedom of the press, to freedom of speech, to be free from self-incrimination, to be free of unreason- able searches and seizures, and to be free from cruel and unusual punishments. That is, does the requirement that states treat citizens with fairness (due process) mean that states must provide juries in criminal trials, be reasonable when searching persons and homes, etc.? Today, the idea that the Fourteenth Amendment is a vehicle for the application of the Bill of Rights against the states is known as incorporation. Eleven years after the adoption of the Fourteenth Amendment the Supreme Court answered the incorporation question in the negative.1 But the Court slowly changed its position. The first right to be incorporated was the Fifth Amendment’s Takings Clause, in 1897.2 The first application of incorporation in a criminal case occurred in 1925.3 In the years that followed, several theories concerning which rights applied to the states developed.

At one extreme is the independent content approach. Under this theory, the Fourteenth Amendment’s Due Process Clause does not include any right found in the Bill of Rights; that is, due process does not overlap with the Bill of Rights. Rather, due process has an independent content, and none of the rights secured in the Bill of Rights apply against the states. The Supreme Court has never adopted this position.

At the other extreme is total incorporation. Proponents of total incorporation, who included Supreme Court Associate Justice Black, argue that the entire Bill of Rights is incorporated by the Fourteenth Amendment and that all the rights contained therein may be asserted by defendants in both state and federal courts. The incorporation occurs automatically, as the proponents of this position believe that the drafters of the Fourteenth Amendment intended to incorporate the entire Bill of Rights. Under this approach, however, the Due Process Clause was limited to recognizing rights contained in the Bill of Rights. Another group of jurists have been labeled total incorporation plus, because they contend that the Due Process Clause not only incorporates the Bill of Rights but also secures additional independent rights. Neither of these positions has been adopted by the Supreme Court.

Another position, which was held by the Supreme Court until the 1960s, is known as fundamental fairness. Those rights that are “fundamental” and “essential to an ordered liberty” are incorporated through this approach. The fundamental fairness doctrine held that no relationship existed between the Bill of Rights and those deemed fundamental, although the rights recognized under the fundamental fairness doctrine may parallel rights recognized by the Bill of Rights.

The Supreme Court rejected the fundamental fairness doctrine in the 1960s and replaced it with the selective incorporation doctrine. Similar to the fundamental fair- ness doctrine, a right is incorporated under this doctrine if it is both fundamental and essential to the concept of ordered liberty. Like the fundamental fairness approach, independent rights are also recognized under selective incorporation analysis.

However, the two approaches differ in two major respects. First, under the funda- mental fairness approach, cases were analyzed case by case. That is, it was possible to have essentially the same facts with different outcomes under the fundamental fairness

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doctrine. Critics charged that the approach was too subjective. Under the selective incorporation method, blanket rules are established to act as precedent for all similar cases in the future. In addition, the entire body of precedent interpreting a federal amendment becomes applicable to the states as a result of an amendment’s incorpora- tion. Exhibit 11–1 shows the incorporation process.

Second, selective incorporation gives special attention to the rights contained in the Bill of Rights. A right secured by the Bill of Rights is more likely to be protected by the Fourteenth Amendment’s Due Process Clause than are other rights. Selective incorporation continues to be the approach of the Supreme Court today.

Nearly the entire Bill of Rights has been incorporated under the selective incor- poration doctrine. The right to grand jury indictment has not been incorporated,4 nor has the right to a jury trial in civil cases, nor the Eighth Amendment’s right to be free from excessive bail or fines. The right to bear arms was incorporated in 2010, the most

Exhibit 11–1 INCORPORATION PROCESS

Incorporation Process

Was there State Action?

Did the action implicate a right protected by the U.S. Constitution?

Yes

Is that right fundamental?

Yes

Is the right necessary to an ordered liberty?

Yes

The right is incorporated and applies to the States

Yes

Right not incorporated

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Exhibit 11–2 THE BILL OF RIGHTS AND INCORPORATION

right Status

First Amendment speech Incorporated in Gitlow v. New York, 268 U.S. 652 (1925)

First Amendment—religion Incorporated in Everson v. Board of Education, 330 U.S. 1 (1947) and Cantwell v. Connecticut, 310 U.S. 296 (1940)

First Amendment press Incorporated in Near v. Minnesota, 283 U.S. 697 (1931)

First Amendment assembly Incorporated in DeJonge v. Oregon, 299 U.S. 353 (1937)

First Amendment grievances Incorporated in Edwards v. South Carolina, 372 U.S. 229 (1963)

Second Amendment—arms Incorporated in McDonald v. Chicago, 561 U.S.3025 (2010)

Third Amendment Not incorporated (lower courts have held that it is incorporated)

Fourth Amendment Incorporated. Different requirements incorporated through several cases, including Mapp v. Ohio, 367 U.S. 643 (1961)

Fifth Amendment—grand jury Not incorporated

Fifth Amendment—self incrimination Incorporated in Malloy v. Hogan, 378 U.S. 1 (1964)

Fifth Amendment—double jeopardy Incorporated in Benton v. Maryland, 395 U.S. 784 (1969)

Fifth Amendment takings Incorporated in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)

Fifth Amendment—due process Fourteenth Amendment contains due process clause

Sixth Amendment—counsel Incorporated in Gideon v. Wainwright, 372 U.S. 335 (1963)

Sixth Amendment—public trial Incorporated in In re Oliver, 333 U.S. 257 (1948)

Sixth Amendment—jury trial Incorporated in several cases upholding right to impartial jury, number of jurors, etc.

Sixth Amendment—speedy trial Incorporated in Klopfer v. North Carolina, 386 U.S. 213 (1967)

Sixth Amendment—confront accusers Incorporated in Pointer v. Texas, 380 U.S. 400 (1965)

Sixth Amendment—compulsory process

Incorporated

Sixth Amendment—notice of charge Incorporated

Seventh Amendment Not incorporated

Eighth Amendment—cruel punishments

Incorporated in Robinson v. California, 370 U.S. 660 (1962)

Eighth Amendment—excessive bail/fines

Not incorporated (dicta in Supreme Court opinions indicate that it will be if the Court hears the issue)

Ninth Amendment Has never been used by Supreme Court to establish a right, although it has been cited as support for incorporated rights

Tenth Amendment Not applicable

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recent right to be recognized as fundamental. Exhibit 11–2 contains a chart of rights that have been incorporated.5 Once incorporated, a right applies against the states to the extent and in the same manner as it does against the United States. Also, several independent due process rights have been declared. You will learn many of these in the following chapters.

ExpanSIon of rIghtS Another major development in the area of constitutional criminal procedure has been the expansion of many rights. The language of the Constitution is concise. It refers to “unreasonable searches and seizures,” “due process,” “equal protection,” “speedy and public trial,” and so on. No further definition or explanation of the meaning of these provisions is provided. The process of determining the meaning of such phrases is known as constitutional interpretation. It is possible to make each right ineffective by reading it narrowly. The opposite is also true.

During the 1960s, many rights found in the Bill of Rights were expanded by court decisions. Expansion refers to extending a right beyond its narrowest reading. The effect of expansive interpretation is to increase defendants’ rights. An example of an expansive interpretation is the Miranda v. Arizona decision, 384 U.S. 436 (1966). Although the lan- guage of the Fifth Amendment does not explicitly state that a defendant must be advised of the right to remain silent, to have the assistance of counsel, and so forth, the Court now requires that such admonishments be given because of an expanded interpretation of the Fifth Amendment.

Another example of expanded individual rights is the right to privacy. No explicit constitutional language provides for a right to privacy. However, the Supreme Court has found a right to privacy to be implicit in the Constitution. The Court has held that the right to privacy protects a woman’s right to abortion, in some circumstances,6 and a couple’s right to use contraceptives,7 among many other rights. Many more expansions will be discussed later.

ExcluSIonary rulE Another important constitutional development was the creation of the exclusionary rule. The rule is simple: Evidence that is obtained by an unconstitutional search or seizure is inadmissible at trial.

The rule was first announced by the Supreme Court in 1914.8 However, at that time the rule had not been incorporated, and therefore the exclusionary rule did not apply to state court proceedings. This changed in 1961 when the Supreme Court de- clared that evidence obtained in violation of the Constitution could not be used in state or federal criminal proceedings. The case was Mapp v. Ohio.

exclusionary rule

■ “The exclusionary rule” often means the rule that

illegally gathered evidence

may not be used in a

criminal trial. The rule has

several exceptions, such as

when the evidence is used

to impeach a defendant’s

testimony and when the

evidence was gathered in

a good-faith belief that the

process was legal.

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Appellant stands convicted of knowingly having had in her possession and under her control cer- tain lewd and lascivious books, pictures, and pho- tographs in violation [of Ohio law]. . . .

On May 23, 1957, three Cleveland police officers arrived at appellant’s residence in that city pursuant to information that “a person [was] hiding out in the home, who was wanted for questioning in con- nection with a recent bombing.” . . .

Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.

The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened and the policemen gained admittance. Meanwhile Miss Mapp’s attorney arrived, but the officers, having se- cured their own entry, and continuing in their defi- ance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the “warrant” and placed it in her bosom. A struggle ensued in which the offi- cers recovered the piece of paper and as a result of which they handcuffed appellant because she had been “belligerent” in resisting their official rescue of the “warrant” from her person. Running rough- shod over appellant, a policeman “grabbed” her,

“twisted [her] hand,” and she “yelled [and] pleaded with him” because “it was hurting.” Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through per- sonal papers belonging to the appellant. The search spread. . . . The obscene materials for possession of which she was ultimately convicted were discov- ered in the course of that widespread search.

At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, “There is, in the record, considerable doubt as to whether there ever was any warrant for the search.”

We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.

Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanc- tion of exclusion as it used against the Federal Government. . . .

Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Four- teenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and com- mon sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State’s attorney across the street may, although he supposedly is operating under the enforceable pro- hibitions of the same Amendment. Thus the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold.

MAPP V. OHIO 367 U.S. 643 (1961)

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The exclusionary rule has been the subject of intense debate. There is no explicit textual language establishing the rule in the Constitution. For that reason, critics con- tend that the Supreme Court exceeded its authority by creating it; that it is the respon- sibility of the legislative branch to make such laws.

On the other side is the argument that without the exclusionary rule, the Bill of Rights is ineffective. Why have constitutional standards if there is no method to en- force them? For example, why require that the officers in the Mapp case have a search warrant, yet permit them to conduct a warrantless search and use the evidence obtained against the defendant? These questions go to the purpose of the exclusionary rule: it discourages law enforcement personnel from engaging in unconstitutional conduct.

The Court has been criticized for creating such a rigid, single-remedy approach to police misconduct. In fact, most nations, including those in the Western world who share a legal heritage with the United States, do not employ the rule. Instead, they attempt to deter police misconduct in ways that have lesser social expense (e.g., releas- ing a dangerous individual back into the public as can occur following the suppression of key evidence in the United States). Administrative discipline, civil liability, and per- sonal criminal liability for offending officers are examples of alternatives. Indeed, the Court has begun to soften the exclusionary rule, as evinced in the Hudson case.

Justice Scalia delivered the opinion of the Court, except as to Part IV.

We decide whether violation of the “knock-and- announce” rule requires the suppression of all evi- dence found in the search.

Police obtained a warrant authorizing a search for drugs and firearms at the home of petitioner Booker Hudson. They discovered both. Large quan- tities of drugs were found, including cocaine rocks in Hudson’s pocket. A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting. Hudson was charged under Michigan law with unlawful drug and firearm possession.

This case is before us only because of the method of entry into the house. When the police ar- rived to execute the warrant, they announced their

presence, but waited only a short time—perhaps “three to five seconds,” before turning the knob of the unlocked front door and entering Hudson’s home. Hudson moved to suppress all the inculpa- tory evidence, arguing that the premature entry vio- lated his Fourth Amendment rights. . . .

The common-law principle that law enforce- ment officers must announce their presence and provide residents an opportunity to open the door is an ancient one. . . . [In a prior case] we were asked whether the rule was also a command of the Fourth Amendment. Tracing its origins in our English legal heritage . . . we concluded that it was.

We recognized that the new constitutional rule we had announced is not easily applied. Wilson and cases following it have noted the many situations in

HUDSON V. MICHIGAN 547 U.S. 1096 (2006)

(continued)

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which it is not necessary to knock and announce. It is not necessary when “circumstances presen[t] a threat of physical violence,” or if there is “reason to believe that evidence would likely be destroyed if advance notice were given,” id., at 936, or if knock- ing and announcing would be “futile,” Richards v. Wisconsin, 520 U.S. 385, 394 (1997). We require only that police “have a reasonable suspicion . . . under the particular circumstances” that one of these grounds for failing to knock and announce ex- ists, and we have acknowledged that “[t]his show- ing is not high.”

When the knock-and-announce rule does ap- ply, it is not easy to determine precisely what of- ficers must do. How many seconds’ wait are too few? Our “reasonable wait time” standard, see United States v. Banks, 540 U.S. 31, 41 (2003), is necessarily vague. Banks (a drug case, like this one) held that the proper measure was not how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs—but that such a time (15 to 20 seconds in that case) would necessarily be extended when, for instance, the suspected contraband was not easily concealed. . . . Happily, these issues do not confront us here. From the trial level onward, Michigan has conceded that the entry was a knock-and- announce violation. The issue here is remedy. . . .

Suppression of evidence, however, has always been our last resort, not our first impulse. The ex- clusionary rule generates “substantial social costs,” United States v. Leon, 468 U.S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautio[us] against expanding” it. . . .

We did not always speak so guardedly. Expan- sive dicta in Mapp, for example, suggested wide scope for the exclusionary rule. (“[A]ll evidence ob- tained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible

in a state court”) was to the same effect. But we have long since rejected that approach. . . .

In other words, exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. . . .

Quite apart from the requirement of unattenu- ated causation, the exclusionary rule has never been applied except “where its deterrence benefits outweigh its ‘substantial social costs,’” . . . The costs here are considerable. In addition to the grave ad- verse consequence that exclusion of relevant in- criminating evidence always entails (viz., the risk of releasing dangerous criminals into society), impos- ing that massive remedy for a knock-and-announce violation would generate a constant flood of al- leged failures to observe the rule. . . . The cost of entering this lottery would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card. Courts would experience as never before the reality that “[t]he exclusionary rule frequently requires ex- tensive litigation to determine whether particular evidence must be excluded.” Unlike the warrant or Miranda requirements, compliance with which is readily determined (either there was or was not a warrant; either the Miranda warning was given, or it was not), what constituted a “reasonable wait time” in a particular case . . . is difficult for the trial court to determine and even more difficult for an appellate court to review.

Another consequence of the incongruent rem- edy Hudson proposes would be police officers’ refraining from timely entry after knocking and an- nouncing. As we have observed, see supra, at 3, the amount of time they must wait is necessarily uncertain. If the consequences of running afoul of the rule were so massive, officers would be inclined to wait longer than the law requires—producing

HUDSON V. MICHIGAN (c o nt i nu e d)

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preventable violence against officers in some cases, and the destruction of evidence in many others. . . .

Next to these “substantial social costs” we must consider the deterrence benefits, existence of which is a necessary condition for exclusion. It is not, of course, a sufficient condition: “[I]t does not follow that the Fourth Amendment requires adop- tion of every proposal that might deter police mis- conduct.” . . . To begin with, the value of deterrence depends upon the strength of the incentive to com- mit the forbidden act. Viewed from this perspec- tive, deterrence of knock-and-announce violations is not worth a lot. Violation of the warrant require- ment sometimes produces incriminating evidence that could not otherwise be obtained. But ignoring knock-and-announce can realistically be expected to achieve absolutely nothing except the preven- tion of destruction of evidence and the avoidance of life-threatening resistance by occupants of the premises—dangers which, if there is even “rea- sonable suspicion” of their existence, suspend the knock-and-announce requirement anyway. Massive deterrence is hardly required.

It seems to us not even true, as Hudson con- tends, that without suppression there will be no deterrence of knock-and-announce violations at all. Of course even if this assertion were accurate, it would not necessarily justify suppression. Assum- ing (as the assertion must) that civil suit is not an effective deterrent, one can think of many forms of police misconduct that are similarly “undeterred.” When, for example, a confessed suspect in the kill- ing of a police officer, arrested (along with incrimi- nating evidence) in a lawful warranted search, is subjected to physical abuse at the station house, would it seriously be suggested that the evidence must be excluded, since that is the only “effective deterrent”? And what, other than civil suit, is the

“effective deterrent” of police violation of an al- ready-confessed suspect’s Sixth Amendment rights by denying him prompt access to counsel? Many would regard these violated rights as more signifi- cant than the right not to be intruded upon in one’s nightclothes—and yet nothing but “ineffective” civil suit is available as a deterrent. And the police incentive for those violations is arguably greater than the incentive for disregarding the knock-and- announce rule.

We cannot assume that exclusion in this context is necessary deterrence simply because we found that it was necessary deterrence in different con- texts and long ago. That would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago. . . .

Dollree Mapp could not turn to 42 U.S.C. § 1983 for meaningful relief; Monroe v. Pape, which be- gan the slow but steady expansion of that remedy, was decided the same Term as Mapp. It would be another 17 years before the § 1983 remedy was ex- tended to reach the deep pocket of municipalities. Citizens whose Fourth Amendment rights were vio- lated by federal officers could not bring suit until 10 years after Mapp, with this Court’s decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

Hudson complains that “it would be very hard to find a lawyer to take a case such as this,” but 42 U.S.C. § 1988(b) answers this objection. Since some civil-rights violations would yield damages too small to justify the expense of litigation, Congress has authorized attorney’s fees for civil-rights plain- tiffs. This remedy was unavailable in the heydays of our exclusionary-rule jurisprudence, because it is tied to the availability of a cause of action. . . .

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new

HUDSON V. MICHIGAN (c o nt i nu e d)

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When it applies, the exclusionary rule prevents the admission into evidence of any item, confession, or other thing that was obtained by law enforcement officers in an unconstitutional manner.

The evidence must be obtained by the police in an unlawful manner. However, if a private citizen working on his or her own obtains evidence illegally and then turns it over to the police, it may be admitted.9 People hired or authorized to assist the police are considered agents of the government, and therefore the exclusionary rule applies to their actions.

The exclusionary rule does not apply to pretrial matters. A defendant may not challenge a grand jury indictment because the grand jury considered illegally ob- tained evidence. The defendant’s remedy is at trial. In most cases, but not all, evidence obtained illegally may be used at sentencing.

Another important exception to the exclusionary rule allows the government to use illegally seized evidence to rebut statements made by a defendant.10 The govern- ment may not use the evidence if the defendant does not “open the door.” That is, the government may use the evidence if the defense refers to it in its case.

Most exclusionary rule issues are resolved prior to trial by way of a motion to suppress, or exclude, evidence. In some instances the motion may be made at the moment the prosecutor attempts to introduce such evidence at trial. This is known as a contemporaneous objection.

emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlaw- ful police behavior would “be dealt with appropri- ately” by the authorities . . . we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the edu- cation, training, and supervision of police officers.”

In sum, the social costs of applying the exclu- sionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial—incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.

HUDSON V. MICHIGAN (c o nt i nu e d)

thE ExcluSIonary rulE In practIcE

Few topics in criminal procedure are as controversial and divisive as the ex- clusionary rule. Clearly the public perception of the rule is that it is a device that frees the guilty, allowing murderers, rapists, and other miscreants to continue their carnage because of technicalities. Whether constraining the government to constitutional procedures should be characterized as “techni- cal” is for each individual to decide.

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fruIt of thE poISonouS trEE The exclusionary rule applies to primary evidence, that is, evidence that is the direct result of an illegal search or seizure. It is possible that such primary evidence may lead the police to other evidence. For example, suppose a special agent of the Federal Bureau of Investigation searches a home in violation of the Fourth Amendment. The agent discovers on the homeowner’s computer a plan to rob a federally insured bank. The plan includes a list of supplies that are needed and where they are hid- den. Two of the items, a gun and a mask, are buried under a tree in a public park. The agent leaves the home, drives to the park, and digs up the items. Because the items were in a public space, the agent didn’t need to obtain a warrant to search for them. But because they were found as a consequence of the illegal search, both the primary evidence (the plan) and the secondary or derivative evidence (the gun and mask) are inadmissible at trial. Such secondary evidence is known as fruit of the poisonous tree. Generally, evidence that is “tainted” by the prior illegal conduct is inadmissible. The rule does not make all evidence later obtained by law enforcement inadmissible. In some instances, evidence may be admissible because the connec- tion between the illegally seized evidence and the subsequently obtained evidence is marginal, or as the Supreme Court has stated it, “the causal connection . . . may have become so attenuated as to dissipate the taint.”11

fruit of the poisonous tree doctrine

■ The rule that evidence

gathered as a result of evidence gained

in an illegal search or

questioning cannot be

used against the person

searched or questioned

even if the later evidence

was gathered lawfully.

In spite of its reputation, the exclusionary rule is not responsible for opening the door for countless criminals. In fact, less than 0.02 percent of all felony arrests in the United States are not prosecuted because of exclusion- ary rule problems. Davies, “A Hard Look at What We Know (And Still Need to Learn) About the ‘Costs’ of the Exclusionary Rule,” 1983 A.B.F. Research J. 611, 635, cited in Commonwealth v. Edmunds, 526 Pa. 374 (1991). The total number of cases not prosecuted and unsuccessfully prosecuted that are at- tributable to the exclusionary rule is estimated at between 0.6 percent and 2.35 percent. Id.

In another study of federal cases, searches and seizures were conducted in 30 percent of the prosecutions, and 11 percent of all defendants filed mo- tions to suppress on Fourth Amendment grounds. Motions to suppress were granted in only 1.3 percent of the total number of cases, and half of the defendants who were successful in having evidence suppressed were con- victed. In cases not prosecuted, exclusionary rule problems were the cause in only 0.4 percent. Report of the Comptroller General, Impact of the Exclu- sionary Rule on Federal Criminal Prosecutions (1979).

(c o nt i nu e d)

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Exceptions Several exceptions to the exclusionary rule (and fruit of the poisonous tree) exist. First, such evidence is admissible at court hearings where determinations of guilt are not made, such as grand jury proceedings, pretrial hearings, and sentencing, for example. Also, if a defendant opens the door by referring to such evidence, a pros- ecutor may refer to it as well in rebuttal or to impeach the testimony of a defendant. This was the case in Kansas v. Ventris (2009),12 where a confession was obtained illegally by a government informant. While such evidence could not be admitted at trial to prove guilt, the Supreme Court held that it could be used to impeach the defendant’s testimony that he didn’t commit the crime. The Court found the deter- rent effect on police by excluding the evidence at trial to prove guilt was adequate and that the exclusion didn’t need to extend to rebutting the defendant’s testimony. In the Court’s words, “[O]nce the defendant testifies inconsistently, denying the prosecution ‘the traditional truth-testing devices of the adversary process,’ is a high price to pay for vindicating the right to counsel at the prior stage. On the other hand, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence for officers, who have an incentive to comply with the Constitution, since statements lawfully obtained can be used for all purposes, not simply impeachment.”

Another situation in which illegally obtained evidence may be admitted is when an independent source exists. An independent source must be an alternative, uncon- nected, and legal pathway to the same evidence. Consider the preceding bank robbery example. If a co-conspirator in the robbery also told the police where the money is, it is admissible regardless of the illegal confession, so long as the co-conspirator’s admission was lawfully obtained.

Evidence that would be inevitably discovered by law enforcement may be admit- ted. This doctrine is similar to the independent source doctrine. However, police must actually obtain evidence from an untainted, lawful source to invoke the independent source doctrine. The inevitable discovery doctrine holds that evidence that is the fruit of an illegal search, seizure, or arrest may be admitted if it is probable that the evidence would have been obtained lawfully at a later date.

Another limitation of the fruits doctrine is the admissibility of secondary or deriva- tive evidence in cases where suspects have not been given Miranda warnings but have made voluntary statements leading to the seizure of secondary or derivative evidence. You will learn more about Miranda and this exception later.

Because the Constitution’s individual rights only limit governmental authority, evidence that is obtained illegally by private individuals and turned over to law enforce- ment may be admitted. Of course, the individual who illegally obtained the evidence may be prosecuted for the underlying offense, e.g. trespass or theft. If the private indi- vidual was asked or encouraged to find the evidence by the government, the evidence will be excluded under agency doctrine (although not an employee, the individual was acting as an agent of the government).

independent source

■ The general rule that if

new evidence can be traced

to a source completely

apart from the illegally

gathered evidence that first

led to the new evidence,

it may be used by the

government in a criminal

trial.

inevitable discovery rule

The principle that

even if criminal

evidence is gathered by

unconstitutional methods,

the evidence may be

admissible if it definitely

would have come to light

anyway.

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standing

■ A person’s right to

bring (start) or join a

lawsuit or to raise a

particular issue because

he or she is directly

affected by the issues

raised.

StandIng A defendant must have standing before he or she may successfully have evidence suppressed. There are two aspects to standing. First, the person challenging the evi- dence must have an adversarial interest in the proceeding. Basically, only defendants in criminal cases may challenge evidence as seized in violation of the Fourth Amend- ment. A defendant’s mother may not intervene in the criminal case and attempt to have evidence suppressed because her Fourth Amendment rights were violated by an illegal search and seizure—even if the claim is true. A mother lacks standing to make the claim.

The second aspect concerns the defendant’s interest in the area searched or thing seized. A defendant must have a reasonable expectation of privacy to a place or thing before he or she can have it excluded at trial. To say it another way, the defendant’s constitutional rights must have been violated before evidence will be suppressed. Therefore, the defendant may not assert his mother’s right to be free from illegal searches and seizures.

Note that in Simmons v. United States, 13(1968), the Supreme Court held that a defendant may testify at a suppression hearing without waiving the right not to testify at trial and that any testimony given at a suppression hearing by a defendant may not be used against him or her at trial.

Simmons eliminated the quandary many defendants had: Should they give incriminating evidence during a suppression hearing in hopes of having the evidence excluded? Of course, if the suppression claim was unsuccessful, then a defendant faced the incriminating testimony at trial. This put many defendants in a position of having to choose one right or another: the right to be free from self-incrimination versus the right to have illegally seized evidence excluded from trial. The Supreme Court held that defendants should be free from such dilemmas.

During the 1960s and early 1970s, many jurists predicted that the Supreme Court would become so involved with criminal procedure that it would, in ef- fect, write its own “constitutional criminal procedure code.” This prediction has not proven to be true; however, many areas of criminal procedure are greatly influenced by Supreme Court decisions. It is common to refer to the expansion of individual rights and the extension of those rights to the states as the constitutionalization of criminal procedure.

In recent years, though, there appears to be a trend away from expansive interpretation. This is largely because the composition of the Supreme Court is more conservative than it was during the 1960s. Some believe that the trend of increasing individual rights was hindering law enforcement and welcome regres- sion. Those who believe strongly in the rights of the individual point out that the Framers intended to create an inefficient government, in favor of protecting liber- ties, and proclaim that it is better to free several guilty persons than to imprison one innocent person.

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StatE conStItutIonS and thE “nEw fEdEralISm” Each state has its own constitution. State constitutions typically differ from the U.S. Constitution in several ways. Most are longer than the U.S. Constitution. This is often a consequence of greater elaboration of governmental structures, often including how local forms of government are to be created and organized. Short of demanding a republican form of government, the federal Constitution is silent about the internal organization of state governments. State constitutions also typically provide more details about the organization of state government than the U.S. Constitution does about the federal government. It is also common for state constitutions to have more amendments than the federal Constitution. This is because amendment is easier in most states. In many, amendment can occur through public referendum. This leads to another difference between state and federal constitutions. Because state constitutions are easier to amend, they are more likely to address specific issues, and they are more likely to be internally inconsistent than is the federal Constitution.

One area where the two are very similar is in their respective bills of rights. Most states’ bills of rights are identical, or nearly identical, in language to the national Constitution’s Bill of Rights. There are exceptions, however. For example, several states protect privacy explicitly, while the federal Constitution does not. The Supreme Court has held, however, that there is an implicit right to privacy in several of the pro- visions of the U.S. Constitution, most notably, the Fourth Amendment and the due process clauses of the Fifth and Fourteenth Amendments. States that explicitly protect privacy include Alaska, Arizona, California, Hawaii, Illinois, Louisiana, Montana, and Washington, D.C., while the federal Constitution does not and only recently was the right held to be implicit in several provisions found in the Bill of Rights. California’s right, found in Art. I, § 1, reads:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting prop- erty, and pursuing and obtaining safety, happiness, and privacy.

Montana’s Constitution, at Art. II, § 10, provides that

The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.

Until recently, state constitutions have not played an important role in defining civil liberties. This is because both state and federal courts have looked almost ex- clusively to the national Constitution to answer questions concerning civil liberties, particularly in criminal cases. It is also due to the tendency of state courts to interpret state constitutional rights as identical to those secured by the national Constitution.

Increasingly, this is not the case. During the past two decades, commentators, judges, and attorneys have exhibited a renewed interest in state constitutional law. Concerned that the Supreme Court of the United States was backing away from the

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protections recognized by the Court in the 1960s, former Justice William Brennan of the United States Supreme Court urged states and their courts to turn to their own constitutions to protect liberties.14

The resurgence in state constitutional law is known as “New Federalism.” State constitutions can be an independent source of civil liberties. Of course, a state constitu- tion cannot be used to limit or encroach on a federally secured right, but it can be used to extend the scope of a right. This trend was buttressed by the Rehnquist and early Roberts Court decisions favoring dual sovereignty, for example, limited federal author- ity and more expansive state authority.

In several instances, state courts have determined that their state constitutions protect criminal defendants to a greater extent than does the national Constitution. The Supreme Court of Pennsylvania strongly asserted that its state’s constitution has its own meaning separate and independent from the federal Constitution. In a 1991 case, that Court stated:

[T]he decisions of the [U.S. Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by counter-part provisions of State Law. Accord- ingly, such decisions are not mechanically applicable to state law issues, and state court judges and members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guide posts when interpreting counter- part state guarantees.15

The California courts have taken a similar approach. Even if a provision’s interpre- tation parallels national law, the courts favor citing state law over federal law.

Whether a state court depends on state or federal law in defining a right deter- mines what court has the final word on the subject. If a right is founded upon federal law, the Supreme Court of the United States is the final arbiter. If a right is founded upon state law, the highest court of the state is the final arbiter, again assuming that no federal right is encroached upon by the state decision. This problem normally arises when one person’s exercise of a right affects another person’s rights. For example, if a state court were to find that a fetus has a right to life in every instance, the decision would be void as violative of the federally secured right to privacy held by the mothers to elect abortions in some circumstances.

If a state court relies upon federal law when defining a right, the possibility of reversal by a federal court, usually the Supreme Court, exists. This is what occurred in California concerning the use of peyote, a drug made from cactus, by Native Americans. The Supreme Court of California decided in 1965 that the use of peyote by Native Americans during religious ceremonies was protected by the U.S. Constitution’s First Amendment free exercise of religion clause.16 That decision was not disturbed until 1990, when the Supreme Court of the United States decided that the regulation of peyote as a drug was a reasonable burden upon the First Amendment17 and therefore

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374 Part ii Criminal Procedure

overruled the 1965 California decision. Although the defendant asserted both the fed- eral and state free exercise guarantees, the California Supreme Court relied entirely upon federal law in making its decision.

Although there has been an increase in the number of state courts that have turned to their own constitutions to protect liberties since Justice Brennan issued his famous challenge, the response hasn’t been as significant as many civil libertarians had hoped. But examples of state rights expanding beyond their federal counterparts exist and even when state courts rely on federal law, it is more common today than before to cite state law as well, thereby providing an alternative basis upon which a reviewing court can affirm a decision protecting a liberty.

The Leon case, issued by the Supreme Court of the United States, recognized a good-faith exception to the exclusionary rule; the Edmunds decision, by the Supreme Court of Pennsylvania, expressly rejects the good-faith exception in state prosecutions.

As another example, several states have not followed the Supreme Court’s lead in allowing statements made in violation of Miranda to be used by the prosecution in im- peachment of a defendant.18 These are but a few of the many instances in which a right has received greater protection under state law than under federal law.19

[Facially valid warrants were issued by a state judge. The searches conducted under the warrants produced narcotics and other evidence of narcotics violations.]

The respondents . . . filed motions to sup- press the evidence seized pursuant to the warrant. The District Court held an evidentiary hearing and, while recognizing that the case was a close one, . . . granted the motions to suppress in part. It con- cluded that the affidavit was insufficient to establish probable cause. . . . In response to a request from the Government, the court made clear that Officer Rombach had acted in good faith. . . . [This decision was affirmed on appeal before the court of appeals.]

The Government’s petition for certiorari ex- pressly declined to seek review of the lower courts’ determinations that the search warrant was un- supported by probable cause and presented only the question “[w]hether the Fourth Amendment

exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is sub- sequently held to be defective.” . . .

[T]he exclusionary rule is designed to deter po- lice misconduct rather than to punish the errors of judges and magistrates. . . .

If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behav- ior of the individual law enforcement officers or the policies of their departments. One could argue that applying the exclusionary rule in cases where the police failed to demonstrate probable cause in the warrant application deters future inadequate presen- tations or “magistrate shopping” and thus promotes the ends of the Fourth Amendment. Suppressing evidence obtained pursuant to a technically de- fective warrant supported by probable cause also

UNITED STATES V. LEON 468 U.S. 897 (1984)

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Chapter 11: Constitutional Aspects of Criminal Procedure 375

might encourage officers to scrutinize more closely the form of the warrant and to point out suspected judicial errors. We find such arguments speculative and conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.

We conclude that the marginal or nonexis- tent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a

subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inap- propriate in cases where an officer has obtained a warrant and abided by its terms. . . . [A]n officer’s reliance on the magistrate’s probable-cause deter- mination and on the technical sufficiency of the war- rant he issues must be objectively reasonable . . . and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.

UNITED STATES V. LEON (c o nt i nu e d)

[Defendant who was convicted in the Court of Com- mon Pleas, Criminal Division, of possession of mar- ijuana and related offenses, appealed. The Superior Court affirmed the conviction.]

The issue presented to this court is whether Pennsylvania should adopt the “good faith” excep- tion to the exclusionary rule as articulated by the United States Supreme Court in the case of United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). We conclude that a “good faith” exception to the exclusionary rule would frustrate the guarantees embodied in Article I, Section 8, of the Pennsylvania Constitution. Accordingly, the de- cision of the Supreme Court is reversed. . . .

The trial court held that the search warrant failed to establish probable cause that the mari- juana would be at the location to be searched on the date it was issued. The trial court found that the warrant failed to set forth with specificity the date upon which the anonymous informants observed the marijuana. . . . However, the trial court went on to deny the defendant’s motion to suppress the

marijuana. Applying the rationale of Leon, the trial court looked beyond the four corners of the affida- vit, in order to establish that the officers executing the warrant acted in “good faith” in relying upon the warrant to conduct the search. . . .

We must now determine whether the good- faith exception to the exclusionary rule is properly part of the jurisprudence of this Commonwealth, by virtue of Article 1, Section 8 of the Pennsylva- nia Constitution. In concluding that it is not, we set forth a methodology to be followed in analyzing future state constitutional issues which arise under our own Constitution. . . .

This Court has long emphasized that, in inter- preting a provision of the Pennsylvania Constitu- tion, we are not bound by the decisions of the United States Supreme Court which interpret similar (yet distinct) federal constitutional provisions. . . . [T]he federal constitution establishes certain minimum levels which are “equally applicable to the [analo- gous] state constitutional provision.” . . . How- ever, each state has the power to provide broader

COMMONWEALTH V. EDMUNDS 526 Pa. 374 (1991)

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376 Part ii Criminal Procedure

standards, and go beyond the minimum floor which is established by the federal Constitution. . . .

Here in Pennsylvania, we have stated with in- creasing frequency that it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated. . . .

The recent focus on the “New Federalism” has emphasized the importance of state constitu- tions with respect to individual rights and crimi- nal procedure. As such, we find it important to set forth certain factors to be briefed and analyzed by litigants in each case hereafter implicating a provi- sion of the Pennsylvania constitution. The decision of the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), now requires us to make a “plain statement” of the adequate and independent state grounds upon which we rely, in order to avoid any doubt that we have rested our decision squarely on Pennsylvania jurisprudence. Accordingly, as a gen- eral rule it is important that litigants brief and ana- lyze at least the following four factors:

1. Text of the Pennsylvania constitutional provision;

2. History of the provision, including Pennsylvania case-law;

3. Related case-law from other states;

4. Policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Depending on the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority, but as one form of guid- ance. . . . Utilizing the above four factors, and hav- ing reviewed Leon, we conclude that a “good faith”

exception to the exclusionary rule would frustrate the guarantees embodied in Article I, Section 8 of our Commonwealth’s Constitution. . . .

The United States Supreme Court in Leon made clear that, in its view, the sole purpose for the exclusionary rule under the 4th Amendment [to the Constitution of the United States] was to deter police misconduct. . . . The Leon majority also made clear that, under the Federal Constitu- tion, the exclusionary rule operated as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” . . .

[T]he exclusionary rule in Pennsylvania has consistently served to bolster the twin aims of Article I, Section 8, to wit, the safeguarding of pri- vacy and the fundamental requirement that war- rants shall only be issued upon probable cause. . . .

The linch-pin that has been developed to de- termine whether it is appropriate to issue a search warrant is the test of probable cause. . . . It is de- signed to protect us from unwarranted and even vindictive incursions upon our privacy. It insulates from dictatorial and tyrannical rule by the state, and preserves the concept of democracy that assures the freedom of citizens. This concept is second to none in its importance in deliniating [sic] the dignity of the individual living in a free society. . . .

Whether the United States Supreme Court has determined that the exclusionary rule does not advance the 4th Amendment purpose of deterring police conduct is irrelevant. Indeed, we disagree with the Court’s suggestion in Leon that we in Penn- sylvania have been employing the exclusionary rule all these years to deter police corruption. We flatly reject this notion. . . . What is significant, however, is that our Constitution has historically been inter- preted to incorporate a strong right to privacy, and an equally strong adherence to the requirement of

COMMONWEALTH V. EDMUNDS (c o nt i nu e d)

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As mentioned earlier, state laws may not reduce federally secured rights. Similarly, state laws may not enlarge federally secured rights. They may, through state law, enlarge rights also protected by federal law. In the following case, decided in 2008, the distinc- tion that was just drawn was at issue.

probable cause under Article I, Section 8. Citizens in this Commonwealth possess such rights, even where a police officer in “good faith” carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause.

To adopt a “good faith” exception to the exclusion- ary rule, we believe, would virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.

COMMONWEALTH V. EDMUNDS (c o nt i nu e d)

Justice Scalia delivered the opinion of the Court. We consider whether a police officer violates

the Fourth Amendment by making an arrest based on probable cause but prohibited by state law.

On February 20, 2003, two City of Portsmouth police officers stopped a car driven by David Lee Moore. They had heard over the police radio that a person known as “Chubs” was driving with a sus- pended license, and one of the officers knew Moore by that nickname. The officers determined that Moore’s license was in fact suspended, and arrested him for the misdemeanor of driving on a suspended license, which is punishable under Virginia law by a year in jail and a $2,500 fine. The officers subse- quently searched Moore and found that he was car- rying 16 grams of crack cocaine and $516 in cash.

Under state law, the officers should have is- sued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or

likely to harm themselves or others. The interme- diate appellate court found none of these circum- stances applicable, and Virginia did not appeal that determination. . . .

[Moore was charged and convicted of pos- session of cocaine with an intent to distribute. His conviction was reversed by the Virginia court of ap- peals and Virginia Supreme Court because it found that the Fourth Amendment prohibited the search incident to arrest because Virginia law didn’t autho- rize the arrest.]

In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable. . . .

Our decisions counsel against changing this calculus when a State chooses to protect privacy be- yond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U.S. 58 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation

VIRGINIA V. MOORE Supreme Court of the United States (2008)

(continued)

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