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Due Process vs Substantive Due Process 5th & 14th Amendment

The Truth News — Sun, 07 Jul 2024 08:56:18 +0000

Due Process vs Substantive Due Process

Due Process 5th & 14th Amendment

Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if only procedural protections are present or the rights are unenumerated elsewhere in the U.S. Constitution.

Introduction

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures. Most of this article concerns that promise. We should briefly note, however, three other uses that these words have had in American constitutional law.

Incorporation

The Fifth Amendment’s reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states; the Bill of Rights was interpreted to only apply against the federal government, given the debates surrounding its enactment and the language used elsewhere in the Constitution to limit State power. (see Barron v City of Baltimore (1833)). However, this changed after the enactment of the Fourteenth Amendment and a string of Supreme Court cases that began applying the same limitations on the states as the Bill of Rights. Initially, the Supreme Court only piecemeal added Bill of Rights

protections against the States, such as in Chicago, Burlington & Quincy Railroad Company v. City of Chicago (1897) when the court incorporated the Fifth Amendment’s Takings Clause into the Fourteenth Amendment. The Court saw these protections as a function of the Due Process Clause of the Fourteenth Amendment only, not because the Fourteenth Amendment made the Bill of Rights apply against the states. Later, in the middle of the Twentieth Century, a series of Supreme Court decisions found that the Due Process Clause “incorporated” most of the important elements of the Bill of Rights and made them applicable to the states. If a Bill of Rights guarantee is “incorporated” in the “due process” requirement of the Fourteenth Amendment, state and federal obligations are exactly the same. For more information on the incorporation doctrine, please see this Wex Article on the Incorporation Doctrine.

Substantive due process

The words “due process” suggest a concern with procedure rather than substance, and that is how many—such as Justice Clarence Thomas, who wrote “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness”—understand the Due Process Clause. However, others believe that the Due Process Clause does include protections of substantive due process—such as Justice Stephen J. Field, who, in a dissenting opinion to the Slaughterhouse Cases wrote that “the Due Process Clause protected individuals from state legislation that infringed upon their ‘privileges and immunities’ under the federal Constitution” (see this Library of Congress Article: https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/due-process-of-law.html)

Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, marry, and to raise one’s children as a parent. In Lochner v New York (1905), the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. Substantive due process is still invoked in cases today, but not without criticism (See this Stanford Law Review article to see substantive due process as applied to contemporary issues).

The promise of legality and fair procedure

Historically, the clause reflects the Magna Carta of Great Britain, King John’s thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes Great Britain’s Seventeenth Century struggles for political and legal regularity, and the American colonies’ strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that the government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause is often thought to embody that commitment.

The clause also promises that before depriving a citizen of life, liberty or property, the government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesn’t say anything about discipline. Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.”

How can we know whether process is due (what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If “due process” refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling to accept legislative judgments have to find answers somewhere else. The Supreme Court’s struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government.

In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law. Occasionally it might act in other ways, for example in assessing taxes. In Bi-Metallic Investment Co. v. State Board of Equalization (1915), the Supreme Court held that only politics (the citizen’s “power, immediate or remote, over those who make the rule”) controlled the state’s action setting the level of taxes; but if the dispute was about a taxpayer’s individual liability, not a general question, the taxpayer had a right to some kind of a hearing (“the right to support his allegations by arguments however brief and, if need be, by proof however informal”). This left the state a lot of room to say what procedures it would provide, but did not permit it to deny them altogether.

Distinguishing due process

Bi-Metallic established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn’t govern how a state sets the rules for student discipline in its high schools; but it does govern how that state applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved.

Even when an individual is unmistakably acted against on individual grounds, there can be a question whether the state has “deprive[d]” her of “life, liberty or property.” The first thing to notice here is that there must be state action. Accordingly, the Due Process Clause would not apply to a private school taking discipline against one of its students (although that school will probably want to follow similar principles for other reasons).

Whether state action against an individual was a deprivation of life, liberty or property was initially resolved by a distinction between “rights” and “privileges.” Process was due if rights were involved, but the state could act as it pleased in relation to privileges. But as modern society developed, it became harder to tell the two apart (ex: whether driver’s licenses, government jobs, and welfare enrollment are “rights” or a “privilege.” An initial reaction to the increasing dependence of citizens on their government was to look at the seriousness of the impact of government action on an individual, without asking about the nature of the relationship affected. Process was due before the government could take an action that affected a citizen in a grave way.

In the early 1970s, however, many scholars accepted that “life, liberty or property” was directly affected by state action, and wanted these concepts to be broadly interpreted. Two Supreme Court cases involved teachers at state colleges whose contracts of employment had not been renewed as they expected, because of some political positions they had taken. Were they entitled to a hearing before they could be treated in this way? Previously, a state job was a “privilege” and the answer to this question was an emphatic “No!” Now, the Court decided that whether either of the two teachers had “property” would depend in each instance on whether persons in their position, under state law, held some form of tenure. One teacher had just been on a short term contract; because he served “at will” — without any state law claim or expectation to continuation — he had no “entitlement” once his contract expired. The other teacher worked under a longer-term arrangement that school officials seemed to have encouraged him to regard as a continuing one. This could create an “entitlement,” the Court said; the expectation need not be based on a statute, and an established custom of treating instructors who had taught for X years as having tenure could be shown. While, thus, some law-based relationship or expectation of continuation had to be shown before a federal court would say that process was “due,” constitutional “property” was no longer just what the common law called “property”; it now included any legal relationship with the state that state law regarded as in some sense an “entitlement” of the citizen. Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away. This restated the formal “right/privilege” idea, but did so in a way that recognized the new dependency of citizens on relations with government, the “new property” as one scholar influentially called it.

When process is due

In its early decisions, the Supreme Court seemed to indicate that when only property rights were at stake (and particularly if there was some demonstrable urgency for public action) necessary hearings could be postponed to follow provisional, even irreversible, government action. This presumption changed in 1970 with the decision in Goldberg v. Kelly, a case arising out of a state-administered welfare program. The Court found that before a state terminates a welfare recipient’s benefits, the state must provide a full hearing before a hearing officer, finding that the Due Process Clause required such a hearing.

A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one s life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.

What procedures are due

Just as cases have interpreted when to apply due process, others have determined the sorts of procedures which are constitutionally due. This is a question that has to be answered for criminal trials (where the Bill of Rights provides many explicit answers), for civil trials (where the long history of English practice provides some landmarks), and for administrative proceedings, which did not appear on the legal landscape until a century or so after the Due Process Clause was first adopted. Because there are the fewest landmarks, the administrative cases present the hardest issues, and these are the ones we will discuss.

The Goldberg Court answered this question by holding that the state must provide a hearing before an impartial judicial officer, the right to an attorney’s help, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made and explained in an opinion. The Court’s basis for this elaborate holding seems to have some roots in the incorporation doctrine.

Many argued that the Goldberg standards were too broad, and in subsequent years, the Supreme Court adopted a more discriminating approach. Process was “due” to the student suspended for ten days, as to the doctor deprived of his license to practice medicine or the person accused of being a security risk; yet the difference in seriousness of the outcomes, of the charges, and of the institutions involved made it clear there could be no list of procedures that were always “due.” What the Constitution required would inevitably be dependent on the situation. What process is “due” is a question to which there cannot be a single answer.

A successor case to Goldberg, Mathews v. Eldridge, tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts. The approach it defined has remained the Court’s preferred method for resolving questions over what process is due. Mathews attempted to define how judges should ask about constitutionally required procedures. The Court said three factors had to be analyzed:

First, the private interest that will be affected by the official action;
Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
Finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Using these factors, the Court first found the private interest here less significant than in Goldberg. A person who is arguably disabled but provisionally denied disability benefits, it said, is more likely to be able to find other “potential sources of temporary income” than a person who is arguably impoverished but provisionally denied welfare assistance. Respecting the second, it found the risk of error in using written procedures for the initial judgment to be low, and unlikely to be significantly reduced by adding oral or confrontational procedures of the Goldberg variety. It reasoned that disputes over eligibility for disability insurance typically concern one’s medical condition, which could be decided, at least provisionally, on the basis of documentary submissions; it was impressed that Eldridge had full access to the agency’s files, and the opportunity to submit in writing any further material he wished. Finally, the Court now attached more importance than the Goldberg Court had to the government’s claims for efficiency. In particular, the Court assumed (as the Goldberg Court had not) that “resources available for any particular program of social welfare are not unlimited.” Thus additional administrative costs for suspension hearings and payments while those hearings were awaiting resolution to persons ultimately found undeserving of benefits would subtract from the amounts available to pay benefits for those undoubtedly eligible to participate in the program. The Court also gave some weight to the “good-faith judgments” of the plan administrators what appropriate consideration of the claims of applicants would entail.

Third, and particularly important in its implications for litigation seeking procedural change, the assessment is to be made at the level of program operation, rather than in terms of the particular needs of the particular litigants involved in the matter before the Court. Cases that are pressed to appellate courts often are characterized by individual facts that make an unusually strong appeal for proceduralization. Indeed, one can often say that they are chosen for that appeal by the lawyers, when the lawsuit is supported by one of the many American organizations that seeks to use the courts to help establish their view of sound social policy. Finally, and to similar effect, the second of the stated tests places on the party challenging the existing procedures the burden not only of demonstrating their insufficiency, but also of showing that some specific substitute or additional procedure will work a concrete improvement justifying its additional cost. Thus, it is inadequate merely to criticize. The litigant claiming procedural insufficiency must be prepared with a substitute program that can itself be justified.

The Mathews approach is most successful when it is viewed as a set of instructions to attorneys involved in litigation concerning procedural issues. Attorneys now know how to make a persuasive showing on a procedural “due process” claim, and the probable effect of the approach is to discourage litigation drawing its motive force from the narrow (even if compelling) circumstances of a particular individual’s position. The hard problem for the courts in the Mathews approach, which may be unavoidable, is suggested by the absence of fixed doctrine about the content of “due process” and by the very breadth of the inquiry required to establish its demands in a particular context. A judge has few reference points to begin with, and must decide on the basis of considerations (such as the nature of a government program or the probable impact of a procedural requirement) that are very hard to develop in a trial.

While there is no definitive list of the “required procedures” that due process requires, Judge Henry Friendly generated a list that remains highly influential, as to both content and relative priority:

An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.

This is not a list of procedures which are required to prove due process, but rather a list of the kinds of procedures that might be claimed in a “due process” argument, roughly in order of their perceived importance.

Substantive Due Process

Substantive due process is the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference. Specifically, the Fifth and Fourteenth Amendments prohibit the government from depriving any person of “life, liberty, or property without due process of law.” The Fifth Amendment applies to federal action, and the Fourteenth applies to state action. Compare with procedural due process.

The Supreme Court’s first foray into defining which government actions violate substantive due process was during the Lochner Era. The Court determined that the freedom to contract and other economic rights were fundamental, and state efforts to control employee-employer relations, such as minimum wages, were struck down. In 1937, the Supreme Court rejected the Lochner Era’s interpretation of substantive due process in West Coast Hotel v. Parrish, 300 U.S. 379 (1937) by allowing Washington to implement a minimum wage for women and minors. One year later, in footnote 4 of U.S. v. Carolene Products, 304 U.S. 144 (1938), the Supreme Court indicated that substantive due process would apply to: “rights enumerated in and derived from the first Eight Amendments to the Constitution, the right to participate in the political process, such as the rights of voting, association, and free speech, and the rights of ‘discrete and insular minorities.’”

Following Carolene Products, the U.S. Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in U.S. history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights, but rather are the penumbra of certain amendments that refer to or assume the existence of such rights. This has led the Supreme Court to find that personal and relational rights, as opposed to economic rights, are fundamental and protected. Specifically, the Supreme Court has interpreted substantive due process to include, among others, the following fundamental rights:

The right to privacy, specifically a right to contraceptives. Griswold v. Connecticut, 381 U.S. 479 (1965)
The right to pre-viability abortion. Roe v. Wade, 410 U.S. 113, (1973)
The right to marry a person of a different race. Loving v. Virginia, 388 U.S. 1 (1967)
The right to marry an individual of the same sex. Obergefell v. Hodges, 576 U.S. 644 (2015)

cited https://www.law.cornell.edu/wex/substantive_due_process

The Fourteenth Amendment Due Process Clause

The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of our most cherished—and most controversial. Consider the following rights that the Clause guarantees against the states:

procedural protections, such as notice and a hearing before termination of entitlements such as publicly funded medical insurance;
individual rights listed in the Bill of Rights, including freedom of speech, free exercise of religion, the right to bear arms, and a variety of criminal procedure protections;
fundamental rights that are not specifically enumerated elsewhere in the Constitution, including the right to marry, the right to use contraception, and the right to abortion.

The Due Process Clause of the Fourteenth Amendment echoes that of the Fifth Amendment. The Fifth Amendment, however, applies only against the federal government. After the Civil War, Congress adopted a number of measures to protect individual rights from interference by the states. Among them was the Fourteenth Amendment, which prohibits the states from depriving “any person of life, liberty, or property, without due process of law.”

When it was adopted, the Clause was understood to mean that the government could deprive a person of rights only according to law applied by a court. Yet since then, the Supreme Court has elaborated significantly on this core understanding. As the examples above suggest, the rights protected under the Fourteenth Amendment can be understood in three categories: (1) “procedural due process;” (2) the individual rights listed in the Bill of Rights, “incorporated” against the states; and (3) “substantive due process.”

Procedural Due Process

“Procedural due process” concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property. The key questions are: What procedures satisfy due process? And what constitutes “life, liberty, or property”?

Historically, due process ordinarily entailed a jury trial. The jury determined the facts and the judge enforced the law. In past two centuries, however, states have developed a variety of institutions and procedures for adjudicating disputes. Making room for these innovations, the Court has determined that due process requires, at a minimum: (1) notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank (1950).

With regard to the meaning of “life, liberty, and property,” perhaps the most notable development is the Court’s expansion of the notion of property beyond real or personal property. In the 1970 case of Goldberg v. Kelly, the Court found that some governmental benefits—in that case, welfare benefits—amount to “property” with due process protections. Courts evaluate the procedure for depriving someone of a “new property” right by considering: (1) the nature of the property right; (2) the adequacy of the procedure compared to other procedures; and (3) the burdens that other procedures would impose on the state. Mathews v. Eldridge (1976).

“Incorporation” of the Bill of Rights Against the States

The Bill of Rights—comprised of the first ten amendments to the Constitution—originally applied only to the federal government. Barron v. Baltimore (1833). Those who sought to protect their rights from state governments had to rely on state constitutions and laws.

One of the purposes of the Fourteenth Amendment was to provide federal protection of individual rights against the states. Early on, however, the Supreme Court foreclosed the Fourteenth Amendment Privileges or Immunities Clause as a source of robust individual rights against the states. The Slaughter-House Cases (1873). Since then, the Court has held that the Due Process Clause “incorporates” many—but not all—of the individual protections of the Bill of Rights against the states. If a provision of the Bill of Rights is “incorporated” against the states, this means that the state governments, as well as the federal government, are required to abide by it. If a right is not “incorporated” against the states, it applies only to the federal government.

A celebrated debate about incorporation occurred between two factions of the Supreme Court: one side believed that all of the rights should be incorporated wholesale, and the other believed that only certain rights could be asserted against the states. While the partial incorporation faction prevailed, its victory rang somewhat hollow). As a practical matter, almost all the rights in the Bill of Rights have been incorporated against the states. The exceptions are the Third Amendment’s restriction on quartering soldiers in private homes, the Fifth Amendment’s right to a grand jury trial, the Seventh Amendment’s right to jury trial in civil cases, and the Eighth Amendment’s prohibition on excessive fines.

Substantive Due Process

The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed (or “enumerated”) in the Constitution. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given.

The Court’s decision to protect unenumerated rights through the Due Process Clause is a little puzzling. The idea of unenumerated rights is not strange—the Ninth Amendment itself suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.” The most natural textual source for those rights, however, is probably the Privileges and Immunities Clause of the Fourteenth Amendment, which prohibits states from denying any citizen the “privileges and immunities” of citizenship. When The Slaughter-House Cases (1873) foreclosed that interpretation, the Court turned to the Due Process Clause as a source of unenumerated rights.

The “substantive due process” jurisprudence has been among the most controversial areas of Supreme Court adjudication. The concern is that five unelected Justices of the Supreme Court can impose their policy preferences on the nation, given that, by definition, unenumerated rights do not flow directly from the text of the Constitution.

In the early decades of the twentieth century, the Court used the Due Process Clause to strike down economic regulations that sought to better the conditions of workers on the ground that they violated those workers’ “freedom of contract,” even though this freedom is not specifically guaranteed in the Constitution. The 1905 case of Lochner v. New York is a symbol of this “economic substantive due process,” and is now widely reviled as an instance of judicial activism. When the Court repudiated Lochner in 1937, the Justices signaled that they would tread carefully in the area of unenumerated rights. West Coast Hotel Co. v. Parrish (1937).

Substantive due process, however, had a renaissance in the mid-twentieth century. In 1965, the Court struck down state bans on the use of contraception by married couples on the ground that it violated their “right to privacy.” Griswold v. Connecticut. Like the “freedom of contract,” the “right to privacy” is not explicitly guaranteed in the Constitution. However, the Court found that unlike the “freedom of contract,” the “right to privacy” may be inferred from the penumbras—or shadowy edges—of rights that are enumerated, such as the First Amendment’s right to assembly, the Third Amendment’s right to be free from quartering soldiers during peacetime, and the Fourth Amendment’s right to be free from unreasonable searches of the home. The “penumbra” theory allowed the Court to reinvigorate substantive due process jurisprudence.

In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967), the right of unmarried individuals to use contraception (1972), the right to abortion (1973), the right to engage in intimate sexual conduct (2003), and the right of same-sex couples to marry (2015). The Court has also declined to extend substantive due process to some rights, such as the right to physician-assisted suicide (1997).

The proper methodology for determining which rights should be protected under substantive due process has been hotly contested. In 1961, Justice Harlan wrote an influential dissent in Poe v. Ullman, maintaining that the project of discerning such rights “has not been reduced to any formula,” but must be left to case-by-case adjudication. In 1997, the Court suggested an alternative methodology that was more restrictive: such rights would need to be “carefully descri[bed]” and, under that description, “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg (1997). However, in recognizing a right to same-sex marriage in 2015, the Court not only limited that methodology, but also positively cited the Poe dissent. Obergefell v. Hodges. The Court’s approach in future cases remains unclear. source

Procedural Due Process Civil

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and 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 process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

ANNOTATIONS

GenerallyDue process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power.⁷³⁷ Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved.⁷³⁸ A basic threshold issue respecting whether due process is satisfied is whether the government conduct being examined is a part of a criminal or civil proceeding.⁷³⁹ The appropriate framework for assessing procedural rules in the field of criminal law is determining whether the procedure is offensive to the concept of fundamental fairness.⁷⁴⁰ In civil contexts, however, a balancing test is used that evaluates the government’s chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake.⁷⁴¹

Relevance of Historical Use.—The requirements of due process are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of this country.⁷⁴² In other words, the antiquity of a legal procedure is a factor weighing in its favor. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be “fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment.”⁷⁴³ Fortunately, the states are not tied down by any provision of the Constitution to the practice and procedure that existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.⁷⁴⁴

Non-Judicial Proceedings.—A court proceeding is not a requisite of due process.⁷⁴⁵ Administrative and executive proceedings are not judicial, yet they may satisfy the Due Process Clause.⁷⁴⁶ Moreover, the Due Process Clause does not require de novo judicial review of the factual conclusions of state regulatory agencies,⁷⁴⁷ and may not require judicial review at all.⁷⁴⁸ Nor does the Fourteenth Amendment prohibit a state from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature.⁷⁴⁹ Further, it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate.⁷⁵⁰

The Requirements of Due Process.—Although due process tolerates variances in procedure “appropriate to the nature of the case,”⁷⁵¹ it is nonetheless possible to identify its core goals and requirements. First, “[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”⁷⁵² Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests.⁷⁵³ The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel.

(1) Notice. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”⁷⁵⁴ This may include an obligation, upon learning that an attempt at notice has failed, to take “reasonable followup measures” that may be available.⁷⁵⁵ In addition, notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.⁷⁵⁶ Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it.⁷⁵⁷ Such notice, however, need not describe the legal procedures necessary to protect one’s interest if such procedures are otherwise set out in published, generally available public sources.⁷⁵⁸

(2) Hearing. “[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.”⁷⁵⁹ This right is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment . . . .”⁷⁶⁰ Thus, the notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.”⁷⁶¹

(3) Impartial Tribunal. Just as in criminal and quasi-criminal cases,⁷⁶² an impartial decisionmaker is an essential right in civil proceedings as well.⁷⁶³ “The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. . . . At the same time, it preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.”⁷⁶⁴ Thus, a showing of bias or of strong implications of bias was deemed made where a state optometry board, made up of only private practitioners, was proceeding against other licensed optometrists for unprofessional conduct because they were employed by corporations. Since success in the board’s effort would redound to the personal benefit of private practitioners, the Court thought the interest of the board members to be sufficient to disqualify them.⁷⁶⁵

There is, however, a “presumption of honesty and integrity in those serving as adjudicators,”⁷⁶⁶ so that the burden is on the objecting party to show a conﬂict of interest or some other specific reason for disqualification of a specific officer or for disapproval of the system. Thus, combining functions within an agency, such as by allowing members of a State Medical Examining Board to both investigate and adjudicate a physician’s suspension, may raise substantial concerns, but does not by itself establish a violation of due process.⁷⁶⁷ The Court has also held that the official or personal stake that school board members had in a decision to fire teachers who had engaged in a strike against the school system in violation of state law was not such so as to disqualify them.⁷⁶⁸ Sometimes, to ensure an impartial tribunal, the Due Process Clause requires a judge to recuse himself from a case. In Caperton v. A. T. Massey Coal Co. , Inc., the Court noted that “most matters relating to judicial disqualification [do] not rise to a constitutional level,” and that “matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative discretion.”⁷⁶⁹ The Court added, however, that “[t]he early and leading case on the subject” had “concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case.”⁷⁷⁰ In addition, although “[p]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause,’” there “are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’”⁷⁷¹ These circumstances include “where a judge had a financial interest in the outcome of a case” or “a conﬂict arising from his participation in an earlier proceeding.”⁷⁷² In such cases, “[t]he inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”⁷⁷³ In Caperton, a company appealed a jury verdict of $50 million, and its chairman spent $3 million to elect a justice to the Supreme Court of Appeals of West Virginia at a time when “[i]t was reasonably foreseeable . . . that the pending case would be before the newly elected justice.”⁷⁷⁴ This $3 million was more than the total amount spent by all other supporters of the justice and three times the amount spent by the justice’s own committee. The justice was elected, declined to recuse himself, and joined a 3-to-2 decision overturning the jury verdict. The Supreme Court, in a 5-to-4 opinion written by Justice Kennedy, “conclude[d] that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate inﬂuence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”⁷⁷⁵

Subsequently, in Williams v. Pennsylvania, the Court found that the right of due process was violated when a judge on the Pennsylvania Supreme Court—who participated in case denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death—had, in his former role as a district attorney, given approval to seek the death penalty in the prisoner’s case.⁷⁷⁶ Relying on Caperton, which the Court viewed as having set forth an “objective standard” that requires recusal when the likelihood of bias on the part of the judge is “too high to be constitutionally tolerable,”⁷⁷⁷ the Williams Court specifically held that there is an impermissible risk of actual bias when a judge had previously had a “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”⁷⁷⁸ The Court based its holding, in part, on earlier cases which had found impermissible bias occurs when the same person serves as both “accuser” and “adjudicator” in a case, which the Court viewed as having happened in Williams.⁷⁷⁹ It also reasoned that authorizing another person to seek the death penalty represents “significant personal involvement” in a case,⁷⁸⁰ and took the view that the involvement of multiple actors in a case over many years “only heightens”—rather than mitigates—the “need for objective rules preventing the operation of bias that otherwise might be obscured.”⁷⁸¹ As a remedy, the case was remanded for reevaluation by the reconstituted Pennsylvania Supreme Court, notwithstanding the fact that the judge in question did not cast the deciding vote, as the Williams Court viewed the judge’s participation in the multi-member panel’s deliberations as sufficient to taint the public legitimacy of the underlying proceedings and constitute reversible error.⁷⁸²

(4) Confrontation and Cross-Examination. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”⁷⁸³ Where the “evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,” the individual’s right to show that it is untrue depends on the rights of confrontation and cross-examination. “This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.”⁷⁸⁴

(5) Discovery. The Court has never directly confronted this issue, but in one case it did observe in dictum that “where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”⁷⁸⁵ Some federal agencies have adopted discovery rules modeled on the Federal Rules of Civil Procedure, and the Administrative Conference has recommended that all do so.⁷⁸⁶ There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization.⁷⁸⁷

(6) Decision on the Record. Although this issue arises principally in the administrative law area,⁷⁸⁸ it applies generally. “[T]he decisionmaker’s conclusion . . . must rest solely on the legal rules and evidence adduced at the hearing. To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he relied on, though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.”⁷⁸⁹

(7) Counsel. In Goldberg v. Kelly, the Court held that a government agency must permit a welfare recipient who has been denied benefits to be represented by and assisted by counsel.⁷⁹⁰ In the years since, the Court has struggled with whether civil litigants in court and persons before agencies who could not afford retained counsel should have counsel appointed and paid for, and the matter seems far from settled. The Court has established a presumption that an indigent does not have the right to appointed counsel unless his “physical liberty” is threatened.⁷⁹¹ Moreover, that an indigent may have a right to appointed counsel in some civil proceedings where incarceration is threatened does not mean that counsel must be made available in all such cases. Rather, the Court focuses on the circumstances in individual cases, and may hold that provision of counsel is not required if the state provides appropriate alternative safeguards.⁷⁹²

Though the calculus may vary, cases not involving detention also are determined on a casebycase basis using a balancing standard.⁷⁹³

For instance, in a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.⁷⁹⁴ In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.⁷⁹⁵ Thus, it would appear likely that in other parental right cases, a right to appointed counsel could be established.

The Procedure That Is Due ProcessThe Interests Protected: “Life, Liberty and Property”.— The language of the Fourteenth Amendment requires the provision of due process when an interest in one’s “life, liberty or property” is threatened.⁷⁹⁶ Traditionally, the Court made this determination by reference to the common understanding of these terms, as embodied in the development of the common law.⁷⁹⁷ In the 1960s, however, the Court began a rapid expansion of the “liberty” and “property” aspects of the clause to include such non-traditional concepts as conditional property rights and statutory entitlements. Since then, the Court has followed an inconsistent path of expanding and contracting the breadth of these protected interests. The “life” interest, on the other hand, although often important in criminal cases, has found little application in the civil context.

The Property Interest.—The expansion of the concept of “property rights” beyond its common law roots reﬂected a recognition by the Court that certain interests that fall short of traditional property rights are nonetheless important parts of people’s economic well-being. For instance, where household goods were sold under an installment contract and title was retained by the seller, the possessory interest of the buyer was deemed sufficiently important to require procedural due process before repossession could occur.⁷⁹⁸ In addition, the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was deemed a sufficient property interest to require some form of determination that the garnisher was likely to prevail.⁷⁹⁹ Furthermore, the continued possession of a driver’s license, which may be essential to one’s livelihood, is protected; thus, a license should not be suspended after an accident for failure to post a security for the amount of damages claimed by an injured party without affording the driver an opportunity to raise the issue of liability.⁸⁰⁰

A more fundamental shift in the concept of property occurred with recognition of society’s growing economic reliance on government benefits, employment, and contracts,⁸⁰¹ and with the decline of the “right-privilege” principle. This principle, discussed previously in the First Amendment context,⁸⁰² was pithily summarized by Justice Holmes in dismissing a suit by a policeman protesting being fired from his job: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”⁸⁰³ Under this theory, a finding that a litigant had no “vested property interest” in government employment,⁸⁰⁴ or that some form of public assistance was “only” a privilege,⁸⁰⁵ meant that no procedural due process was required before depriving a person of that interest.⁸⁰⁶ The reasoning was that, if a government was under no obligation to provide something, it could choose to provide it subject to whatever conditions or procedures it found appropriate.

The conceptual underpinnings of this position, however, were always in conﬂict with a line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. This line of thought, referred to as the “unconstitutional conditions” doctrine, held that, “even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, it may not do so on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.”⁸⁰⁷ Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when the right-privilege distinction started to be largely disregarded.⁸⁰⁸

Concurrently with the virtual demise of the “right-privilege” distinction, there arose the “entitlement” doctrine, under which the Court erected a barrier of procedural—but not substantive—protections⁸⁰⁹ against erroneous governmental deprivation of something it had within its discretion bestowed. Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights and “natural rights.” Now, under a new “positivist” approach, a protected property or liberty interest might be found based on any positive governmental statute or governmental practice that gave rise to a legitimate expectation. Indeed, for a time it appeared that this positivist conception of protected rights was going to displace the traditional sources.

As noted previously, the advent of this new doctrine can be seen in Goldberg v. Kelly,⁸¹⁰ in which the Court held that, because termination of welfare assistance may deprive an eligible recipient of the means of livelihood, the government must provide a pretermination evidentiary hearing at which an initial determination of the validity of the dispensing agency’s grounds for termination may be made. In order to reach this conclusion, the Court found that such benefits “are a matter of statutory entitlement for persons qualified to receive them.”⁸¹¹ Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, it was found that the recipient had a property interest entitling him to proper procedure before termination or revocation.

At first, the Court’s emphasis on the importance of the statutory rights to the claimant led some lower courts to apply the Due Process Clause by assessing the weights of the interests involved and the harm done to one who lost what he was claiming. This approach, the Court held, was inappropriate. “[W]e must look not to the ‘weight’ but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.”⁸¹² To have a property interest in the constitutional sense, the Court held, it was not enough that one has an abstract need or desire for a benefit or a unilateral expectation. He must rather “have a legitimate claim of entitlement” to the benefit. “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”⁸¹³

Consequently, in Board of Regents v. Roth, the Court held that the refusal to renew a teacher’s contract upon expiration of his one-year term implicated no due process values because there was nothing in the public university’s contract, regulations, or policies that “created any legitimate claim” to reemployment.⁸¹⁴ By contrast, in Perry v. Sindermann,⁸¹⁵ a professor employed for several years at a public college was found to have a protected interest, even though his employment contract had no tenure provision and there was no statutory assurance of it.⁸¹⁶ The “existing rules or understandings” were deemed to have the characteristics of tenure, and thus provided a legitimate expectation independent of any contract provision.⁸¹⁷

The Court has also found “legitimate entitlements” in a variety of other situations besides employment. In Goss v. Lopez,⁸¹⁸ an Ohio statute provided for both free education to all residents between five and 21 years of age and compulsory school attendance; thus, the state was deemed to have obligated itself to accord students some due process hearing rights prior to suspending them, even for such a short period as ten days. “Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.”⁸¹⁹ The Court is highly deferential, however, to school dismissal decisions based on academic grounds.⁸²⁰

The further one gets from traditional precepts of property, the more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales,⁸²¹ the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order obtained by an estranged wife against her husband, despite having probable cause to believe the order had been violated. While noting statutory language that required that officers either use “every reasonable means to enforce [the] restraining order” or “seek a warrant for the arrest of the restrained person,” the Court resisted equating this language with the creation of an enforceable right, noting a longstanding tradition of police discretion coexisting with apparently mandatory arrest statutes.⁸²² Finally, the Court even questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme.⁸²³

In Arnett v. Kennedy,⁸²⁴ an incipient counter-revolution to the expansion of due process was rebuffed, at least with respect to entitlements. Three Justices sought to qualify the principle laid down in the entitlement cases and to restore in effect much of the right-privilege distinction, albeit in a new formulation. The case involved a federal law that provided that employees could not be discharged except for cause, and the Justices acknowledged that due process rights could be created through statutory grants of entitlements. The Justices, however, observed that the same law specifically withheld the procedural protections now being sought by the employees. Because “the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,”⁸²⁵ the employee would have to “take the bitter with the sweet.”⁸²⁶ Thus, Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process that might otherwise be required.

But the other six Justices, although disagreeing among themselves in other respects, rejected this attempt to formulate the issue. “This view misconceives the origin of the right to procedural due process,” Justice Powell wrote. “That right is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.”⁸²⁷ Yet, in Bishop v. Wood,⁸²⁸ the Court accepted a district court’s finding that a policeman held his position “at will” despite language setting forth conditions for discharge. Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett position, so much so that the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett. And, in Goss v. Lopez,⁸²⁹ Justice Powell, writing in dissent but using language quite similar to that of Justice Rehnquist in Arnett, seemed to indicate that the right to public education could be qualified by a statute authorizing a school principal to impose a ten-day suspension.⁸³⁰

Subsequently, however, the Court held squarely that, because “minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse action.” Indeed, any other conclusion would allow the state to destroy virtually any state-created property interest at will.⁸³¹ A striking application of this analysis is found in Logan v. Zimmerman Brush Co.,⁸³² in which a state anti-discrimination law required the enforcing agency to convene a fact-finding conference within 120 days of the filing of the complaint. Inadvertently, the Commission scheduled the hearing after the expiration of the 120 days and the state courts held the requirement to be jurisdictional, necessitating dismissal of the complaint. The Court noted that various older cases had clearly established that causes of action were property, and, in any event, Logan’s claim was an entitlement grounded in state law and thus could only be removed “for cause.” This property interest existed independently of the 120-day time period and could not simply be taken away by agency action or inaction.⁸³³

The Liberty Interest.—With respect to liberty interests, the Court has followed a similarly meandering path. Although the traditional concept of liberty was freedom from physical restraint, the Court has expanded the concept to include various other protected interests, some statutorily created and some not.⁸³⁴ Thus, in Ingraham v. Wright,⁸³⁵ the Court unanimously agreed that school children had a liberty interest in freedom from wrongfully or excessively administered corporal punishment, whether or not such interest was protected by statute. “The liberty preserved from deprivation without due process included the right ‘generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ . . . Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.”⁸³⁶

The Court also appeared to have expanded the notion of “liberty” to include the right to be free of official stigmatization, and found that such threatened stigmatization could in and of itself require due process.⁸³⁷ Thus, in Wisconsin v. Constantineau,⁸³⁸ the Court invalidated a statutory scheme in which persons could be labeled “excessive drinkers,” without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served. The Court, without discussing the source of the entitlement, noted that the governmental action impugned the individual’s reputation, honor, and integrity.⁸³⁹

But, in Paul v. Davis,⁸⁴⁰ the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one’s reputation also resulted in loss of a statutory entitlement. In Davis, the police had included plaintiff’s photograph and name on a list of “active shoplifters” circulated to merchants without an opportunity for notice or hearing. But the Court held that “Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather, his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interest by means of damage actions.”⁸⁴¹ Thus, unless the government’s official defamation has a specific negative effect on an entitlement, such as the denial to “excessive drinkers” of the right to obtain alcohol that occurred in Constantineau, there is no protected liberty interest that would require due process.

A number of liberty interest cases that involve statutorily created entitlements involve prisoner rights, and are dealt with more extensively in the section on criminal due process. However, they are worth noting here. In Meachum v. Fano,⁸⁴² the Court held that a state prisoner was not entitled to a fact-finding hearing when he was transferred to a different prison in which the conditions were substantially less favorable to him, because (1) the Due Process Clause liberty interest by itself was satisfied by the initial valid conviction, which had deprived him of liberty, and (2) no state law guaranteed him the right to remain in the prison to which he was initially assigned, subject to transfer for cause of some sort. As a prisoner could be transferred for any reason or for no reason under state law, the decision of prison officials was not dependent upon any state of facts, and no hearing was required.

In Vitek v. Jones,⁸⁴³ by contrast, a state statute permitted transfer of a prisoner to a state mental hospital for treatment, but the transfer could be effectuated only upon a finding, by a designated physician or psychologist, that the prisoner “suffers from a mental disease or defect” and “cannot be given treatment in that facility.” Because the transfer was conditioned upon a “cause,” the establishment of the facts necessary to show the cause had to be done through fair procedures. Interestingly, however, the Vitek Court also held that the prisoner had a “residuum of liberty” in being free from the different confinement and from the stigma of involuntary commitment for mental disease that the Due Process Clause protected. Thus, the Court has recognized, in this case and in the cases involving revocation of parole or probation,⁸⁴⁴ a liberty interest that is separate from a statutory entitlement and that can be taken away only through proper procedures.

But, with respect to the possibility of parole or commutation or otherwise more rapid release, no matter how much the expectancy matters to a prisoner, in the absence of some form of positive entitlement, the prisoner may be turned down without observance of procedures.⁸⁴⁵ Summarizing its prior holdings, the Court recently concluded that two requirements must be present before a liberty interest is created in the prison context: the statute or regulation must contain “substantive predicates” limiting the exercise of discretion, and there must be explicit “mandatory language” requiring a particular outcome if substantive predicates are found.⁸⁴⁶ In an even more recent case, the Court limited the application of this test to those circumstances where the restraint on freedom imposed by the state creates an “atypical and significant hardship.”⁸⁴⁷

Proceedings in Which Procedural Due Process Need Not Be Observed.—Although due notice and a reasonable opportunity to be heard are two fundamental protections found in almost all systems of law established by civilized countries,⁸⁴⁸ there are certain proceedings in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. For instance, persons adversely affected by a law cannot challenge its validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view. “Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.”⁸⁴⁹

Similarly, when an administrative agency engages in a legislative function, as, for example, when it drafts regulations of general application affecting an unknown number of persons, it need not afford a hearing prior to promulgation.⁸⁵⁰ On the other hand, if a regulation, sometimes denominated an “order,” is of limited application, that is, it affects an identifiable class of persons, the question whether notice and hearing is required and, if so, whether it must precede such action, becomes a matter of greater urgency and must be determined by evaluating the various factors discussed below.⁸⁵¹

One such factor is whether agency action is subject to later judicial scrutiny.⁸⁵² In one of the initial decisions construing the Due Process Clause of the Fifth Amendment, the Court upheld the authority of the Secretary of the Treasury, acting pursuant to statute, to obtain money from a collector of customs alleged to be in arrears. The Treasury simply issued a distress warrant and seized the collector’s property, affording him no opportunity for a hearing, and requiring him to sue for recovery of his property. While acknowledging that history and settled practice required proceedings in which pleas, answers, and trials were requisite before property could be taken, the Court observed that the distress collection of debts due the crown had been the exception to the rule in England and was of long usage in the United States, and was thus sustainable.⁸⁵³

In more modern times, the Court upheld a procedure under which a state banking superintendent, after having taken over a closed bank and issuing notices to stockholders of their assessment, could issue execution for the amounts due, subject to the right of each stockholder to contest his liability for such an assessment by an affidavit of illegality. The fact that the execution was issued in the first instance by a governmental officer and not from a court, followed by personal notice and a right to take the case into court, was seen as unobjectionable.⁸⁵⁴

It is a violation of due process for a state to enforce a judgment against a party to a proceeding without having given him an opportunity to be heard sometime before final judgment is entered.⁸⁵⁵ With regard to the presentation of every available defense, however, the requirements of due process do not necessarily entail affording an opportunity to do so before entry of judgment. The person may be remitted to other actions initiated by him⁸⁵⁶ or an appeal may suffice. Accordingly, a surety company, objecting to the entry of a judgment against it on a supersedeas bond, without notice and an opportunity to be heard on the issue of liability, was not denied due process where the state practice provided the opportunity for such a hearing by an appeal from the judgment so entered. Nor could the company found its claim of denial of due process upon the fact that it lost this opportunity for a hearing by inadvertently pursuing the wrong procedure in the state courts.⁸⁵⁷ On the other hand, where a state appellate court reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed immaterial but which the appellate court considered material was held to have been deprived of his rights without due process of law.⁸⁵⁸

What Process Is Due.—The requirements of due process, as has been noted, depend upon the nature of the interest at stake, while the form of due process required is determined by the weight of that interest balanced against the opposing interests.⁸⁵⁹ The currently prevailing standard is that formulated in Mathews v. Eldridge,⁸⁶⁰ which concerned termination of Social Security benefits. “Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”

The termination of welfare benefits in Goldberg v. Kelly,⁸⁶¹ which could have resulted in a “devastating” loss of food and shelter, had required a predeprivation hearing. The termination of Social Security benefits at issue in Mathews would require less protection, however, because those benefits are not based on financial need and a terminated recipient would be able to apply for welfare if need be. Moreover, the determination of ineligibility for Social Security benefits more often turns upon routine and uncomplicated evaluations of data, reducing the likelihood of error, a likelihood found significant in Goldberg. Finally, the administrative burden and other societal costs involved in giving Social Security recipients a pretermination hearing would be high. Therefore, a post-termination hearing, with full retroactive restoration of benefits, if the claimant prevails, was found satisfactory.⁸⁶²

Application of the Mathews standard and other considerations brought some noteworthy changes to the process accorded debtors and installment buyers. Earlier cases, which had focused upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, leaned toward requiring predeprivation hearings. Newer cases, however, look to the interests of creditors as well. “The reality is that both seller and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well.”⁸⁶³

Thus, Sniadach v. Family Finance Corp.,⁸⁶⁴ which mandated predeprivation hearings before wages may be garnished, has apparently been limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of deprivation would be severe.⁸⁶⁵ Fuentes v. Shevin,⁸⁶⁶ which struck down a replevin statute that authorized the seizure of property (here household goods purchased on an installment contract) simply upon the filing of an ex parte application and the posting of bond, has been limited,⁸⁶⁷ so that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.⁸⁶⁸ Thus, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only require that (1) the creditor furnish adequate security to protect the debtor’s interest, (2) the creditor make a specific factual showing before a neutral officer or magistrate, not a clerk or other such functionary, of probable cause to believe that he is entitled to the relief requested, and (3) an opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.⁸⁶⁹

Similarly, applying the Mathews v. Eldridge standard in the context of government employment, the Court has held, albeit by a combination of divergent opinions, that the interest of the employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination combine to require the provision of some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, complete with all the procedures normally accorded and back pay if the employee is successful.⁸⁷⁰ Where the adverse action is less than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been established separately, then a prompt hearing held after the adverse action may be sufficient.⁸⁷¹ In other cases, hearings with even minimum procedures may be dispensed with when what is to be established is so pro forma or routine that the likelihood of error is very small.⁸⁷² In a case dealing with negligent state failure to observe a procedural deadline, the Court held that the claimant was entitled to a hearing with the agency to pass upon the merits of his claim prior to dismissal of his action.⁸⁷³

In Brock v. Roadway Express, Inc.,⁸⁷⁴ a Court plurality applied a similar analysis to governmental regulation of private employment, determining that an employer may be ordered by an agency to reinstate a “whistle-blower” employee without an opportunity for a full evidentiary hearing, but that the employer is entitled to be informed of the substance of the employee’s charges, and to have an opportunity for informal rebuttal. The principal difference with the Mathews v. Eldridge test was that here the Court acknowledged two conﬂicting private interests to weigh in the equation: that of the employer “in controlling the makeup of its workforce” and that of the employee in not being discharged for whistleblowing. Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on future developments.⁸⁷⁵

A delay in retrieving money paid to the government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David,⁸⁷⁶ a citizen paid a $134. 50 impoundment fee to retrieve an automobile that had been towed by the city. When he subsequently sought to challenge the imposition of this impoundment fee, he was unable to obtain a hearing until 27 days after his car had been towed. The Court held that the delay was reasonable, as the private interest affected—the temporary loss of the use of the money—could be compensated by the addition of an interest payment to any refund of the fee. Further factors considered were that a 30-day delay was unlikely to create a risk of significant factual errors, and that shortening the delay significantly would be administratively burdensome for the city.

In another context, the Supreme Court applied the Mathews test to strike down a provision in Colorado’s Exoneration Act.⁸⁷⁷ That statute required individuals whose criminal convictions had been invalidated to prove their innocence by clear and convincing evidence in order to recoup any fines, penalties, court costs, or restitution paid to the state as a result of the conviction.⁸⁷⁸ The Court, noting that “[a]bsent conviction of crime, one is presumed innocent,”⁸⁷⁹ concluded that all three considerations under Mathews “weigh[ed] decisively against Colorado’s scheme.”⁸⁸⁰ Specifically, the Court reasoned that (1) those affected by the Colorado statute have an “obvious interest” in regaining their funds;⁸⁸¹ (2) the burden of proving one’s innocence by “clear and convincing” evidence unacceptably risked erroneous deprivation of those funds;⁸⁸² and (3) the state had “no countervailing interests” in withholding money to which it had “zero claim of right.”⁸⁸³ As a result, the Court held that the state could not impose “anything more than minimal procedures” for the return of funds that occurred as a result of a conviction that was subsequently invalidated.⁸⁸⁴

In another respect, the balancing standard of Mathews has resulted in states’ having wider ﬂexibility in determining what process is required. For instance, in an alteration of previously existing law, no hearing is required if a state affords the claimant an adequate alternative remedy, such as a judicial action for damages or breach of contract.⁸⁸⁵ Thus, the Court, in passing on the inﬂiction of corporal punishment in the public schools, held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus the context in which the punishment was administered (i. e., the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonableness in punishment), made reasonably assured the probability that a child would not be punished without cause or excessively.⁸⁸⁶ The Court did not, however, inquire about the availability of judicial remedies for such violations in the state in which the case arose.⁸⁸⁷

The Court has required greater protection from property deprivations resulting from operation of established state procedures than from those resulting from random and unauthorized acts of state employees,⁸⁸⁸ and presumably this distinction still holds. Thus, the Court has held that post-deprivation procedures would not satisfy due process if it is “the state system itself that destroys a complainant’s property interest.”⁸⁸⁹ Although the Court brieﬂy entertained the theory that a negligent (i. e., non-willful) action by a state official was sufficient to invoke due process, and that a post-deprivation hearing regarding such loss was required,⁸⁹⁰ the Court subsequently overruled this holding, stating that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”⁸⁹¹

In “rare and extraordinary situations,” where summary action is necessary to prevent imminent harm to the public, and the private interest infringed is reasonably deemed to be of less importance, government can take action with no notice and no opportunity to defend, subject to a later full hearing.⁸⁹² Examples are seizure of contaminated foods or drugs or other such commodities to protect the consumer,⁸⁹³ collection of governmental revenues,⁸⁹⁴ and the seizure of enemy property in wartime.⁸⁹⁵ Thus, citing national security interests, the Court upheld an order, issued without notice and an opportunity to be heard, excluding a short-order cook employed by a concessionaire from a Naval Gun Factory, but the basis of the fivetofour decision is unclear.⁸⁹⁶ On the one hand, the Court was ambivalent about a right-privilege distinction;⁸⁹⁷ on the other hand, it contrasted the limited interest of the cook—barred from the base, she was still free to work at a number of the concessionaire’s other premises—with the government’s interest in conducting a high-security program.⁸⁹⁸

JurisdictionGenerally.—Jurisdiction may be defined as the power of a government to create legal interests, and the Court has long held that the Due Process Clause limits the abilities of states to exercise this power.⁸⁹⁹ In the famous case of Pennoyer v. Neff,⁹⁰⁰ the Court enunciated two principles of jurisdiction respecting the states in a federal system⁹⁰¹ : first, “every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory,” and second, “no State can exercise direct jurisdiction and authority over persons or property without its territory.”⁹⁰² Over a long period of time, however, the mobility of American society and the increasing complexity of commerce led to attenuation of the second principle of Pennoyer, and consequently the Court established the modern standard of obtaining jurisdiction based upon the nature and the quality of contacts that individuals and corporations have with a state.⁹⁰³ This “minimum contacts” test, consequently, permits state courts to obtain power over outofstate defendants.

In Personam Proceedings Against Individuals.—How jurisdiction is determined depends on the nature of the suit being brought. If a dispute is directed against a person, not property, the proceedings are considered in personam, and jurisdiction must be established over the defendant’s person in order to render an effective decree.⁹⁰⁴ Generally, presence within the state is sufficient to create personal jurisdiction over an individual, if process is served.⁹⁰⁵ In the case of a resident who is absent from the state, domicile alone is deemed to be sufficient to keep him within reach of the state courts for purposes of a personal judgment, and process can be obtained by means of appropriate, substituted service or by actual personal service on the resident outside the state.⁹⁰⁶ However, if the defendant, although technically domiciled there, has left the state with no intention to return, service by publication, as compared to a summons left at his last and usual place of abode where his family continued to reside, is inadequate, because it is not reasonably calculated to give actual notice of the proceedings and opportunity to be heard.⁹⁰⁷

With respect to a nonresident, it is clearly established that no person can be deprived of property rights by a decree in a case in which he neither appeared nor was served or effectively made a party.⁹⁰⁸ The early cases held that the process of a court of one state could not run into another and summon a resident of that state to respond to proceedings against him, when neither his person nor his property was within the jurisdiction of the court rendering the judgment.⁹⁰⁹ This rule, however, has been attenuated in a series of steps.

Consent has always been sufficient to create jurisdiction, even in the absence of any other connection between the litigation and the forum. For example, the appearance of the defendant for any purpose other than to challenge the jurisdiction of the court was deemed a voluntary submission to the court’s power,⁹¹⁰ and even a special appearance to deny jurisdiction might be treated as consensual submission to the court.⁹¹¹ The concept of “constructive consent” was then seized upon as a basis for obtaining jurisdiction. For instance, with the advent of the automobile, States were permitted to engage in the fiction that the use of their highways was conditioned upon the consent of drivers to be sued in state courts for accidents or other transactions arising out of such use. Thus, a state could designate a state official as a proper person to receive service of process in such litigation, and establishing jurisdiction required only that the official receiving notice communicate it to the person sued.⁹¹²

Although the Court approved of the legal fiction that such jurisdiction arose out of consent, the basis for jurisdiction was really the state’s power to regulate acts done in the state that were dangerous to life or property.⁹¹³ Because the state did not really have the ability to prevent nonresidents from doing business in their state,⁹¹⁴ this extension was necessary in order to permit states to assume jurisdiction over individuals “doing business” within the state. Thus, the Court soon recognized that “doing business” within a state was itself a sufficient basis for jurisdiction over a nonresident individual, at least where the business done was exceptional enough to create a strong state interest in regulation, and service could be effectuated within the state on an agent appointed to carry out the business.⁹¹⁵

The culmination of this trend, established in International Shoe Co. v. Washington,⁹¹⁶ was the requirement that there be “minimum contacts” with the state in question in order to establish jurisdiction. The outer limit of this test is illustrated by Kulko v. Superior Court,⁹¹⁷ in which the Court held that California could not obtain personal jurisdiction over a New York resident whose sole relevant contact with the state was to send his daughter to live with her mother in California.⁹¹⁸ The argument was made that the father had “caused an effect” in the state by availing himself of the benefits and protections of California’s laws and by deriving an economic benefit in the lessened expense of maintaining the daughter in New York. The Court explained that, “[l]ike any standard that requires a determination of ‘reasonableness,’ the ‘minimum contacts’ test . . . is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.”⁹¹⁹ Although the Court noted that the “effects” test had been accepted as a test of contacts when wrongful activity outside a state causes injury within the state or when commercial activity affects state residents, the Court found that these factors were not present in this case, and any economic benefit to Kulko was derived in New York and not in California.⁹²⁰ As with many such cases, the decision was narrowly limited to its facts and does little to clarify the standards applicable to state jurisdiction over nonresidents.

Walden v. Fiore further articulated what “minimum contacts” are necessary to create jurisdiction as a result of the relationship between the defendant, the forum, and the litigation.⁹²¹ In Walden, the plaintiffs, who were residents of Nevada, sued a law enforcement officer in federal court in Nevada as a result of an incident that occurred in an airport in Atlanta as the plaintiffs were attempting to board a connecting ﬂight from Puerto Rico to Las Vegas. The Court held that the court in Nevada lacked jurisdiction because of insufficient contacts between the officer and the state relative to the alleged harm, as no part of the officer’s conduct occurred in Nevada. In so holding, the Court emphasized that the minimum contacts inquiry should not focus on the resulting injury to the plaintiffs; instead, the proper question is whether the defendant’s conduct connects him to the forum in a meaningful way.⁹²²

Suing Out-of-State (Foreign) Corporations.—A curious aspect of American law is that a corporation has no legal existence outside the boundaries of the state chartering it.⁹²³ Thus, the basis for state court jurisdiction over an outofstate (“foreign”) corporation has been even more uncertain than that with respect to individuals. Before International Shoe Co. v. Washington,⁹²⁴ it was asserted that, because a corporation could not carry on business in a state without the state’s permission, the state could condition its permission upon the corporation’s consent to submit to the jurisdiction of the state’s courts, either by appointment of someone to receive process or in the absence of such designation, by accepting service upon corporate agents authorized to operate within the state.⁹²⁵ Further, by doing business in a state, the corporation was deemed to be present there and thus subject to service of process and suit.⁹²⁶ This theoretical corporate presence conﬂicted with the idea of corporations having no existence outside their state of incorporation, but it was nonetheless accepted that a corporation “doing business” in a state to a sufficient degree was “present” for service of process upon its agents in the state who carried out that business.⁹²⁷

Presence alone, however, does not expose a corporation to all manner of suits through the exercise of general jurisdiction. Only corporations, whose “continuous and systematic” affiliations with a forum make them “essentially at home” there, are broadly amenable to suit.⁹²⁸ While the paradigmatic examples of where a corporate defendant is “at home” are the corporation’s place of incorporation and principal place of business,⁹²⁹ the Court has recognized that in “exceptional cases” general jurisdiction can be exercised by a court located where the corporate defendant’s operations are “so substantial” as to “render the corporation at home in that state.”⁹³⁰ Nonetheless, insubstantial instate business, in and of itself, does not suffice to permit an assertion of jurisdiction over claims that are unrelated to any activity occurring in a state.⁹³¹ Without the protection of such a rule, foreign corporations would be exposed to the manifest hardship and inconvenience of defending, in any state in which they happened to be carrying on business, suits for torts wherever committed and claims on contracts wherever made.⁹³² And if the corporation stopped doing business in the forum state before suit against it was commenced, it might well escape jurisdiction altogether.⁹³³ In early cases, the issue of the degree of activity and, in particular, the degree of solicitation that was necessary to constitute doing business by a foreign corporation, was much disputed and led to very particularistic holdings.⁹³⁴ In the absence of enough activity to constitute doing business, the mere presence of an agent, officer, or stockholder, who could be served, within a state’s territorial limits was not sufficient to enable the state to exercise jurisdiction over the foreign corporation.⁹³⁵

The touchstone in jurisdiction cases was recast by International Shoe Co. v. Washington and its “minimum contacts” analysis.⁹³⁶ International Shoe, an outofstate corporation, had not been issued a license to do business in the State of Washington, but it systematically and continuously employed a sales force of Washington residents to solicit therein and thus was held amenable to suit in Washington for unpaid unemployment compensation contributions for such salesmen. The Court deemed a notice of assessment served personally upon one of the local sales solicitors, and a copy of the assessment sent by registered mail to the corporation’s principal office in Missouri, sufficient to apprise the corporation of the proceeding.

To reach this conclusion, the Court not only overturned prior holdings that mere solicitation of business does not constitute a sufficient contact to subject a foreign corporation to a state’s jurisdiction,⁹³⁷ but also rejected the “presence” test as begging the question to be decided. “The terms ‘present’ or ‘presence,’” according to Chief Justice Stone, “are used merely to symbolize those activities of the corporation’s agent within the State which courts will deem to be sufficient to satisfy the demands of due process. . . . Those demands may be met by such contacts of the corporation with the State of the forum as make it reasonable, in the context of our federal system . . . , to require the corporation to defend the particular suit which is brought there; [and] . . . that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’. . . . An ‘estimate of the inconveniences’ which would result to the corporation from a trial away from its ‘home’ or principal place of business is relevant in this connection.”⁹³⁸ As to the scope of application to be accorded this “fair play and substantial justice” doctrine, the Court concluded that “so far as . . . [corporate] obligations arise out of or are connected with activities within the State, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.”⁹³⁹

Extending this logic, a majority of the Court ruled that an outofstate association selling mail order insurance had developed sufficient contacts and ties with Virginia residents so that the state could institute enforcement proceedings under its Blue Sky Law by forwarding notice to the company by registered mail, notwithstanding that the Association solicited business in Virginia solely through recommendations of existing members and was represented therein by no agents whatsoever.⁹⁴⁰ The Due Process Clause was declared not to “forbid a State to protect its citizens from such injustice” of having to file suits on their claims at a far distant home office of such company, especially in view of the fact that such suits could be more conveniently tried in Virginia where claims of loss could be investigated.⁹⁴¹

Likewise, the Court reviewed a California statute which subjected foreign mail order insurance companies engaged in contracts with California residents to suit in California courts, and which had authorized the petitioner to serve a Texas insurer by registered mail only.⁹⁴² The contract between the company and the insured specified that Austin, Texas, was the place of “making” and the place where liability should be deemed to arise. The company mailed premium notices to the insured in California, and he mailed his premium payments to the company in Texas. Acknowledging that the connection of the company with California was tenuous—it had no office or agents in the state and no evidence had been presented that it had solicited anyone other than the insured for business— the Court sustained jurisdiction on the basis that the suit was on a contract which had a substantial connection with California. “The contract was delivered in California, the premiums were mailed there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.”⁹⁴³

In making this decision, the Court noted that “[l]ooking back over the long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.”⁹⁴⁴ However, in Hanson v. Denckla, decided during the same Term, the Court found in personam jurisdiction lacking for the first time since International Shoe Co. v. Washington, pronouncing firm due process limitations. In Hanson,⁹⁴⁵ the issue was whether a Florida court considering a contested will obtained jurisdiction over corporate trustees of disputed property through use of ordinary mail and publication. The will had been entered into and probated in Florida, the claimants were resident in Florida and had been personally served, but the trustees, who were indispensable parties, were resident in Delaware. Noting the trend in enlarging the ability of the states to obtain in personam jurisdiction over absent defendants, the Court denied the exercise of nationwide in personam jurisdiction by states, saying that “it would be a mistake to assume that th[e] trend [to expand the reach of state courts] heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.”⁹⁴⁶

The Court recognized in Hanson that Florida law was the most appropriate law to be applied in determining the validity of the will and that the corporate defendants might be little inconvenienced by having to appear in Florida courts, but it denied that either circumstance satisfied the Due Process Clause. The Court noted that due process restrictions do more than guarantee immunity from inconvenient or distant litigation, in that “[these restrictions] are consequences of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the ‘minimum contacts’ with that State that are a prerequisite to its exercise of power over him.” The only contacts the corporate defendants had in Florida consisted of a relationship with the individual defendants. “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. . . . The settlor’s execution in Florida of her power of appointment cannot remedy the absence of such an act in this case.”⁹⁴⁷

The Court continued to apply International Shoe principles in diverse situations. Thus, circulation of a magazine in a state was an adequate basis for that state to exercise jurisdiction over an outofstate corporate magazine publisher in a libel action. The fact that the plaintiff did not have “minimum contacts” with the forum state was not dispositive since the relevant inquiry is the relations among the defendant, the forum, and the litigation.⁹⁴⁸ Or, damage done to the plaintiff’s reputation in his home state caused by circulation of a defamatory magazine article there may justify assertion of jurisdiction over the out-of-state authors of such article, despite the lack of minimum contact between the authors (as opposed to the publishers) and the state.⁹⁴⁹ Further, though there is no per se rule that a contract with an out-of-state party automatically establishes jurisdiction to enforce the contract in the other party’s forum, a franchisee who has entered into a franchise contract with an out-of-state corporation may be subject to suit in the corporation’s home state where the overall circumstances (contract terms themselves, course of dealings) demonstrate a deliberate reaching out to establish contacts with the franchisor in the franchisor’s home state.⁹⁵⁰

The Court has continued to wrestle over when a state may adjudicate a products liability claim for an injury occurring within it, at times finding the defendant’s contacts with the place of injury to be too attenuated to support its having to mount a defense there. In World-Wide Volkswagen Corp. v. Woodson,⁹⁵¹ the Court applied its “minimum contacts” test to preclude the assertion of jurisdiction over two foreign corporations that did no business in the forum state. Plaintiffs had sustained personal injuries in Oklahoma in an accident involving an alleged defect in their automobile. The car had been purchased the previous year in New York, the plaintiffs were New York residents at time of purchase, and the accident had occurred while they were driving through Oklahoma on their way to a new residence in Arizona. Defendants were the automobile retailer and its wholesaler, both New York corporations that did no business in Oklahoma. The Court found no circumstances justifying assertion by Oklahoma courts of jurisdiction over defendants. The Court found that the defendants (1) carried on no activity in Oklahoma, (2) closed no sales and performed no services there, (3) availed themselves of none of the benefits of the state’s laws, (4) solicited no business there either through salespersons or through advertising reasonably calculated to reach the state, and (5) sold no cars to Oklahoma residents or indirectly served or sought to serve the Oklahoma market. Although it might have been foreseeable that the automobile would travel to Oklahoma, foreseeability was held to be relevant only insofar as “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”⁹⁵² The Court in World-Wide Volkswagen Corp. contrasted the facts of the case with the instance of a corporation “deliver[ing] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”⁹⁵³

In Asahi Metal Industry Co. v. Superior Court,⁹⁵⁴ the Court addressed more closely how jurisdiction ﬂows with products downstream. The Court identified two standards for limiting jurisdiction even as products proceed to foreseeable destinations. The more general standard harked back to the fair play and substantial justice doctrine of International Shoe and requires balancing the respective interests of the parties, the prospective forum state, and alternative fora. All the Justices agreed with the legitimacy of this test in assessing due process limits on jurisdiction.⁹⁵⁵ However, four Justices would also apply a more exacting test: A defendant who placed a product in the stream of commerce knowing that the product might eventually be sold in a state will be subject to jurisdiction there only if the defendant also had purposefully acted to avail itself of the state’s market. According to Justice O’Connor, who wrote the opinion espousing this test, a defendant subjected itself to jurisdiction by targeting or serving customers in a state through, for example, direct advertising, marketing through a local sales agent, or establishing channels for providing regular advice to local customers. Action, not expectation, is key.⁹⁵⁶ In Asahi, the state was found to lack jurisdiction under both tests cited.

Doctrinal differences on the due process touchstones in streamofcommerce cases became more critical to the outcome in J. McIntyre Machinery, Ltd. v. Nicastro.⁹⁵⁷ Justice Kennedy, writing for a four-Justice plurality, asserted that it is a defendant’s purposeful availment of the forum state that makes jurisdiction consistent with traditional notions of fair play and substantial justice. The question is not so much the fairness of a state reaching out to bring a foreign defendant before its courts as it is a matter of a foreign defendant having acted within a state so as to bring itself within the state’s limited authority. Thus, a British machinery manufacturer who targeted the U. S. market generally through engaging a nationwide distributor and attending trade shows, among other means, could not be sued in New Jersey for an industrial accident that occurred in the state. Even though at least one of its machines (and perhaps as many as four) were sold to New Jersey concerns, the defendant had not purposefully targeted the New Jersey market through, for example, establishing an office, advertising, or sending employees.⁹⁵⁸ Concurring with the plurality, Justice Breyer emphasized the outcome lay in stream-of-commerce precedents that held isolated or infrequent sales could not support jurisdiction. At the same time, Justice Breyer cautioned against adoption of the plurality’s strict active availment of the forum rule, especially because the Court had yet to consider due process requirements in the context of evolving business models, modern e-commerce in particular.⁹⁵⁹

Nonetheless, in order for a state court to exercise specific jurisdiction, the suit must arise out of or relate to the defendant’s contacts with the forum,⁹⁶⁰ and when there is “no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.”⁹⁶¹ As a result, the Court, in Bristol-Myers Squibb Co. v. Superior Court, concluded that the California Supreme Court erred in employing a “relaxed” approach to personal jurisdiction by holding that a state court could exercise specific jurisdiction over a corporate defendant who was being sued by non-state residents for out-of-state activities solely because the defendant had “extensive forum contacts” unrelated to the claims in question.⁹⁶² Concluding that California’s approach was a “loose and spurious form of general jurisdiction,”⁹⁶³ the Court held that without a “connection between the forum and the specific claims at issue,” California courts lacked jurisdiction over the corporate defendant.⁹⁶⁴

Actions In Rem: Proceeding Against Property.—In an in rem action, which is an action brought directly against a property interest, a state can validly proceed to settle controversies with regard to rights or claims against tangible or intangible property within its borders, notwithstanding that jurisdiction over the defendant was never established.⁹⁶⁵ Unlike jurisdiction in personam, a judgment entered by a court with in rem jurisdiction does not bind the defendant personally but determines the title to or status of the only property in question.⁹⁶⁶ Proceedings brought to register title to land,⁹⁶⁷ to condemn⁹⁶⁸ or confiscate⁹⁶⁹ real or personal property, or to administer a decedent’s estate⁹⁷⁰ are typical in rem actions. Due process is satisfied by seizure of the property (the “res”) and notice to all who have or may have interests therein.⁹⁷¹ Under prior case law, a court could acquire in rem jurisdiction over nonresidents by mere constructive service of process,⁹⁷² under the theory that property was always in possession of its owners and that seizure would afford them notice, because they would keep themselves apprized of the state of their property. It was held, however, that this fiction did not satisfy the requirements of due process, and, whatever the nature of the proceeding, that notice must be given in a manner that actually notifies the person being sought or that has a reasonable certainty of resulting in such notice.⁹⁷³

Although the Court has now held “that all assertions of state-court jurisdiction must be evaluated according to the [‘minimum contacts’] standards set forth in International Shoe Co. v. Washington,”⁹⁷⁴ it does not appear that this will appreciably change the result for in rem jurisdiction over property. “[T]he presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State’s protection of his interest. The State’s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.”⁹⁷⁵ Thus, for “true” in rem actions, the old results are likely to still prevail.

Quasi in Rem: Attachment Proceedings.—If a defendant is neither domiciled nor present in a state, he cannot be served personally, and any judgment in money obtained against him would be unenforceable. This does not, however, prevent attachment of a defendant’s property within the state. The practice of allowing a state to attach a non-resident’s real and personal property situated within its borders to satisfy a debt or other claim by one of its citizens goes back to colonial times. Attachment is considered a form of in rem proceeding sometimes called “quasi in rem,” and under Pennoyer v. Neff⁹⁷⁶ an attachment could be implemented by obtaining a writ against the local property of the defendant and giving notice by publication.⁹⁷⁷ The judgement was then satisfied from the property attached, and if the attached property was insufficient to satisfy the claim, the plaintiff could go no further.⁹⁷⁸

This form of proceeding raised many questions. Of course, there were always instances in which it was fair to subject a person to suit on his property located in the forum state, such as where the property was related to the matter sued over.⁹⁷⁹ In others, the question was more disputed, as in the famous New York Court of Appeals case of Seider v. Roth,⁹⁸⁰ in which the property subject to attachment was the contractual obligation of the defendant’s insurance company to defend and pay the judgment. But, in Harris v. Balk,⁹⁸¹ the facts of the case and the establishment of jurisdiction through quasi in rem proceedings raised the issue of fairness and territoriality. The claimant was a Maryland resident who was owed a debt by Balk, a North Carolina resident. The Marylander ascertained, apparently adventitiously, that Harris, a North Carolina resident who owed Balk an amount of money, was passing through Maryland, and the Marylander attached this debt. Balk had no notice of the action and a default judgment was entered, after which Harris paid over the judgment to the Marylander. When Balk later sued Harris in North Carolina to recover on his debt, Harris argued that he had been relieved of any further obligation by satisfying the judgment in Maryland, and the Supreme Court sustained his defense, ruling that jurisdiction had been properly obtained and the Maryland judgment was thus valid.⁹⁸²

subject⁹⁸³ in which the Court rejected the Delaware state court’s jurisdiction, holding that the “minimum contacts” test of International Shoe applied to all in rem and quasi in rem actions. The case involved a Delaware sequestration statute under which plaintiffs were authorized to bring actions against nonresident defendants by attaching their “property” within Delaware, the property here consisting of shares of corporate stock and options to stock in the defendant corporation. The stock was considered to be in Delaware because that was the state of incorporation, but none of the certificates representing the seized stocks were physically present in Delaware. The reason for applying the same test as is applied in in personam cases, the Court said, “is simple and straightforward. It is premised on recognition that ‘[t]he phrase ‘judicial jurisdiction’ over a thing,’ is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.”⁹⁸⁴ Thus, “[t]he recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over the interests of persons in a thing.’”⁹⁸⁵

A further tightening of jurisdictional standards occurred in Rush v. Savchuk.⁹⁸⁶ The plaintiff was injured in a one-car accident in Indiana while a passenger in a car driven by defendant. Plaintiff later moved to Minnesota and sued defendant, still resident in Indiana, in state court in Minnesota. There were no contacts between the defendant and Minnesota, but defendant’s insurance company did business there and plaintiff garnished the insurance contract, signed in Indiana, under which the company was obligated to defend defendant in litigation and indemnify him to the extent of the policy limits. The Court refused to permit jurisdiction to be grounded on the contract; the contacts justifying jurisdiction must be those of the defendant engaging in purposeful activity related to the forum.⁹⁸⁷ Rush thus resulted in the demise of the controversial Seider v. Roth doctrine, which lower courts had struggled to save after Shaffer v. Heitner.⁹⁸⁸

Actions in Rem: Estates, Trusts, Corporations.—Generally, probate will occur where the decedent was domiciled, and, as a probate judgment is considered in rem, a determination as to assets in that state will be determinative as to all interested persons.⁹⁸⁹ Insofar as the probate affects real or personal property beyond the state’s boundaries, however, the judgment is in personam and can bind only parties thereto or their privies.⁹⁹⁰ Thus, the Full Faith and Credit Clause would not prevent an out-of-state court in the state where the property is located from reconsidering the first court’s finding of domicile, which could affect the ultimate disposition of the property.⁹⁹¹

The difficulty of characterizing the existence of the res in a particular jurisdiction is illustrated by the in rem aspects of Hanson v. Denckla.⁹⁹² As discussed earlier,⁹⁹³ the decedent created a trust with a Delaware corporation as trustee,⁹⁹⁴ and the Florida courts had attempted to assert both in personam and in rem jurisdiction over the Delaware corporation. Asserting the old theory that a court’s in rem jurisdiction “is limited by the extent of its power and by the coordinate authority of sister States,”⁹⁹⁵ i. e. , whether the court has jurisdiction over the thing, the Court thought it clear that the trust assets that were the subject of the suit were located in Delaware and thus the Florida courts had no in rem jurisdiction. The Court did not expressly consider whether the International Shoe test should apply to such in rem jurisdiction, as it has now held it generally must, but it did brieﬂy consider whether Florida’s interests arising from its authority to probate and construe the domiciliary’s will, under which the foreign assets might pass, were a sufficient basis of in rem jurisdiction and decided they were not.⁹⁹⁶ The effect of International Shoe in this area is still to be discerned.

The reasoning of the Pennoyer⁹⁹⁷ rule, that seizure of property and publication was sufficient to give notice to nonresidents or absent defendants, has also been applied in proceedings for the forfeiture of abandoned property. If all known claimants were personally served and all claimants who were unknown or nonresident were given constructive notice by publication, judgments in these proceedings were held binding on all.⁹⁹⁸ But, in Mullane v. Central Hanover Bank & Trust Co.,⁹⁹⁹ the Court, while declining to characterize the proceeding as in rem or in personam, held that a bank managing a common trust fund in favor of nonresident as well as resident beneficiaries could not obtain a judicial settlement of accounts if the only notice was publication in a local paper. Although such notice by publication was sufficient as to beneficiaries whose interests or addresses were unknown to the bank, the Court held that it was feasible to make serious efforts to notify residents and nonresidents whose whereabouts were known, such as by mailing notice to the addresses on record with the bank.¹⁰⁰⁰

Notice: Service of Process.—Before a state may legitimately exercise control over persons and property, the state’s jurisdiction must be perfected by an appropriate service of process that is effective to notify all parties of proceedings that may affect their rights.¹⁰⁰¹ Personal service guarantees actual notice of the pendency of a legal action, and has traditionally been deemed necessary in actions styled in personam.¹⁰⁰² But “certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance,” the Court in some situations has allowed the use of procedures that “do not carry with them the same certainty of actual notice that inheres in personal service.”¹⁰⁰³ But, whether the action be in rem or in personam, there is a constitutional minimum; due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”¹⁰⁰⁴

The use of mail to convey notice, for instance, has become quite established,¹⁰⁰⁵ especially for assertion of in personam jurisdiction extraterritorially upon individuals and corporations having “minimum contacts” with a forum state, where various “long-arm” statutes authorize notice by mail.¹⁰⁰⁶ Or, in a class action, due process is satisfied by mail notification of out-of-state class members, giving such members the opportunity to “opt out” but with no requirement that inclusion in the class be contingent upon affirmative response.¹⁰⁰⁷ Other service devices and substitutions have been pursued and show some promise of further loosening of the concept of territoriality even while complying with minimum due process standards of notice.¹⁰⁰⁸

Power of the States to Regulate ProcedureGenerally.—As long as a party has been given sufficient notice and an opportunity to defend his interest, the Due Process Clause of the Fourteenth Amendment does not generally mandate the particular forms of procedure to be used in state courts.¹⁰⁰⁹ The states may regulate the manner in which rights may be enforced and wrongs remedied,¹⁰¹⁰ and may create courts and endow them with such jurisdiction as, in the judgment of their legislatures, seems appropriate.¹⁰¹¹ Whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure, are issues that ordinarily do not implicate the Fourteenth Amendment. The function of the Fourteenth Amendment is negative rather than affirmative¹⁰¹² and in no way obligates the states to adopt specific measures of reform.¹⁰¹³

Commencement of Actions.—A state may impose certain conditions on the right to institute litigation. Access to the courts has been denied to persons instituting stockholders’ derivative actions unless reasonable security for the costs and fees incurred by the corporation is first tendered.¹⁰¹⁴ But, foreclosure of all access to the courts, through financial barriers and perhaps through other means as well, is subject to federal constitutional scrutiny and must be justified by reference to a state interest of suitable importance. Thus, where a state has monopolized the avenues of settlement of disputes between persons by prescribing judicial resolution, and where the dispute involves a fundamental interest, such as marriage and its dissolution, the state may not deny access to those persons unable to pay its fees.¹⁰¹⁵

Older cases, which have not been questioned by more recent ones, held that a state, as the price of opening its tribunals to a nonresident plaintiff, may exact the condition that the nonresident stand ready to answer all cross actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff’s attorney of record.¹⁰¹⁶ For similar reasons, a requirement of the performance of a chemical analysis as a condition precedent to a suit to recover for damages resulting to crops from allegedly deficient fertilizers, while allowing other evidence, was not deemed arbitrary or unreasonable.¹⁰¹⁷

Amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal. Accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation.¹⁰¹⁸

Defenses.—Just as a state may condition the right to institute litigation, so may it establish terms for the interposition of certain defenses. It may validly provide that one sued in a possessory action cannot bring an action to try title until after judgment is rendered and after he has paid that judgment.¹⁰¹⁹ A state may limit the defense in an action to evict tenants for nonpayment of rent to the issue of payment and leave the tenants to other remedial actions at law on a claim that the landlord had failed to maintain the premises.¹⁰²⁰ A state may also provide that the doctrines of contributory negligence, assumption of risk, and fellow servant do not bar recovery in certain employment-related accidents. No person has a vested right in such defenses.¹⁰²¹ Similarly, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend.¹⁰²²

Costs, Damages, and Penalties.—What costs are allowed by law is for the court to determine; an erroneous judgment of what the law allows does not deprive a party of his property without due process of law.¹⁰²³ Nor does a statute providing for the recovery of reasonable attorney’s fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.¹⁰²⁴ Congress may, however, severely restrict attorney’s fees in an effort to keep an administrative claims proceeding informal.¹⁰²⁵

Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives.¹⁰²⁶ Also, as a reasonable incentive for prompt settlement without suit of just demands of a class receiving special legislative treatment, such as common carriers and insurance companies together with their patrons, a state may permit harassed litigants to recover penalties in the form of attorney’s fees or damages.¹⁰²⁷

By virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a state may provide that a public officer embezzling public money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. Whatever this fine is called, whether a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime.¹⁰²⁸ On the other hand, when appellant, by its refusal to surrender certain assets, was adjudged in contempt for frustrating enforcement of a judgment obtained against it, dismissal of its appeal from the first judgment was not a penalty imposed for the contempt, but merely a reasonable method for sustaining the effectiveness of the state’s judicial process.¹⁰²⁹

To deter careless destruction of human life, a state may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees,¹⁰³⁰ and may also allow punitive damages for fraud perpetrated by employees.¹⁰³¹ Also constitutional is the traditional common law approach for measuring punitive damages, granting the jury wide but not unlimited discretion to consider the gravity of the offense and the need to deter similar offenses.¹⁰³² The Court has indicated, however, that, although the Excessive Fines Clause of the Eighth Amendment “does not apply to awards of punitive damages in cases between private parties,”¹⁰³³ a “grossly excessive” award of punitive damages violates substantive due process, as the Due Process Clause limits the amount of punitive damages to what is “reasonably necessary to vindicate the State’s legitimate interests in punishment and deterrence.”¹⁰³⁴ These limits may be discerned by a court by examining the degree of reprehensibility of the act, the ratio between the punitive award and plaintiff’s actual or potential harm, and the legislative sanctions provided for comparable misconduct.¹⁰³⁵ In addition, the “Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inﬂicts upon nonparties . . . .”¹⁰³⁶

Statutes of Limitation.—A statute of limitations does not deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce the right by suit. By the same token, a state may shorten an existing period of limitation, provided a reasonable time is allowed for bringing an action after the passage of the statute and before the bar takes effect. What is a reasonable period, however, is dependent on the nature of the right and particular circumstances.¹⁰³⁷

Thus, where a receiver for property is appointed 13 years after the disappearance of the owner and notice is made by publication, it is not a violation of due process to bar actions relative to that property after an interval of only one year after such appointment.¹⁰³⁸ When a state, by law, suddenly prohibits all actions to contest tax deeds which have been of record for two years unless they are brought within six months after its passage, no unconstitutional deprivation is effected.¹⁰³⁹ No less valid is a statute which provides that when a person has been in possession of wild lands under a recorded deed continuously for 20 years and had paid taxes thereon during the same, and the former owner in that interval pays nothing, no action to recover such land shall be entertained unless commenced within 20 years, or before the expiration of five years following enactment of said provision.¹⁰⁴⁰ Similarly, an amendment to a workmen’s compensation act, limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation of a disability, does not deny due process to one who sustained his injury at a time when the statute contained no limitation. A limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive.¹⁰⁴¹

Moreover, a state may extend as well as shorten the time in which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. Thus, a repeal or extension of a statute of limitations affects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. “A right to defeat a just debt by the statute of limitation . . . [is not] a vested right,” such as is protected by the Constitution. Accordingly no offense against the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a child for the use of her property,¹⁰⁴² or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,¹⁰⁴³ or a right of an employee to seek, on account of the aggravation of a former injury, an additional award out of a state-administered fund.¹⁰⁴⁴

However, for suits to recover real and personal property, when the right of action has been barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as attempting an arbitrary transfer of title.¹⁰⁴⁵ Also unconstitutional is the application of a statute of limitation to extend a period that parties to a contract have agreed should limit their right to remedies under the contract. “When the parties to a contract have expressly agreed upon a time limit on their obligation, a statute which invalidates . . . [said] agreement and directs enforcement of the contract after . . . [the agreed] time has expired” unconstitutionally imposes a burden in excess of that contracted.¹⁰⁴⁶

Burden of Proof and Presumptions.—It is clearly within the domain of the legislative branch of government to establish presumptions and rules respecting burden of proof in litigation.¹⁰⁴⁷ Nonetheless, the Due Process Clause does prevent the deprivation of liberty or property upon application of a standard of proof too lax to make reasonable assurance of accurate factfinding. Thus, “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’”¹⁰⁴⁸

Applying the formula it has worked out for determining what process is due in a particular situation,¹⁰⁴⁹ the Court has held that a standard at least as stringent as clear and convincing evidence is required in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period.¹⁰⁵⁰ Similarly, because the interest of parents in retaining custody of their children is fundamental, the state may not terminate parental rights through reliance on a standard of preponderance of the evidence—the proof necessary to award money damages in an ordinary civil action— but must prove that the parents are unfit by clear and convincing evidence.¹⁰⁵¹ Further, unfitness of a parent may not simply be presumed because of some purported assumption about general characteristics, but must be established.¹⁰⁵²

As long as a presumption is not unreasonable and is not conclusive, it does not violate the Due Process Clause. Legislative fiat may not take the place of fact in the determination of issues involving life, liberty, or property, however, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one’s defense is void.¹⁰⁵³ On the other hand, if there is a rational connection between what is proved and what is inferred, legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact will be sustained.¹⁰⁵⁴

For a brief period, the Court used what it called the “irrebuttable presumption doctrine” to curb the legislative tendency to confer a benefit or to impose a detriment based on presumed characteristics based on the existence of another characteristic.¹⁰⁵⁵ Thus, in Stanley v. Illinois,¹⁰⁵⁶ the Court found invalid a construction of the state statute that presumed illegitimate fathers to be unfit parents and that prevented them from objecting to state wardship. Mandatory maternity leave rules requiring pregnant teachers to take unpaid maternity leave at a set time prior to the date of the expected births of their babies were voided as creating a conclusive presumption that every pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching.¹⁰⁵⁷

Major controversy developed over the application of “irrebuttable presumption doctrine” in benefits cases. Thus, although a state may require that nonresidents must pay higher tuition charges at state colleges than residents, and while the Court assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, it was held impermissible for the state to presume conclusively that because the legal address of a student was outside the state at the time of application or at some point during the preceding year he was a nonresident as long as he remained a student. The Due Process Clause required that the student be afforded the opportunity to show that he is or has become a bona fide resident entitled to the lower tuition.¹⁰⁵⁸

Moreover, a food stamp program provision making ineligible any household that contained a member age 18 or over who was claimed as a dependent for federal income tax purposes the prior tax year by a person not himself eligible for stamps was voided on the ground that it created a conclusive presumption that fairly often could be shown to be false if evidence could be presented.¹⁰⁵⁹ The rule which emerged for subjecting persons to detriment or qualifying them for benefits was that the legislature may not presume the existence of the decisive characteristic upon a given set of facts, unless it can be shown that the defined characteristics do in fact encompass all persons and only those persons that it was the purpose of the legislature to reach. The doctrine in effect afforded the Court the opportunity to choose between resort to the Equal Protection Clause or to the Due Process Clause in judging the validity of certain classifications,¹⁰⁶⁰ and it precluded Congress and legislatures from making general classifications that avoided the administrative costs of individualization in many areas.

Use of the doctrine was curbed if not halted, however, in Weinberger v. Salfi,¹⁰⁶¹ in which the Court upheld the validity of a Social Security provision requiring that the spouse of a covered wage earner must have been married to the wage earner for at least nine months prior to his death in order to receive benefits as a spouse. Purporting to approve but to distinguish the prior cases in the line,¹⁰⁶² the Court imported traditional equal protection analysis into considerations of due process challenges to statutory classifications.¹⁰⁶³ Extensions of the prior cases to government entitlement classifications, such as the Social Security Act qualification standard before it, would, said the Court, “turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.”¹⁰⁶⁴ Whether the Court will now limit the doctrine to the detriment area only, exclusive of benefit programs, whether it will limit it to those areas which involve fundamental rights or suspect classifications (in the equal protection sense of those expressions)¹⁰⁶⁵ or whether it will simply permit the doctrine to pass from the scene remains unsettled, but it is noteworthy that it now rarely appears on the Court’s docket.¹⁰⁶⁶

Trials and Appeals.—Trial by jury in civil trials, unlike the case in criminal trials, has not been deemed essential to due process, and the Fourteenth Amendment has not been held to restrain the states in retaining or abolishing civil juries.¹⁰⁶⁷ Thus, abolition of juries in proceedings to enforce liens,¹⁰⁶⁸ mandamus¹⁰⁶⁹ and quo warranto¹⁰⁷⁰ actions, and in eminent domain¹⁰⁷¹ and equity¹⁰⁷² proceedings has been approved. states are also free to adopt innovations respecting selection and number of jurors. Verdicts rendered by ten out of twelve jurors may be substituted for the requirement of unanimity,¹⁰⁷³ and petit juries containing eight rather than the conventional number of twelve members may be established.¹⁰⁷⁴

If a full and fair trial on the merits is provided, due process does not require a state to provide appellate review.¹⁰⁷⁵ But if an appeal is afforded, the state must not so structure it as to arbitrarily deny to some persons the right or privilege available to others.¹⁰⁷⁶

PROCEDURAL DUE PROCESS—CRIMINAL Generally: The Principle of Fundamental FairnessThe Court has held that practically all the criminal procedural guarantees of the Bill of Rights—the Fourth, Fifth, Sixth, and Eighth Amendments—are fundamental to state criminal justice systems and that the absence of one or the other particular guarantees denies a suspect or a defendant due process of law under the Fourteenth Amendment.¹⁰⁷⁷ In addition, the Court has held that the Due Process Clause protects against practices and policies that violate precepts of fundamental fairness,¹⁰⁷⁸ even if they do not violate specific guarantees of the Bill of Rights.¹⁰⁷⁹ The standard query in such cases is whether the challenged practice or policy violates “a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government.”¹⁰⁸⁰

This inquiry contains a historical component, as “recent cases . . . have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and in this country. The question thus is whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty. . . . [Therefore, the limitations imposed by the Court on the states are] not necessarily fundamental to fairness in every criminal system that might be imagined but [are] fundamental in the context of the criminal processes maintained by the American States.”¹⁰⁸¹

The Elements of Due ProcessInitiation of the Prosecution.—Indictment by a grand jury is not a requirement of due process; a state may proceed instead by information.¹⁰⁸² Due process does require that, whatever the procedure, a defendant must be given adequate notice of the offense charged against him and for which he is to be tried,¹⁰⁸³ even aside from the notice requirements of the Sixth Amendment.¹⁰⁸⁴ Where, of course, a grand jury is used, it must be fairly constituted and free from prejudicial inﬂuences.¹⁰⁸⁵

Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine.—Criminal statutes that lack sufficient definiteness or specificity are commonly held “void for vagueness.”¹⁰⁸⁶ Such legislation “may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.”¹⁰⁸⁷ “Men of common intelligence cannot be required to guess at the meaning of [an] enactment.”¹⁰⁸⁸ In other situations, a statute may be unconstitutionally vague because the statute is worded in a standardless way that invites arbitrary enforcement. In this vein, the Court has invalidated two kinds of laws as “void for vagueness”: (1) laws that define criminal offenses; and (2) laws that fix the permissible sentences for criminal offenses.¹⁰⁸⁹ With respect to laws that define criminal offenses, the Court has required that a penal statute provide the definition of the offense with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”¹⁰⁹⁰

For instance, the Court voided for vagueness a criminal statute providing that a person was a “gangster” and subject to fine or imprisonment if he was without lawful employment, had been either convicted at least three times for disorderly conduct or had been convicted of any other crime, and was “known to be a member of a gang of two or more persons.” The Court observed that neither common law nor the statute gave the words “gang” or “gangster” definite meaning, that the enforcing agencies and courts were free to construe the terms broadly or narrowly, and that the phrase “known to be a member” was ambiguous. The statute was held void, and the Court refused to allow specification of details in the particular indictment to save it because it was the statute, not the indictment, that prescribed the rules to govern conduct.¹⁰⁹¹

A statute may be so vague or so threatening to constitutionally protected activity that it can be pronounced wholly unconstitutional; in other words, “unconstitutional on its face.”¹⁰⁹² Thus, for instance, a unanimous Court in Papachristou v. City of Jacksonville¹⁰⁹³ struck down as invalid on its face a vagrancy ordinance that punished “dissolute persons who go about begging, . . . common night walkers, . . . common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, . . . persons neglecting all lawful business and habitually spending their time by frequenting house of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children . . . .”¹⁰⁹⁴ The ordinance was found to be facially invalid, according to Justice Douglas for the Court, because it did not give fair notice, it did not require specific intent to commit an unlawful act, it permitted and encouraged arbitrary and erratic arrests and convictions, it committed too much discretion to policemen, and it criminalized activities that by modern standards are normally innocent.¹⁰⁹⁵

In FCC v. Fox, 567 U. S. ___, No. 10–1293, slip op. (2012) the Court held that the Federal Communiations Commission (FCC) had violated the Fifth Amendment due process rights of Fox Television and ABC, Inc. , because the FCC had not given fair notice that broadcasting isolated instances of expletives or brief nudity could lead to punishment. 18 U. S. C. § 1464 bans the broadcast of “any obscene, indecent, or profane language”, but the FCC had a long-standing policy that it would not consider “ﬂeeting” instances of indecency to be actionable, and had confirmed such a policy by issuance of an industry guidance. The policy was not announced until after the instances at issues in this case (two concerned isolated utterances of expletives during two live broadcasts aired by Fox Television, and a brief exposure of the nude buttocks of an adult female character by ABC). The Commission policy in place at the time of the broadcasts, therefore, gave the broadcasters no notice that a ﬂeeting instance of indecency could be actionable as indecent.

On the other hand, some less vague statutes may be held unconstitutional only in application to the defendant before the Court.¹⁰⁹⁶ For instance, where the terms of a statute could be applied both to innocent or protected conduct (such as free speech) and unprotected conduct, but the valuable effects of the law outweigh its potential general harm, such a statute will be held unconstitutional only as applied.¹⁰⁹⁷ Thus, in Palmer v. City of Euclid,¹⁰⁹⁸ an ordinance punishing “suspicious persons” defined as “[a]ny person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself” was found void only as applied to a particular defendant. In Palmer, the Court found that the defendant, having dropped off a passenger and begun talking into a two-way radio, was engaging in conduct which could not reasonably be anticipated as fitting within the “without any visible or lawful business” portion of the ordinance’s definition.

Loitering statutes that are triggered by failure to obey a police dispersal order are suspect, and may be struck down if they leave a police officer absolute discretion to give such orders.¹⁰⁹⁹ Thus, a Chicago ordinance that required police to disperse all persons in the company of “criminal street gang members” while in a public place with “no apparent purpose,” failed to meet the “requirement that a legislature establish minimal guidelines to govern law enforcement.”¹¹⁰⁰ The Court noted that “no apparent purpose” is inherently subjective because its application depends on whether some purpose is “apparent” to the officer, who would presumably have the discretion to ignore such apparent purposes as engaging in idle conversation or enjoying the evening air.¹¹⁰¹ On the other hand, where such a statute additionally required a finding that the defendant was intent on causing inconvenience, annoyance, or alarm, it was upheld against facial challenge, at least as applied to a defendant who was interfering with the ticketing of a car by the police.¹¹⁰²

Statutes with vague standards may nonetheless be upheld if the text of statute is interpreted by a court with sufficient clarity.¹¹⁰³ Thus, the civil commitment of persons of “such conditions of emotional instability . . . as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons” was upheld by the Court, based on a state court’s construction of the statute as only applying to persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to inﬂict injury. The underlying conditions—habitual course of misconduct in sexual matters and lack of power to control impulses and likelihood of attack on others—were viewed as calling for evidence of past conduct pointing to probable consequences and as being as susceptible of proof as many of the criteria constantly applied in criminal proceedings.¹¹⁰⁴

Conceptually related to the problem of definiteness in criminal statutes is the problem of notice. Ordinarily, it can be said that ignorance of the law affords no excuse, or, in other instances, that the nature of the subject matter or conduct may be sufficient to alert one that there are laws which must be observed.¹¹⁰⁵ On occasion the Court has even approved otherwise vague statutes because the statute forbade only “willful” violations, which the Court construed as requiring knowledge of the illegal nature of the proscribed conduct.¹¹⁰⁶ Where conduct is not in and of itself blameworthy, however, a criminal statute may not impose a legal duty without notice.¹¹⁰⁷

The question of notice has also arisen in the context of “judge-made” law. Although the Ex Post Facto Clause forbids retroactive application of state and federal criminal laws, no such explicit restriction applies to the courts. Thus, when a state court abrogated the common law rule that a victim must die within a “year and a day” in order for homicide charges to be brought in Rogers v. Tennessee,¹¹⁰⁸ the question arose whether such rule could be applied to acts occurring before the court’s decision. The dissent argued vigorously that unlike the traditional common law practice of adapting legal principles to fit new fact situations, the court’s decision was an outright reversal of existing law. Under this reasoning, the new “law” could not be applied retrospectively. The majority held, however, that only those holdings which were “unexpected and indefensible by reference to the law which had been express prior to the conduct in issue”¹¹⁰⁹ could not be applied retroactively. The relatively archaic nature of “year and a day rule”, its abandonment by most jurisdictions, and its inapplicability to modern times were all cited as reasons that the defendant had fair warning of the possible abrogation of the common law rule.

With regard to statutes that fix criminal sentences,¹¹¹⁰ the Court has explained that the law must specify the range of available sentences with “sufficient clarity.”¹¹¹¹ For example, in Johnson v. United States, after years of litigation on the meaning and scope of the “residual clause” of the Armed Career Criminal Act of 1984 (ACCA),¹¹¹² the Court concluded that the clause in question was void for vagueness.¹¹¹³ In relevant part, the ACCA imposes an increased prison term upon a felon who is in possession of a firearm, if that felon has previously been convicted for a “violent felony,” a term defined by the statute to include “burglary, arson, or extortion, [a crime that] involves use of explosives, or” crimes that fall within the residual clause—that is, crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.”¹¹¹⁴ In Johnson, prosecutors sought an enhanced sentence for a felon found in possession of a firearm, arguing that one of the defendant’s previous crimes—unlawful possession of a short-barreled shotgun— qualified as a violent felony because the crime amounted to one that “involve[d] conduct that presents a serious potential risk of physical injury to another.”¹¹¹⁵ To determine whether a crime falls within the residual clause, the Court had previously endorsed a “categorical approach”—that is, instead of looking to whether the facts of a specific offense presented a serious risk of physical injury to another, the Supreme Court had interpreted the ACCA to require courts to look to whether the underlying crime falls within a category such that the “ordinary case” of the crime would present a serious risk of physical injury.¹¹¹⁶ The Court in Johnson concluded that the residual clause was unconstitutionally vague because the clause’s requirement that courts determine what an “ordinary case” of a crime entails led to “grave uncertainty” about (1) how to estimate the risk posed by the crime and (2) how much risk was sufficient to qualify as a violent felony.¹¹¹⁷ For example, in determining whether attempted burglary ordinarily posed serious risks of physical injury, the Court suggested that reasonable minds could differ as to whether an attempted burglary would typically end in a violent encounter, resulting in the conclusion that the residual clause provided “no reliable way” to determine what crimes fell within its scope.¹¹¹⁸ In so holding, the Court relied heavily on the difficulties that federal courts (including the Supreme Court) have had in establishing consistent standards to adjudge the scope of the residual clause, noting that the failure of “persistent efforts” to establish a standard can provide evidence of vagueness.¹¹¹⁹

Entrapment.—Certain criminal offenses, because they are consensual actions taken between and among willing parties, present police with difficult investigative problems.¹¹²⁰ Thus, in order to deter such criminal behavior, police agents may “encourage” persons to engage in criminal behavior, such as selling narcotics or contraband,¹¹²¹ or they may may seek to test the integrity of public employees, officers or public officials by offering them bribes.¹¹²² In such cases, an “entrapment” defense is often made, though it is unclear whether the basis for the defense is the Due Process Clause, the supervisory authority of the federal courts to deter wrongful police conduct, or merely statutory construction (interpreting criminal laws to find that the legislature would not have intended to punish conduct induced by police agents).¹¹²³

The Court has employed the so-called “subjective approach” in evaluating the defense of entrapment.¹¹²⁴ This subjective approach follows a two-pronged analysis. First, the question is asked whether the offense was induced by a government agent. Second, if the government has induced the defendant to break the law, “the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”¹¹²⁵ If the defendant can be shown to have been ready and willing to commit the crime whenever the opportunity presented itself, the defense of entrapment is unavailing, no matter the degree of inducement.¹¹²⁶ On the other hand, “[w]hen the Government’s quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would never run afoul of the law, the courts should intervene.”¹¹²⁷

Criminal Identification Process.—In criminal trials, the reliability and weight to be accorded an eyewitness identification ordinarily are for the jury to decide, guided by instructions by the trial judge and subject to judicial prerogatives under the rules of evidence to exclude otherwise relevant evidence whose probative value is substantially outweighed by its prejudicial impact or potential to mislead. At times, however, a defendant alleges an out-of-court identification in the presence of police is so ﬂawed that it is inadmissible as a matter of fundamental justice under due process.¹¹²⁸ These cases most commonly challenge such police-arranged procedures as lineups, showups, photographic displays, and the like.¹¹²⁹ But not all cases have alleged careful police orchestration.¹¹³⁰

The Court generally disfavors judicial suppression of eyewitness identifications on due process grounds in lieu of having identification testimony tested in the normal course of the adversarial process.¹¹³¹ Two elements are required for due process suppression. First, law enforcement officers must have participated in an identification process that was both suggestive and unnecessary.¹¹³² Second, the identification procedures must have created a substantial prospect for misidentification. Determination of these elements is made by examining the “totality of the circumstances” of a case.¹¹³³ The Court has not recognized any per se rule for excluding an eyewitness identification on due process grounds.¹¹³⁴ Defendants have had difficulty meeting the Court’s standards: Only one challenge has been successful.¹¹³⁵

Fair Trial.—As noted, the provisions of the Bill of Rights now applicable to the states contain basic guarantees of a fair trial— right to counsel, right to speedy and public trial, right to be free from use of unlawfully seized evidence and unlawfully obtained confessions, and the like. But this does not exhaust the requirements of fairness. “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others.”¹¹³⁶ Conversely, “as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it . . . [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.”¹¹³⁷

For instance, bias or prejudice either inherent in the structure of the trial system or as imposed by external events will deny one’s right to a fair trial. Thus, in Tumey v. Ohio¹¹³⁸ it was held to violate due process for a judge to receive compensation out of the fines imposed on convicted defendants, and no compensation beyond his salary) “if he does not convict those who are brought before him.” Or, in other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify such judge from citing and sentencing the contemnors.¹¹³⁹ Due process is also violated by the participation of a biased or otherwise partial juror, although there is no presumption that all jurors with a potential bias are in fact prejudiced.¹¹⁴⁰

Public hostility toward a defendant that intimidates a jury is, or course, a classic due process violation.¹¹⁴¹ More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury’s exposure to it.¹¹⁴² For instance, the impact of televising trials on a jury has been a source of some concern.¹¹⁴³

The fairness of a particular rule of procedure may also be the basis for due process claims, but such decisions must be based on the totality of the circumstances surrounding such procedures.¹¹⁴⁴ For instance, a court may not restrict the basic due process right to testify in one’s own defense by automatically excluding all hypnotically refreshed testimony.¹¹⁴⁵ Or, though a state may require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, due process requires reciprocal discovery in such circumstances, necessitating that the state give the defendant pretrial notice of its rebuttal evidence on the alibi issue.¹¹⁴⁶ Due process is also violated when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors.¹¹⁴⁷

The use of visible physical restraints, such as shackles, leg irons, or belly chains, in front of a jury, has been held to raise due process concerns. In Deck v. Missouri,¹¹⁴⁸ the Court noted a rule dating back to English common law against bringing a defendant to trial in irons, and a modern day recognition that such measures should be used “only in the presence of a special need.”¹¹⁴⁹ The Court found that the use of visible restraints during the guilt phase of a trial undermines the presumption of innocence, limits the ability of a defendant to consult with counsel, and “affronts the dignity and decorum of judicial proceedings.”¹¹⁵⁰ Even where guilt has already been adjudicated, and a jury is considering the application of the death penalty, the latter two considerations would preclude the routine use of visible restraints. Only in special circumstances, such as where a judge has made particularized findings that security or ﬂight risk requires it, can such restraints be used.

The combination of otherwise acceptable rules of criminal trials may in some instances deny a defendant due process. Thus, based on the particular circumstance of a case, two rules that (1) denied a defendant the right to cross-examine his own witness in order to elicit evidence exculpatory to the defendant¹¹⁵¹ and (2) denied a defendant the right to introduce the testimony of witnesses about matters told them out of court on the ground the testimony would be hearsay, denied the defendant his constitutional right to present his own defense in a meaningful way.¹¹⁵² Similarly, a questionable procedure may be saved by its combination with another. Thus, it does not deny a defendant due process to subject him initially to trial before a non-lawyer police court judge when there is a later trial de novo available under the state’s court system.¹¹⁵³

Prosecutorial Misconduct.—When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. The clause “cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”¹¹⁵⁴

The above-quoted language was dictum,¹¹⁵⁵ but the principle it enunciated has required state officials to controvert allegations that knowingly false testimony had been used to convict¹¹⁵⁶ and has upset convictions found to have been so procured.¹¹⁵⁷ Extending the principle, the Court in Miller v. Pate¹¹⁵⁸ overturned a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts found near the scene of a sex attack belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts.

This line of reasoning has even resulted in the disclosure to the defense of information not relied upon by the prosecution during trial.¹¹⁵⁹ In Brady v. Maryland,¹¹⁶⁰ the Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that he had actually committed the murder.¹¹⁶¹ “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.”¹¹⁶²

In United States v. Agurs,¹¹⁶³ the Court summarized and somewhat expanded the prosecutor’s obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. First, as noted, if the prosecutor knew or should have known that testimony given to the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.¹¹⁶⁴ Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it,¹¹⁶⁵ the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial.¹¹⁶⁶ Third (the new law created in Agurs), if the defense did not make a request at all, or simply asked for “all Brady material” or for “anything exculpatory,” a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence. Under this third prong, if the prosecutor did not reveal the relevant information, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt.¹¹⁶⁷

This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate level of materiality by classifying the situation under which the exculpating information was withheld. Second, it was not clear, if the fairness of the trial was at issue, why the circumstances of the failure to disclose should affect the evaluation of the impact that such information would have had on the trial. Ultimately, the Court addressed these issues in United States v. Bagley¹¹⁶⁸ .

In Bagley, the Court established a uniform test for materiality, choosing the most stringent requirement that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.¹¹⁶⁹ This materiality standard, found in contexts outside of Brady inquiries,¹¹⁷⁰ is applied not only to exculpatory material, but also to material that would be relevant to the impeachment of witnesses.¹¹⁷¹ Thus, where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result.¹¹⁷²

The Supreme Court has also held that “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor.’ . . . ‘[T]he individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.’”¹¹⁷³

Proof, Burden of Proof, and Presumptions.—It had long been presumed that “reasonable doubt” was the proper standard for criminal cases,¹¹⁷⁴ but, because the standard was so widely accepted, it was only relatively recently that the Court had the opportunity to pronounce it guaranteed by due process. In 1970, the Court held in In re Winship that the Due Process Clauses of the Fifth and Fourteenth Amendments “[protect] the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”¹¹⁷⁵

The standard is closely related to the presumption of innocence, which helps to ensure a defendant a fair trial,¹¹⁷⁶ and requires that a jury consider a case solely on the evidence.¹¹⁷⁷ “The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’”¹¹⁷⁸

The Court had long held that, under the Due Process Clause, it would set aside convictions that are supported by no evidence at all.¹¹⁷⁹ The holding of the Winship case, however, left open the question as to whether appellate courts should weigh the sufficiency of trial evidence. Thus, in Jackson v. Virginia,¹¹⁸⁰ the Court held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves that the evidence on the record could reasonably support a finding of guilt beyond a reasonable doubt. The question the reviewing court is to ask itself is not whether it believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.¹¹⁸¹

Because due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged,¹¹⁸² the Court held in Mullaney v. Wilbur¹¹⁸³ that it was unconstitutional to require a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce the homicide to manslaughter. The Court indicated that a balancing-of-interests test should be used to determine when the Due Process Clause required the prosecution to carry the burden of proof and when some part of the burden might be shifted to the defendant. The decision, however, called into question the practice in many states under which some burdens of persuasion¹¹⁸⁴ were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion—a significant and weighty task given the large numbers of affirmative defenses.

The Court, however, summarily rejected the argument that Mullaney means that the prosecution must negate an insanity defense,¹¹⁸⁵ and, later, in Patterson v. New York,¹¹⁸⁶ upheld a state statute that required a defendant asserting “extreme emotional disturbance” as an affirmative defense to murder¹¹⁸⁷ to prove such by a preponderance of the evidence. According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be presumed upon proof of the other elements, and then required the defendant to prove the absence of malice. In Patterson, by contrast, the statute obligated the state to prove each element of the offense (the death, the intent to kill, and the causation) beyond a reasonable doubt, while allowing the defendant to prove an affirmative defense by preponderance of the evidence that would reduce the degree of the offense.¹¹⁸⁸ This distinction has been criticized as formalistic, as the legislature can shift burdens of persuasion between prosecution and defense easily through the statutory definitions of the offenses.¹¹⁸⁹

Despite the requirement that states prove each element of a criminal offense, criminal trials generally proceed with a presumption that the defendant is sane, and a defendant may be limited in the evidence that he may present to challenge this presumption. In Clark v. Arizona,¹¹⁹⁰ the Court considered a rule adopted by the Supreme Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of mens rea, ruling that the use of such evidence could be limited to an insanity defense. In Clark, the Court weighed competing interests to hold that such evidence could be “channeled” to the issue of insanity due to the controversial character of some categories of mental disease, the potential of mental-disease evidence to mislead, and the danger of according greater certainty to such evidence than experts claim for it.¹¹⁹¹

Another important distinction that can substantially affect a prosecutor’s burden is whether a fact to be established is an element of a crime or instead is a sentencing factor. Although a criminal conviction is generally established by a jury using the “beyond a reasonable doubt” standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient “preponderance of the evidence” standard. The Court has taken a formalistic approach to this issue, allowing states to designate essentially which facts fall under which of these two categories. For instance, the Court has held that whether a defendant “visibly possessed a gun” during a crime may be designated by a state as a sentencing factor, and determined by a judge based on the preponderance of evidence.¹¹⁹²

Although the Court has generally deferred to the legislature’s characterizations in this area, it limited this principle in Apprendi v. New Jersey. In Apprendi the Court held that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.¹¹⁹³ This led, in turn, to the Court’s overruling conﬂicting prior case law that had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment.¹¹⁹⁴ These holdings are subject to at least one exception, however,¹¹⁹⁵ and the decisions might be evaded by legislatures revising criminal provisions to increase maximum penalties, and then providing for mitigating factors within the newly established sentencing range.

Another closely related issue is statutory presumptions, where proof of a “presumed fact” that is a required element of a crime, is established by another fact, the “basic fact.”¹¹⁹⁶ In Tot v. United States,¹¹⁹⁷ the Court held that a statutory presumption was valid under the Due Process Clause only if it met a “rational connection” test. In that case, the Court struck down a presumption that a person possessing an illegal firearm had shipped, transported, or received such in interstate commerce. “Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.”

In Leary v. United States,¹¹⁹⁸ this due process test was stiffened to require that, for such a “rational connection” to exist, it must “at least be said with substantial assurance that the presumed fact is more likely than not to ﬂow from the proved fact on which it is made to depend.” Thus, the Court voided a provision that permitted a jury to infer from a defendant’s possession of marijuana his knowledge of its illegal importation. A lengthy canvass of factual materials established to the Court’s satisfaction that, although the greater part of marijuana consumed in the United States is of foreign origin, there was still a good amount produced domestically and there was no way to assure that the majority of those possessing marijuana have any reason to know whether their marijuana is imported.¹¹⁹⁹ The Court left open the question whether a presumption that survived the “rational connection” test “must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.”¹²⁰⁰

In a later case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, “since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.”¹²⁰¹ But, with respect to permissive presumptions, “the prosecution may rely on all of the evidence in the record to meet the reasonable doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.”¹²⁰² Thus, due process was not violated by the application of the statute that provides that “the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle.”¹²⁰³ The division of the Court in these cases and in the Mullaney v. Wilbur line of cases clearly shows the unsettled nature of the issues they concern.

The Problem of the Incompetent or Insane Defendant.—It is a denial of due process to try or sentence a defendant who is insane or incompetent to stand trial.¹²⁰⁴ When it becomes evident during the trial that a defendant is or has become insane or incompetent to stand trial, the court on its own initiative must conduct a hearing on the issue.¹²⁰⁵ Although there is no constitutional requirement that the state assume the burden of proving a defendant competent, the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process.¹²⁰⁶

When a state determines that a person charged with a criminal offense is incompetent to stand trial, he cannot be committed indefinitely for that reason. The court’s power is to commit him to a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that he will not, then the state must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen.¹²⁰⁷

Where a defendant is found competent to stand trial, a state appears to have significant discretion in how it takes account of mental illness or defect at the time of the offense in determining criminal responsibility.¹²⁰⁸ The Court has identified several tests that are used by states in varying combinations to address the issue: the M’Naghten test (cognitive incapacity or moral incapacity),¹²⁰⁹ volitional incapacity,¹²¹⁰ and the irresistible-impulse test.¹²¹¹ “[I]t is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.”¹²¹²

Commitment to a mental hospital of a criminal defendant acquitted by reason of insanity does not offend due process, and the period of confinement may extend beyond the period for which the person could have been sentenced if convicted.¹²¹³ The purpose of the confinement is not punishment, but treatment, and the Court explained that the length of a possible criminal sentence “therefore is irrelevant to the purposes of . . . commitment.”¹²¹⁴ Thus, the insanity-defense acquittee may be confined for treatment “until such time as he has regained his sanity or is no longer a danger to himself or society.”¹²¹⁵ It follows, however, that a state may not indefinitely confine an insanity-defense acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct.¹²¹⁶

The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from executing a person who is insane, and that properly raised issues of pre-execution sanity must be determined in a proceeding that satisfies the requirements of due process.¹²¹⁷ Due process is not met when the decision on sanity is left to the unfettered discretion of the governor; rather, due process requires the opportunity to be heard before an impartial officer or board.¹²¹⁸ The Court, however, left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”¹²¹⁹

In Atkins v. Virginia, the Court held that the Eighth Amendment also prohibits the state from executing a person who is mentally retarded, and added, “As was our approach in Ford v. Wainwright with regard to insanity, ‘we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’”¹²²⁰

Issues of substantive due process may arise if the government seeks to compel the medication of a person found to be incompetent to stand trial. In Washington v. Harper,¹²²¹ the Court had found that an individual has a significant “liberty interest” in avoiding the unwanted administration of antipsychotic drugs. In Sell v. United States,¹²²² the Court found that this liberty interest could in “rare” instances be outweighed by the government’s interest in bringing an incompetent individual to trial. First, however, the government must engage in a fact-specific inquiry as to whether this interest is important in a particular case.¹²²³ Second, the court must find that the treatment is likely to render the defendant competent to stand trial without resulting in side effects that will interfere with the defendant’s ability to assist counsel. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the same results. Finally, the court must conclude that administration of the drugs is in the patient’s best medical interests.

Guilty Pleas.—A defendant may plead guilty instead of insisting that the prosecution prove him guilty. Often the defendant does so as part of a “plea bargain” with the prosecution, where the defendant is guaranteed a light sentence or is allowed to plead to a lesser offense.¹²²⁴ Although the government may not structure its system so as to coerce a guilty plea,¹²²⁵ a guilty plea that is entered voluntarily, knowingly, and understandingly, even to obtain an advantage, is sufficient to overcome constitutional objections.¹²²⁶ The guilty plea and the often concomitant plea bargain are important and necessary components of the criminal justice system,¹²²⁷ and it is permissible for a prosecutor during such plea bargains to require a defendant to forgo his right to a trial in return for escaping additional charges that are likely upon conviction to result in a more severe penalty.¹²²⁸ But the prosecutor does deny due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence.¹²²⁹

In accepting a guilty plea, the court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly,¹²³⁰ and “the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”¹²³¹

Sentencing.—In the absence of errors by the sentencing judge,¹²³² or of sentencing jurors considering invalid factors,¹²³³ the significance of procedural due process at sentencing is limited.¹²³⁴ In Williams v. New York,¹²³⁵ the Court upheld the imposition of the death penalty, despite a jury’s recommendation of mercy, where the judge acted based on information in a presentence report not shown to the defendant or his counsel. The Court viewed as highly undesirable the restriction of judicial discretion in sentencing by requiring adherence to rules of evidence which would exclude highly relevant and informative material. Further, disclosure of such information to the defense could well dry up sources who feared retribution or embarrassment. Thus, hearsay and rumors can be considered in sentencing. In Gardner v. Florida,¹²³⁶ however, the Court limited the application of Williams to capital cases.¹²³⁷

In United States v. Grayson,¹²³⁸ a noncapital case, the Court relied heavily on Williams in holding that a sentencing judge may properly consider his belief that the defendant was untruthful in his trial testimony in deciding to impose a more severe sentence than he would otherwise have imposed. the Court declared that, under the current scheme of individualized indeterminate sentencing, the judge must be free to consider the broadest range of information in assessing the defendant’s prospects for rehabilitation; defendant’s truthfulness, as assessed by the trial judge from his own observations, is relevant information.¹²³⁹

There are various sentencing proceedings, however, that so implicate substantial rights that additional procedural protections are required.¹²⁴⁰ Thus, in Specht v. Patterson,¹²⁴¹ the Court considered a defendant who had been convicted of taking indecent liberties, which carried a maximum sentence of ten years, but was sentenced under a sex offenders statute to an indefinite term of one day to life. The sex offenders law, the Court observed, did not make the commission of the particular offense the basis for sentencing. Instead, by triggering a new hearing to determine whether the convicted person was a public threat, a habitual offender, or mentally ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. And in Mempa v. Rhay,¹²⁴² the Court held that, when sentencing is deferred subject to probation and the terms of probation are allegedly violated so that the convicted defendant is returned for sentencing, he must then be represented by counsel, inasmuch as it is a point in the process where substantial rights of the defendant may be affected.

Due process considerations can also come into play in sentencing if the state attempts to withhold relevant information from the jury. For instance, in Simmons v. South Carolina, the Court held that due process requires that if prosecutor makes an argument for the death penalty based on the future dangerousness of the defendant to society, the jury must then be informed if the only alternative to a death sentence is a life sentence without possibility of parole.¹²⁴³ But, in Ramdass v. Angelone,¹²⁴⁴ the Court refused to apply the reasoning of Simmons because the defendant was not technically parole ineligible at time of sentencing.

A defendant should not be penalized for exercising a right to appeal. Thus, it is a denial of due process for a judge to sentence a convicted defendant on retrial to a longer sentence than he received after the first trial if the object of the sentence is to punish the defendant for having successfully appealed his first conviction or to discourage similar appeals by others.¹²⁴⁵ If the judge does impose a longer sentence the second time, he must justify it on the record by showing, for example, the existence of new information meriting a longer sentence.¹²⁴⁶

Because the possibility of vindictiveness in resentencing is de minimis when it is the jury that sentences, however, the requirement of justifying a more severe sentence upon resentencing is inapplicable to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence.¹²⁴⁷ The presumption of vindictiveness is also inapplicable if the first sentence was imposed following a guilty plea. Here the Court reasoned that a trial may well afford the court insights into the nature of the crime and the character of the defendant that were not available following the initial guilty plea.¹²⁴⁸

Corrective Process: Appeals and Other Remedies.—“An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review.”¹²⁴⁹ This holding has been reaffirmed,¹²⁵⁰ although the Court has also held that, when a state does provide appellate review, it may not so condition the privilege as to deny it irrationally to some persons, such as indigents.¹²⁵¹

A state is not free, however, to have no corrective process in which defendants may pursue remedies for federal constitutional violations. In Frank v. Mangum,¹²⁵² the Court asserted that a conviction obtained in a mob-dominated trial was contrary to due process: “if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.” Consequently, the Court has stated numerous times that the absence of some form of corrective process when the convicted defendant alleges a federal constitutional violation contravenes the Fourteenth Amendment,¹²⁵³ and the Court has held that to burden this process, such as by limiting the right to petition for habeas corpus, is to deny the convicted defendant his constitutional rights.¹²⁵⁴

The mode by which federal constitutional rights are to be vindicated after conviction is for the government concerned to determine. “Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases. A State may decide whether to have direct appeals in such cases, and if so under what circumstances. . . . In respecting the duty laid upon them . . . States have a wide choice of remedies. A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis. It may use each of these ancient writs in its common law scope, or it may put them to new uses; or it may afford remedy by a simple motion brought either in the court of original conviction or at the place of detention. . . . So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated.”¹²⁵⁵ If a state provides a mode of redress, then a defendant must first exhaust that mode. If he is unsuccessful, or if a state does not provide an adequate mode of redress, then the defendant may petition a federal court for relief through a writ of habeas corpus.¹²⁵⁶

When appellate or other corrective process is made available, because it is no less a part of the process of law under which a defendant is held in custody, it becomes subject to scrutiny for any alleged unconstitutional deprivation of life or liberty. At first, the Court seemed content to assume that, when a state appellate process formally appeared to be sufficient to correct constitutional errors committed by the trial court, the conclusion by the appellate court that the trial court’s sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law.¹²⁵⁷ But, in Moore v. Dempsey,¹²⁵⁸ while insisting that it was not departing from precedent, the Court directed a federal district court in which petitioners had sought a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners—mob domination of their trial—notwithstanding that the state appellate court had ruled against the legal sufficiency of these same allegations. Indubitably, Moore marked the abandonment of the Supreme Court’s deference, founded upon considerations of comity, to decisions of state appellate tribunals on issues of constitutionality, and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair, an abandonment soon made even clearer in Brown v. Mississippi¹²⁵⁹ and now taken for granted.

The Court has held, however, that the Due Process Clause does not provide convicted persons a right to postconviction access to the state’s evidence for DNA testing.¹²⁶⁰ Chief Justice Roberts, in a fivetofour decision, noted that 46 states had enacted statutes dealing specifically with access to DNA evidence, and that the Federal Government had enacted a statute that allows federal prisoners to move for court-ordered DNA testing under specified conditions. Even the states that had not enacted statutes dealing specifically with access to DNA evidence must, under the Due Process Clause, provide adequate postconviction relief procedures. The Court, therefore, saw “no reason to constitutionalize the issue.”¹²⁶¹ It also expressed concern that “[e]stablishing a freestanding right to access DNA evidence for testing would force us to act as policymakers . . . . We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when?”¹²⁶²

Rights of Prisoners.—Until relatively recently the view prevailed that a prisoner “has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.”¹²⁶³ This view is not now the law, and may never have been wholly correct.¹²⁶⁴ In 1948 the Court declared that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights”;¹²⁶⁵ “many,” indicated less than “all,” and it was clear that the Due Process and Equal Protection Clauses to some extent do apply to prisoners.¹²⁶⁶ More direct acknowledgment of constitutional protection came in 1972: “[f]ederal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the government for redress of grievances . . . .”¹²⁶⁷ However, while the Court affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, at the same time concerns of federalism and of judicial restraint caused the Court to emphasize the necessity of deference to the judgments of prison officials and others with responsibility for administering such systems.¹²⁶⁸

Save for challenges to conditions of confinement of pretrial detainees,¹²⁶⁹ the Court has generally treated challenges to prison conditions as a whole under the Cruel and Unusual Punishments Clause of the Eighth Amendment,¹²⁷⁰ while challenges to particular incidents and practices are pursued under the Due Process Clause¹²⁷¹ or more specific provisions, such as the First Amendment’s speech and religion clauses.¹²⁷² Prior to formulating its current approach, the Court recognized several rights of prisoners. Prisoners have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints,¹²⁷³ and to bring actions in federal courts to recover for damages wrongfully done them by prison administrators.¹²⁷⁴ And they have a right, circumscribed by legitimate prison administration considerations, to fair and regular treatment during their incarceration. Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline.¹²⁷⁵

In Turner v. Saﬂey,¹²⁷⁶ the Court announced a general standard for measuring prisoners’ claims of deprivation of constitutional rights: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”¹²⁷⁷ Several considerations, the Court indicated, are appropriate in determining reasonableness of a prison regulation. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security, broadly defined. Availability of other avenues for exercise of the inmate right suggests reasonableness.¹²⁷⁸ A further indicium of reasonableness is present if accommodation would have a negative effect on the liberty or safety of guards, other inmates,¹²⁷⁹ or visitors.¹²⁸⁰ On the other hand, “if an inmate claimant can point to an alternative that fully accommodated the prisoner’s rights at de minimis cost to valid penological interests,” it would suggest unreasonableness.¹²⁸¹

Fourth Amendment protection is incompatible with “the concept of incarceration and the needs and objectives of penal institutions”; hence, a prisoner has no reasonable expectation of privacy in his prison cell protecting him from “shakedown” searches designed to root out weapons, drugs, and other contraband.¹²⁸² Avenues of redress “for calculated harassment unrelated to prison needs” are not totally blocked, the Court indicated; inmates may still seek protection in the Eighth Amendment or in state tort law.¹²⁸³ Existence of “a meaningful postdeprivation remedy” for unauthorized, intentional deprivation of an inmate’s property by prison personnel protects the inmate’s due process rights.¹²⁸⁴ Due process is not implicated at all by negligent deprivation of life, liberty, or property by prison officials.¹²⁸⁵

A change of the conditions under which a prisoner is housed, including one imposed as a matter of discipline, may implicate a protected liberty interest if such a change imposes an “atypical and significant hardship” on the inmate.¹²⁸⁶ In Wolff v. McDonnell,¹²⁸⁷ the Court promulgated due process standards to govern the imposition of discipline upon prisoners. Due process applies, but, because prison disciplinary proceedings are not part of a criminal prosecution, the full panoply of a defendant’s rights is not available. Rather, the analysis must proceed by identifying the interest in “liberty” that the clause protects. Thus, where the state provides for good-time credit or other privileges and further provides for forfeiture of these privileges only for serious misconduct, the interest of the prisoner in this degree of “liberty” entitles him to the minimum procedures appropriate under the circumstances.¹²⁸⁸ What the minimum procedures consist of is to be determined by balancing the prisoner’s interest against the valid interest of the prison in maintaining security and order in the institution, in protecting guards and prisoners against retaliation by other prisoners, and in reducing prison tensions.

The Court in Wolff held that the prison must afford the subject of a disciplinary proceeding “advance written notice of the claimed violation and a written statement of the factfindings as to the evidence relied upon and the reasons for the action taken.”¹²⁸⁹ In addition, an “inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.”¹²⁹⁰ Confrontation and cross-examination of adverse witnesses is not required inasmuch as these would no doubt threaten valid institutional interests. Ordinarily, an inmate has no right to representation by retained or appointed counsel. Finally, only a partial right to an impartial tribunal was recognized, the Court ruling that limitations imposed on the discretion of a committee of prison officials sufficed for this purpose.¹²⁹¹ Revocation of good time credits, the Court later ruled, must be supported by “some evidence in the record,” but an amount that “might be characterized as meager” is constitutionally sufficient.¹²⁹²

Determination whether due process requires a hearing before a prisoner is transferred from one institution to another requires a close analysis of the applicable statutes and regulations as well as a consideration of the particular harm suffered by the transferee. On the one hand, the Court found that no hearing need be held prior to the transfer from one prison to another prison in which the conditions were substantially less favorable. Because the state had not conferred any right to remain in the facility to which the prisoner was first assigned, defeasible upon the commission of acts for which transfer is a punishment, prison officials had unfettered discretion to transfer any prisoner for any reason or for no reason at all; consequently, there was nothing to hold a hearing about.¹²⁹³ The same principles govern interstate prison transfers.¹²⁹⁴

Transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest, although the due process requirements to protect this interest are limited.¹²⁹⁵ On the other hand, transfer of a prisoner to a mental hospital pursuant to a statute authorizing transfer if the inmate suffers from a “mental disease or defect” must, for two reasons, be preceded by a hearing. First, the statute gave the inmate a liberty interest, because it presumed that he would not be moved absent a finding that he was suffering from a mental disease or defect. Second, unlike transfers from one prison to another, transfer to a mental institution was not within the range of confinement covered by the prisoner’s sentence, and, moreover, imposed a stigma constituting a deprivation of a liberty interest.¹²⁹⁶

The kind of hearing that is required before a state may force a mentally ill prisoner to take antipsychotic drugs against his will was at issue in Washington v. Harper.¹²⁹⁷ There the Court held that a judicial hearing was not required. Instead, the inmate’s substantive liberty interest (derived from the Due Process Clause as well as from state law) was adequately protected by an administrative hearing before independent medical professionals, at which hearing the inmate has the right to a lay advisor but not an attorney.

Probation and Parole.—Sometimes convicted defendants are not sentenced to jail, but instead are placed on probation subject to incarceration upon violation of the conditions that are imposed; others who are jailed may subsequently qualify for release on parole before completing their sentence, and are subject to reincarceration upon violation of imposed conditions. Because both of these dispositions are statutory privileges granted by the governmental authority,¹²⁹⁸ it was long assumed that the administrators of the systems did not have to accord procedural due process either in the granting stage or in the revocation stage. Now, both granting and revocation are subject to due process analysis, although the results tend to be disparate. Thus, in Mempa v. Rhay,¹²⁹⁹ the trial judge had deferred sentencing and placed the convicted defendant on probation; when facts subsequently developed that indicated a violation of the conditions of probation, he was summoned and summarily sentenced to prison. The Court held that he was entitled to counsel at the deferred sentencing hearing.

In Morrissey v. Brewer¹³⁰⁰ a unanimous Court held that parole revocations must be accompanied by the usual due process hearing and notice requirements. “[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation . . . [But] the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inﬂicts a ‘grievous loss’ on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee’s liberty is a ‘right’ or a ‘privilege.’ By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.”¹³⁰¹ What process is due, then, turned upon the state’s interests. Its principal interest was that, having once convicted a defendant, imprisoned him, and, at some risk, released him for rehabilitation purposes, it should be “able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole. Yet, the state has no interest in revoking parole without some informal procedural guarantees,” inasmuch as such guarantees will not interfere with its reasonable interests.¹³⁰²

Minimal due process, the Court held, requires that at both stages of the revocation process—the arrest of the parolee and the formal revocation—the parolee is entitled to certain rights. Promptly following arrest of the parolee, there should be an informal hearing to determine whether reasonable grounds exist for revocation of parole; this preliminary hearing should be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available, and should be conducted by someone not directly involved in the case, though he need not be a judicial officer. The parolee should be given adequate notice that the hearing will take place and what violations are alleged, he should be able to appear and speak in his own behalf and produce other evidence, and he should be allowed to examine those who have given adverse evidence against him unless it is determined that the identity of such informant should not be revealed. Also, the hearing officer should prepare a digest of the hearing and base his decision upon the evidence adduced at the hearing.¹³⁰³

Prior to the final decision on revocation, there should be a more formal revocation hearing at which there would be a final evaluation of any contested relevant facts and consideration whether the facts as determined warrant revocation. The hearing must take place within a reasonable time after the parolee is taken into custody and he must be enabled to controvert the allegations or offer evidence in mitigation. The procedural details of such hearings are for the states to develop, but the Court specified minimum requirements of due process. “They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.”¹³⁰⁴ Ordinarily, the written statement need not indicate that the sentencing court or review board considered alternatives to incarceration,¹³⁰⁵ but a sentencing court must consider such alternatives if the probation violation consists of the failure of an indigent probationer, through no fault of his own, to pay a fine or restitution.¹³⁰⁶

The Court has applied a ﬂexible due process standard to the provision of counsel. Counsel is not invariably required in parole or probation revocation proceedings. The state should, however, provide the assistance of counsel where an indigent person may have difficulty in presenting his version of disputed facts without cross-examination of witnesses or presentation of complicated documentary evidence. Presumptively, counsel should be provided where the person requests counsel, based on a timely and colorable claim that he has not committed the alleged violation, or if that issue be uncontested, there are reasons in justification or mitigation that might make revocation inappropriate.¹³⁰⁷

With respect to the granting of parole, the Court’s analysis of the Due Process Clause’s meaning in Greenholtz v. Nebraska Penal Inmates¹³⁰⁸ is much more problematical. The theory was rejected that the mere establishment of the possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the general standards of eligibility to a due process protected expectation of being dealt with in any particular way. On the other hand, the Court did recognize that a parole statute could create an expectancy of release entitled to some measure of constitutional protection, although a determination would need to be made on a casebycase basis,¹³⁰⁹ and the full panoply of due process guarantees is not required.¹³¹⁰ Where, however, government by its statutes and regulations creates no obligation of the pardoning authority and thus creates no legitimate expectancy of release, the prisoner may not by showing the favorable exercise of the authority in the great number of cases demonstrate such a legitimate expectancy. The power of the executive to pardon, or grant clemency, being a matter of grace, is rarely subject to judicial review.¹³¹¹

The Problem of the Juvenile Offender.—All fifty states and the District of Columbia provide for dealing with juvenile offenders outside the criminal system for adult offenders.¹³¹² Their juvenile justice systems apply both to offenses that would be criminal if committed by an adult and to delinquent behavior not recognizable under laws dealing with adults, such as habitual truancy, deportment endangering the morals or health of the juvenile or others, or disobedience making the juvenile uncontrollable by his parents. The reforms of the early part of the 20th century provided not only for segregating juveniles from adult offenders in the adjudication, detention, and correctional facilities, but they also dispensed with the substantive and procedural rules surrounding criminal trials which were mandated by due process. Justification for this abandonment of constitutional guarantees was offered by describing juvenile courts as civil not criminal and as not dispensing criminal punishment, and offering the theory that the state was acting as parens patriae for the juvenile offender and was in no sense his adversary.¹³¹³

Disillusionment with the results of juvenile reforms coupled with judicial emphasis on constitutional protection of the accused led in the 1960s to a substantial restriction of these elements of juvenile jurisprudence. After tracing in much detail this history of juvenile courts, the Court held in In re Gault¹³¹⁴ that the application of due process to juvenile proceedings would not endanger the good intentions vested in the system nor diminish the features of the system which were deemed desirable—emphasis upon rehabilitation rather than punishment, a measure of informality, avoidance of the stigma of criminal conviction, the low visibility of the process—but that the consequences of the absence of due process standards made their application necessary.¹³¹⁵

Thus, the Court in Gault required that notice of charges be given in time for the juvenile to prepare a defense, required a hearing in which the juvenile could be represented by retained or appointed counsel, required observance of the rights of confrontation and cross-examination, and required that the juvenile be protected against self-incrimination.¹³¹⁶ It did not pass upon the right of appeal or the failure to make transcripts of hearings. Earlier, the Court had held that before a juvenile could be “waived” to an adult court for trial, there had to be a hearing and findings of reasons, a result based on statutory interpretation but apparently constitutionalized in Gault.¹³¹⁷ Subsequently, the Court held that the “essentials of due process and fair treatment” required that a juvenile could be adjudged delinquent only on evidence beyond a reasonable doubt when the offense charged would be a crime if committed by an adult,¹³¹⁸ but still later the Court held that jury trials were not constitutionally required in juvenile trials.¹³¹⁹

On a few occasions the Court has considered whether rights accorded to adults during investigation of crime are to be accorded juveniles. In one such case the Court ruled that a juvenile undergoing custodial interrogation by police had not invoked a Miranda right to remain silent by requesting permission to consult with his probation officer, since a probation officer could not be equated with an attorney, but indicated as well that a juvenile’s waiver of Miranda rights was to be evaluated under the same totality-of-the-circumstances approach applicable to adults. That approach “permits— indeed it mandates—inquiry into all the circumstances surrounding the interrogation . . . includ[ing] evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him . . . .”¹³²⁰ In another case the Court ruled that, although the Fourth Amendment applies to searches of students by public school authorities, neither the warrant requirement nor the probable cause standard is appropriate.¹³²¹ Instead, a simple reasonableness standard governs all searches of students’ persons and effects by school authorities.¹³²²

The Court ruled in Schall v. Martin¹³²³ that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from potential consequences of pretrial crime, when the terms of confinement serve those legitimate purposes and are nonpunitive, and when procedures provide sufficient protection against erroneous and unnecessary detentions. A statute authorizing pretrial detention of accused juvenile delinquents on a finding of “serious risk” that the juvenile would commit crimes prior to trial, providing for expedited hearings (the maximum possible detention was 17 days), and guaranteeing a formal, adversarial probable cause hearing within that period, was found to satisfy these requirements.

Each state has a procedure by which juveniles may be tried as adults.¹³²⁴ With the Court having clarified the constitutional requirements for imposition of capital punishment, it was only a matter of time before the Court would have to determine whether states may subject juveniles to capital punishment. In Stanford v. Kentucky,¹³²⁵ the Court held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17; earlier the Court had invalidated a statutory scheme permitting capital punishment for crimes committed before age 16.¹³²⁶ In weighing validity under the Eighth Amendment, the Court has looked to state practice to determine whether a consensus against execution exists.¹³²⁷ Still to be considered by the Court are such questions as the substantive and procedural guarantees to be applied in proceedings when the matter at issue is non-criminal delinquent behavior.

The Problem of Civil Commitment.—As with juvenile offenders, several other classes of persons are subject to confinement by court processes deemed civil rather than criminal. Within this category of “protective commitment” are involuntary commitments for treatment of insanity and other degrees of mental disability, alcoholism, narcotics addiction, sexual psychopathy, and the like. In O’Connor v. Donaldson,¹³²⁸ the Court held that “a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”¹³²⁹ The jury had found that Donaldson was not dangerous to himself or to others, and the Court ruled that he had been unconstitutionally confined.¹³³⁰ Left to another day were such questions as “when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person—to prevent injury to the public, to ensure his own survival or safety, or to alleviate or cure his illness”¹³³¹ and the right, if any, to receive treatment for the confined person’s illness. To conform to due process requirements, procedures for voluntary admission should recognize the possibility that persons in need of treatment may not be competent to give informed consent; this is not a situation where availability of a meaningful post-deprivation remedy can cure the due process violation.¹³³²

Procedurally, it is clear that an individual’s liberty interest in being free from unjustifiable confinement and from the adverse social consequences of being labeled mentally ill requires the government to assume a greater share of the risk of error in proving the existence of such illness as a precondition to confinement. Thus, the evidentiary standard of a preponderance, normally used in litigation between private parties, is constitutionally inadequate in commitment proceedings. On the other hand, the criminal standard of beyond a reasonable doubt is not necessary because the state’s aim is not punitive and because some or even much of the consequence of an erroneous decision not to commit may fall upon the individual. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations must also be made in reaching a conclusion on commitment. The Court therefore imposed a standard of “clear and convincing” evidence.¹³³³

In Parham v. J. R., the Court confronted difficult questions as to what due process requires in the context of commitment of allegedly mentally ill and mentally retarded children by their parents or by the state, when such children are wards of the state.¹³³⁴ Under the challenged laws there were no formal preadmission hearings, but psychiatric and social workers did interview parents and children and reached some form of independent determination that commitment was called for. The Court acknowledged the potential for abuse but balanced this against such factors as the responsibility of parents for the care and nurture of their children and the legal presumption that parents usually act in behalf of their children’s welfare, the independent role of medical professionals in deciding to accept the children for admission, and the real possibility that the institution of an adversary proceeding would both deter parents from acting in good faith to institutionalize children needing such care and interfere with the ability of parents to assist with the care of institutionalized children.¹³³⁵ Similarly, the same concerns, reﬂected in the statutory obligation of the state to care for children in its custody, caused the Court to apply the same standards to involuntary commitment by the government.¹³³⁶ Left to future resolution was the question of the due process requirements for postadmission review of the necessity for continued confinement.¹³³⁷

⁷³⁷ Thus, where a litigant had the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result. Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894).

⁷³⁸ Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884). “Due process of law is [process which], following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” Id. at 708; Accord, Hurtado v. California, 110 U.S. 516, 537 (1884).

⁷³⁹ See Medina v. California 505 U.S. 437, 443 (1992).

⁷⁴⁰ Id.

⁷⁴¹ See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In Nelson v. Colorado, the Supreme Court held that the Mathews test controls when evaluating state procedures governing the continuing deprivation of property after a criminal conviction has been reversed or vacated, with no prospect of reprosecution. See 581 U.S. ___, No. 15–1256, slip op. at 6 (2017).

⁷⁴² Twining v. New Jersey, 211 U.S. 78, 101 (1908); Brown v. New Jersey, 175 U.S. 172, 175 (1899). “A process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and this country.” Hurtado v. California, 110 U.S. at 529.

⁷⁴³ Twining, 211 U.S. at 101.

⁷⁴⁴ Hurtado v. California, 110 U.S. 516, 529 (1884); Brown v. New Jersey, 175 U.S. 172, 175 (1899); Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944).

⁷⁴⁵ Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890).

⁷⁴⁶ For instance, proceedings to raise revenue by levying and collecting taxes are not necessarily judicial proceedings, yet their validity is not thereby impaired. McMillen v. Anderson, 95 U.S. 37, 41 (1877).

⁷⁴⁷ Railroad Comm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941) (oil field proration order). See also Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940) (courts should not second-guess regulatory commissions in evaluating expert testimony).

⁷⁴⁸ See, e.g., Moore v. Johnson, 582 F.2d 1228, 1232 (9th Cir. 1978) (upholding the preclusion of judicial review of decisions of the Veterans Administration regarding veterans’ benefits).

⁷⁴⁹ State statutes vesting in a parole board certain judicial functions, Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902), or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade, New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562 (1905), or vesting in a probate court authority to appoint park commissioners and establish park districts, Ohio v. Akron Park Dist., 281 U.S. 74, 79 (1930), are not in conﬂict with the Due Process Clause and present no federal question.

⁷⁵⁰ Carfer v. Caldwell, 200 U.S. 293, 297 (1906).

⁷⁵¹ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

⁷⁵² Carey v. Piphus, 435 U.S. 247, 259 (1978). “[P]rocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.” Mathews v. Eldridge, 424 U.S. 319, 344 (1976).

⁷⁵³ Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one’s interests even if one cannot change the result. Carey v. Piphus, 435 U.S. 247, 266–67 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Nelson v. Adams, 529 U.S. 460 (2000) (amendment of judgement to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute).

⁷⁵⁴ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See also Richards v. Jefferson County, 517 U.S. 793 (1996) (res judicata may not apply where taxpayer who challenged a county’s occupation tax was not informed of prior case and where taxpayer interests were not adequately protected).

⁷⁵⁵ Jones v. Flowers, 547 U.S. 220, 235 (2006) (state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied a tax delinquency, was returned by the post office marked “unclaimed”; the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so).

⁷⁵⁶ Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970).

⁷⁵⁷ Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v. Hanrahan, 409 U.S. 38 (1974); Greene v. Lindsey, 456 U.S. 444 (1982).

⁷⁵⁸ City of West Covina v. Perkins, 525 U.S. 234 (1999).

⁷⁵⁹ Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Parties whose rights are to be affected are entitled to be heard.” Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).

⁷⁶⁰ Fuentes v. Shevin, 407 U.S. 67, 80–81 (1972). See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170–71 (1951) (Justice Frankfurter concurring).

⁷⁶¹ Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

⁷⁶² Tumey v. Ohio, 273 U.S. 510 (1927)); In re Murchison, 349 U.S. 133 (1955).

⁷⁶³ Goldberg v. Kelly, 397 U.S. 254, 271 (1970).

⁷⁶⁴ Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 U.S. 188, 195 (1982).

⁷⁶⁵ Gibson v. Berryhill, 411 U.S. 564 (1973). Or, the conduct of deportation hearings by a person who, while he had not investigated the case heard, was also an investigator who must judge the results of others’ investigations just as one of them would some day judge his, raised a substantial problem which was resolved through statutory construction). Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).

⁷⁶⁶ Schweiker v. McClure, 456 U.S. 188, 195 (1982); Withrow v. Larkin, 421 U.S. 35, 47 (1975); United States v. Morgan, 313 U.S. 409, 421 (1941).

⁷⁶⁷ Withrow v. Larkin, 421 U.S. 35 (1975). Where an administrative officer is acting in a prosecutorial, rather than judicial or quasi-judicial role, an even lesser standard of impartiality applies. Marshall v. Jerrico, 446 U.S. 238, 248–50 (1980) (regional administrator assessing fines for child labor violations, with penalties going into fund to reimburse cost of system of enforcing child labor laws). But “traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law.” Id. at 249.

⁷⁶⁸ Hortonville Joint School Dist. v. Hortonville Educ. Ass’n, 426 U.S. 482 (1976). Compare Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (1974) (Justice Powell), with id. at 196–99 (Justice White), and 216 (Justice Marshall).

⁷⁶⁹ 556 U.S. ___, No. 08–22, slip op. at 6 (2009) (citations omitted).

⁷⁷⁰ 556 U.S. ___, No. 08–22, slip op. at 6, quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927).

⁷⁷¹ 556 U.S. ___, No. 08–22, slip op. at 6 (citations omitted).

⁷⁷² 556 U.S. ___, No. 08–22, slip op. at 7, 9.

⁷⁷³ 556 U.S. ___, No. 08–22, slip op. at 11 (citations omitted).

⁷⁷⁴ 556 U.S. ___, No. 08–22, slip op. at 15.

⁷⁷⁵ 556 U.S. ___, No. 08–22, slip op. at 14. Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, dissented, asserting that “a ‘probability of bias’ cannot be defined in any limited way,” “provides no guidance to judges and litigants about when recusal will be constitutionally required,” and “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.” Slip. op. at 1 (Roberts, C.J., dissenting). The majority countered that “[t]he facts now before us are extreme in any measure.” Slip op. at 17.

⁷⁷⁶ 579 U.S. ___, No. 15–5040, slip op. at 1 (2016).

⁷⁷⁷ Id. (internal quotations omitted).

⁷⁷⁸ Id. at 5–6.

⁷⁷⁹ Id. at 6 (citing In re Murchison, 349 U.S. 133, 136–37 (1955)). The Court also noted that “[n]o attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision.” Id. at 7.

⁷⁸⁰ Id. at 9. See also id. at 10 (noting that the judge in this case had highlighted the number of capital cases in which he participated when campaigning for judicial office).

⁷⁸¹ Id. at 8.

⁷⁸² Id. at 12–13. Likewise, the Court rejected the argument that remanding the case would not cure the underlying due process violation because the disqualified judge’s views might still inﬂuence his former colleagues, as an “inability to guarantee complete relief for a constitutional violation . . . does not justify withholding a remedy altogether.” Id. at 14.

⁷⁸³ Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville & Nashville R.R., 227 U.S. 88, 93–94 (1913). Cf. § 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d).

⁷⁸⁴ Greene v. McElroy, 360 U.S. 474, 496–97 (1959). But see Richardson v. Perales, 402 U.S. 389 (1971) (where authors of documentary evidence are known to petitioner and he did not subpoena them, he may not complain that agency relied on that evidence). Cf. Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976).

⁷⁸⁵ Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970).

⁷⁸⁶ RECOMMENDATIONS AND REPORTS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 571 (1968–1970).

⁷⁸⁷ FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964).

⁷⁸⁸ The exclusiveness of the record is fundamental in administrative law. See § 7(d) of the Administrative Procedure Act, 5 U.S.C. § 556(e). However, one must show not only that the agency used ex parte evidence but that he was prejudiced thereby. Market Street R.R. v. Railroad Comm’n, 324 U.S. 548 (1945) (agency decision supported by evidence in record, its decision sustained, disregarding ex parte evidence).

⁷⁸⁹ Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (citations omitted).

⁷⁹⁰ 397 U.S. 254, 270–71 (1970).

⁷⁹¹ Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The Court purported to draw this rule from Gagnon v. Scarpelli, 411 U.S. 778 (1973) (no per se right to counsel in probation revocation proceedings). To introduce this presumption into the balancing, however, appears to disregard the fact that the first factor of Mathews v. Eldridge, 424 U.S. 319 (1976), upon which the Court (and dissent) relied, relates to the importance of the interest to the person claiming the right. Thus, at least in this context, the value of the first Eldridge factor is diminished. The Court noted, however, that the Mathews v. Eldridge standards were drafted in the context of the generality of cases and were not intended for case-by-case application. Cf. 424 U.S. at 344 (1976).

⁷⁹² Turner v. Rogers, 564 U.S. ___, No. 10–10, slip op. (2011). The Turner Court denied an indigent defendant appointed counsel in a civil contempt proceeding to enforce a child support order, even though the defendant faced incarceration unless he showed an inability to pay the arrearages. The party opposing the defendant in the case was not the state, but rather the unrepresented custodial parent, nor was the case unusually complex. A five-Justice majority, though denying a right to counsel, nevertheless reversed the contempt order because it found that the procedures followed remained inadequate.

⁷⁹³ 452 U.S. at 31–32. The balancing decision is to be made initially by the trial judge, subject to appellate review. Id. at 32

⁷⁹⁴ 452 U.S. at 27–31. The decision was a five-to-four, with Justices Stewart, White, Powell, and Rehnquist and Chief Justice Burger in the majority, and Justices Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59.

⁷⁹⁵ See, e.g., Little v. Streater, 452 U.S. 1 (1981) (indigent entitled to state-funded blood testing in a paternity action the state required to be instituted); Santosky v. Kramer, 455 U.S. 745 (1982) (imposition of higher standard of proof in case involving state termination of parental rights).

⁷⁹⁶ Morrissey v. Brewer, 408 U.S. 471, 481 (1982). “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.” Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972). Developments under the Fifth Amendment’s Due Process Clause have been interchangeable. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974).

⁷⁹⁷ For instance, at common law, one’s right of life existed independently of any formal guarantee of it and could be taken away only by the state pursuant to the formal processes of law, and only for offenses deemed by a legislative body to be particularly heinous. One’s liberty, generally expressed as one’s freedom from bodily restraint, was a natural right to be forfeited only pursuant to law and strict formal procedures. One’s ownership of lands, chattels, and other properties, to be sure, was highly dependent upon legal protections of rights commonly associated with that ownership, but it was a concept universally understood in Anglo-American countries.

⁷⁹⁸ Fuentes v. Shevin, 407 U.S. 67 (1972) (invalidating replevin statutes which authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond).

⁷⁹⁹ Sniadach v. Family Finance Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring).

⁸⁰⁰ Bell v. Burson, 402 U.S. 535 (1971). Compare Dixon v. Love, 431 U.S. 105 (1977), with Mackey v. Montrym, 443 U.S. 1 (1979). But see American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty interest in worker’s compensation claim where reasonableness and necessity of particular treatment had not yet been resolved).

⁸⁰¹ See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 685 (2d. ed) (1988).

⁸⁰² Tribe, supra, at 1084–90.

⁸⁰³ McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.2d 517, 522 (1892).

⁸⁰⁴ Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an equally divided Court, 314 U.S. 918 (1951); Adler v. Board of Educ., 342 U.S. 485 (1952).

⁸⁰⁵ Flemming v. Nestor, 363 U.S. 603 (1960).

⁸⁰⁶ Barsky v. Board of Regents, 347 U.S. 442 (1954).

⁸⁰⁷ Perry v. Sindermann, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357 U.S. 513 (1958).

⁸⁰⁸ See William Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968). Much of the old fight had to do with imposition of conditions on admitting corporations into a state. Cf. Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–68 (1981) (reviewing the cases). The right-privilege distinction is not, however, totally moribund. See Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (sustaining as qualification for public financing of campaign agreement to abide by expenditure limitations otherwise unconstitutional); Wyman v. James, 400 U.S. 309 (1971).

⁸⁰⁹ This means that Congress or a state legislature could still simply take away part or all of the benefit. Richardson v. Belcher, 404 U.S. 78 (1971); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982).

⁸¹⁰ 397 U.S. 254 (1970).

⁸¹¹ 397 U.S. at 261–62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits).

⁸¹² Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972).

⁸¹³ 408 U.S. at 577. Although property interests often arise by statute, the Court has also recognized interests established by state case law. Thus, where state court holdings required that private utilities terminate service only for cause (such as nonpayment of charges), then a utility is required to follow procedures to resolve disputes about payment or the accuracy of charges prior to terminating service. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978).

⁸¹⁴ 436 U.S. at 576–78. The Court also held that no liberty interest was implicated, because in declining to rehire Roth the state had not made any charges against him or taken any actions that would damage his reputation or stigmatize him. 436 at 572–75. For an instance of protection accorded a claimant on the basis of such an action, see Codd v. Vegler. See also Bishop v. Wood, 426 U.S. 341, 347–50 (1976); Vitek v. Jones, 445 U.S. 480, 491–94 (1980); Board of Curators v. Horowitz, 435 U.S. 78, 82–84 (1978).

⁸¹⁵ 408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest).

⁸¹⁶ 408 U.S. at 601–03 (1972). In contrast, a statutory assurance was found in Arnett v. Kennedy, 416 U.S. 134 (1974), where the civil service laws and regulations allowed suspension or termination “only for such cause as would promote the efficiency of the service.” 416 U.S. at 140. On the other hand, a policeman who was a “permanent employee” under an ordinance which appeared to afford him a continuing position subject to conditions subsequent was held not to be protected by the Due Process Clause because the federal district court interpreted the ordinance as providing only employment at the will and pleasure of the city, an interpretation that the Supreme Court chose not to disturb. Bishop v. Wood, 426 U.S. 341 (1976). “On its face,” the Court noted, “the ordinance on which [claimant relied] may fairly be read as conferring” both “a property interest in employment . . . [and] an enforceable expectation of continued public employment.” 426 U.S. at 344–45 (1976). The district court’s decision had been affirmed by an equally divided appeals court and the Supreme Court deferred to the presumed greater expertise of the lower court judges in reading the ordinance. 426 U.S. at 345 (1976).

⁸¹⁷ 408 U.S. at 601.

⁸¹⁸ 419 U.S. 565 (1975). Cf. Carey v. Piphus, 435 U.S. 247 (1978) (measure of damages for violation of procedural due process in school suspension context). See also Board of Curators v. Horowitz, 435 U.S. 78 (1978) (whether liberty or property interest implicated in academic dismissals and discipline, as contrasted to disciplinary actions).

⁸¹⁹ Goss v. Lopez, 419 U.S. at 574. See also Barry v. Barchi, 443 U.S. 55 (1979) (horse trainer’s license); O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980) (statutory entitlement of nursing home residents protecting them in the enjoyment of assistance and care).

⁸²⁰ Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985). Although the Court “assume[d] the existence of a constitutionally protectible property interest in . . . continued enrollment” in a state university, this limited constitutional right is violated only by a showing that dismissal resulted from “such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” 474 U.S. at 225.

⁸²¹ 545 U.S. 748 (2005).

⁸²² 545 U.S. at 759. The Court also noted that the law did not specify the precise means of enforcement required; nor did it guarantee that, if a warrant were sought, it would be issued. Such indeterminancy is not the “hallmark of a duty that is mandatory.” Id. at 763.

⁸²³ 545 U.S. at 764–65.

⁸²⁴ 416 U.S. 134 (1974).

⁸²⁵ 416 U.S. at 155 (Justices Rehnquist and Stewart and Chief Justice Burger).

⁸²⁶ 416 U.S. at 154.

⁸²⁷ 416 U.S. 167 (Justices Powell and Blackmun concurring). See 416 U.S. at 177 (Justice White concurring and dissenting), 203 (Justice Douglas dissenting), 206 (Justices Marshall, Douglas, and Brennan dissenting).

⁸²⁸ 426 U.S. 341 (1976). A five-to-four decision, the opinion was written by Justice Stevens, replacing Justice Douglas, and was joined by Justice Powell, who had disagreed with the theory in Arnett.See id. at 350, 353 n.4, 355 (dissenting opinions). The language is ambiguous and appears at different points to adopt both positions. But see id. at 345, 347.

⁸²⁹ 419 U.S. 565, 573–74 (1975). See id. at 584, 586–87 (Justice Powell dissenting).

⁸³⁰ 419 U.S. at 584, 586–87 (Justice Powell dissenting).

⁸³¹ Vitek v. Jones, 445 U.S. 480, 491 (1980). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).

⁸³² 455 U.S. 422 (1982).

⁸³³ 455 U.S. at 428–33 A different majority of the Court also found an equal protection denial. 455 U.S. at 438.

⁸³⁴ These procedural liberty interests should not, however, be confused with substantive liberty interests, which, if not outweighed by a sufficient governmental interest, may not be intruded upon regardless of the process followed. See “Fundamental Rights (Noneconomic Due Process),” supra.

⁸³⁵ 430 U.S. 651 (1977).

⁸³⁶ 430 U.S. at 673. The family-related liberties discussed under substantive due process, as well as the associational and privacy ones, no doubt provide a fertile source of liberty interests for procedural protection. See Armstrong v. Manzo, 380 U.S. 545 (1965) (natural father, with visitation rights, must be given notice and opportunity to be heard with respect to impending adoption proceedings); Stanley v. Illinois, 405 U.S. 645 (1972) (unwed father could not simply be presumed unfit to have custody of his children because his interest in his children warrants deference and protection). See also Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Little v. Streater, 452 U.S. 1 (1981); Lassiter v. Department of Social Services, 452 U.S. 18 (1981); Santosky v. Kramer, 455 U.S. 745 (1982).

⁸³⁷ Board of Regents v. Roth, 408 U.S. 564, 569–70 (1972); Goss v. Lopez, 419 U.S. 565 (1975).

⁸³⁸ 400 U.S. 433 (1971).

⁸³⁹ But see Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) (posting of accurate information regarding sex offenders on state Internet website does not violate due process as the site does not purport to label the offenders as presently dangerous).

⁸⁴⁰ 424 U.S. 693 (1976).

⁸⁴¹ Here the Court, 424 U.S. at 701–10, distinguished Constantineau as being a “reputation-plus” case. That is, it involved not only the stigmatizing of one posted but it also “deprived the individual of a right previously held under state law—the right to purchase or obtain liquor in common with the rest of the citizenry.” 424 U.S. at 708. How the state law positively did this the Court did not explain. But, of course, the reputation-plus concept is now well-settled. See discussion below. See also Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 226 (1991); Paul v. Davis, 424 U.S. 693, 711–12 (1976). In a later case, the Court looked to decisional law and the existence of common-law remedies as establishing a protected property interest. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9–12 (1978).

⁸⁴² 427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976).

⁸⁴³ 445 U.S. 480 (1980).

⁸⁴⁴ Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973).

⁸⁴⁵ Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Jago v. Van Curen, 454 U.S. 14 (1981). See also Wolff v. McDonnell, 418 U.S. 539 (1974) (due process applies to forfeiture of good-time credits and other positivist granted privileges of prisoners).

⁸⁴⁶ Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459–63 (1989) (prison regulations listing categories of visitors who may be excluded, but not creating a right to have a visitor admitted, contain “substantive predicates” but lack mandatory language).

⁸⁴⁷ Sandin v. Conner, 515 U.S. 472, 484 (1995) (30-day solitary confinement not atypical “in relation to the ordinary incidents of prison life”); Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an “atypical and significant hardship”).

⁸⁴⁸ Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).

⁸⁴⁹ Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915). See also Bragg v. Weaver, 251 U.S. 57, 58 (1919). Cf. Logan v. Zimmerman Brush Co., 445 U.S. 422, 432–33 (1982).

⁸⁵⁰ United States v. Florida East Coast Ry., 410 U.S. 224 (1973).

⁸⁵¹ 410 U.S. at 245 (distinguishing between rule-making, at which legislative facts are in issue, and adjudication, at which adjudicative facts are at issue, requiring a hearing in latter proceedings but not in the former). See Londoner v. City of Denver, 210 U.S. 373 (1908).

⁸⁵² “It is not an indispensable requirement of due process that every procedure affecting the ownership or disposition of property be exclusively by judicial proceeding. Statutory proceedings affecting property rights which, by later resort to the courts, secures to adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process.” Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246–47 (1944).

⁸⁵³ Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856).

⁸⁵⁴ Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928).

⁸⁵⁵ Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 476 (1918); Baker v. Baker, Eccles & Co., 242 U.S. 294, 403 (1917); Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900).

⁸⁵⁶ Lindsey v. Normet, 405 U.S. 56, 65–69 (1972). However, if one would suffer too severe an injury between the doing and the undoing, he may avoid the alternative means. Stanley v. Illinois, 405 U.S. 645, 647 (1972).

⁸⁵⁷ American Surety Co. v. Baldwin, 287 U.S. 156 (1932). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 429–30, 432–33 (1982).

⁸⁵⁸ Saunders v. Shaw, 244 U.S. 317 (1917).

⁸⁵⁹ “The extent to which procedural due process must be afforded the recipient is inﬂuenced by the extent to which he may be ‘condemned to suffer grievous loss,’ . . . and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.” Goldberg v. Kelly, 397 U.S. 254, 262–63 (1970), (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)). “The very nature of due process negates any concept of inﬂexible procedures universally applicable to every imaginable situation.” Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 894–95 (1961).

⁸⁶⁰ 424 U.S. 319, 335 (1976).

⁸⁶¹ 397 U.S. 254, 264 (1970).

⁸⁶² Mathews v. Eldridge, 424 U.S. 319, 339–49 (1976).

⁸⁶³ Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1975). See also id. at 623 (Justice Powell concurring), 629 (Justices Stewart, Douglas, and Marshall dissenting). Justice White, who wrote Mitchell and included the balancing language in his dissent in Fuentes v. Shevin, 407 U.S. 67, 99–100 (1972), did not repeat it in North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975), but it presumably underlies the reconciliation of Fuentes and Mitchell in the latter case and the application of DiChem.

⁸⁶⁴ 395 U.S. 337 (1969).

⁸⁶⁵ North Georgia Finishing v. Di-Chem, 419 U.S. 601, 611 n.2 (1975) (Justice Powell concurring). The majority opinion draws no such express distinction, see id. subject due process procedural guarantees. But see Mitchell v. W.T. Grant Co., 416 U.S. 600, 614 (1974) (opinion of Court by Justice White emphasizing the wages aspect of the earlier case).

⁸⁶⁶ 407 U.S. (1972).

⁸⁶⁷ Fuentes was an extension of the Sniadach principle to all “significant property interests” and thus mandated pre-deprivation hearings. Fuentes was a decision of uncertain viability from the beginning, inasmuch as it was four-to-three; argument had been heard prior to the date Justices Powell and Rehnquist joined the Court, hence neither participated in the decision. See Di-Chem, 419 U.S. at 616–19 (Justice Blackmun dissenting); Mitchell, 416 U.S. at 635–36 (1974) (Justice Stewart dissenting).

⁸⁶⁸ Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975). More recently, the Court has applied a variant of the Mathews v. Eldridge formula in holding that Connecticut’s prejudgment attachment statute, which “fail[ed] to provide a preattachment hearing without at least requiring a showing of some exigent circumstance,” operated to deny equal protection. Connecticut v. Doehr, 501 U.S. 1, 18 (1991). “[T]he relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections.” 501 U.S. at 11.

⁸⁶⁹ Mitchell v. W.T. Grant Co., 416 U.S. at 615–18 (1974) and at 623 (Justice Powell concurring). See also Arnett v. Kennedy, 416 U.S. 134, 188 (1974) (Justice White concurring in part and dissenting in part). Efforts to litigate challenges to seizures in actions involving two private parties may be thwarted by findings of “no state action,” but there often is sufficient participation by state officials in transferring possession of property to constitute state action and implicate due process. Compare Flagg Bros. v. Brooks, 436 U.S. 149 (1978) (no state action in warehouseman’s sale of goods for nonpayment of storage, as authorized by state law), with Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (state officials’ joint participation with private party in effecting prejudgment attachment of property); and Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (probate court was sufficiently involved with actions activating time bar in “nonclaim” statute).

⁸⁷⁰ Arnett v. Kennedy, 416 U.S. 134, 170–71 (1974) (Justice Powell concurring), and 416 U.S. at 195–96 (Justice White concurring in part and dissenting in part); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (discharge of state government employee). In Barry v. Barchi, 443 U.S. 55 (1979), the Court held that the state interest in assuring the integrity of horse racing carried on under its auspices justified an interim suspension without a hearing once it established the existence of certain facts, provided that a prompt judicial or administrative hearing would follow suspension at which the issues could be determined was assured. See also FDIC v. Mallen, 486 U.S. 230 (1988) (strong public interest in the integrity of the banking industry justifies suspension of indicted bank official with no pre-suspension hearing, and with 90-day delay before decision resulting from post-suspension hearing).

⁸⁷¹ Gilbert v. Homar, 520 U.S. 924 (1997) (no hearing required prior to suspension without pay of tenured police officer arrested and charged with a felony).

⁸⁷² E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension of driver’s license is automatic upon conviction of a certain number of offenses, no hearing is required because there can be no dispute about facts).

⁸⁷³ Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).

⁸⁷⁴ 481 U.S. 252 (1987). Justice Marshall’s plurality opinion was joined by Justices Blackmun, Powell, and O’Connor; Chief Justice Rehnquist and Justice Scalia joined Justice White’s opinion taking a somewhat narrower view of due process requirements but supporting the plurality’s general approach. Justices Brennan and Stevens would have required confrontation and cross-examination.

⁸⁷⁵ For analysis of the case’s implications, see Rakoff, Brock v. Roadway Express, Inc., and the New Law of Regulatory Due Process, 1987 SUP. CT. REV. 157.

⁸⁷⁶ 538 U.S. 715 (2003).

⁸⁷⁷ See Nelson v. Colorado, 581 U.S. ___, No. 15–1256, slip op. at 1 (2017).

⁸⁷⁸ See id. at 4–5 (describing Colorado’s Exoneration Act). Initially, the Court concluded that because the case concerned the “continuing deprivation of property after a [criminal] conviction” was reversed or vacated and “no further criminal process” was implicated by the case, the appropriate lens to examine the Exoneration Act was through the Mathews balancing test that generally applies in civil contexts. Id. at 5–6. The Court noted, however, that even under the test used to examine criminal due process rights—the fundamental fairness approach—Colorado’s Exoneration Act would still fail to provide adequate due process because the state’s procedures offend a fundamental principle of justice—the presumption of innocence. Id. at 7 n.9.

⁸⁷⁹ Id. at 1.

⁸⁸⁰ Id. at 6.

⁸⁸¹ Id. In so concluding, the Court rejected Colorado’s argument that the money in question belonged to the state because the criminal convictions were in place at the time the funds were taken. Id. The Court reasoned that after a conviction has been reversed, the criminal defendant is presumed innocent and any funds provided to the state as a result of the conviction rightfully belong to the person who was formerly subject to the prosecution. Id. at 7 (“Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”) (emphasis in original).

⁸⁸² Id. at 8–9. In particular, the Court noted that when a defendant seeks to recoup small amounts of money under the Exoneration Act, the costs of mounting a claim and retaining a lawyer “would be prohibitive,” amounting to “no remedy at all” for any minor assessments under the Act. Id. at 9.

⁸⁸³ Id. at 10.

⁸⁸⁴ Id.

⁸⁸⁵ See, e.g., Lujan v. G & G Fire Sprinklers, Inc., 523 U.S. 189 (2001) (breach of contract suit against state contractor who withheld payment to subcontractor based on state agency determination of noncompliance with Labor Code sufficient for due process purposes).

⁸⁸⁶ Ingraham v. Wright, 430 U.S. 651, 680–82 (1977).

⁸⁸⁷ Ingraham v. Wright, 430 U.S. 651, 680–82 (1977). In Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19–22 (1987), involving cutoff of utility service for non-payment of bills, the Court rejected the argument that common-law remedies were sufficient to obviate the pre-termination hearing requirement.

⁸⁸⁸ Logan v. Zimmerman Brush Co., 455 U.S. at 435–36 (1982). The Court emphasized that a post-deprivation hearing regarding harm inﬂicted by a state procedure would be inadequate. “That is particularly true where, as here, the State’s only post-termination process comes in the form of an independent tort action. Seeking redress through a tort suit is apt to be a lengthy and speculative process, which in a situation such as this one will never make the complainant entirely whole.” 455 U.S. 422, 436–37.

⁸⁸⁹ 455 U.S. at 436.

⁸⁹⁰ More expressly adopting the tort remedy theory, the Court in Parratt v. Taylor, 451 U.S. 527 (1981), held that the loss of a prisoner’s mail-ordered goods through the negligence of prison officials constituted a deprivation of property, but that the state’s post-deprivation tort-claims procedure afforded adequate due process. When a state officer or employee acts negligently, the Court recognized, there is no way that the state can provide a pre-termination hearing; the real question, therefore, is what kind of post-deprivation hearing is sufficient. When the action complained of is the result of the unauthorized failure of agents to follow established procedures and there is no contention that the procedures themselves are inadequate, the Due Process Clause is satisfied by the provision of a judicial remedy which the claimant must initiate. 451 U.S. at 541, 543–44. It should be noted that Parratt was a property loss case, and thus may be distinguished from liberty cases, where a tort remedy, by itself, may not be adequate process. See Ingraham v. Wright, 430 U.S. at 680–82.

⁸⁹¹ Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by prison officials). Hence, there is no requirement for procedural due process stemming from such negligent acts and no resulting basis for suit under 42 U.S.C. § 1983 for deprivation of rights deriving from the Constitution. Prisoners may resort to state tort law in such circumstances, but neither the Constitution nor § 1983 provides a federal remedy.

⁸⁹² Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972); Bell v. Burson, 402 U.S. 535, 542 (1971). See Parratt v. Taylor, 451 U.S. 527, 538–40 (1981). Of course, one may waive his due process rights, though as with other constitutional rights, the waiver must be knowing and voluntary. D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972). See also Fuentes v. Shevin, 407 U.S. 67, 94–96 (1972).

⁸⁹³ North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908); Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950). See also Fahey v. Mallonee, 332 U.S. 245 (1948). Cf. Mackey v. Montrym, 443 U.S. 1, 17–18 (1979).

⁸⁹⁴ Phillips v. Commissioner, 283 U.S. 589, 597 (1931).

⁸⁹⁵ Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921).

⁸⁹⁶ Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961).

⁸⁹⁷ 367 U.S. at 894, 895, 896 (1961).

⁸⁹⁸ 367 U.S. at 896–98. See Goldberg v. Kelly, 397 U.S. 254, 263 n.10 (1970); Board of Regents v. Roth, 408 U.S. 564, 575 (1972); Arnett v. Kennedy, 416 U.S. 134, 152 (1974) (plurality opinion), and 416 U.S. at 181–183 (Justice White concurring in part and dissenting in part).

⁸⁹⁹ Scott v. McNeal, 154 U.S. 34, 64 (1894).

⁹⁰⁰ 95 U.S. 714 (1878).

⁹⁰¹ Although these two principles were drawn from the writings of Joseph Story refining the theories of continental jurists, Hazard, A General Theory of State-Court Jurisdiction, 1965 SUP. CT. REV. 241, 252–62, the constitutional basis for them was deemed to be in the Due Process Clause of the Fourteenth Amendment. Pennoyer v. Neff, 95 U.S. 714, 733–35 (1878). The Due Process Clause and the remainder of the Fourteenth Amendment had not been ratified at the time of the entry of the state-court judgment giving rise to the case. This inconvenient fact does not detract from the subsequent settled use of this constitutional foundation. Pennoyer denied full faith and credit to the judgment because the state lacked jurisdiction.

⁹⁰² 95 U.S. at 722. The basis for the territorial concept of jurisdiction promulgated in Pennoyer and modified over the years is two-fold: a concern for “fair play and substantial justice” involved in requiring defendants to litigate cases against them far from their “home” or place of business. International Shoe Co. v. Washington, 326 U.S. 310, 316, 317 (1945); Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm., 339 U.S. 643, 649 (1950); Shaffer v. Heitner, 433 U.S. 186, 204 (1977), and, more important, a concern for the preservation of federalism. International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945); Hanson v. Denckla, 357 U.S. 235, 251 (1958). The Framers, the Court has asserted, while intending to tie the States together into a Nation, “also intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State, in turn, implied a limitation on the sovereignty of all its sister States—a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980). Thus, the federalism principle is preeminent. “[T]he Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ . . . Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.” 444 U.S. at 294 (internal quotation from International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)).

⁹⁰³ International Shoe Co. v. Washington, 326 U.S. 310 (1945)). As the Court explained in McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957), “[w]ith this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.” See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980)). The first principle, that a State may assert jurisdiction over anyone or anything physically within its borders, no matter how brieﬂy there—the so-called “transient” rule of jurisdiction— McDonald v. Mabee, 243 U.S. 90, 91 (1917), remains valid, although in Shaffer v. Heitner, 433 U.S. 186, 204 (1977), the Court’s dicta appeared to assume it is not.

⁹⁰⁴ National Exchange Bank v. Wiley, 195 U.S. 257, 270 (1904); Iron Cliffs Co. v. Negaunee Iron Co., 197 U.S. 463, 471 (1905).

⁹⁰⁵ McDonald v. Mabee, 243 U.S. 90, 91 (1917). Cf. Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). The rule has been strongly criticized but persists. Ehrenzweig, The Transient Rule of Personal Jurisdiction: The ‘Power’ Myth and Forum Conveniens, 65 YALE L. J. 289 (1956). But in Burnham v. Superior Court, 495 U.S. 604 (1990), the Court held that service of process on a nonresident physically present within the state satisfies due process regardless of the duration or purpose of the nonresident’s visit.

⁹⁰⁶ Milliken v. Meyer, 311 U.S. 457 (1940).

⁹⁰⁷ McDonald v. Mabee, 243 U.S. 90 (1917).

⁹⁰⁸ Rees v. City of Watertown, 86 U.S. (19 Wall.) 107 (1874); Coe v. Armour Fertilizer Works, 237 U.S. 413, 423 (1915); Griffin v. Griffin, 327 U.S. 220 (1946).

⁹⁰⁹ Sugg v. Thornton, 132 U.S. 524 (1889); Riverside Mills v. Menefee, 237 U.S. 189, 193 (1915); Hess v. Pawloski, 274 U.S. 352, 355 (1927). See also Harkness v. Hyde, 98 U.S. 476 (1879); Wilson v. Seligman, 144 U.S. 41 (1892).

⁹¹⁰ Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230 (1900); Western Loan & Savings Co. v. Butte & Boston Min. Co., 210 U.S. 368 (1908); Houston v. Ormes, 252 U.S. 469 (1920). See also Adam v. Saenger, 303 U.S. 59 (1938) (plaintiff suing defendants deemed to have consented to jurisdiction with respect to counterclaims asserted against him).

⁹¹¹ State legislation which provides that a defendant who comes into court to challenge the validity of service upon him in a personal action surrenders himself to the jurisdiction of the court, but which allows him to dispute where process was served, is constitutional and does not deprive him of property without due process of law. In such a situation, the defendant may ignore the proceedings as wholly ineffective, and attack the validity of the judgment if and when an attempt is made to take his property thereunder. If he desires, however, to contest the validity of the court proceedings and he loses, it is within the power of a state to require that he submit to the jurisdiction of the court to determine the merits. York v. Texas, 137 U.S. 15 (1890); Kauffman v. Wootters, 138 U.S. 285 (1891); Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914).

⁹¹² Hess v. Pawloski, 274 U.S. 352 (1927); Wuchter v. Pizzutti, 276 U.S. 13 (1928); Olberding v. Illinois Cent. R.R., 346 U.S. 338, 341 (1953).

⁹¹³ Hess v. Pawloski, 274 U.S. 352, 356–57 (1927).

⁹¹⁴ 274 U.S. at 355. See Flexner v. Farson, 248 U.S. 289, 293 (1919).

⁹¹⁵ Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935).

⁹¹⁶ 326 U.S. 310, 316 (1945).

⁹¹⁷ 436 U.S. 84 (1978).

⁹¹⁸ Kulko had visited the state twice, seven and six years respectively before initiation of the present action, his marriage occurring in California on the second visit, but neither the visits nor the marriage was sufficient or relevant to jurisdiction. 436 U.S. at 92–93.

⁹¹⁹ 436 U.S. at 92.

⁹²⁰ 436 U.S. at 96–98.

⁹²¹ 571 U.S. ___, No. 12–574, slip op. (2014). This type of “jurisdiction” is often referred to as “specific jurisdiction.”

⁹²² Id. at 6–8.

⁹²³ Cf. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 588 (1839).

⁹²⁴ 326 U.S. 310 (1945).

⁹²⁵ Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404 (1855); St. Clair v. Cox, 196 U.S. 350 (1882); Commercial Mutual Accident Co. v. Davis, 213 U.S. 245 (1909); Simon v. Southern Ry., 236 U.S. 115 (1915); Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917).

⁹²⁶ Presence was first independently used to sustain jurisdiction in International Harvester Co. v. Kentucky, 234 U.S. 579 (1914), although the possibility was suggested as early as St. Clair v. Cox, 106 U.S. 350 (1882). See also Philadelphia & Reading Ry. v. McKibbin, 243 U.S. 264, 265 (1917) (Justice Brandeis for Court).

⁹²⁷ E.g., Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917); St. Louis S.W. Ry. v. Alexander, 227 U.S. 218 (1913).

⁹²⁸ Daimler AG v. Bauman, 571 U.S. ___, No. 11–965, slip op. at 8 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 920 (2011)) (holding Daimler Chrysler, a German public stock company, could not be subject to suit in California with respect to acts taken in Argentina by Argentinian subsidiary of Daimler, notwithstanding the fact that Daimler Chrysler had a U.S. subsidiary that did business in California).

⁹²⁹ Id. at 18–19.

⁹³⁰ Id. at 20 n. 19. For example, the Court held that an Ohio court could exercise general jurisdiction over a defendant corporation that was forced to relocate temporarily from the Philippines to Ohio, making Ohio the “center” of the corporation’s activities. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447–48 (1952).

⁹³¹ See BNSF R.R. Co. v. Tyrrell, 581 U.S. ___, No. 16–405, slip op. at 11–12 (2017) (holding that Montana courts could not exercise general jurisdiction over a railroad company that had over 2,000 miles of track and more than 2,000 employees in the state because the company was not incorporated or headquarted in Montana and the overall activity of the company in Montana was not “so substantial” as to render the corporation “at home” in the state).

⁹³² E.g., Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984); Davis v. Farmers Co-operative Co., 262 U.S. 312 (1923); Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516 (1923); Simon v. S. Ry., 236 U.S. 115, 129–30 (1915); Green v. Chicago, B. & Q. Ry., 205 U.S. 530 (1907); Old Wayne Life Ass’n v. McDonough, 204 U.S. 8 (1907). Continuous operations were sometimes sufficiently substantial and of a nature to warrant assertions of jurisdiction. St. Louis S.W. Ry. Co. v. Alexander, 227 U.S. 218 (1913); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 922 (2011) (distinguishing application of stream-of-commerce analysis in specific cases of in-state injury from the degree of presence a corporation must maintain in a state to be amenable to general jurisdiction there).

⁹³³ Robert Mitchell Furn. Co. v. Selden Breck Constr. Co., 257 U.S. 213 (1921); Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373, 379 (1920). Jurisdiction would continue, however, if a state had conditioned doing business on a firm’s agreeing to accept service through state officers should it and its agent withdraw. Washington ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361, 364 (1933).

⁹³⁴ Solicitation of business alone was inadequate to constitute “doing business,” Green, 205 U.S. at 534, but when connected with other activities could suffice to confer jurisdiction. Int’l Harvester Co. v. Kentucky, 234 U.S. 579 (1914). Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141–42 (2d Cir. 1930) (Hand, J., providing survey of cases).

⁹³⁵ E.g., Riverside Mills v. Menefee, 237 U.S. 189, 195 (1915); Conley v. Mathieson Alkali Works, 190 U.S. 406 (1903); Goldey v. Morning News, 156 U.S. 518 (1895); but see Conn. Mut. Life Ins. Co. v. Spratley, 172 U.S. 602 (1899).

⁹³⁶ 326 U.S. 310 (1945).

⁹³⁷ This departure was recognized by Justice Rutledge subsequently in Nippert v. City of Richmond, 327 U.S. 416, 422 (1946). Because International Shoe, in addition to having its agents solicit orders, also permitted them to rent quarters for the display of merchandise, the Court could have used International Harvester Co. v. Kentucky, 234 U.S. 579 (1914), to find it was “present” in the state.

⁹³⁸ International Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945).

⁹³⁹ 326 U.S. at 319.

⁹⁴⁰ Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm’n, 339 U.S. 643 (1950). The decision was 5-to-4 with one of the majority Justices also contributing a concurring opinion. Id. at 651 (Justice Douglas). The possible significance of the concurrence is that it appears to disagree with the implication of the majority opinion, id. at 647–48, that a state’s legislative jurisdiction and its judicial jurisdiction are coextensive. Id. at 652–53 (distinguishing between the use of the state’s judicial power to enforce its legislative powers and the judicial jurisdiction when a private party is suing). See id. at 659 (dissent).

⁹⁴¹ 339 U.S. at 647–49. The holding in Minnesota Commercial Men’s Ass’n v. Benn, 261 U.S. 140 (1923), that a similar mail order insurance company could not be viewed as doing business in the forum state and that the circumstances under which its contracts with forum state citizens, executed and to be performed in its state of incorporation, were consummated could not support an implication that the foreign company had consented to be sued in the forum state, was distinguished rather than formally overruled. 339 U.S. at 647. In any event, Benn could not have survived McGee v. International Life Ins. Co., 355 U.S. 220 (1957), below.

⁹⁴² McGee v. International Life Ins. Co., 355 U.S. 220 (1957).

⁹⁴³ 355 U.S. at 223. The Court also noticed the proposition that the insured could not bear the cost of litigation away from home as well as the insurer. See also Perkins v. Benguet Consolidating Mining Co., 342 U.S. 437 (1952), a case too atypical on its facts to permit much generalization but which does appear to verify the implication of International Shoe that in personam jurisdiction may attach to a corporation even where the cause of action does not arise out of the business done by defendant in the forum state, as well as to state, in dictum, that the mere presence of a corporate official within the state on business of the corporation would suffice to create jurisdiction if the claim arose out of that business and service were made on him within the state. 342 U.S. at 444–45. The Court held that the state could, but was not required to, assert jurisdiction over a corporation owning gold and silver mines in the Philippines but temporarily (because of the Japanese occupation) carrying on a part of its general business in the forum state, including directors’ meetings, business correspondence, banking, and the like, although it owned no mining properties in the state.

⁹⁴⁴ McGee v. International Life Ins. Co., 355 U.S. 220, 222 (1957). An exception exists with respect to in personam jurisdiction in domestic relations cases, at least in some instances. E.g., Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957) (holding that sufficient contacts afforded Nevada in personam jurisdiction over a New York resident wife for purposes of dissolving the marriage but Nevada did not have jurisdiction to terminate the wife’s claims for support).

⁹⁴⁵ 357 U.S. 235 (1958). The decision was 5-to-4. See 357 U.S. at 256 (Justice Black dissenting), 262 (Justice Douglas dissenting).

⁹⁴⁶ 357 U.S. at 251. In dissent, Justice Black observed that “of course we have not reached the point where state boundaries are without significance and I do not mean to suggest such a view here.” 357 U.S. at 260.

⁹⁴⁷ 357 U.S. at 251, 253–54. Upon an analogy of choice of law and forum non conveniens, Justice Black argued that the relationship of the nonresident defendants and the subject of the litigation to the Florida made Florida the natural and constitutional basis for asserting jurisdiction. 357 U.S. at 251, 258–59. The Court has numerous times asserted that contacts sufficient for the purpose of designating a particular state’s law as appropriate may be insufficient for the purpose of asserting jurisdiction. See Shaffer v. Heitner, 433 U.S. 186, 215 (1977); Kulko v. Superior Court, 436 U.S. 84, 98 (1978); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294–95 (1980). On the due process limits on choice of law decisions, see Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981).

⁹⁴⁸ Keeton v. Hustler Magazine, 465 U.S. 770 (1984) (holding as well that the forum state may apply “single publication rule” making defendant liable for nationwide damages).

⁹⁴⁹ Calder v. Jones, 465 U.S. 783 (1984) (jurisdiction over reporter and editor responsible for defamatory article which they knew would be circulated in subject’s home state).

⁹⁵⁰ Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). But cf. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984) (purchases and training within state, both unrelated to cause of action, are insufficient to justify general in personam jurisdiction).

⁹⁵¹ 444 U.S. 286 (1980).

⁹⁵² 444 U.S. at 297.

⁹⁵³ 444 U.S. at 298.

⁹⁵⁴ 480 U.S. 102 (1987). In Asahi, a California resident sued, inter alia, a Taiwanese tire tube manufacturer for injuries caused by a blown-out motorcycle tire. After plaintiff and the tube manufacturer settled the case, which had been filed in California, the tube manufacturer sought indemnity in the California courts against Asahi Metal, the Japanese supplier of the tube’s valve assembly.

⁹⁵⁵ All the Justices also agreed that due process considerations foreclosed jurisdiction in Asahi, even though Asahi Metal could have foreseen that some of its valve assemblies would end up incorporated into tire tubes sold in the United States. Three of the Asahi Justices had been dissenters in World-Wide Volkswagen Corp. v. Woodson. Of the three dissenters, Justice Brennan had argued that the “minimum contacts” test was obsolete and that jurisdiction should be predicated upon the balancing of the interests of the forum state and plaintiffs against the actual burden imposed on defendant, 444 U.S. at 299, while Justices Marshall and Blackmun had applied the test and found jurisdiction because of the foreseeability of defendants that a defective product of theirs might cause injury in a distant state and because the defendants had entered into an interstate economic network. 444 U.S. at 313.

⁹⁵⁶ 480 U.S. at 109–113 (1987). Agreeing with Justice O’Connor on this test were Chief Justice Rehnquist and Justices Powell and Scalia.

⁹⁵⁷ 564 U.S. ___, No. 09–1343, slip op. (2011).

⁹⁵⁸ 564 U.S. ___, No. 09–1343, slip op. (2011) (Kennedy, Roberts, Scalia and Thomas).

⁹⁵⁹ 564 U.S. ___, No. 09–1343, slip op. (2011) (Breyer and Alito concurring).

⁹⁶⁰ Daimler AG v. Bauman, 571 U.S. ___, No. 11–965, slip op. at 8 (2014).

⁹⁶¹ Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 582 U.S. ___, No. 16–466, slip op. at 7 (2017).

⁹⁶² Id. at 7.

⁹⁶³ Id. A court may exercise “general” jurisdiction for any claim—even if all the incidents underlying the claim occurred in a different state—against an individual in that person’s domicile or against a corporation where the corporation is fairly regarded as “at home,” such as the company’s place of incorporation or headquarters. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919–24 (2011).

⁹⁶⁴ See Bristol-Myers Squibb Co., slip op. at 8.

⁹⁶⁵ Accordingly, by reason of its inherent authority over titles to land within its territorial confines, a state court could proceed to judgment respecting the ownership of such property, even though it lacked a constitutional competence to reach claimants of title who resided beyond its borders. Arndt v. Griggs, 134 U.S. 316, 321 (1890); Grannis v. Ordean, 234 U.S. 385 (1914); Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917).

⁹⁶⁶ Boswell’s Lessee v. Otis, 50 U.S. (9 How.) 336, 348 (1850).

⁹⁶⁷ American Land Co. v. Zeiss, 219 U.S. 47 (1911); Tyler v. Judges of the Court of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814 (Chief Justice Holmes), appeal dismissed, 179 U.S. 405 (1900).

⁹⁶⁸ Huling v. Kaw Valley Ry. & Improvement Co., 130 U.S. 559 (1889).

⁹⁶⁹ The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874).

⁹⁷⁰ Clarke v. Clarke, 178 U.S. 186 (1900); Riley v. New York Trust Co., 315 U.S. 343 (1942).

⁹⁷¹ Pennoyer v. Neff, 95 U.S. 714 (1878). Predeprivation notice and hearing may be required if the property is not the sort that, given advance warning, could be removed to another jurisdiction, destroyed, or concealed. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) (notice to owner required before seizure of house by government).

⁹⁷² Arndt v. Griggs, 134 U.S. 316 (1890); Ballard v. Hunter, 204 U.S. 241 (1907); Security Savings Bank v. California, 263 U.S. 282 (1923).

⁹⁷³ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950); Walker v. City of Hutchinson, 352 U.S. 112 (1956); Schroeder v. City of New York, 371 U.S. 208 (1962); Robinson v. Hanrahan, 409 U.S. 38 (1972).

⁹⁷⁴ 433 U.S. 186 (1977).

⁹⁷⁵ 433 U.S. at 207–08 (footnotes omitted). The Court also suggested that the state would usually have jurisdiction in cases such as those arising from injuries suffered on the property of an absentee owner, where the defendant’s ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that controversy. Id.

⁹⁷⁶ 95 U.S. 714 (1878). Cf. Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917); Corn Exch. Bank v. Commissioner, 280 U.S. 218, 222 (1930); Endicott Co. v. Encyclopedia Press, 266 U.S. 285, 288 (1924).

⁹⁷⁷ The theory was that property is always in possession of an owner, and that seizure of the property will inform him. This theory of notice was disavowed sooner than the theory of jurisdiction. See “Actions in Rem: Proceedings Against Property”, supra.

⁹⁷⁸ Other, quasi in rem actions, which are directed against persons, but ultimately have property as the subject matter, such as probate, Goodrich v. Ferris, 214 U.S. 71, 80 (1909), and garnishment of foreign attachment proceedings, Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917); Harris v. Balk, 198 U.S. 215 (1905), might also be prosecuted to conclusion without requiring the presence of all parties in interest. The jurisdictional requirements for rendering a valid divorce decree are considered under the Full Faith and Credit Clause, Art. I, § 1.

⁹⁷⁹ Atkinson v. Superior Court, 49 Cal. 2d 338, 316 P. 2d 960 (1957), appeal dismissed, 357 U.S. 569 (1958) (debt seized in California was owed to a New Yorker, but it had arisen out of transactions in California involving the New Yorker and the California plaintiff).

⁹⁸⁰ 17 N.Y. 2d 111, 269 N.Y.S. 2d 99, 216 N.E. 2d 312 (1966).

⁹⁸¹ 198 U.S. 215 (1905).

⁹⁸² Compare New York Life Ins. Co. v. Dunlevy, 241 U.S. 518 (1916) (action purportedly against property within state, proceeds of an insurance policy, was really an in personam action against claimant and, claimant not having been served, the judgment is void). But see Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961).

⁹⁸³ 433 U.S. 186 (1977).

⁹⁸⁴ 433 U.S. at 207 (internal quotation from RESTATEMENT (SECOND)OF CONFLICT OF LAWS 56, Introductory Note (1971)).

⁹⁸⁵ 433 U.S. at 207. The characterization of actions in rem as being not actions against a res but against persons with interests merely reﬂects Justice Holmes’ insight in Tyler v. Judges of the Court of Registration, 175 Mass. 71, 76–77, 55 N.E., 812, 814, appeal dismissed, 179 U.S. 405 (1900).

⁹⁸⁶ 444 U.S. 320 (1980).

⁹⁸⁷ 444 U.S. at 328–30. In dissent, Justices Brennan and Stevens argued that what the state courts had done was the functional equivalent of direct-action statutes. Id. at 333 (Justice Stevens); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980) (Justice Brennan). The Court, however, refused so to view the Minnesota garnishment action, saying that “[t]he State’s ability to exert its power over the ‘nominal defendant’ is analytically prerequisite to the insurer’s entry into the case as a garnishee.” Id. at 330–31. Presumably, the comment is not meant to undermine the validity of such direct-action statutes, which was upheld in Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954), a choice-of-law case rather than a jurisdiction case.

⁹⁸⁸ See O’Conner v. Lee-Hy Paving Corp., 579 F.2d 194 (2d Cir. 1978), cert. denied, 439 U.S. 1034 (1978).

⁹⁸⁹ Goodrich v. Ferris, 214 U.S. 71, 80 (1909); McCaughey v. Lyall, 224 U.S. 558 (1912).

⁹⁹⁰ Baker v. Baker, Eccles & Co., 242 U.S. 394 (1917); Riley v. New York Trust Co., 315 U.S. 343 (1942).

⁹⁹¹ 315 U.S. at 353.

⁹⁹² 357 U.S. 235 (1957).

⁹⁹³ The in personam aspect of this decision is considered supra.

⁹⁹⁴ She reserved the power to appoint the remainder, after her reserved life estate, either by testamentary disposition or by inter vivos instrument. After she moved to Florida, she executed a new will and a new power of appointment under the trust, which did not satisfy the requirements for testamentary disposition under Florida law. Upon her death, dispute arose as to whether the property passed pursuant to the terms of the power of appointment or in accordance with the residuary clause of the will.

⁹⁹⁵ 357 U.S. at 246.

⁹⁹⁶ 357 U.S. at 247–50. The four dissenters, Justices Black, Burton, Brennan, and Douglas, believed that the transfer in Florida of $400,000 made by a domiciliary and affecting beneficiaries, almost all of whom lived in that state, gave rise to a sufficient connection with Florida to support an adjudication by its courts of the effectiveness of the transfer. 357 U.S. at 256, 262.

⁹⁹⁷ See discussion of Pennoyer, supra.

⁹⁹⁸ Hamilton v. Brown, 161 U.S. 256 (1896); Security Savings Bank v. California, 263 U.S. 282 (1923). See also Voeller v. Neilston Co., 311 U.S. 531 (1941).

⁹⁹⁹ 339 U.S. 306 (1950).

¹⁰⁰⁰ A related question is which state has the authority to escheat a corporate debt. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961); Texas v. New Jersey, 379 U.S. 674 (1965). Where a state seeks to escheat intangible corporate property such as uncollected debt, the Court found that the multiplicity of states with a possible interest made a “contacts” test unworkable. Citing ease of administration rather than logic or jurisdiction, the Court held that the authority to take the uncollected claims against a corporation by escheat would be based on whether the last known address on the company’s books for the each creditor was in a particular state.

¹⁰⁰¹ “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). “There . . . must be a basis for the defendant’s amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant.” Omni Capital Int’l v. Rudolph Wolff & Co., 484 U.S. 97 (1987).

¹⁰⁰² McDonald v. Mabee, 243 U.S. 90, 92 (1971).

¹⁰⁰³ Greene v. Lindsey, 456 U.S. 444, 449 (1982). See Dusenbery v. United States, 534 U.S. 161 (2001) (upholding a notice of forfeiture that was delivered by certified mail to the mailroom of a prison where the individual to be served was incarcerated, even though the individual himself did not sign for the letter).

¹⁰⁰⁴ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Thus, in Jones v. Flowers, 547 U.S. 220 (2006), the Court held that, after a state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied a tax delinquency, was returned by the post office marked “unclaimed,” the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so. And, in Greene v. Lindsey, 456 U.S. 444 (1982), the Court held that, in light of substantial evidence that notices posted on the doors of apartments in a housing project in an eviction proceeding were often torn down by children and others before tenants ever saw them, service by posting did not satisfy due process. Without requiring service by mail, the Court observed that the mails “provide an ‘efficient and inexpensive means of communication’ upon which prudent men will ordinarily rely in the conduct of important affairs.” Id. at 455 (citations omitted). See also Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) (personal service or notice by mail is required for mortgagee of real property subject to tax sale, Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (notice by mail or other appropriate means to reasonably ascertainable creditors of probated estate).

¹⁰⁰⁵ E.g., McGee v. International Life Ins. Co., 355 U.S. 220 (1957); Travelers Health Ass’n ex rel. State Corp. Comm’n, 339 U.S. 643 (1950).

¹⁰⁰⁶ See, e.g., G.D. Searle & Co. v. Cohn, 455 U.S. 404, 409–12 (1982) (discussing New Jersey’s “long-arm” rule, under which a plaintiff must make every effort to serve process upon someone within the state and then, only if “after diligent inquiry and effort personal service cannot be made” within the state, “service may be made by mailing, by registered or certified mail, return receipt requested, a copy of the summons and complaint to a registered agent for service, or to its principal place of business, or to its registered office.”). Cf. Velmohos v. Maren Engineering Corp., 83 N.J. 282, 416 A.2d 372 (1980), vacated and remanded, 455 U.S. 985 (1982).

¹⁰⁰⁷ Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

¹⁰⁰⁸ E.g., Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954) (authorizing direct action against insurance carrier rather than against the insured).

¹⁰⁰⁹ Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900). A state “is free to regulate procedure of its courts in accordance with it own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); West v. Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897); Jordan v. Massachusetts, 225 U.S. 167, 176, (1912). The power of a state to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts is also subject to restrictions imposed by the Contract, Full Faith and Credit, and Privileges and Immunities Clauses of the Constitution. Angel v. Bullington, 330 U.S. 183 (1947).

¹⁰¹⁰ Insurance Co. v. Glidden Co., 284 U.S. 151, 158 (1931); Iowa Central Ry. v. Iowa, 160 U.S. 389, 393 (1896); Honeyman v. Hanan, 302 U.S. 375 (1937). See also Lindsey v. Normet, 405 U.S. 56 (1972).

¹⁰¹¹ Cincinnati Street Ry. v. Snell, 193 U.S. 30, 36 (1904).

¹⁰¹² Some recent decisions, however, have imposed some restrictions on state procedures that require substantial reorientation of process. While this is more generally true in the context of criminal cases, in which the appellate process and post-conviction remedial process have been subject to considerable revision in the treatment of indigents, some requirements have also been imposed in civil cases. Boddie v. Connecticut, 401 U.S. 371 (1971); Lindsey v. Normet, 405 U.S. 56, 74–79 (1972); Santosky v. Kramer, 455 U.S. 745 (1982). Review has, however, been restrained with regard to details. See, e.g., Lindsey v. Normet, 405 U.S. at 64–69.

¹⁰¹³ Ownbey v. Morgan, 256 U.S. 94, 112 (1921). Thus the Fourteenth Amendment does not constrain the states to accept modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammeled liberty to amend pleadings. Note that the Supreme Court did once grant review to determine whether due process required the states to provide some form of post-conviction remedy to assert federal constitutional violations, a review that was mooted when the state enacted such a process. Case v. Nebraska, 381 U.S. 336 (1965). When a state, however, through its legal system exerts a monopoly over the pacific settlement of private disputes, as with the dissolution of marriage, due process may well impose affirmative obligations on that state. Boddie v. Connecticut, 401 U.S. 371, 374–77 (1971).

¹⁰¹⁴ Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Nor did the retroactive application of this statutory requirement to actions pending at the time of its adoption violate due process as long as no new liability for expenses incurred before enactment was imposed thereby and the only effect thereof was to stay such proceedings until the security was furnished.

¹⁰¹⁵ Boddie v. Connecticut, 401 U.S. 371 (1971). See also Little v. Streater, 452 U.S. 1 (1981) (state-mandated paternity suit); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (parental status termination proceeding); Santosky v. Kramer, 455 U.S. 745 (1982) (permanent termination of parental custody).

¹⁰¹⁶ Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam v. Saenger, 303 U.S. 59 (1938).

¹⁰¹⁷ Jones v. Union Guano Co., 264 U.S. 171 (1924).

¹⁰¹⁸ Sawyer v. Piper, 189 U.S. 154 (1903).

¹⁰¹⁹ Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915).

¹⁰²⁰ Lindsey v. Normet, 405 U.S. 56, 64–69 (1972). See also Bianchi v. Morales, 262 U.S. 170 (1923) (upholding mortgage law providing for summary foreclosure of a mortgage without allowing any defense except payment)..

¹⁰²¹ Bowersock v. Smith, 243 U.S. 29, 34 (1917); Chicago, R.I. & P. Ry. v. Cole, 251 U.S. 54, 55 (1919); Herron v. Southern Pacific Co., 283 U.S. 91 (1931). See also Martinez v. California, 444 U.S. 277, 280–83 (1980) (state interest in fashioning its own tort law permits it to provide immunity defenses for its employees and thus defeat recovery).

¹⁰²² Ownbey v. Morgan, 256 U.S. 94 (1921).

¹⁰²³ Ballard v. Hunter, 204 U.S. 241, 259 (1907).

¹⁰²⁴ Missouri, Kansas & Texas Ry. v. Cade, 233 U.S. 642, 650 (1914).

¹⁰²⁵ Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (limitation of attorneys’ fees to $10 in veterans benefit proceedings does not violate claimants’ Fifth Amendment due process rights absent a showing of probability of error in the proceedings that presence of attorneys would sharply diminish). See also United States Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) (upholding regulations under the Black Lung Benefits Act prohibiting contractual fee arrangements).

¹⁰²⁶ Lowe v. Kansas, 163 U.S. 81 (1896). Consider, however, the possible bearing of Giaccio v. Pennsylvania, 382 U.S. 399 (1966) (statute allowing jury to impose costs on acquitted defendant, but containing no standards to guide discretion, violates due process).

¹⁰²⁷ Yazoo & Miss. R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); Chicago & Northwestern Ry. v. Nye Schneider Fowler Co., 260 U.S. 35, 43–44 (1922); Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 139 (1921); Life & Casualty Co. v. McCray, 291 U.S. 566 (1934).

¹⁰²⁸ Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907).

¹⁰²⁹ National Union v. Arnold, 348 U.S. 37 (1954) (the judgment debtor had refused to post a supersedeas bond or to comply with reasonable orders designed to safeguard the value of the judgment pending decision on appeal).

¹⁰³⁰ Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927).

¹⁰³¹ Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991).

¹⁰³² Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) (finding sufficient constraints on jury discretion in jury instructions and in post-verdict review). See also Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) (striking down a provision of the Oregon Constitution limiting judicial review of the amount of punitive damages awarded by a jury).

¹⁰³³ Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 260 (1989).

¹⁰³⁴ BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996) (holding that a $2 million judgment for failing to disclose to a purchaser that a “new” car had been repainted was grossly excessive in relation to the state’s interest, as only a few of the 983 similarly repainted cars had been sold in that same state); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (holding that a $145 million judgment for refusing to settle an insurance claim was excessive as it included consideration of conduct occurring in other states). But see TXO Corp. v. Alliance Resources, 509 U.S. 443 (1993) (punitive damages of $10 million for slander of title does not violate the Due Process Clause even though the jury awarded actual damages of only $19,000).

¹⁰³⁵ BMW v. Gore, 517 U.S. at 574–75 (1996). The Court has suggested that awards exceeding a single-digit ratio between punitive and compensatory damages would be unlikely to pass scrutiny under due process, and that the greater the compensatory damages, the less this ratio should be. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. at 424 (2003).

¹⁰³⁶ Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (punitive damages award overturned because trial court had allowed jury to consider the effect of defendant’s conduct on smokers who were not parties to the lawsuit).

¹⁰³⁷ Wheeler v. Jackson, 137 U.S. 245, 258 (1890); Kentucky Union Co. v. Kentucky, 219 U.S. 140, 156 (1911). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (discussing discretion of states in erecting reasonable procedural requirements for triggering or foreclosing the right to an adjudication).

¹⁰³⁸ Blinn v. Nelson, 222 U.S. 1 (1911).

¹⁰³⁹ Turner v. New York, 168 U.S. 90, 94 (1897).

¹⁰⁴⁰ Soper v. Lawrence Brothers, 201 U.S. 359 (1906). Nor is a former owner who had not been in possession for five years after and fifteen years before said enactment thereby deprived of property without due process.

¹⁰⁴¹ Mattson v. Department of Labor, 293 U.S. 151, 154 (1934).

¹⁰⁴² Campbell v. Holt, 115 U.S. 620, 623, 628 (1885).

¹⁰⁴³ Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945).

¹⁰⁴⁴ Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945).

¹⁰⁴⁵ Campbell v. Holt, 115 U.S. 620, 623 (1885). See also Stewart v. Keyes, 295 U.S. 403, 417 (1935).

¹⁰⁴⁶ Home Ins. Co. v. Dick, 281 U.S. 397, 398 (1930).

¹⁰⁴⁷ Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Co. v. Harry, 273 U.S. 119, 124 (1927). Congress’s power to provide rules of evidence and standards of proof in the federal courts stems from its power to create such courts. Vance v. Terrazas, 444 U.S. 252, 264–67 (1980); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31 (1976). In the absence of congressional guidance, the Court has determined the evidentiary standard in certain statutory actions. Nishikawa v. Dulles, 356 U.S. 129 (1958); Woodby v. INS, 385 U.S. 276 (1966).

¹⁰⁴⁸ Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Justice Harlan concurring)).

¹⁰⁴⁹ Mathews v. Eldridge, 424 U.S. 319 (1976).

¹⁰⁵⁰ Addington v. Texas, 441 U.S. 418 (1979).

¹⁰⁵¹ Santosky v. Kramer, 455 U.S. 745 (1982). Four Justices dissented, arguing that considered as a whole the statutory scheme comported with due process. Id. at 770 (Justices Rehnquist, White, O’Connor, and Chief Justice Burger). Application of the traditional preponderance of the evidence standard is permissible in paternity actions. Rivera v. Minnich, 483 U.S. 574 (1987).

¹⁰⁵² Stanley v. Illinois, 405 U.S. 645 (1972) (presumption that unwed fathers are unfit parents). But see Michael H. v. Gerald D., 491 U.S. 110 (1989) (statutory presumption of legitimacy accorded to a child born to a married woman living with her husband defeats the right of the child’s biological father to establish paternity.

¹⁰⁵³ Presumptions were voided in Bailey v. Alabama, 219 U.S. 219 (1911) (anyone breaching personal services contract guilty of fraud); Manley v. Georgia, 279 U.S. 1 (1929) (every bank insolvency deemed fraudulent); Western & Atlantic R.R. v. Henderson, 279 U.S. 639 (1929) (collision between train and auto at grade crossing constitutes negligence by railway company); Carella v. California, 491 U.S. 263 (1989) (conclusive presumption of theft and embezzlement upon proof of failure to return a rental vehicle).

¹⁰⁵⁴ Presumptions sustained include Hawker v. New York, 170 U.S. 189 (1898) (person convicted of felony unfit to practice medicine); Hawes v. Georgia, 258 U.S. 1 (1922) (person occupying property presumed to have knowledge of still found on property); Bandini Co. v. Superior Court, 284 U.S. 8 (1931) (release of natural gas into the air from well presumed wasteful); Atlantic Coast Line R.R. v. Ford, 287 U.S. 502 (1933) (rebuttable presumption of railroad negligence for accident at grade crossing). See also Morrison v. California, 291 U.S. 82 (1934).

¹⁰⁵⁵ The approach was not unprecedented, some older cases having voided tax legislation that presumed conclusively an ultimate fact. Schlesinger v. Wisconsin, 270 U.S. 230 (1926) (deeming any gift made by decedent within six years of death to be a part of estate denies estate’s right to prove gift was not made in contemplation of death); Heiner v. Donnan, 285 U.S. 312 (1932); Hoeper v. Tax Comm’n, 284 U.S. 206 (1931).

¹⁰⁵⁶ 405 U.S. 645 (1972).

¹⁰⁵⁷ Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).

¹⁰⁵⁸ Vlandis v. Kline, 412 U.S. 441 (1973).

¹⁰⁵⁹ Department of Agriculture v. Murry, 413 U.S. 508 (1973).

¹⁰⁶⁰ Thus, on the some day Murry was decided, a similar food stamp qualification was struck down on equal protection grounds. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

¹⁰⁶¹ 422 U.S. 749 (1975).

¹⁰⁶² Stanley and LaFleur were distinguished as involving fundamental rights of family and childbearing, 422 U.S. at 771, and Murry was distinguished as involving an irrational classification. Id. at 772. Vlandis, said Justice Rehnquist for the Court, meant no more than that when a state fixes residency as the qualification it may not deny to one meeting the test of residency the opportunity so to establish it. Id. at 771. But see id. at 802–03 (Justice Brennan dissenting).

¹⁰⁶³ 422 U.S. at 768–70, 775–77, 785 (using Dandridge v. Williams, 397 U.S. 471 (1970); Richardson v. Belcher, 404 U.S. 78 (1971); and similar cases).

¹⁰⁶⁴ Weinberger v. Salfi, 422 U.S. 749, 772 (1975).

¹⁰⁶⁵ Vlandis, which was approved but distinguished, is only marginally in this doctrinal area, involving as it does a right to travel feature, but it is like Salfi and Murry in its benefit context and order of presumption. The Court has avoided deciding whether to overrule, retain, or further limit Vlandis. Elkins v. Moreno, 435 U.S. 647, 658–62 (1978).

¹⁰⁶⁶ In Turner v. Department of Employment Security, 423 U.S. 44 (1975), decided after Salfi, the Court voided under the doctrine a statute making pregnant women ineligible for unemployment compensation for a period extending from 12 weeks before the expected birth until six weeks after childbirth. But see Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1977) (provision granting benefits to miners “irrebuttably presumed” to be disabled is merely a way of giving benefits to all those with the condition triggering the presumption); Califano v. Boles, 443 U.S. 282, 284–85 (1979) (Congress must fix general categorization; case-by-case determination would be prohibitively costly).

¹⁰⁶⁷ Walker v. Sauvinet, 92 U.S. 90 (1876); New York Central R.R. v. White, 243 U.S. 188, 208 (1917).

¹⁰⁶⁸ Marvin v. Trout, 199 U.S. 212, 226 (1905).

¹⁰⁶⁹ In re Delgado, 140 U.S. 586, 588 (1891).

¹⁰⁷⁰ Wilson v. North Carolina, 169 U.S. 586 (1898); Foster v. Kansas, 112 U.S. 201, 206 (1884).

¹⁰⁷¹ Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694 (1897).

¹⁰⁷² Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171 (1894).

¹⁰⁷³ See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).

¹⁰⁷⁴ See Maxwell v. Dow, 176 U.S. 581, 602 (1900).

¹⁰⁷⁵ Lindsey v. Normet, 405 U.S. 56, 77 (1972) (citing cases).

¹⁰⁷⁶ 405 U.S. at 74–79 (conditioning appeal in eviction action upon tenant posting bond, with two sureties, in twice the amount of rent expected to accrue pending appeal, is invalid when no similar provision is applied to other cases). Cf. Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) (assessment of 15% penalty on party who unsuccessfully appeals from money judgment meets rational basis test under equal protection challenge, since it applies to plaintiffs and defendants alike and does not single out one class of appellants).

¹⁰⁷⁷ See analysis under the Bill of Rights, “Fourteenth Amendment,” supra.

¹⁰⁷⁸ For instance, In re Winship, 397 U.S. 358 (1970), held that, despite the absence of a specific constitutional provision requiring proof beyond a reasonable doubt in criminal cases, such proof is required by due process. For other recurrences to general due process reasoning, as distinct from reliance on more specific Bill of Rights provisions, see, e.g., United States v. Bryant, 579 U.S. ___, No. 15–420, slip op. at 15–16 (2016) (holding that principles of due process did not prevent a defendant’s prior uncounseled convictions in tribal court from being used as the basis for a sentence enhancement, as those convictions complied with the Indian Civil Rights Act, which itself contained requirements that “ensure the reliability of tribal-court convictions”). See also Hicks v. Oklahoma, 447 U.S. 343 (1980) (where sentencing enhancement scheme for habitual offenders found unconstitutional, defendant’s sentence cannot be sustained, even if sentence falls within range of unenhanced sentences); Sandstrom v. Montana, 442 U.S. 510 (1979) (conclusive presumptions in jury instruction may not be used to shift burden of proof of an element of crime to defendant); Kentucky v. Whorton, 441 U.S. 786 (1979) (fairness of failure to give jury instruction on presumption of innocence evaluated under totality of circumstances); Taylor v. Kentucky, 436 U.S. 478 (1978) (requiring, upon defense request, jury instruction on presumption of innocence); Patterson v. New York, 432 U.S. 197 (1977) (defendant may be required to bear burden of affirmative defense); Henderson v. Kibbe, 431 U.S. 145 (1977) (sufficiency of jury instructions); Estelle v. Williams, 425 U.S. 501 (1976) (a state cannot compel an accused to stand trial before a jury while dressed in identifiable prison clothes); Mullaney v. Wilbur, 421 U.S. 684 (1975) (defendant may not be required to carry the burden of disproving an element of a crime for which he is charged); Wardius v. Oregon, 412 U.S. 470 (1973) (defendant may not be held to rule requiring disclosure to prosecution of an alibi defense unless defendant is given reciprocal discovery rights against the state); Chambers v. Mississippi, 410 U.S. 284 (1973) (defendant may not be denied opportunity to explore confession of third party to crime for which defendant is charged).

¹⁰⁷⁹ Justice Black thought the Fourteenth Amendment should be limited to the specific guarantees found in the Bill of Rights. See,e.g.,In re Winship, 397 U.S. 358, 377 (1970) (dissenting). For Justice Harlan’s response, see id. at 372 n.5 (concurring).

¹⁰⁸⁰ Twining v. New Jersey, 211 U.S. 78, 106 (1908). The question is phrased as whether a claimed right is “implicit in the concept of ordered liberty,” whether it partakes “of the very essence of a scheme of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), or whether it “offend[s] those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses,” Rochin v. California, 342 U.S. 165, 169 (1952).

¹⁰⁸¹ Duncan v. Louisiana, 391 U.S. 145, 149–50 n.14 (1968).

¹⁰⁸² Hurtado v. California, 110 U.S. 516 (1884). The Court has also rejected an argument that due process requires that criminal prosecutions go forward only on a showing of probable cause. Albright v. Oliver, 510 U.S. 266 (1994) (holding that there is no civil rights action based on the Fourteenth Amendment for arrest and imposition of bond without probable cause).

¹⁰⁸³ Smith v. O’Grady, 312 U.S. 329 (1941) (guilty plea of layman unrepresented by counsel to what prosecution represented as a charge of simple burglary but which was in fact a charge of “burglary with explosives” carrying a much lengthier sentence voided). See also Cole v. Arkansas, 333 U.S. 196 (1948) (affirmance by appellate court of conviction and sentence on ground that evidence showed defendant guilty under a section of the statute not charged violated due process); In re Ruffalo, 390 U.S. 544 (1968) (disbarment in proceeding on charge which was not made until after lawyer had testified denied due process); Rabe v. Washington, 405 U.S. 313 (1972) (affirmance of obscenity conviction because of the context in which a movie was shown— grounds neither covered in the statute nor listed in the charge—was invalid).

¹⁰⁸⁴ See Sixth Amendment, Notice of Accusation, supra.

¹⁰⁸⁵ Norris v. Alabama, 294 U.S. 587 (1935); Cassell v. Texas, 339 U.S. 282 (1950); Eubanks v. Louisiana, 356 U.S. 584 (1958); Hernandez v. Texas, 347 U.S. 475 (1954); Pierre v. Louisiana, 306 U.S. 354 (1939). On prejudicial publicity, see Beck v. Washington, 369 U.S. 541 (1962).

¹⁰⁸⁶ Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

¹⁰⁸⁷ Musser v. Utah, 333 U.S. 95, 97 (1948). “The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the applicable tests to ascertain guilt.” Id. at 97. “Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982).

¹⁰⁸⁸ Winters v. New York, 333 U.S. 507, 515–16 (1948). “The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the applicable test to ascertain guilt.” Id. Cf. Colten v. Kentucky, 407 U.S. 104, 110 (1972). Thus, a state statute imposing severe, cumulative punishments upon contractors with the state who pay their workers less than the “current rate of per diem wages in the locality where the work is performed” was held to be “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Const. Co., 269 U.S. 385 (1926). Similarly, a statute which allowed jurors to require an acquitted defendant to pay the costs of the prosecution, elucidated only by the judge’s instruction to the jury that the defendant should only have to pay the costs if it thought him guilty of “some misconduct” though innocent of the crime with which he was charged, was found to fall short of the requirements of due process. Giaccio v. Pennsylvania, 382 U.S. 399 (1966).

¹⁰⁸⁹ See United States v. Beckles, 580 U.S. ___, No. 15–8544, slip op. at 5 (2017).

¹⁰⁹⁰ See Kolender v. Lawson, 461 U.S. 352, 357 (1983).

¹⁰⁹¹ Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v. California, 344 U.S. 357 (1953).

¹⁰⁹² Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 415 U.S. 566 (1974). Generally, a vague statute that regulates in the area of First Amendment guarantees will be pronounced wholly void. Winters v. New York, 333 U.S. 507, 509–10 (1948); Thornhill v. Alabama, 310 U.S. 88 (1940).

¹⁰⁹³ 405 U.S. 156 (1972).

¹⁰⁹⁴ 405 U.S. at 156 n.1. Similar concerns regarding vagrancy laws had been expressed previously. See,e.g., Winters v. New York, 333 U.S. 507, 540 (1948) (Justice Frankfurter dissenting); Edelman v. California, 344 U.S. 357, 362 (1953) (Justice Black dissenting); Hicks v. District of Columbia, 383 U.S. 252 (1966) (Justice Douglas dissenting).

¹⁰⁹⁵ Similarly, an ordinance making it a criminal offense for three or more persons to assemble on a sidewalk and conduct themselves in a manner annoying to passers-by was found impermissibly vague and void on its face because it encroached on the freedom of assembly. Coates v. City of Cincinnati, 402 U.S. 611 (1971). See Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) (conviction under statute imposing penalty for failure to “move on” voided); Bouie v. City of Columbia, 378 U.S. 347 (1964) (conviction on trespass charges arising out of a sit-in at a drugstore lunch counter voided since the trespass statute did not give fair notice that it was a crime to refuse to leave private premises after being requested to do so); Kolender v. Lawson, 461 U.S. 352 (1983) (requirement that person detained in valid Terry stop provide “credible and reliable” identification is facially void as encouraging arbitrary enforcement).

¹⁰⁹⁶ Where the terms of a vague statute do not threaten a constitutionally protected right, and where the conduct at issue in a particular case is clearly proscribed, then a due process challenge is unlikely to be successful. Where the conduct in question is at the margins of the meaning of an unclear statute, however, it will be struck down as applied. E.g., United States v. National Dairy Corp., 372 U.S. 29 (1963).

¹⁰⁹⁷ Palmer v. City of Euclid, 402 U.S. 544 (1971); Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 494–95 (1982).

¹⁰⁹⁸ 402 U.S. 544 (1971).

¹⁰⁹⁹ Kolender v. Lawson, 461 U.S. 352, 358 (1983).

¹¹⁰⁰ City of Chicago v. Morales, 527 U.S. 41 (1999).

¹¹⁰¹ 527 U.S. at 62.

¹¹⁰² Colten v. Kentucky, 407 U.S. 104 (1972).

¹¹⁰³ See, e.g., McDonnell v. United States, 579 U.S. ___, No. 15–474, slip op. at 23 (2016) (narrowly interpreting the term “official act” to avoid a construction of the Hobbs Act and federal honest-services fraud statute that would allow public officials to be subject to prosecution without fair notice “for the most prosaic interactions” between officials and their constituents).

¹¹⁰⁴ Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940).

¹¹⁰⁵ E.g., United States v. Freed, 401 U.S. 601 (1971). Persons may be bound by a novel application of a statute, not supported by Supreme Court or other “fundamentally similar” case precedent, so long as the court can find that, under the circumstance, “unlawfulness . . . is apparent” to the defendant. United States v. Lanier, 520 U.S. 259, 271–72 (1997).

¹¹⁰⁶ E.g., Boyce Motor Lines v. United States, 342 U.S. 337 (1952); Colautti v. Franklin, 439 U.S. 379, 395 (1979). Cf. Screws v. United States, 325 U.S. 91, 101–03 (1945) (plurality opinion). The Court have even done so when the statute did not explicitly include such a mens rea requirement. E.g., Morissette v. United States, 342 U.S. 246 (1952).

¹¹⁰⁷ See, e.g., Lambert v. California, 355 U.S. 225 (1957) (invalidating a municipal code that made it a crime for anyone who had ever been convicted of a felony to remain in the city for more than five days without registering.). In Lambert, the Court emphasized that the act of being in the city was not itself blameworthy, holding that the failure to register was quite “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” “Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” Id. at 228, 229–30.

¹¹⁰⁸ 532 U.S. 451 (2001).

¹¹⁰⁹ Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).

¹¹¹⁰ In United States v. Beckles, the Supreme Court concluded that the federal sentencing guidelines “do not fix the permissible range of sentences” and, therefore, are not subject to a vagueness challenge under the Due Process Clause. See 580 U.S. ___, No. 15–8544, slip op. at 5 (2017). Rather, the sentencing guidelines “merely guide the district courts’ discretion.” Id. at 8. In so concluding, the Court noted that the sentencing system that predated the use of the guidelines gave nearly unfettered discretion to judges in sentencing, and that discretion was never viewed as raising similar concerns. Id. Thus, the Court reasoned that it was “difficult to see how the present system of guided discretion” could raise vagueness concerns. Id. Moreover, the Beckles Court explained that “the advisory Guidelines . . . do not implicate the twin concerns underlying [the] vagueness doctrine—providing notice and preventing arbitrary enforcement.” Id. According to the Court, the only notice that is required regarding criminal sentences is provided to the defendant by the applicable statutory range and the guidelines. Further, the guidelines, which serve to advise courts how to exercise their discretion within the bounds set by Congress, simply do not regulate any conduct that can be arbitrarily enforced against a criminal defendant. Id. at 9.

¹¹¹¹ See United States v. Batchelder, 442 U.S. 114, 123 (1979).

¹¹¹² See, e.g., Sykes v. United States, 564 U.S. 1 (2011); Chambers v. United States, 555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. 192 (2007).

¹¹¹³ See Johnson v. United States, 576 U.S. ___, No. 13–7120, slip op. (2015).

¹¹¹⁴ See 18 U.S.C. § 924(e)(2)(B) (2012).

¹¹¹⁵ Johnson, slip op. at 2–3.

¹¹¹⁶ See James, 550 U.S. at 208.

¹¹¹⁷ Johnson, slip op. at 5–6.

¹¹¹⁸ Id.

¹¹¹⁹ See id. at 6–10 (“Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.”).

¹¹²⁰ Some of that difficulty may be alleviated through electronic and other surveillance, which is covered by the search and seizure provisions of the Fourth Amendment, or informers may be used, which also has constitutional implications.

¹¹²¹ For instance, in Sorrells v. United States, 287 U.S. 435, 446–49 (1932) and Sherman v. United States, 356 U.S. 369, 380 (1958) government agents solicited defendants to engage in the illegal activity, in United States v. Russell, 411 U.S. 423, 490 (1973), the agents supplied a commonly available ingredient, and in Hampton v. United States, 425 U.S. 484, 488–89 (1976), the agents supplied an essential and difficult to obtain ingredient.

¹¹²² For instance, this strategy was seen in the “Abscam” congressional bribery controversy. The defense of entrapment was rejected as to all the “Abscam” defendants. E.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v. Williams, 705 F.2d 603 (2d Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982), cert. denied, 457 U.S. 1106 (1982).

¹¹²³ For a thorough evaluation of the basis for and the nature of the entrapment defense, see Seidman, The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, 1981 SUP. CT. REV. 111. The Court’s first discussion of the issue was based on statutory grounds, see Sorrells v. United States, 287 U.S. 435, 446–49 (1932), and that basis remains the choice of some Justices. Hampton v. United States, 425 U.S. 484, 488–89 (1976) (plurality opinion of Justices Rehnquist and White and Chief Justice Burger). In Sherman v. United States, 356 U.S. 369, 380 (1958) (concurring), however, Justice Frankfurter based his opinion on the supervisory powers of the courts. In United States v. Russell, 411 U.S. 423, 490 (1973), however, the Court rejected the use of that power, as did a plurality in Hampton, 425 U.S. at 490. The Hampton plurality thought the Due Process Clause would never be applicable, no matter what conduct government agents engaged in, unless they violated some protected right of the defendant, and that inducement and encouragement could never do that. Justices Powell and Blackmun, on the other hand, 411 U.S. at 491, thought that police conduct, even in the case of a predisposed defendant, could be so outrageous as to violate due process. The Russell and Hampton dissenters did not clearly differentiate between the supervisory power and due process but seemed to believe that both were implicated. 411 U.S. at 495 (Justices Brennan, Stewart, and Marshall); Russell, 411 U.S. at 439 (Justices Stewart, Brennan, and Marshall). The Court again failed to clarify the basis for the defense in Mathews v. United States, 485 U.S. 58 (1988) (a defendant in a federal criminal case who denies commission of the crime is entitled to assert an “inconsistent” entrapment defense where the evidence warrants), and in Jacobson v. United States, 503 U.S. 540 (1992) (invalidating a conviction under the Child Protection Act of 1984 because government solicitation induced the defendant to purchase child pornography).

¹¹²⁴ An “objective approach,” although rejected by the Supreme Court, has been advocated by some Justices and recommended for codification by Congress and the state legislatures. See American Law Institute, MODEL PENAL CODE § 2.13 (Official Draft, 1962); NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, A PROPOSED NEW FEDERAL CRIMINAL CODE § 702(2) (Final Draft, 1971). The objective approach disregards the defendant’s predisposition and looks to the inducements used by government agents. If the government employed means of persuasion or inducement creating a substantial risk that the person tempted will engage in the conduct, the defense would be available. Sorrells v. United States, 287 U.S. 435, 458–59 (1932) (separate opinion of Justice Roberts); Sherman v. United States, 356 U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v. Russell, 411 U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton v. United States, 425 U.S. 484, 496–97 (1976) (Justice Brennan dissenting).

¹¹²⁵ Jacobson v. United States, 503 U.S. 540, 548–49 (1992). Here the Court held that the government had failed to prove that the defendant was initially predisposed to purchase child pornography, even though he had become so predisposed following solicitation through an undercover “sting” operation. For several years government agents had sent the defendant mailings soliciting his views on pornography and child pornography, and urging him to obtain materials in order to fight censorship and stand up for individual rights.

¹¹²⁶ Sorrells v. United States, 287 U.S. 435, 451–52 (1932); Sherman v. United States, 356 U.S. 369, 376–78 (1958); Masciale v. United States, 356 U.S. 386, 388 (1958); United States v. Russell, 411 U.S. 423, 432–36 (1973); Hampton v. United States, 425 U.S. 484, 488–489 (1976) (plurality opinion), and id. at 491 (Justices Powell and Blackmun concurring).

¹¹²⁷ Jacobson v. United States, 503 U.S. 540, 553–54 (1992).

¹¹²⁸ A hearing by the trial judge on whether an eyewitness identification should be barred from admission is not constitutionally required to be conducted out of the presence of the jury. Watkins v. Sowders, 449 U.S. 341 (1981).

¹¹²⁹ E.g., Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977) (only one photograph provided to witness); Neil v. Biggers, 409 U.S. 188, 196–201 (1972) (showup in which police walked defendant past victim and ordered him to speak); Coleman v. Alabama, 399 U.S. 1 (1970) (lineup); Foster v. California, 394 U.S. 440 (1969) (two lineups, in one of which the suspect was sole participant above average height, and arranged one-on-one meeting between eyewitness and suspect); Simmons v. United States, 390 U.S. 377 (1968) (series of group photographs each of which contained suspect); Stovall v. Denno, 388 U.S. 293 (1967) (suspect brought to witness’s hospital room).

¹¹³⁰ Perry v. New Hampshire, 565 U.S. ___, No. 10–8974, slip op. (2012) (prior to being approached by police for questioning, witness by chance happened to see suspect standing in parking lot near police officer; no manipulation by police alleged).

¹¹³¹ See Perry v. New Hampshire, 565 U.S. ___, No. 10–8974, slip op. at 6–7, 15–17 (2012).

¹¹³² “Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.” Neil v. Biggers, 409 U.S. 188, 198 (1972). An identification process can be found to be suggestive regardless of police intent. Perry v. New Hampshire, 565 U.S. ___, No. 10– 8974, slip op. at 2 & n.1 (2012) (circumstances of identification found to be suggestive but not contrived; no due process relief). The necessity of using a particular procedure depends on the circumstances. E.g., Stovall v. Denno, 388 U.S. 293 (1967) (suspect brought handcuffed to sole witness’s hospital room where it was uncertain whether witness would survive her wounds).

¹¹³³ Neil v. Biggers, 409 U.S. 188, 196–201 (1972); Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977). The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the suspect, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. See also Stovall v. Denno, 388 U.S. 293 (1967).

¹¹³⁴ The Court eschewed a per se exclusionary rule in due process cases at least as early as Stovall. 388 U.S. 293, 302 (1967). In Manson v. Brathwaite, the Court evaluated application of a per se rule versus the more ﬂexible, ad hoc “totality of the circumstances” rule, and found the latter to be preferable in the interests of deterrence and the administration of justice. 432 U.S. 98, 111–14 (1977). The rule in due process cases differs from the per se exclusionary rule adopted in the Wade-Gilbert line of cases on denial of the right to counsel under the Sixth Amendment in subject Illinois, 406 U.S. 682 (1972) (right to counsel inapplicable to post-arrest police station identification made before formal initiation of criminal proceedings; due process protections remain available) and United States v. Ash, 413 U.S. 300 (1973) (right to counsel inapplicable at post-indictment display of photographs to prosecution witnesses out of defendant’s presence; record insufficient to assess possible due process claim).

¹¹³⁵ Foster v. California, 394 U.S. 440 (1969) (5–4) (“[T]he pretrial confrontations [between the witness and the defendant] clearly were so arranged as to make the resulting identifications virtually inevitable.”). In a limited class of cases, pretrial identifications have been found to be constitutionally objectionable on a basis other than due process. See discussion of Assistance of Counsel under Amend. VI, “Lineups and Other Identification Situations.”

¹¹³⁶ Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934). See also Buchalter v. New York, 319 U.S. 427, 429 (1943).

¹¹³⁷ Lisenba v. California, 314 U.S. 219, 236 (1941).

¹¹³⁸ 273 U.S. 510, 520 (1927). See also Ward v. Village of Monroeville, 409 U.S. 57 (1972). But see Dugan v. Ohio, 277 U.S. 61 (1928). Similarly, in Rippo v. Baker, the Supreme Court vacated the Nevada Supreme Court’s denial of a convicted petitioner’s application for post-conviction relief based on the trial judge’s failure to recuse himself. 580 U.S. ___, No. 16–6316, slip op. (2017). During Rippo’s trial, the trial judge was the target of a federal bribery probe by the same district attorney’s office that was prosecuting Rippo. Rippo moved for the judge’s disqualification under the Fourteenth Amendment’s Due Process Clause, arguing the “judge could not impartially adjudicate a case in which one of the parties was criminally investigating him.” Id. at 1. After the judge was indicted on federal charges, a different judge subsequently assigned to the case denied Rippo’s motion for a new trial. In vacating the Nevada Supreme Court’s decision, the Supreme Court noted that “[u]nder our precedents, the Due Process Clause may sometimes demand recusal even when a judge ‘ha[s] no actual bias.’ Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Id. at 2 (quoting Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813, 825 (1986); Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Bias or prejudice of an appellate judge can also deprive a litigant of due process. Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813 (1986) (failure of state supreme court judge with pecuniary interest—a pending suit on an indistinguishable claim—to recuse).

¹¹³⁹ Mayberry v. Pennsylvania, 400 U.S. 455, 464 (1971) (“it is generally wise where the marks of unseemly conduct have left personal stings [for a judge] to ask a fellow judge to take his place”); Taylor v. Hayes, 418 U.S. 488, 503 (1974) (where “marked personal feelings were present on both sides,” a different judge should preside over a contempt hearing). But see Ungar v. Sarafite, 376 U.S. 575 (1964) (“We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to authority”). In the context of alleged contempt before a judge acting as a one-man grand jury, the Court reversed criminal contempt convictions, saying: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 136 (1955).

¹¹⁴⁰ Ordinarily the proper avenue of relief is a hearing at which the juror may be questioned and the defense afforded an opportunity to prove actual bias. Smith v. Phillips, 455 U.S. 209 (1982) (juror had job application pending with prosecutor’s office during trial). See also Remmer v. United States, 347 U.S. 227 (1954) (bribe offer to sitting juror); Dennis v. United States, 339 U.S. 162, 167–72 (1950) (government employees on jury). But, a trial judge’s refusal to question potential jurors about the contents of news reports to which they had been exposed did not violate the defendant’s right to due process, it being sufficient that the judge on voir dire asked the jurors whether they could put aside what they had heard about the case, listen to the evidence with an open mind, and render an impartial verdict. Mu’Min v. Virginia, 500 U.S. 415 (1991). Nor is it a denial of due process for the prosecution, after a finding of guilt, to call the jury’s attention to the defendant’s prior criminal record, if the jury has been given a sentencing function to increase the sentence which would otherwise be given under a recidivist statute. Spencer v. Texas, 385 U.S. 554 (1967). For discussion of the requirements of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra.

¹¹⁴¹ Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 (1923).

¹¹⁴² Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961); But see Stroble v. California, 343 U.S. 181 (1952); Murphy v. Florida, 421 U.S. 794 (1975).

¹¹⁴³ Initially, the televising of certain trials was struck down on the grounds that the harmful potential effect on the jurors was substantial, that the testimony presented at trial may be distorted by the multifaceted inﬂuence of television upon the conduct of witnesses, that the judge’s ability to preside over the trial and guarantee fairness is considerably encumbered to the possible detriment of fairness, and that the defendant is likely to be harassed by his television exposure. Estes v. Texas, 381 U.S. 532 (1965). Subsequently, however, in part because of improvements in technology which caused much less disruption of the trial process and in part because of the lack of empirical data showing that the mere presence of the broadcast media in the courtroom necessarily has an adverse effect on the process, the Court has held that due process does not altogether preclude the televising of state criminal trials. Chandler v. Florida, 449 U.S. 560 (1981). The decision was unanimous but Justices Stewart and White concurred on the basis that Estes had established a per se constitutional rule which had to be overruled, id. at 583, 586, contrary to the Court’s position. Id. at 570–74.

¹¹⁴⁴ For instance, the presumption of innocence has been central to a number of Supreme Court cases. Under some circumstances it is a violation of due process and reversible error to fail to instruct the jury that the defendant is entitled to a presumption of innocence, although the burden on the defendant is heavy to show that an erroneous instruction or the failure to give a requested instruction tainted his conviction. Taylor v. Kentucky, 436 U.S. 478 (1978). However, an instruction on the presumption of innocence need not be given in every case. Kentucky v. Whorton, 441 U.S. 786 (1979) (reiterating that the totality of the circumstances must be looked to in order to determine if failure to so instruct denied due process). The circumstances emphasized in Taylor included skeletal instructions on burden of proof combined with the prosecutor’s remarks in his opening and closing statements inviting the jury to consider the defendant’s prior record and his indictment in the present case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510 (1979) (instructing jury trying person charged with “purposely or knowingly” causing victim’s death that “law presumes that a person intends the ordinary consequences of his voluntary acts” denied due process because jury could have treated the presumption as conclusive or as shifting burden of persuasion and in either event state would not have carried its burden of proving guilt). See also Cupp v. Naughten, 414 U.S. 141 (1973); Henderson v. Kibbe, 431 U.S. 145, 154–55 (1973). For other cases applying Sandstrom,see Francis v. Franklin, 471 U.S. 307 (1985) (contradictory but ambiguous instruction not clearly explaining state’s burden of persuasion on intent does not erase Sandstrom error in earlier part of charge); Rose v. Clark, 478 U.S. 570 (1986) (Sandstrom error can in some circumstances constitute harmless error under principles of Chapman v. California, 386 U.S. 18 (1967)); Middleton v. McNeil, 541 U.S. 433 (2004) (state courts could assume that an erroneous jury instruction was not reasonably likely to have misled a jury where other instructions made correct standard clear). Similarly, improper arguments by a prosecutor do not necessarily constitute “plain error,” and a reviewing court may consider in the context of the entire record of the trial the trial court’s failure to redress such error in the absence of contemporaneous objection. United States v. Young, 470 U.S. 1 (1985).

¹¹⁴⁵ Rock v. Arkansas, 483 U.S. 44 (1987).

¹¹⁴⁶ Wardius v. Oregon, 412 U.S. 470 (1973).

¹¹⁴⁷ Estelle v. Williams, 425 U.S. 501 (1976). The convicted defendant was denied habeas relief, however, because of failure to object at trial. But cf. Holbrook v. Flynn, 475 U.S. 560 (1986) (presence in courtroom of uniformed state troopers serving as security guards was not the same sort of inherently prejudicial situation); Carey v. Musladin, 549 U.S. 70 (2006) (effect on defendant’s fair-trial rights of private-actor courtroom conduct—in this case, members of victim’s family wearing buttons with the victim’s photograph—has never been addressed by the Supreme Court and therefore 18 U.S.C. § 2254(d)(1) precludes habeas relief; see Amendment 8, Limitations on Habeas Corpus Review of Capital Sentences).

¹¹⁴⁸ 544 U.S. 622 (2005).

¹¹⁴⁹ 544 U.S. at 626. In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court stated, in dictum, that “no person should be tried while shackled and gagged except as a last resort.”

¹¹⁵⁰ 544 U.S. at 630, 631 (internal quotation marks omitted).

¹¹⁵¹ The defendant called the witness because the prosecution would not.

¹¹⁵² Chambers v. Mississippi, 410 U.S. 284 (1973). See also Davis v. Alaska, 415 U.S. 786 (1974) (refusal to permit defendant to examine prosecution witness about his adjudication as juvenile delinquent and status on probation at time, in order to show possible bias, was due process violation, although general principle of protecting anonymity of juvenile offenders was valid); Crane v. Kentucky, 476 U.S. 683 (1986) (exclusion of testimony as to circumstances of a confession can deprive a defendant of a fair trial when the circumstances bear on the credibility as well as the voluntariness of the confession); Holmes v. South Carolina, 547 U.S. 319 (2006) (overturning rule that evidence of third-party guilt can be excluded if there is strong forensic evidence establishing defendant’s culpability). But see Montana v. Egelhoff, 518 U.S. 37 (1996) (state may bar defendant from introducing evidence of intoxication to prove lack of mens rea).

¹¹⁵³ North v. Russell, 427 U.S. 328 (1976).

¹¹⁵⁴ Mooney v. Holohan, 294 U.S. 103, 112 (1935).

¹¹⁵⁵ The Court dismissed the petitioner’s suit on the ground that adequate process existed in the state courts to correct any wrong and that petitioner had not availed himself of it. A state court subsequently appraised the evidence and ruled that the allegations had not been proved in Ex parte Mooney, 10 Cal. 2d 1, 73 P.2d 554 (1937), cert. denied, 305 U.S. 598 (1938).

¹¹⁵⁶ Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945). See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941).

¹¹⁵⁷ Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957). In the former case, the principal prosecution witness was defendant’s accomplice, and he testified that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but did nothing to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972) (same). In the latter case, involving a husband’s killing of his wife because of her infidelity, a prosecution witness testified at the habeas corpus hearing that he told the prosecutor that he had been intimate with the woman but that the prosecutor had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather than to the defendant’s guilt. What if the prosecution should become aware of the perjury of a prosecution witness following the trial? Cf. Durley v. Mayo, 351 U.S. 277 (1956). But see Smith v. Phillips, 455 U.S. 209, 218–21 (1982) (prosecutor’s failure to disclose that one of the jurors has a job application pending before him, thus rendering him possibly partial, does not go to fairness of the trial and due process is not violated).

¹¹⁵⁸ 386 U.S. 1 (1967).

¹¹⁵⁹ The Constitution does not require the government, prior to entering into a binding plea agreement with a criminal defendant, to disclose impeachment information relating to any informants or other witnesses against the defendant. United States v. Ruiz, 536 U.S. 622 (2002). Nor has it been settled whether inconsistent prosecutorial theories in separate cases can be the basis for a due process challenge. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (Court remanded case to determine whether death sentence was based on defendant’s role as shooter because subsequent prosecution against an accomplice proceeded on the theory that, based on new evidence, the accomplice had done the shooting).

¹¹⁶⁰ 373 U.S. 83, 87 (1963). In Jencks v. United States, 353 U.S. 657 (1957), in the exercise of its supervisory power over the federal courts, the Court held that the defense was entitled to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses during the investigatory stage. Cf. Scales v. United States, 367 U.S. 203, 257–58 (1961). A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo v. United States, 360 U.S. 343 (1959), sustaining 18 U.S.C. § 3500.

¹¹⁶¹ Although the state court in Brady had allowed a partial retrial so that the accomplice’s confession could be considered in the jury’s determination of whether to impose capital punishment, it had declined to order a retrial of the guilt phase of the trial. The defendant’s appeal of this latter decision was rejected, as the issue, as the Court saw it, was whether the state court could have excluded the defendant’s confessed participation in the crime on evidentiary grounds, as the defendant had confessed to facts sufficient to establish grounds for the crime charged.

¹¹⁶² Moore v. Illinois, 408 U.S. 786, 794–95 (1972) (finding Brady inapplicable because the evidence withheld was not material and not exculpatory). See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no due process violation where prosecutor’s failure to disclose the result of a witness’ polygraph test would not have affected the outcome of the case). The beginning in Brady toward a general requirement of criminal discovery was not carried forward. See the division of opinion in Giles v. Maryland, 386 U.S. 66 (1967). In Cone v. Bell, 556 U.S. ___, No. 07–1114, slip op. at 23, 27 (2009), the Court emphasized the distinction between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment, and concluded that, although the evidence that had been suppressed was not material to the defendant’s conviction, the lower courts had erred in failing to assess its effect with respect to the defendant’s capital sentence.

¹¹⁶³ 427 U.S. 97 (1976).

¹¹⁶⁴ 427 U.S. at 103–04. This situation is the Mooney v. Holohan-type of case.

¹¹⁶⁵ A statement by the prosecution that it will “open its files” to the defendant appears to relieve the defendant of his obligation to request such materials. See Strickler v. Greene, 527 U.S. 263, 283–84 (1999); Banks v. Dretke, 540 U.S. 668, 693 (2004).

¹¹⁶⁶ 427 U.S. at 104–06. This the Brady situation.

¹¹⁶⁷ 427 U.S. at 106–14. This was the Agurs fact situation. Similarly, there is no obligation that law enforcement officials preserve breath samples that have been used in a breath-analysis test; to meet the Agurs materiality standard, “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984). See also Arizona v. Youngblood, 488 U.S. 51 (1988) (negligent failure to refrigerate and otherwise preserve potentially exculpatory physical evidence from sexual assault kit does not violate a defendant’s due process rights absent bad faith on the part of the police); Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam) (the routine destruction of a bag of cocaine 11 years after an arrest, the defendant having ﬂed prosecution during the intervening years, does not violate due process).

¹¹⁶⁸ 473 U.S. 667 (1985).

¹¹⁶⁹ 473 U.S. at 682. Or, to phrase it differently, a Brady violation is established by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Kyles v. Whitley, 514 U.S. 419, 435 (1995). Accord Smith v. Cain, 565 U.S. ___, No. 10–8145, slip op. (2012) (prior inconsistent statements of sole eyewitness withheld from defendant; state lacked other evidence sufficient to sustain confidence in the verdict independently).

¹¹⁷⁰ See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony made unavailable by Government deportation of witnesses); Strickland v. Washington, 466 U.S. 668 (1984) (incompetence of counsel).

¹¹⁷¹ 473 U.S. at 676–77. See also Wearry v. Cain, 577 U.S. ___, No. 14–10008, slip op. at 9 (2016) (per curiam) (finding that a state post-conviction court had improperly (1) evaluated the materiality of each piece of evidence in isolation, rather than cumulatively; (2) emphasized reasons jurors might disregard the new evidence, while ignoring reasons why they might not; and (3) failed to consider the statements of two impeaching witnesses).

¹¹⁷² Strickler v. Greene, 527 U.S. 263, 296 (1999); see also Turner v. United States, 582 U.S. ___, No. 15–1503, slip op. at 12 (2017) (holding that, when considering the withheld evidence in the context of the entire record, the evidence was “too little, too weak, or too distant” from the central evidentiary issues in the case to meet Brady’s standards for materiality.)

¹¹⁷³ Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006) (per curiam), quoting Kyles v. Whitley, 514 U.S. 419, 438, 437 (1995).

¹¹⁷⁴ Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160 U.S. 469, 488 (1895); Holt v. United States, 218 U.S. 245, 253 (1910); Speiser v. Randall, 357 U.S. 513, 525–26 (1958).

¹¹⁷⁵ In re Winship, 397 U.S. 358, 364 (1970). See Estelle v. Williams, 425 U.S. 501, 503 (1976); Henderson v. Kibbe, 431 U.S. 145, 153 (1977); Ulster County Court v. Allen, 442 U.S. 140, 156 (1979); Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt). On the interrelationship of the reasonable doubt burden and defendant’s entitlement to a presumption of innocence, see Taylor v. Kentucky, 436 U.S. 478, 483–86 (1978), and Kentucky v. Whorton, 441 U.S. 786 (1979).

¹¹⁷⁶ E.g., Deutch v. United States, 367 U.S. 456, 471 (1961). See also Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (jury instruction that explains “reasonable doubt” as doubt that would give rise to a “grave uncertainty,” as equivalent to a “substantial doubt,” and as requiring “a moral certainty,” suggests a higher degree of certainty than is required for acquittal, and therefore violates the Due Process Clause). But see Victor v. Nebraska, 511 U.S. 1 (1994) (considered as a whole, jury instructions that define “reasonable doubt” as requiring a “moral certainty” or as equivalent to “substantial doubt” did not violate due process because other clarifying language was included.)

¹¹⁷⁷ Holt v. United States, 218 U.S. 245 (1910); Agnew v. United States, 165 U.S. 36 (1897). These cases overturned Coffin v. United States, 156 U.S. 432, 460 (1895), in which the Court held that the presumption of innocence was evidence from which the jury could find a reasonable doubt.

¹¹⁷⁸ 397 U.S. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). Justice Harlan’s Winship concurrence, id. at 368, proceeded on the basis that, because there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard.

¹¹⁷⁹ Thompson v. City of Louisville, 362 U.S. 199 (1960); Garner v. Louisiana, 368 U.S. 157 (1961); Taylor v. Louisiana, 370 U.S. 154 (1962); Barr v. City of Columbia, 378 U.S. 146 (1964); Johnson v. Florida, 391 U.S. 596 (1968). See also Chessman v. Teets, 354 U.S. 156 (1957).

¹¹⁸⁰ 443 U.S. 307 (1979).

¹¹⁸¹ Id. at 316, 18–19. See also Musacchio v. United States, 577 U.S. ___, No. 14–1095, slip op. (2016) (“When a jury finds guilt after being instructed on all elements of the charged crime plus one more element,” the fact that the government did not introduce evidence of the additional element—which was not required to prove the offense, but was included in the erroneous jury instruction—“does not implicate the principles that sufficiency review protects.”); Griffin v. United States, 502 U.S. 46 (1991) (general guilty verdict on a multiple-object conspiracy need not be set aside if the evidence is inadequate to support conviction as to one of the objects of the conviction, but is adequate to support conviction as to another object).

¹¹⁸² Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 528 U.S. 23 (1999). These cases both involved defendants convicted under state statutes that were subsequently interpreted in a way that would have precluded their conviction. The Court remanded the cases to determine if the new interpretation was in effect at the time of the previous convictions, in which case those convictions would violate due process.

¹¹⁸³ 421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979).

¹¹⁸⁴ The general notion of “burden of proof” can be divided into the “burden of production” (providing probative evidence on a particular issue) and a “burden of persuasion” (persuading the factfinder with respect to an issue by a standard such as proof beyond a reasonable doubt). Mullaney, 421 U.S. at 695 n.20.

¹¹⁸⁵ Rivera v. Delaware, 429 U.S. 877 (1976), dismissing as not presenting a substantial federal question an appeal from a holding that Mullaney did not prevent a state from placing on the defendant the burden of proving insanity by a preponderance of the evidence. See Patterson v. New York, 432 U.S. 197, 202–05 (1977) (explaining the import of Rivera). Justice Rehnquist and Chief Justice Burger concurring in Mullaney, 421 U.S. at 704, 705, had argued that the case did not require any reconsideration of the holding in Leland v. Oregon, 343 U.S. 790 (1952), that the defense may be required to prove insanity beyond a reasonable doubt.

¹¹⁸⁶ 432 U.S. 197 (1977).

¹¹⁸⁷ Proving the defense would reduce a murder offense to manslaughter.

¹¹⁸⁸ The decisive issue, then, was whether the statute required the state to prove beyond a reasonable doubt each element of the offense. See also Dixon v. United States, 548 U.S. 1 (2006) (requiring defendant in a federal firearms case to prove her duress defense by a preponderance of evidence did not violate due process). In Dixon, the prosecution had the burden of proving all elements of two federal firearms violations, one requiring a “willful” violation (having knowledge of the facts that constitute the offense) and the other requiring a “knowing” violation (acting with knowledge that the conduct was unlawful). Although establishing other forms of mens rea (such as “malicious intent”) might require that a prosecutor prove that a defendant’s intent was without justification or excuse, the Court held that neither of the forms of mens rea at issue in Dixon contained such a requirement. Consequently, the burden of establishing the defense of duress could be placed on the defendant without violating due process.

¹¹⁸⁹ Dissenting in Patterson, Justice Powell argued that the two statutes were functional equivalents that should be treated alike constitutionally. He would hold that as to those facts that historically have made a substantial difference in the punishment and stigma ﬂowing from a criminal act the state always bears the burden of persuasion but that new affirmative defenses may be created and the burden of establishing them placed on the defendant. 432 U.S. at 216. Patterson was followed in Martin v. Ohio, 480 U.S. 228 (1987) (state need not disprove defendant acted in self-defense based on honest belief she was in imminent danger, when offense is aggravated murder, an element of which is “prior calculation and design”). Justice Powell, again dissenting, urged a distinction between defenses that negate an element of the crime and those that do not. Id. at 236, 240.

¹¹⁹⁰ 548 U.S. 735 (2006).

¹¹⁹¹ 548 U.S. at 770, 774.

¹¹⁹² McMillan v. Pennsylvania, 477 U.S. 79 (1986). It should be noted that these type of cases may also implicate the Sixth Amendment, as the right to a jury extends to all facts establishing the elements of a crime, while sentencing factors may be evaluated by a judge. See discussion in “Criminal Proceedings to Which the Guarantee Applies,” supra.

¹¹⁹³ 530 U.S. 466, 490 (2000) (interpreting New Jersey’s “hate crime” law). It should be noted that, prior to its decision in Apprendi, the Court had held that sentencing factors determinative of minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan was put in doubt by Apprendi,McMillan was subsequently reaffirmed in Harris v. United States, 536 U.S. 545 (2002).

¹¹⁹⁴ Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring v. Arizona, 536 U.S. 584 (2002).

¹¹⁹⁵ This limiting principle does not apply to sentencing enhancements based on recidivism. Apprendi, 530 U.S. at 490. As enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, establishing the existence of previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the United States subject to a maximum sentence of two years, but upon proof of felony record, is subject to a maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging the validity of such a conviction).

¹¹⁹⁶ See, e.g., Yee Hem v. United States, 268 U.S. 178 (1925) (upholding statute that proscribed possession of smoking opium that had been illegally imported and authorized jury to presume illegal importation from fact of possession); Manley v. Georgia, 279 U.S. 1 (1929) (invalidating statutory presumption that every insolvency of a bank shall be deemed fraudulent).

¹¹⁹⁷ 319 U.S. 463, 467–68 (1943). Compare United States v. Gainey, 380 U.S. 63 (1965) (upholding presumption from presence at site of illegal still that defendant was “carrying on” or aiding in “carrying on” its operation), with United States v. Romano, 382 U.S. 136 (1965) (voiding presumption from presence at site of illegal still that defendant had possession, custody, or control of still).

¹¹⁹⁸ 395 U.S. 6, 36 (1969).

¹¹⁹⁹ subject disapproved, it was factually distinguished as involving users of “hard” narcotics.

¹²⁰⁰ 395 U.S. at 36 n.64. The matter was also left open in Turner v. United States, 396 U.S. 398 (1970) (judged by either “rational connection” or “reasonable doubt,” a presumption that the possessor of heroin knew it was illegally imported was valid, but the same presumption with regard to cocaine was invalid under the “rational connection” test because a great deal of the substance was produced domestically), and in Barnes v. United States, 412 U.S. 837 (1973) (under either test a presumption that possession of recently stolen property, if not satisfactorily explained, is grounds for inferring possessor knew it was stolen satisfies due process).

¹²⁰¹ Ulster County Court v. Allen, 442 U.S. 140, 167 (1979).

¹²⁰² 442 U.S. at 167.

¹²⁰³ 442 U.S. at 142. The majority thought that possession was more likely than not the case from the circumstances, while the four dissenters disagreed. 442 U.S. at 168. See also Estelle v. McGuire, 502 U.S. 62 (1991) (upholding a jury instruction that, to dissenting Justices O’Connor and Stevens, id. at 75, seemed to direct the jury to draw the inference that evidence that a child had been “battered” in the past meant that the defendant, the child’s father, had necessarily done the battering).

¹²⁰⁴ Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961 (1956)). The standard for competency to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960) (per curiam), cited with approval in Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008). The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial. Indiana v. Edwards, supra.

¹²⁰⁵ Pate v. Robinson, 383 U.S. 375, 378 (1966); see also Drope v. Missouri, 420 U.S. 162, 180 (1975) (noting the relevant circumstances that may require a trial court to inquire into the mental competency of the defendant). In Ake v. Oklahoma, the Court established that, when an indigent defendant’s mental condition is both relevant to the punishment and seriously in question, the state must provide the defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985). While the Court has not decided whether Ake requires that the state provide a qualified mental health expert who is available exclusively to the defense team, see McWilliams v. Dunn, 582 U.S. ___, No. 16–5294, slip op. at 13 (2017), a state nevertheless deprives an indigent defendant of due process when it provides a competent psychiatrist only to examine the defendant without also requiring that an expert provide the defense with help in evaluating, preparing, and presenting its case. Id. at 15.

¹²⁰⁶ Medina v. California, 505 U.S. 437 (1992). It is a violation of due process, however, for a state to require that a defendant must prove competence to stand trial by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348 (1996).

¹²⁰⁷ Jackson v. Indiana, 406 U.S. 715 (1972).

¹²⁰⁸ Clark v. Arizona, 548 U.S. 735 (2006).

¹²⁰⁹ M’Naghten’s Case, 8 Eng. Rep. 718 (1843), states that “[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” 8 Eng. Rep., at 722.

¹²¹⁰ See Queen v. Oxford, 173 Eng. Rep. 941, 950 (1840) (“If some controlling disease was, in truth, the acting power within [the defendant] which he could not resist, then he will not be responsible”).

¹²¹¹ See State v. Jones, 50 N.H. 369 (1871) (“If the defendant had a mental disease which irresistibly impelled him to kill his wife—if the killing was the product of mental disease in him—he is not guilty; he is innocent—as innocent as if the act had been produced by involuntary intoxication, or by another person using his hand against his utmost resistance”).

¹²¹² Clark, 548 U.S. at 752. In Clark, the Court considered an Arizona statute, based on the M’Naghten case, that was amended to eliminate the defense of cognitive incapacity. The Court noted that, despite the amendment, proof of cognitive incapacity could still be introduced as it would be relevant (and sufficient) to prove the remaining moral incapacity test. Id. at 753.

¹²¹³ Jones v. United States, 463 U.S. 354 (1983). The fact that the affirmative defense of insanity need only be established by a preponderance of the evidence, while civil commitment requires the higher standard of clear and convincing evidence, does not render the former invalid; proof beyond a reasonable doubt of commission of a criminal act establishes dangerousness justifying confinement and eliminates the risk of confinement for mere idiosyncratic behavior.

¹²¹⁴ 463 U.S. at 368.

¹²¹⁵ 463 U.S. at 370.

¹²¹⁶ Foucha v. Louisiana, 504 U.S. 71 (1992).

¹²¹⁷ 477 U.S. 399 (1986).

¹²¹⁸ There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that “the ascertainment of a prisoner’s sanity calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.” 477 U.S. at 411– 12. Concurring Justice Powell thought that due process might be met by a proceeding “far less formal than a trial,” that the state “should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel.” Id. at 427. Concurring Justice O’Connor, joined by Justice White, emphasized Florida’s denial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or board, sets forth the Court’s holding.

¹²¹⁹ 477 U.S. at 416–17.

¹²²⁰ 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986). The Court quoted this language again in Schriro v. Smith, holding that “[t]he Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith’s mental retardation claim.” 546 U.S. 6, 7 (2005) (per curiam). States, the Court added, are entitled to “adopt[ ] their own measures for adjudicating claims of mental retardation,” though “those measures might, in their application, be subject to constitutional challenge.” Id.

¹²²¹ 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he presented a risk of serious harm to himself or others).

¹²²² 539 U.S. 166 (2003).

¹²²³ For instance, if the defendant is likely to remain civilly committed absent medication, this would diminish the government’s interest in prosecution. 539 U.S. at 180.

¹²²⁴ There are a number of other reasons why a defendant may be willing to plead guilty. There may be overwhelming evidence against him or his sentence after trial will be more severe than if he pleads guilty.

¹²²⁵ United States v. Jackson, 390 U.S. 570 (1968).

¹²²⁶ North Carolina v. Alford, 400 U.S. 25 (1971); Parker v. North Carolina, 397 U.S. 790 (1970). See also Brady v. United States, 397 U.S. 742 (1970). A guilty plea will ordinarily waive challenges to alleged unconstitutional police practices occurring prior to the plea, unless the defendant can show that the plea resulted from incompetent counsel. Tollett v. Henderson, 411 U.S. 258 (1973); Davis v. United States, 411 U.S. 233 (1973). But see Blackledge v. Perry, 417 U.S. 21 (1974). The state can permit pleas of guilty in which the defendant reserves the right to raise constitutional questions on appeal, and federal habeas courts will honor that arrangement. Lefkowitz v. Newsome, 420 U.S. 283 (1975). Release-dismissal agreements, pursuant to which the prosecution agrees to dismiss criminal charges in exchange for the defendant’s agreement to release his right to file a civil action for alleged police or prosecutorial misconduct, are not per se invalid. Town of Newton v. Rumery, 480 U.S. 386 (1987).

¹²²⁷ Blackledge v. Allison, 431 U.S. 63, 71 (1977).

¹²²⁸ Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charged with forgery, Hayes was informed during plea negotiations that if he would plead guilty the prosecutor would recommend a five-year sentence; if he did not plead guilty, the prosecutor would also seek an indictment under the habitual criminal statute under which Hayes, because of two prior felony convictions, would receive a mandatory life sentence if convicted. Hayes refused to plead, was reindicted, and upon conviction was sentenced to life. Four Justices dissented, id. at 365, 368, contending that the Court had watered down North Carolina v. Pearce, 395 U.S. 711 (1969). See also United States v. Goodwin, 457 U.S. 368 (1982) (after defendant was charged with a misdemeanor, refused to plead guilty and sought a jury trial in district court, the government obtained a four-count felony indictment and conviction).

¹²²⁹ Blackledge v. Perry, 417 U.S. 21 (1974). Defendant was convicted in an inferior court of a misdemeanor. He had a right to a de novo trial in superior court, but when he exercised the right the prosecutor obtained a felony indictment based upon the same conduct. The distinction the Court draws between this case and Bordenkircher and Goodwin is that of pretrial conduct, in which vindictiveness is not likely, and post-trial conduct, in which vindictiveness is more likely and is not permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984). The distinction appears to represent very fine line-drawing, but it appears to be one the Court is committed to.

¹²³⁰ Boykin v. Alabama, 395 U.S. 238 (1969). In Henderson v. Morgan, 426 U.S. 637 (1976), the Court held that a defendant charged with first degree murder who elected to plead guilty to second degree murder had not voluntarily, in the constitutional sense, entered the plea because neither his counsel nor the trial judge had informed him that an intent to cause the death of the victim was an essential element of guilt in the second degree; consequently no showing was made that he knowingly was admitting such intent. “A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving . . . or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.” Id. at 645 n.13. However, this does not mean that a court accepting a guilty plea must explain all the elements of a crime, as it may rely on counsel’s representations to the defendant. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (where defendant maintained that shooting was done by someone else, guilty plea to aggravated manslaughter was still valid, as such charge did not require defendant to be the shooter). See also Blackledge v. Allison, 431 U.S. 63 (1977) (defendant may collaterally challenge guilty plea where defendant had been told not to allude to existence of a plea bargain in court, and such plea bargain was not honored).

¹²³¹ Santobello v. New York, 404 U.S. 257, 262 (1971). Defendant and a prosecutor reached agreement on a guilty plea in return for no sentence recommendation by the prosecution. At the sentencing hearing months later, a different prosecutor recommended the maximum sentence, and that sentence was imposed. The Court vacated the judgment, holding that the prosecutor’s entire staff was bound by the promise. Prior to the plea, however, the prosecutor may withdraw his first offer, and a defendant who later pled guilty after accepting a second, less attractive offer has no right to enforcement of the first agreement. Mabry v. Johnson, 467 U.S. 504 (1984).

¹²³² In Townsend v. Burke, 334 U.S. 736, 740–41 (1948) the Court overturned a sentence imposed on an uncounseled defendant by a judge who in reciting defendant’s record from the bench made several errors and facetious comments. “[W]hile disadvantaged by lack of counsel, this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.”

¹²³³ In Hicks v. Oklahoma, 447 U.S. 343 (1980), the jury had been charged in accordance with a habitual offender statute that if it found defendant guilty of the offense charged, which would be a third felony conviction, it should assess punishment at 40 years imprisonment. The jury convicted and gave defendant 40 years. Subsequently, in another case, the habitual offender statute under which Hicks had been sentenced was declared unconstitutional, but Hicks’ conviction was affirmed on the basis that his sentence was still within the permissible range open to the jury. The Supreme Court reversed. Hicks was denied due process because he was statutorily entitled to the exercise of the jury’s discretion and could have been given a sentence as low as ten years. That the jury might still have given the stiffer sentence was only conjectural. On other due process restrictions on the determination of the applicability of recidivist statutes to convicted defendants, see Chewning v. Cunningham, 368 U.S. 443 (1962); Oyler v. Boles, 368 U.S. 448 (1962); Spencer v. Texas, 385 U.S. 554 (1967); Parke v. Raley, 506 U.S. 20 (1992).

¹²³⁴ Due process does not impose any limitation upon the sentence that a legislature may affix to any offense; that function is in the Eighth Amendment. Williams v. Oklahoma, 358 U.S. 576, 586–87 (1959). See also Collins v. Johnston, 237 U.S. 502 (1915). On recidivist statutes, see Graham v. West Virginia, 224 U.S. 616, 623 (1912); Ughbanks v. Armstrong, 208 U.S. 481, 488 (1908), and, under the Eighth Amendment, Rummel v. Estelle, 445 U.S. 263 (1980).

¹²³⁵ 337 U.S. 241 (1949). See also Williams v. Oklahoma, 358 U.S. 576 (1959).

¹²³⁶ 430 U.S. 349 (1977).

¹²³⁷ In Gardner, the jury had recommended a life sentence upon convicting defendant of murder, but the trial judge sentenced the defendant to death, relying in part on a confidential presentence report which he did not characterize or make available to defense or prosecution. Justices Stevens, Stewart, and Powell found that because death was significantly different from other punishments and because sentencing procedures were subject to higher due process standards than when Williams was decided, the report must be made part of the record for review so that the factors motivating imposition of the death penalty may be known, and ordinarily must be made available to the defense. 430 U.S. at 357–61. All but one of the other Justices joined the result on various other bases. Justice Brennan without elaboration thought the result was compelled by due process, id. at 364, while Justices White and Blackmun thought the result was necessitated by the Eighth Amendment, id. at 362, 364, as did Justice Marshall in a different manner. Id. at 365. Chief Justice Burger concurred only in the result, id. at 362, and Justice Rehnquist dissented. Id. at 371. See also Lankford v. Idaho, 500 U.S. 110 (1991) (due process denied where judge sentenced defendant to death after judge’s and prosecutor’s actions misled defendant and counsel into believing that death penalty would not be at issue in sentencing hearing).

¹²³⁸ 438 U.S. 41 (1978).

¹²³⁹ 438 U.S. at 49–52. See also United States v. Tucker, 404 U.S. 443, 446 (1972); Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973). Cf. 18 U.S.C. § 3577.

¹²⁴⁰ See, e.g, Kent v. United States, 383 U.S. 541, 554, 561, 563 (1966), where the Court required that before a juvenile court decided to waive jurisdiction and transfer a juvenile to an adult court it must hold a hearing and permit defense counsel to examine the probation officer’s report which formed the basis for the court’s decision. Kent was ambiguous whether it was based on statutory interpretation or constitutional analysis. In re Gault, 387 U.S. 1 (1967), however, appears to have constitutionalized the language.

¹²⁴¹ 386 U.S. 605 (1967).

¹²⁴² 389 U.S. 128 (1967).

¹²⁴³ 512 U.S. 154 (1994). See also Lynch v. Arizona, 578 U.S. ___, No. 15–8366, slip op. at 3–4 (2016) (holding that the possibility of clemency and the potential for future “legislative reform” does not justify a departure from the rule of Simmons); Kelly v. South Carolina, 534 U.S. 246, 252 (2002) (concluding that a prosecutor need not express intent to rely on future dangerousness; logical inferences may be drawn); Shafer v. South Carolina, 532 U.S. 36 (2001) (amended South Carolina law still runs afoul of Simmons).

¹²⁴⁴ 530 U.S. 156 (2000).

¹²⁴⁵ North Carolina v. Pearce, 395 U.S. 711 (1969). Pearce was held to be nonretroactive in Michigan v. Payne, 412 U.S. 47 (1973). When a state provides a two-tier court system in which one may have an expeditious and somewhat informal trial in an inferior court with an absolute right to trial de novo in a court of general criminal jurisdiction if convicted, the second court is not bound by the rule in Pearce, because the potential for vindictiveness and inclination to deter is not present. Colten v. Kentucky, 407 U.S. 104 (1972). But see Blackledge v. Perry, 417 U.S. 21 (1974), discussed supra.

¹²⁴⁶ An intervening conviction on other charges for acts committed prior to the first sentencing may justify imposition of an increased sentence following a second trial. Wasman v. United States, 468 U.S. 559 (1984).

¹²⁴⁷ Chaffin v. Stynchcombe, 412 U.S. 17 (1973). The Court concluded that the possibility of vindictiveness was so low because normally the jury would not know of the result of the prior trial nor the sentence imposed, nor would it feel either the personal or institutional interests of judges leading to efforts to discourage the seeking of new trials. Justices Stewart, Brennan, and Marshall thought the principle was applicable to jury sentencing and that prophylactic limitations appropriate to the problem should be developed. Id. at 35, 38. Justice Douglas dissented on other grounds. Id. at 35. The Pearce presumption that an increased, judge-imposed second sentence represents vindictiveness also is inapplicable if the second trial came about because the trial judge herself concluded that a retrial was necessary due to prosecutorial misconduct before the jury in the first trial. Texas v. McCullough, 475 U.S. 134 (1986).

¹²⁴⁸ Alabama v. Smith, 490 U.S. 794 (1989).

¹²⁴⁹ McKane v. Durston, 153 U.S. 684, 687 (1894). See also Andrews v. Swartz, 156 U.S. 272, 275 (1895); Murphy v. Massachusetts, 177 U.S. 155, 158 (1900); Reetz v. Michigan, 188 U.S. 505, 508 (1903).

¹²⁵⁰ Griffin v. Illinois, 351 U.S. 12, 18 (1956); id. at 21 (Justice Frankfurter concurring), 27 (dissenting opinion); Ross v. Moffitt, 417 U.S. 600 (1974).

¹²⁵¹ The line of cases begins with Griffin v. Illinois, 351 U.S. 12 (1956), in which it was deemed to violate both the Due Process and the Equal Protection Clauses for a state to deny to indigent defendants free transcripts of the trial proceedings, which would enable them adequately to prosecute appeals from convictions. See analysis under “Poverty and Fundamental Interests: The Intersection of Due Process and Equal Protection—Generally,” infra.

¹²⁵² 237 U.S. 309, 335 (1915).

¹²⁵³ Moore v. Dempsey, 261 U.S. 86, 90, 91 (1923); Mooney v. Holohan, 294 U.S. 103, 113 (1935); New York ex rel. Whitman v. Wilson, 318 U.S. 688, 690 (1943); Young v. Ragan, 337 U.S. 235, 238–39 (1949).

¹²⁵⁴ Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945).

¹²⁵⁵ Carter v. Illinois, 329 U.S. 173, 175–76 (1946).

¹²⁵⁶ In Case v. Nebraska, 381 U.S. 336 (1965) (per curiam), the Court had taken for review a case that raised the issue of whether a state could simply omit any corrective process for hearing and determining claims of federal constitutional violations, but it dismissed the case when the state in the interim enacted provisions for such process. Justices Clark and Brennan each wrote a concurring opinion.

¹²⁵⁷ Frank v. Mangum, 237 U.S. 309 (1915).

¹²⁵⁸ 261 U.S. 86 (1923).

¹²⁵⁹ 297 U.S. 278 (1936).

¹²⁶⁰ District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. ___, No. 08–6 (2009).

¹²⁶¹ 557 U.S. ___, No. 08–6, slip op. at 2.

¹²⁶² 557 U.S. ___, No. 08–6, slip op. at 20 (citation omitted). Justice Stevens, in a dissenting opinion joined by Justices Ginsburg and Breyer and in part by Justice Souter, concluded, “[T]here is no reason to deny access to the evidence and there are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done in this case.” Id. at 17.

¹²⁶³ Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).

¹²⁶⁴ Cf. In re Bonner, 151 U.S. 242 (1894).

¹²⁶⁵ Price v. Johnston, 334 U.S. 266, 285 (1948).

¹²⁶⁶ “There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).

¹²⁶⁷ Cruz v. Beto, 405 U.S. 319, 321 (1972). See also Procunier v. Martinez, 416 U.S. 396, 404–05 (1974) (invalidating state prison mail censorship regulations).

¹²⁶⁸ Bell v. Wolfish, 441 U.S. 520, 545–548, 551, 555, 562 (1979) (federal prison); Rhodes v. Chapman, 452 U.S. 337, 347, 351–352 (1981).

¹²⁶⁹ See Bell v. Wolfish, 441 U.S. 520, 535–40 (1979). Persons not yet convicted of a crime may be detained by the government upon the appropriate determination of probable cause, and the government is entitled to “employ devices that are calculated to effectuate [a] detention.” Id. at 537. Nonetheless, the Court has held that the Due Process Clause protects a pretrial detainee from being subject to conditions that amount to punishment, which can be demonstrated through (1) actions taken with the “express intent to punish” or (2) the use of restrictions or conditions on confinement that are not reasonably related to a legitimate goal. See Wolfish, 441 U.S. at 538, 561. More recently, the Court clarified the standard by which the due process rights of pretrial detainees are adjudged with respect to excessive force claims. Specifically, in Kingsley v. Hendrickson, the Court held that, in order for a pretrial detainee to prove an excessive force claim in violation of his due process rights, a plaintiff must show that an officer’s use of force was objectively unreasonable, depending on the facts and circumstances from the perspective of a reasonable officer on the scene, see 576 U.S. ___, No. 14–6368, slip op. at 6–7 (2015), aligning the due process excessive force analysis with the standard for excessive force claims brought under the Fourth Amendment. Cf. Graham v. Connor, 490 U.S. 386, 388 (1989) (holding that a “free citizen’s claim that law enforcement officials used excessive force . . . [is] properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard”). Liability for actions taken by the government in the context of a pretrial detainee due process lawsuit does not, therefore, turn on whether a particular officer subjectively knew that the conduct being taken was unreasonable. See Kingsley, slip op. at 1.

¹²⁷⁰ See “Prisons and Punishment,” supra.

¹²⁷¹ E.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Baxter v. Palmigiano, 425 U.S. 308 (1976); Vitek v. Jones, 445 U.S. 480 (1980); Washington v. Harper, 494 U.S. 210 (1990) (prison inmate has liberty interest in avoiding the unwanted administration of antipsychotic drugs).

¹²⁷² E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977). On religious practices and ceremonies, see Cooper v. Pate, 378 U.S. 546 (1964); Cruz v. Beto, 405 U.S. 319 (1972).

¹²⁷³ Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). Prisoners must have reasonable access to a law library or to persons trained in the law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1978). Establishing a right of access to law materials, however, requires an individualized demonstration of an inmate having been hindered in efforts to pursue a legal claim. See Lewis v. Casey, 518 U.S. 343 (1996) (no requirement that the state “enable [a] prisoner to discover grievances, and to litigate effectively”).

¹²⁷⁴ Haines v. Kerner, 404 U.S. 519 (1972); Preiser v. Rodriguez, 411 U.S. 475 (1973).

¹²⁷⁵ Lee v. Washington, 390 U.S. 333 (1968). There was some question as to the standard to be applied to racial discrimination in prisons after Turner v. Saﬂey, 482 U.S. 78 (1987) (prison regulations upheld if “reasonably related to legitimate penological interests”). In Johnson v. California, 543 U.S. 499 (2005), however, the Court held that discriminatory prison regulations would continue to be evaluated under a “strict scrutiny” standard, which requires that regulations be narrowly tailored to further compelling governmental interests. Id. at 509–13 (striking down a requirement that new or transferred prisoners at the reception area of a correctional facility be assigned a cellmate of the same race for up to 60 days before they are given a regular housing assignment).

¹²⁷⁶ 482 U.S. 78 (1987)

¹²⁷⁷ 482 U.S. at 89 (upholding a Missouri rule barring inmate-to-inmate correspondence, but striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child). See Overton v. Bazzetta, 539 U.S. 126 (2003) (upholding restrictions on prison visitation by unrelated children or children over which a prisoner’s parental rights have been terminated and visitation where a prisoner has violated rules against substance abuse).

¹²⁷⁸ For instance, limiting who may visit prisoners is ameliorated by the ability of prisoners to communicate through other visitors, by letter, or by phone. 539 U.S. at 135.

¹²⁷⁹ 482 U.S. at 90, 92.

¹²⁸⁰ Hudson v. Palmer, 468 U.S. 517, 526 (1984).

¹²⁸¹ 482 U.S. at 91.

¹²⁸² Hudson v. Palmer, 468 U.S. 517, 526 (1984); Block v. Rutherford, 468 U.S. 576 (1984) (holding also that needs of prison security support a rule denying pretrial detainees contact visits with spouses, children, relatives, and friends).

¹²⁸³ Hudson v. Palmer, 468 U.S. 517, 530 (1984).

¹²⁸⁴ Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that state tort law provided adequate postdeprivation remedies). But see Zinermon v. Burch, 494 U.S. 113 (1990) (availability of postdeprivation remedy is inadequate when deprivation is foreseeable, predeprivation process was possible, and official conduct was not “unauthorized”).

¹²⁸⁵ Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986).

¹²⁸⁶ Sandin v. Conner, 515 U.S. 472, 484 (1995) (30-day solitary confinement not atypical “in relation to the ordinary incidents of prison life”).

¹²⁸⁷ 418 U.S. 539 (1974).

¹²⁸⁸ 418 U.S. at 557. This analysis, of course, tracks the interest analysis discussed under “The Interests Protected: Entitlements and Positivist Recognition,” supra.

¹²⁸⁹ 418 U.S. at 563.

¹²⁹⁰ 418 U.S. at 566. However, the Court later ruled that the reasons for denying an inmate’s request to call witnesses need not be disclosed until the issue is raised in court. Ponte v. Real, 471 U.S. 491 (1985).

¹²⁹¹ 418 U.S. at 561–72. The Court continues to adhere to its refusal to require appointment of counsel. Vitek v. Jones, 445 U.S. 480, 496–97 (1980), and id. at 497– 500 (Justice Powell concurring); Baxter v. Palmigiano, 425 U.S. 308 (1976).

¹²⁹² Superintendent v. Hill, 472 U.S. 445, 454, 457 (1985).

¹²⁹³ Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976).

¹²⁹⁴ Olim v. Wakinekona, 461 U.S. 238 (1983).

¹²⁹⁵ Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to Ohio SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an “atypical and significant hardship”). In Wilkinson, the Court upheld Ohio’s multi-level review process, despite the fact that a prisoner was provided only summary notice as to the allegations against him, a limited record was created, the prisoner could not call witnesses, and reevaluation of the assignment only occurred at one 30-day review and then annually. Id. at 219–20.

¹²⁹⁶ Vitek v. Jones, 445 U.S. 480 (1980).

¹²⁹⁷ 494 U.S. 210 (1990).

¹²⁹⁸ Ughbanks v. Armstrong, 208 U.S. 481 (1908), held that parole is not a constitutional right but instead is a “present” from government to the prisoner. In Escoe v. Zerbst, 295 U.S. 490 (1935), the Court’s premise was that as a matter of grace the parolee was being granted a privilege and that he should neither expect nor seek due process. Then-Judge Burger in Hyser v. Reed, 318 F.2d 225 (D.C. Cir.), cert. denied, 375 U.S. 957 (1963), reasoned that due process was inapplicable because the parole board’s function was to assist the prisoner’s rehabilitation and restoration to society and that there was no adversary relationship between the board and the parolee.

¹²⁹⁹ 389 U.S. 128 (1967).

¹³⁰⁰ 408 U.S. 471 (1972).

¹³⁰¹ 408 U.S. at 480, 482.

¹³⁰² 408 U.S. at 483.

¹³⁰³ 408 U.S. at 484–87.

¹³⁰⁴ 408 U.S. at 489.

¹³⁰⁵ Black v. Romano, 471 U.S. 606 (1985).

¹³⁰⁶ Bearden v. Georgia, 461 U.S. 660, 672 (1983).

¹³⁰⁷ Gagnon v. Scarpelli, 411 U.S. 778 (1973).

¹³⁰⁸ 442 U.S. 1 (1979). Justice Powell thought that creation of a parole system did create a legitimate expectancy of fair procedure protected by due process, but, save in one respect, he agreed with the Court that the procedure followed was adequate. Id. at 18. Justices Marshall, Brennan, and Stevens argued in dissent that the Court’s analysis of the liberty interest was faulty and that due process required more than the board provided. Id. at 22.

¹³⁰⁹ Following Greenholtz, the Court held in Board of Pardons v. Allen, 482 U.S. 369 (1987), that a liberty interest was created by a Montana statute providing that a prisoner “shall” be released upon certain findings by a parole board. Accord Swarthout v. Cooke, 562 U.S. ___, 10–333, slip op. (2011) (per curiam).

¹³¹⁰ The Court in Greenholtz held that procedures designed to elicit specific facts were inappropriate under the circumstances, and minimizing the risk of error should be the prime consideration. This goal may be achieved by the board’s largely informal methods; eschewing formal hearings, notice, and specification of particular evidence in the record. The inmate in this case was afforded an opportunity to be heard and when parole was denied he was informed in what respects he fell short of qualifying. That afforded the process that was due. Accord Swarthout v. Cooke, 562 U.S. ___, 10–333, slip op. (2011) (per curiam).

¹³¹¹ Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998). The mere existence of purely discretionary authority and the frequent exercise of it creates no entitlement. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Jago v. Van Curen, 454 U.S. 14 (1981). The former case involved not parole but commutation of a life sentence, commutation being necessary to become eligible for parole. The statute gave the Board total discretion to commute, but in at least 75% of the cases prisoner received a favorable action and virtually all of the prisoners who had their sentences commuted were promptly paroled. In Van Curen, the Court made express what had been implicit in Dumschat; the “mutually explicit understandings” concept under which some property interests are found protected does not apply to liberty interests. Van Curen is also interesting because there the parole board had granted the petition for parole but within days revoked it before the prisoner was released, upon being told that he had lied at the hearing before the board.

¹³¹² For analysis of the state laws as well as application of constitutional principles to juveniles, see SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM (2d ed. 2006).

¹³¹³ In re Gault, 387 U.S. 1, 12–29 (1967).

¹³¹⁴ 387 U.S. 1 (1967).

¹³¹⁵ “Ultimately, however, we confront the reality of that portion of the juvenile court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence—and of limited practical meaning— that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a ‘receiving home’ or an ‘industrial school’ for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes ‘a building with whitewashed walls, regimented routine and institutional hours . . . .’ Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and ‘delinquents’ confined with him for anything from waywardness to rape and homicide. In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase ‘due process.’ Under our Constitution, the condition of being a boy does not justify a kangaroo court.” 387 U.S. at 27–28.

¹³¹⁶ 387 U.S. at 31–35. Justice Harlan concurred in part and dissented in part, id. at 65, agreeing on the applicability of due process but disagreeing with the standards of the Court. Justice Stewart dissented wholly, arguing that the application of procedures developed for adversary criminal proceedings to juvenile proceedings would endanger their objectives and contending that the decision was a backward step toward undoing the reforms instituted in the past. Id. at 78.

¹³¹⁷ Kent v. United States, 383 U.S. 541 (1966), noted on this point in In re Gault, 387 U.S. 1, 30–31 (1967).

¹³¹⁸ In re Winship, 397 U.S. 358 (1970). Chief Justice Burger and Justice Stewart dissented, following essentially the Stewart reasoning in Gault. “The Court’s opinion today rests entirely on the assumption that all juvenile proceedings are ‘criminal prosecutions,’ hence subject to constitutional limitation. . . . What the juvenile court systems need is not more but less of the trappings of legal procedure and judicial formalism; the juvenile system requires breathing room and ﬂexibility in order to survive, if it can survive the repeated assaults from this Court.” Id. at 375, 376. Justice Black dissented because he did not think the reasonable doubt standard a constitutional requirement at all. Id. at 377.

¹³¹⁹ McKeiver v. Pennsylvania, 403 U.S. 528 (1971). No opinion was concurred in by a majority of the Justices. Justice Blackmun’s opinion of the Court, which was joined by Chief Justice Burger and Justices Stewart and White, reasoned that a juvenile proceeding was not “a criminal prosecution” within the terms of the Sixth Amendment, so that jury trials were not automatically required; instead, the prior cases had proceeded on a “fundamental fairness” approach and in that regard a jury was not a necessary component of fair factfinding and its use would have serious repercussions on the rehabilitative and protection functions of the juvenile court. Justice White also submitted a brief concurrence emphasizing the differences between adult criminal trials and juvenile adjudications. Id. at 551. Justice Brennan concurred in one case and dissented in another because in his view open proceedings would operate to protect juveniles from oppression in much the same way as a jury would. Id. at 553. Justice Harlan concurred because he did not believe jury trials were constitutionally mandated in state courts. Id. at 557. Justices Douglas, Black, and Marshall dissented. Id. at 557.

¹³²⁰ Fare v. Michael C., 442 U.S. 707, 725 (1979).

¹³²¹ New Jersey v. T.L.O., 469 U.S. 325 (1985) (upholding the search of a student’s purse to determine whether the student possessed cigarettes in violation of school rule; evidence of drug activity held admissible in a prosecution under the juvenile laws). In Safford Unified School District #1 v. Redding, 557 U.S. ___, No. 08– 479 (2009), the Court found unreasonable a strip search of a 13-year-old girl suspected of possessing ibuprofen. See Fourth Amendment, “Public Schools,” supra.

¹³²² This single rule, the Court explained, will permit school authorities “to regulate their conduct according to the dictates of reason and common sense.” 469 U.S. at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was “unwilling to adopt a standard under which the legality of a search is dependent upon a judge’s evaluation of the relative importance of various school rules.” 469 U.S. at 342 n.9.

¹³²³ 467 U.S. 253 (1984).

¹³²⁴ See SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM, ch. 4, Waiver of Jurisdiction (2d ed. 1989).

¹³²⁵ 492 U.S. 361 (1989).

¹³²⁶ Thompson v. Oklahoma, 487 U.S. 815 (1988).

¹³²⁷ See analysis of Eighth Amendment principles, under “Capital Punishment,” supra.

¹³²⁸ 422 U.S. 563 (1975). The Court bypassed “the difficult issues of constitutional law” raised by the lower courts’ resolution of the case, that is, the right to treatment of the involuntarily committed, discussed under “Liberty Interests of People with Mental Disabilities: Commitment and Treatment,” supra.

¹³²⁹ 422 U.S. at 576. Prior to O’Connor v. Donaldson, only in Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940), had the Court considered the issue. Other cases reﬂected the Court’s concern with the rights of convicted criminal defendants and generally required due process procedures or that the commitment of convicted criminal defendants follow the procedures required for civil commitments. Specht v. Patterson, 386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107 (1966); Lynch v. Overholser, 369 U.S. 705 (1962); Humphrey v. Cady, 405 U.S. 504 (1972); Jackson v. Indiana, 406 U.S. 715 (1972); McNeil v. Director, 407 U.S. 245 (1972). Cf. Murel v. Baltimore City Criminal Court, 407 U.S. 355 (1972).

¹³³⁰ 422 U.S. at 576–77. The Court remanded to allow the trial court to determine whether Donaldson should recover personally from his doctors and others for his confinement, under standards formulated under 42 U.S.C. § 1983. See Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).

¹³³¹ O’Connor v. Donaldson, 422 U.S. 563, 573 (1975).

¹³³² Zinermon v. Burch, 494 U.S. 113 (1990).

¹³³³ Addington v. Texas, 441 U.S. 418 (1979). See also Vitek v. Jones, 445 U.S. 480 (1980) (transfer of prison inmate to mental hospital).

¹³³⁴ 442 U.S. 584 (1979). See also Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979).

¹³³⁵ 442 U.S. at 598–617. The dissenters agreed on this point. Id. at 626–37.

¹³³⁶ 442 U.S. at 617–20. The dissenters would have required a preconfinement hearing. Id. at 637–38.

¹³³⁷ 442 U.S. at 617. The dissent would have mandated a formal postadmission hearing. Id. at 625–26. source

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Prosecutor’s Obligation to Disclose Exculpatory Evidence

The Truth News — Fri, 26 Jan 2024 16:57:52 +0000

What is Exculpatory Evidence? – Definition, Examples & Importance

Exculpatory evidence is any evidence in a criminal trial that supports the idea that the defendant is not guilty. In this lesson, we’ll discuss what kind of evidence is considered exculpatory, plus examples; we’ll also examine how important it is in the legal system. Updated: 09/08/2021

Exculpatory: Definition

A convicted killer is out on parole and he kills again. Witnesses saw him thrust a knife in his victim and run out of an alley. They positively identified him in a lineup, and his DNA is found on the knife. After a guilty verdict, the defense moves to have the verdict set aside because the prosecutor discovered evidence that the killer was still logged in at work when the murder took place. Is that right?

Exculpatory evidence is evidence in a criminal trial that tends to show that the defendant is not guilty. ”Exculpatory” comes from the word ”exculpate,” which comes from two Latin words ex, ”from,” and culpa, ”blame.”

It typically works like this:

A defendant is charged with a crime, and both the prosecutor and defense attorney gather evidence to each make their case. If the prosecutor comes across any evidence that tends to show the defendant didn’t commit the crime, he or she has to turn it over to the defense. If the prosecutor neglects this step, then the case can be dismissed, retried, or even the defendant found not guilty.

Exculpatory Evidence

In Brady v. Maryland (1963), the Supreme Court held that exculpatory evidence withheld in a criminal trial can result in a re-hearing of the case. In this case, Brady claimed his friend, who had committed the murder with Brady, did the actual killing. Brady was convicted for murder and sentenced to death, but the prosecutor failed to tell a jury that the friend had already confessed to the killing.

The court stated that the jury needed to hear that evidence because it could assist them in their decision regarding Brady. From then on, any exculpatory evidence the prosecutor or law enforcement has is called Brady material, the requirement to turn Brady material over to the defense is called the Brady rule. Brady got a new hearing that resulted in a lifetime sentence instead.

But what other kind of evidence is exculpatory? The law says ”any evidence” that tends to show innocence of the defendant is included. This can include crime scene evidence, witness testimony, DNA results, and medical records.

Exculpatory Enough

If you’re a prosecutor or a police detective, how do you know which evidence is exculpatory enough? For example, if the defendant claims he was 300 miles away during the time of the murder, and he was driving a red 2003 Ford 150 pickup with a front decorative plate that says ”Hog Wild,” do you have to turn over all camera images that show a red Ford pickup getting gas or going through a toll booth?

No. In U.S. v. Bagely (1985), the court laid out the legal standard on whether evidence is Brady material. The defense has to show that the inclusion of the evidence might have reasonably resulted in a different outcome. So it wouldn’t be reasonable to show every red Ford pickup found hundreds of miles away at that time, but what about that picture of a red 2003 Ford 150 pickup with a front decorative plate that said ”Hog Wild”? Since it would be reasonable that this would change the outcome of the trial, it’s Brady material. source

The Prosecution’s Duty to Disclose Exculpatory Evidence

Criminal trials are serious business, and a defendant’s rights are enshrined in law. You have a right to due process. The prosecution is required to play fairly. Playing fairly means if the prosecution has evidence that you didn’t commit the offense charged or evidence that would reasonably be expected to help your defense, the prosecution must disclose that evidence to your criminal defense lawyer.

The Brady rule

The Brady rule refers to a Supreme Court case called Brady v. Maryland. The case dates back to 1963, and is a due process case under the 14^th Amendment to the US Constitution. The Supreme Court ruled that when a prosecutor intentionally withholds exculpatory and material evidence from a defendant, that act violates the defendant’s due process rights. The withholding of the information is a “deliberate deception of court and jury.”

In Brady, two co-defendants were charged with murder while committing a robbery. Prior to the trial of the co-defendant Brady, the other co-defendant confessed to the murder. Even though the defense lawyers specifically asked for any statements by the co-defendant, the prosecutor intentionally did not disclose this crucial piece of evidence – the confession. Brady was found guilty and sentenced to death before his lawyer discovered the confession.

The US Supreme Court, based on this willful nondisclosure, vacated Brady’s sentence and ordered a new sentencing hearing. Today, the disclosure requirements imposed by Brady are well-known though prosecutors sometimes try to argue the evidence isn’t “material.”

Giglio vs. US.

In a more recent case, Giglio v. United States, the Supreme Court applied the Brady doctrine in a case involving the lack of credibility of a co-defendant. The prosecutor failed to disclose that a co-conspirator received immunity from prosecution in return for the co-conspirator’s testimony. The critical point is that the Supreme Court reasoned that the credibility of a witness is an exculpatory factor.

Experienced criminal defense lawyers routinely ask the prosecution for all exculpatory evidence. Exactly what evidence is exculpatory, what evidence affects credibility, and what evidence is material is decided on a case-by-case basis. source

Prosecutor’s Obligation to Disclose Exculpatory Evidence

The Brady case: the prosecutor must disclose exculpatory evidence

In a case called Brady, the Supreme Court held that the due process clause obligates the prosecution to disclose to the defense any material evidence favorable on the issues of guilt or punishment. Evidence is exculpatory if it tends to disprove your guilt, whether by:

Showing your innocence.
Undermining the credibility of government witnesses.
Tending to mitigate the punishment.

This obligation (referred to as a Brady obligation) extends beyond searching the prosecutor’s own file to producing information possessed by police agencies which participated in the investigation or prosecution. The prosecution team will be charged with knowledge of a police officer’s criminality where the officer was part of the team, even if the officer concealed that criminal conduct from the prosecutor.

Arguing that the evidence is material

The materiality requirement is a constant obstacle to criminal defense attorneys in obtaining Brady disclosures. Evidence “is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome would have been different.” Most prosecutors, having filed charges and thus concluded that you are guilty, have difficulty seeing a probability that a piece of evidence will change the outcome. There are two arguments that your criminal defense attorney can use to approach the prosecutor’s mindset:

The pre-trial context requires the prosecutor to err on the side of disclosure. The Supreme Court created the Brady standard of materiality in the context of appeals, evaluating the significance of the evidence against the totality of the trial evidence. No one can make this evaluation before trial. The prosecutor cannot predict with certainty how his own evidence will go in, much less the defense side of the case, and what impact the undisclosed evidence will have on the case as a whole. Therefore, a prosecutor should err on the side of disclosure.
Educate the prosecutor about the defense. Your attorney can educate the prosecutor about the defense so that he understands how a piece of evidence fits into an attack on his case. Although this approach risks surrendering the element of surprise, most defenses are apparent to any intelligent prosecutor. Most Brady inquiries seek information about the prosecutor’s own evidence and witnesses, such as cooperating witnesses’ uncharged misconduct, their initial exculpation of the defendant, or their lies to the prosecutor about their own culpability. In the usual case, you and your attorney lack any access to those witnesses and information. Therefore, you lose little by revealing to the prosecutor that you have heard that such information exists about the prosecutor’s own witnesses.

Demanding Brady material

Under the federal Brady standard, the same test of materiality applies whether the defense made a general, a specific, or even no request. However, some states have held that under their state constitutions a specific Brady demand triggers a less demanding standard of materiality. Nonetheless, in any jurisdiction your attorney might combine comprehensive Brady demands with more specific ones. The more specific the demand, the more likely you are to get relief from the prosecutor, the trial court, or an appellate court. Prosecutors often may not realize how a particular piece of evidence might fit into a defense. With a general demand a trial court will accept the prosecutor’s assurance that he has searched his file and found nothing exculpatory. However, when ruling on a specific request, the court may demand that the prosecutor answer whether or not he looked for and found that particular item.

Timing of Brady disclosures

Prosecutors frequently resist early disclosure of Brady impeaching material on the grounds that statutes forbid a court from ordering disclosure of a witness’s statements prior to trial. However, a number of courts have ruled that such statutes do not control the timing of Brady disclosures. If the material is exculpatory, it must be disclosed sufficiently in advance of trial to be useful to the defense, and the trial court may order prompt pre-trial disclosure.

Rules of Professional Conduct

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently clarified that a Rule of Professional Conduct imposes duties on prosecutors far beyond the constitutional minimum. In particular:

A prosecutor must disclose any information favorable to the defense without regard to its impact or the prosecutor’s assessment of its credibility. “Nothing in the rule suggests a de minimis exception to the prosecutor’s disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant’s guilt, or that the favorable evidence is highly unreliable.”
The ethical duty extends beyond admissible evidence to information that may lead to exculpatory evidence.
Evidence is exculpatory and must be disclosed if it supports any defense, whether or not one of factual innocence, and if it merely lessens the degree of guilt.
The disclosure must be early and full enough to enable the defendant to conduct a thorough investigation and to evaluate whether or not to plead guilty.
Supervisory prosecutors must supervise and train their line assistants in this obligation, including ordering subordinates to commit to writing favorable information conveyed orally and implementing procedures so that prosecutors communicate favorable information to the colleague responsible for disclosure.

Similarly, the U.S. Department of Justice promulgated Brady policies that mandate procedures beyond the constitutional minimum:

Prosecutors must conduct a thorough search of investigative agency case files, informant files, and, in some situations, the files of civil regulatory agencies, to discover and preserve information favorable to the defense.
Prosecutors and agents have an obligation to memorialize all witness interviews (rather than, as is common, create a summary report at the end of several interviews).
Information that “is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense” or that “casts a substantial doubt upon the accuracy of any evidence . . . or might have a significant bearing on the admissibility of prosecution evidence” must be disclosed “regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal . . .”
The disclosure obligation extends to “information” regardless of whether it is admissible evidence.
The information must be disclosed “reasonably promptly after it is discovered.”

A production order allows sanctions

Your criminal defense attorney may ask the court to enter an order that the prosecutor produce all Brady material by a certain time. An order for pre-trial disclosure empowers the trial court to impose sterner sanctions than it can for tardy disclosure of Brady material where no order compelled its pre-trial disclosure. Sanctions may include continuances, preclusion of evidence, mistrials and new trials. A dismissal without prejudice is appropriate only in the case of willful prosecutorial misconduct and severe prejudice to the defense that cannot otherwise be remedied. source

Brady rule

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The Brady rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. A “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused–evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.

If the prosecution does not disclose material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be suppressed. The evidence will be suppressed regardless of whether the prosecutor knew the evidence was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence from the defense.

Further, in cases subsequent to Brady, the Supreme Court has eliminated the requirement for a defendant to have requested a favorable information, stating that the Prosecution has a constitutional duty to disclose, that is triggered by the potential impact of favorable but undisclosed evidence See Kyles v. Whitley 514 U.S. 419, 434 (1995) and United States. v. Bagley, 473 U.S. 667 (1985).

The defendant bears the burden to prove that the undisclosed evidence was both material and favorable. In other words, the defendant must prove that there is a “reasonable probability” that the outcome of the trial would have been different, had the evidence been disclosed by the prosecutor. See Kyles, 514 U.S. at 433 (1995). Bagley and Kyles Court further defined the “materiality” standard, outlining the four aspects of materiality. First, the “reasonable probability” of a different result is not a question of whether the defendant would more likely than not have received a different verdict with the evidence, but whether the government’s evidentiary suppression undermines the confidence in the outcome of the trial. The second aspect is that it is not a sufficiency of evidence test, and the defendant only has to show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict. Third aspect is that there is no need for a harmless error review, because a Brady violation, by definition, could not be treated as a harmless error. Fourth and final aspect of materiality the Kyles Court stressed was that the suppressed evidence must be considered collective, not item by item, looking at the cumulative effect to determine whether a reasonable probability is reached. See Kyles, 514 U.S. at 433-438. source

9-5.000 – ISSUES RELATED TO DISCOVERY, TRIALS, AND OTHER PROCEEDINGS

9-5.001	Policy Regarding Disclosure of Exculpatory and Impeachment Information
9-5.002	Criminal Discovery
9-5.003	Criminal Discovery Involving Forensic Evidence and Experts
9-5.004	Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases
9-5.100	Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”)
9-5.110	Testimony of FBI Laboratory Examiners
9-5.150	Authorization to Close Judicial Proceedings to Members of the Press and Public

9-5.001 – POLICY REGARDING DISCLOSURE OF EXCULPATORY AND IMPEACHMENT INFORMATION

Purpose. Consistent with applicable federal statutes, rules, and case law, the policy set forth here is intended to promote regularity in disclosure practices, through the reasoned and guided exercise of prosecutorial judgment and discretion by attorneys for the government, with respect to the government’s obligation both to disclose exculpatory and impeachment information to criminal defendants and to seek a just result in every case. The policy is intended to ensure timely disclosure of an appropriate scope of exculpatory and impeachment information so as to ensure that trials are fair. The policy, however, recognizes that other interests, such as witness security and national security, are also critically important, see JM 9-21.000, and that if disclosure prior to trial might jeopardize these interests, disclosure may be delayed or restricted (e.g. pursuant to the Classified Information Procedures Act). This policy is not a substitute for researching the legal issues that may arise in an individual case. Additionally, this policy does not alter or supersede the policy that requires prosecutors to disclose “substantial evidence that directly negates the guilt of a subject of the investigation” to the grand jury before seeking an indictment, see JM 9-11.233.
Constitutional obligation to ensure a fair trial and disclose material exculpatory and impeachment evidence. Government disclosure of material exculpatory and impeachment evidence is part of the constitutional guarantee to a fair trial. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 432-33 (1995). Neither the Constitution nor this policy, however, creates a general discovery right for trial preparation or plea negotiations. U.S. v. Ruiz, 536 U.S. 622, 629 (2002); Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
1. Materiality and Admissibility. Exculpatory and impeachment evidence is material to a finding of guilt—and thus the Constitution requires disclosure—when there is a reasonable probability that effective use of the evidence will result in an acquittal. United States v. Bagley, 475 U.S. 667, 676 (1985). Recognizing that it is sometimes difficult to assess the materiality of evidence before trial, prosecutors generally must take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence. Kyles, 514 U.S. at 439. While ordinarily, evidence that would not be admissible at trial need not be disclosed, this policy encourages prosecutors to err on the side of disclosure if admissibility is a close question.
2. The prosecution team. It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all the members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.Kyles, 514 U.S. at 437.
Disclosure of exculpatory and impeachment information beyond that which is constitutionally and legally required. Department policy recognizes that a fair trial will often include examination of relevant exculpatory or impeachment information that is significantly probative of the issues before the court but that may not, on its own, result in an acquittal or, as is often colloquially expressed, make the difference between guilt and innocence. As a result, this policy requires disclosure by prosecutors of information beyond that which is “material” to guilt as articulated in Kyles v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81 (1999). The policy recognizes, however, that a trial should not involve the consideration of information which is irrelevant or not significantly probative of the issues before the court and should not involve spurious issues or arguments which serve to divert the trial process from examining the genuine issues. Information that goes only to such matters does not advance the purpose of a trial and thus is not subject to disclosure.
1. Additional exculpatory information that must be disclosed. A prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.
2. Additional impeachment information that must be disclosed. A prosecutor must disclose information that either casts a substantial doubt upon the accuracy of any evidence—including but not limited to witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence. This information must be disclosed regardless of whether it is likely to make the difference between conviction and acquittal of the defendant for a charged crime.
3. Information. Unlike the requirements of Brady and its progeny, which focus on evidence, the disclosure requirement of this section applies to information regardless of whether the information subject to disclosure would itself constitute admissible evidence.
4. Cumulative impact of items of information. While items of information viewed in isolation may not reasonably be seen as meeting the standards outlined in paragraphs 1 and 2 above, several items together can have such an effect. If this is the case, all such items must be disclosed.
Timing of disclosure. Due process requires that disclosure of exculpatory and impeachment evidence material to guilt or innocence be made in sufficient time to permit the defendant to make effective use of that information at trial. See, e.g. Weatherford v. Bursey, 429 U.S. 545, 559 (1997); United States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993). In most cases, the disclosures required by the Constitution and this policy will be made in advance of trial.
1. Exculpatory information. Exculpatory information must be disclosed reasonably promptly after it is discovered. This policy recognizes that exculpatory information that includes classified or otherwise sensitive national security material may require certain protective measures that may cause disclosure to be delayed or restricted (e.g. pursuant to the Classified Information Procedures Act).
2. Impeachment information. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. In some cases, however, a prosecutor may have to balance the goals of early disclosure against other significant interests—such as witness security and national security—and may conclude that it is not appropriate to provide early disclosure. In such cases, required disclosures may be made at a time and in a manner consistent with the policy embodied in the Jencks Act, 18 U.S.C. § 3500.
3. Exculpatory or impeachment information casting doubt upon sentencing factors. Exculpatory and impeachment information that casts doubt upon proof of an aggravating factor at sentencing, but that does not relate to proof of guilt, must be disclosed no later than the court’s initial presentence investigation.
4. Supervisory approval and notice to the defendant. A prosecutor must obtain supervisory approval not to disclose impeachment information before trial or not to disclose exculpatory information reasonably promptly because of its classified nature. Upon such approval, notice must be provided to the defendant of the time and manner by which disclosure of the exculpatory or impeachment information will be made.
Training. All new federal prosecutors assigned to criminal matters and cases shall complete, within 12 months of employment, designated training through the Office of Legal Education on Brady/Giglio, and general disclosure obligations and policies. All federal prosecutors assigned to criminal matters and cases shall annually complete two hours of training on the government’s disclosure obligations and policies. This annual training shall be provided by the Office of Legal Education or, alternatively, any United States Attorney’s Office or DOJ component.
Comment. This policy establishes guidelines for the exercise of judgment and discretion by attorneys for the government in determining what information to disclose to a criminal defendant pursuant to the government’s disclosure obligation as set out in Brady v. Maryland and Giglio v. United States and its obligation to seek justice in every case. This policy also establishes training requirements for federal prosecutors in this area. As the Supreme Court has explained, disclosure is constitutionally required when evidence in the possession of the prosecutor or prosecution team is material to guilt, innocence or punishment. Under this policy, the government’s disclosure will exceed its constitutional obligations. Thus, this policy encourages prosecutors to err on the side of disclosure in close questions of materiality and identifies standards that favor greater disclosure in advance of trial through the production of exculpatory information that is inconsistent with any element of any charged crime and impeachment information that casts a substantial doubt upon either the accuracy of any evidence the government intends to rely on to prove an element of any charged crime or that might have a significant bearing on the admissibility of prosecution evidence. This expanded disclosure policy, however, does not create a general right of discovery in criminal cases. Nor does it provide defendants with any additional rights or remedies. Where it is unclear whether evidence or information should be disclosed, prosecutors are encouraged to reveal such information to defendants or to the court for inspection in camera and, where applicable, seek a protective order from the Court. By doing so, prosecutors will ensure confidence in fair trials and verdicts. The United States Attorneys’ Offices and Department components involved in criminal prosecutions are also encouraged to undertake periodic training for paralegals and to cooperate with and assist law enforcement agencies in providing education and training to agency personnel concerning the government’s disclosure obligations and developments in relevant case law.[updated January 2020] [cited in JM 9-5.100]

9-5.002- CRIMINAL DISCOVERY

The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). Section 9-5.001 of the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment information. In order to meet discovery obligations in a given case, Federal prosecutors must be familiar with these authorities and with the judicial interpretations and local rules that discuss or address the application of these authorities to particular facts. In addition, it is important for prosecutors to consider thoroughly how to meet their discovery obligations in each case. Toward that end, the Department has adopted the policies for prosecutors regarding criminal discovery set forth below. These policies are intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice. The policies are subject to legal precedent, court orders, and local rules.

By following the steps described below and being familiar with laws and policies regarding discovery obligations, prosecutors are more likely to meet all legal requirements, to make considered decisions about disclosures in a particular case, and to achieve a just result in every case. Prosecutors are reminded to consult with the designated criminal discovery coordinator in their office when they have questions about the scope of their discovery obligations. Rules of Professional Conduct in most jurisdictions also impose ethical obligations on prosecutors regarding discovery in criminal cases. Prosecutors are also reminded to contact the Professional Responsibility Advisory Office when they have questions about those or any other ethical responsibilities.

Step I: Gathering and Reviewing Discoverable Information

“Discovery” or “discoverable information,” and the duty to search for it, includes information required to be disclosed by Fed.R.Crim.P. 16 and 26.2, the Jencks Act, Brady, and Giglio, and additional information disclosable pursuant to this policy.

A. Where to look: The Prosecution Team

JM 9-5.001 states:

It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecutionteam. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.

This search duty also extends to information prosecutors are required to disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act.

In most cases, “the prosecution team” will include the agents and law enforcement officers within the relevant district working on the case. In multi-district investigations, investigations that include both Assistant United States Attorneys and prosecutors from a Department litigating component or other United States Attorney’s Office (USAO), and parallel criminal and civil proceedings, this definition will necessarily be adjusted to fit the circumstances. In addition, in complex cases that involve parallel proceedings with regulatory agencies (SEC, FDIC, EPA, etc.), or other non-criminal investigative or intelligence agencies, the prosecutor should consider whether the relationship with the other agency is close enough to make it part of the prosecution team for discovery purposes.

Some factors to be considered in determining whether to review potentially discoverable information from another federal agency include:

Whether the prosecutor and the agency conducted a joint investigation or shared resources related to investigating the case;
Whether the agency played an active role in the prosecution, including conducting arrests or searches, interviewing witnesses, developing prosecutorial strategy, participating in targeting discussions, or otherwise acting as part of the prosecution team;
Whether the prosecutor knows of and has access to discoverable information held by the agency;
Whether the prosecutor has obtained other information and/or evidence from the agency;
The degree to which information gathered by the prosecutor has been shared with the agency;
Whether a member of an agency has been made a Special Assistant United States Attorney;
The degree to which decisions have been made jointly regarding civil, criminal, or administrative charges; and
The degree to which the interest’s of the parties in parallel proceedings diverge such that information gathered by one party is not relevant to the other party.

Many cases arise out of investigations conducted by multi-agency task forces or otherwise involving state law enforcement agencies. In such cases, prosecutors should consider (1) whether state or local agents are working on behalf of the prosecutor or are under the prosecutor’s control; (2) the extent to which state and federal governments are part of a team, are participating in a joint investigation, or are sharing resources; and (3) whether the prosecutor has ready access to the evidence. Courts will generally evaluate the role of a state or local law enforcement agency on a case-by-case basis. Therefore, prosecutors should make sure they understand the law in their circuit and their office’s practice regarding discovery in cases in which a state or local agency participated in the investigation or on a task force that conducted the investigation.

Prosecutors are encouraged to err on the side of inclusiveness when identifying the members of the prosecution team for discovery purposes. Carefully considered efforts to locate discoverable information are more likely to avoid future litigation over Brady and Giglio issues and avoid surprises at trial.

Although the considerations set forth above generally apply in the context of national

security investigations and prosecutions, special complexities arise in that context. Prosecutors should begin considering potential discovery obligations early in an investigation that has national security implications and should also carefully evaluate their discovery obligations prior to filing charges. This evaluation should consider circuit and district precedent and include consultation with national security experts in their own offices and in the National Security Division.

B. What to Review

To ensure that all discovery is disclosed on a timely basis, generally all potentially discoverable material within the custody or control of the prosecution team should be reviewed. The review process should cover the following areas;

The Investigative Agency’s Files: With respect to Department of Justice law enforcement agencies, with limited exceptions, the prosecutor should be granted access to the substantive case file and any other file or document the prosecutor has reason to believe may contain discoverable information related to the matter being prosecuted.[1] Therefore, the prosecutor can personally review the file or documents or may choose to request production of potentially discoverable materials from the case agents. With respect to outside agencies, the prosecutor should request access to files and/or production of all potentially discoverable material. The investigative agency’s entire investigative file, including documents such as FBI Electronic Communications (ECs), inserts, emails, etc. should be reviewed for discoverable information. If such information is contained in a document that the agency deems to be an “internal” document such as an email, an insert, an administrative document, or an EC, it may not be necessary to produce the internal document, but it will be necessary to produce all of the discoverable information contained in it. Prosecutors should also discuss with the investigative agency whether files from other investigations or non-investigative files such as confidential source files might contain discoverable information. Those additional files or relevant portions thereof should also be reviewed as necessary.
Confidential informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) Files: The credibility of cooperating witnesses or informants will always be at issue if they testify during a trial. Therefore, prosecutors are entitled to access to the agency file for each testifying CI, CW, CHS, or CS. Those files should be reviewed for discoverable information and copies made of relevant portions for discovery purposes. The entire informant/source file, not just the portion relating to the current case, including all proffer, immunity and other agreements, validation assessments, payment information, and other potential witness impeachment information should be included within this review.
If a prosecutor believes that the circumstances of the case warrant review of a non-testifying source’s file, the prosecutor should follow the agency’s procedures for requesting the review of such a file.
Prosecutors should take steps to protect the non-discoverable, sensitive information found within a CI, CW, CHS, or CS file. Further, prosecutors should consider whether discovery obligations arising from the review of CI, CW, CHS, and CS files may be fully discharged while better protecting government or witness interests such as security or privacy via a summary letter to defense counsel rather than producing the record in its entirety.
Prosecutors must always be mindful of security issues that may arise with respect to disclosures from confidential source files. Prior to disclosure, prosecutors should consult with the investigative agency to evaluate any such risks and to develop a strategy for addressing those risks or minimizing them as much as possible, consistent with discovery obligations
Evidence and Information Gathered During the Investigation: Generally, all evidence and information gathered during the investigation should be reviewed, including anything obtained during searches or via subpoenas, etc. As discussed more fully below in Step 2, in cases involving a large volume of potentially discoverable information, prosecutors may discharge their disclosure obligations by choosing to make the voluminous information available to the defense.
Document or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in Parallel Civil Investigations: If a prosecutor has determined that a regulatory agency such as the SEC is a member of the prosecution team for purposes of defining discovery obligations, that agency’s files should be reviewed. Of course, if a regulatory agency is not part of the prosecution team but is conducting an administrative investigation or proceeding involving the same subject matter as a criminal investigation, prosecutors may very well want to ensure that those files are reviewed not only to locate discoverable information but to locate inculpatory information that may advance the criminal case. Where there is an ongoing parallel civil proceeding in which Department civil attorneys arc participating, such as a qui tam case, the civil case files should also be reviewed.
Substantive Case-Related Communications: “Substantive” case-related communications may contain discoverable information. Those communications that contain discoverable information should be maintained in the case file or otherwise preserved in a manner that associates them with the case or investigation. “Substantive” case-related communications are most likely to occur (1) among prosecutors and/or agents, (2) between prosecutors and/or agents and witnesses and/or victims, and (3) between victim-witness coordinators and witnesses and/or victims. Such communications may be memorialized in emails, memoranda, or notes. “Substantive” communications include factual reports about investigative activity, factual discussions of the relative merits of evidence, factual information obtained during interviews or interactions with witnesses/victims, and factual issues relating to credibility. Communications involving case impressions or investigative or prosecutive strategies without more would not ordinarily be considered discoverable, but substantive case-related communications should be reviewed carefully to determine whether all or part of a communication (or the information contained therein) should be disclosed. Prosecutors should also remember that with few exceptions (see, e.g., Fed.R.Crim.P. 16(a)(I)(B)(ii)), the format of the information does not determine whether it is discoverable. For example, material exculpatory information that the prosecutor receives during a conversation with an agent or a witness is no less discoverable than if that same information were contained in an email. When the discoverable information contained in an email or other communication is fully memorialized elsewhere, such as in a report of interview or other document(s), then the disclosure of the report of interview or other document(s) will ordinarily satisfy the disclosure obligation.
Potential Giglio Information Relating to Law Enforcement Witnesses: Prosecutors should have candid conversations with the federal agents with whom they work regarding any potential Giglio issues, and they should follow the procedure established in JM 9-5.100 whenever necessary before calling the law enforcement employee as a witness. Prosecutors should be familiar with circuit and district court precedent and local practice regarding obtaining Giglio information from state and local law enforcement officers.
Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants: All potential Giglio information known by or in the possession of the prosecution team relating to non-law enforcement witnesses should be gathered and reviewed. That information includes, but is not limited to:

Prior inconsistent statements (possibly including inconsistent attorney proffers, see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008))
Statements or reports reflecting witness statement variations (see below)
Benefits provided to witnesses including:
- Dropped or reduced charges
- Immunity
- Expectations of downward departures or motions for reduction of sentence
- Assistance in a state or local criminal proceeding
- Considerations regarding forfeiture of assets
- Stays of deportation or other immigration status considerations
- S-Visas
- Monetary benefits
- Non-prosecution agreements
- Letters to other law enforcement officials (e.g. stale prosecutors, parole boards) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf
- Relocation assistance
- Consideration or benefits to culpable or at risk third-parties
Other known conditions that could affect the witness’s bias such as:
- Animosity toward defendant
- Animosity toward a group of which the defendant is a member or with which the defendant is affiliated
- Relationship with victim
- Known but uncharged criminal conduct (that may provide an incentive to curry favor with a prosecutor)
Prior acts under Fed.R.Evid. 608
Prior convictions under Fed.R.Evid. 609
Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events

Information Obtained in Witness Interviews: Although not required by law, generally speaking, witness interviews[2] should be memorialized by the agent.[3] Agent and prosecutor notes and original recordings should be preserved, and prosecutors should confirm with agents that substantive interviews should be memorialized. When a prosecutor participates in an interview with an investigative agent, the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins (unless the prosecutor and the agent have established an understanding through prior course of dealing). Whenever possible, prosecutors should not conduct an interview without an agent present to avoid the risk of making themselves a witness to a statement and being disqualified from handling the case if the statement becomes an issue. If exigent circumstances make it impossible to secure the presence of an agent during an interview, prosecutors should try to have another office employee present. Interview memoranda of witnesses expected to testify, and of individuals who provided relevant information but are not expected to testify, should be reviewed.
1. Witness Statement Variations and the Duty to Disclose: Some witnesses’ statements will vary during the course of an interview or investigation. For example, they may initially deny involvement in criminal activity, and the information they provide may broaden or change considerably over the course of time, especially if there are a series of debriefings that occur over several days or weeks. Material variances in a witness’s statements should be memorialized, even if they are within the same interview, and they should be provided to the defense as Giglio information.
2. Trial Preparation Meetings with Witnesses: Trial preparation meetings with witnesses generally need not be memorialized. However, prosecutors should be particularly attuned to new or inconsistent information disclosed by the witness during a pre-trial witness preparation session. New information that is exculpatory or impeachment information should be disclosed consistent with the provisions of JM 9-5.001 even if the information is first disclosed in a witness preparation session. Similarly, if the new information represents a variance from the witness’s prior statements, prosecutors should consider whether memorialization and disclosure is necessary consistent with the provisions of subparagraph (a) above.
3. Agent Notes: Agent notes should be reviewed if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview. Prosecutors should pay particular attention to agent notes generated during an interview of the defendant or an individual whose statement may be attributed to a corporate defendant. Such notes may contain information that must be disclosed pursuant to Fed.R.Crim.P. 16(a)(I)(A)-(C) or may themselves be discoverable under Fed.R.Crim.P. 16(a)(I)(B). See, e.g., United States v. Clark, 385 F.3d 609, 619-20 (6^th Cir. 2004) and United States v. Vaffee, 380 F.Supp.2d 11, 2-14 (D. Mass. 2005).

Step 2: Conducting the Review

Having gathered the information described above, prosecutors must ensure that the material is reviewed to identify discoverable information. It would be preferable if prosecutors could review the information themselves in every case, but such review is not always feasible or necessary. The prosecutor is ultimately responsible for compliance with discovery obligations. Accordingly, the prosecutor should develop a process for review of pertinent information to ensure that discoverable information is identified. Because the responsibility for compliance with discovery obligations rests with the prosecutor, the prosecutor’s decision about how to conduct this review is controlling. This process may involve agents, paralegals, agency counsel, and computerized searches. Although prosecutors may delegate the process and set forth criteria for identifying potentially discoverable information, prosecutors should not delegate the disclosure determination itself. In cases involving voluminous evidence obtained from third parties, prosecutors should consider providing defense access to the voluminous documents to avoid the possibility that a well-intentioned review process nonetheless fails to identify material discoverable evidence. Such broad disclosure may not be feasible in national security cases involving classified information.

Step 3: Making the Disclosures

The Department’s disclosure obligations are generally set forth in Fed.R.Crim.P. 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady, and Giglio (collectively referred to herein as “discovery obligations”). Prosecutors must familiarize themselves with each of these provisions and controlling case law that interprets these provisions. In addition, prosecutors should be aware that Section 9-5.001 details the Department’s policy regarding the disclosure of exculpatory and impeachment information and provides for broader disclosures than required by Brady and Giglio. Prosecutors are also encouraged to provide discovery broader and more comprehensive than the discovery obligations. If a prosecutor chooses this course, the defense should be advised that the prosecutor is electing to produce discovery beyond what is required under the circumstances of the case but is not committing to any discovery obligation beyond the discovery obligations set forth above.

Considerations Regarding the Scope and Timing of the Disclosures: Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases. It also provides a margin of error in case the prosecutor’s good faith determination of the scope of appropriate discovery is in error. Prosecutors are encouraged to provide broad and early discovery consistent with any countervailing considerations. But when considering providing discovery beyond that required by the discovery obligations or providing discovery sooner than required, prosecutors should always consider any appropriate countervailing concerns in the particular case, including, but not limited to: protecting victims and witnesses from harassment or intimidation; protecting the privacy interests of witnesses; protecting privileged information; protecting the integrity of ongoing investigations; protecting the trial from efforts at obstruction: protecting national security interests; investigative agency concerns; enhancing the likelihood of receiving reciprocal discovery by defendants; any applicable legal or evidentiary privileges; and other strategic considerations that enhance the likelihood of achieving a just result in a particular case. In most jurisdictions, reports of interview (ROIs) of testifying witnesses are not considered Jencks material unless the report reflects the statement of the witness substantially verbatim or the witness has adopted it. The Working Group determined that practices differ among the USAOs and the components regarding disclosure of ROIs of testifying witnesses. Prosecutors should be familiar with and comply with the practice of their offices.
Prosecutors should never describe the discovery being provided as “open file.” Even if the prosecutor intends to provide expansive discovery, it is always possible that something will be inadvertently omitted from production and the prosecutor will then have unintentionally misrepresented the scope of materials provided. Furthermore, because the concept of the “file” is imprecise, such a representation exposes the prosecutor to broader disclosure requirements than intended or to sanction for failure to disclose documents, e.g., agent notes or internal memos, that the court may deem to have been part of the “file.”
When the disclosure obligations are not clear or when the considerations above conflict with the discovery obligations, prosecutors may seek a protective order from the court addressing the scope, timing, and form of disclosures.
Timing: Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably promptly after discovery. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. See JM 9-5.001. Section 9-5.001 also notes, however, that witness security, national security, or other issues may require that disclosures of impeachment information be made at a time and in a manner consistent with the policy embodied in the Jencks Act. Prosecutors should be attentive to controlling law in their circuit and district governing disclosure obligations at various stages of litigation, such as pre-trial hearings, guilty pleas, and sentencing.
Prosecutors should consult the local discovery rules for the district in which a case has been indicted. Many districts have broad, automatic discovery rules that require Rule 16 materials to be produced without a request by the defendant and within a specified time frame, unless a court order has been entered delaying discovery, as is common in complex cases. Prosecutors must comply with these local rules, applicable case law, and any final court order regarding discovery. In the absence of guidance from such local rules or court orders, prosecutors should consider making Rule 16 materials available as soon as is reasonably practical but must make disclosure no later than a reasonable time before trial. In deciding when and in what format to provide discovery, prosecutors should always consider security concerns and the other factors set forth in subparagraph A above. Prosecutors should also ensure that they disclose Fed.R.Crim.P. 16(a)(1)(E) materials in a manner that triggers the reciprocal discovery obligations in Fed.R.Crim.P. 16(b)(1).
Discovery obligations are continuing, and prosecutors should always be alert to developments occurring up to and through trial of the case that may impact their discovery obligations and require disclosure of information that was previously not disclosed.
Form of Disclosure: There may be instances when it is not advisable to turn over discoverable information in its original form, such as when the disclosure would create security concerns or when such information is contained in attorney notes, internal agency documents, confidential source documents, Suspicious Activity Reports, etc. If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, including particular language, where pertinent, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.

Step 4: Making a Record

One of the most important steps in the discovery process is keeping good records regarding disclosures. Prosecutors should make a record of when and how information is disclosed or otherwise made available. While discovery matters are often the subject of litigation in criminal cases, keeping a record of the disclosures confines the litigation to substantive matters and avoids time-consuming disputes about what was disclosed. These records can also be critical when responding to petitions for post-conviction relief, which are often filed long after the trial of the case. Keeping accurate records of the evidence disclosed is no less important than the other steps discussed above, and poor records can negate all of the work that went into taking the first three steps.

Comment: Compliance with discovery obligations is important for a number of reasons. First and foremost, however, such compliance will facilitate a fair and just result in every case, which is the Department’s singular goal in pursuing a criminal prosecution. This section does not and could not answer every discovery question because those obligations are often fact specific. However, prosecutors have at their disposal an array of resources intended to assist them in evaluating their discovery obligations including supervisors, discovery coordinators in each office, the Professional Responsibility Advisory Office, and online resources available on the Department’s intranet website, not to mention the experienced career prosecutors throughout the Department. And, additional resources are being developed through efforts that will be overseen by a full-time discovery expert who will be detailed to Washington from the field. By evaluating discovery obligations pursuant to the methodical and thoughtful approach set forth in this guidance and taking advantage of available resources, prosecutors are more likely to meet their discovery obligations in every case and in so doing achieve a just and final result in every criminal prosecution.

[1] Nothing in this section alters the Department’s Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses contained in JM §9-5.100.

[2] Interview” as used herein refers to a formal question and answer session with a potential witness conducted for the purpose of obtaining information pertinent to a matter or case. It does not include conversations with a potential witness for the purpose of scheduling or attending to other ministerial matters. However, potential witnesses may provide substantive information outside of a formal interview. Substantive, case-related communications are addressed above.

[3] In those instances in which an interview was audio or video recorded, further memorialization will generally not be necessary.

[added December 2017]

9-5.003 – CRIMINAL DISCOVERY INVOLVING FORENSIC EVIDENCE AND EXPERTS

Forensic science covers a variety of fields, including such specialties as DNA testing, chemistry, and ballistics and impression analysis, among others. As a general guiding rule, and allowing for the facts and circumstances of individual cases, prosecutors should provide broad discovery relating to forensic science evidence as outlined here. Disclosure of information relating to forensic science evidence in discovery does not mean that the Department concedes the admissibility of that information, which may be litigated simultaneously with or subsequent to disclosure.

The Duty to Disclose, Generally

The prosecution’s duty to disclose is generally governed by Federal Rules of Criminal Procedure 16 and 26.2, the Jencks Act (18 U.S.C. §3500), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). In addition, JM 9-5.001 of the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment material.

Rule 16 of the Federal Rules of Criminal Procedure establishes three disclosure responsibilities for prosecutors that may be relevant to forensic evidence. First, under Fed.R.Crim.P. 16(a)(1)(F), the government must, upon request of the defense, turn over the results or reports of any scientific test or experiment (i) in the government’s possession, custody or control, (ii) that an attorney for the government knows or through due diligence could know, and (iii) that would be material to preparing the defense or that the government intends to use at trial. Second, under Fed. R. Crim. P. 16(a)(1)(G), if requested by the defense, the government must provide a written summary of any expert testimony the government intends to use at trial. At a minimum, this summary must include the witness’s opinions, the bases and reasons for those opinions, and the expert’s qualifications. Third, under Fed. R. Crim. P. 16(a)(1)(E), if requested by the defense, the government must produce documents and items material to preparing the defense that are in the possession, custody, or control of the government. This may extend to records documenting the tests performed, the maintenance and reliability of tools used to perform those tests, and/or the methodologies employed in those tests.

Both the Jencks Act and Brady/Giglio may also come into play in relation to forensic evidence. For example, a written statement (report, email, memo) by a testifying forensic witness may be subject to disclosure under the Jencks Act if it relates to the subject matter of his or her testimony. Information providing the defense with an avenue for challenging test results may be Brady/Giglio information that must be disclosed. And, for forensic witnesses employed by the government, Giglio information must be gathered from the employing agency and reviewed for possible disclosure. These are the minimum requirements, and the Department’s discovery policies call for disclosure beyond these thresholds.

The Duty to Disclose in Cases with Forensic Evidence and Experts

The Department’s policy to provide discovery over and above the minimum legal thresholds applies to cases with forensic evidence. Rule 16’s disclosure requirements – disclosing the results of scientific tests (16(a)(l)(F)), the witness’ written summary (16(a)(l)(G)), and documents and items material to preparing the defense (16(a)( l)(E)) – are often jointly satisfied when presenting expert forensic testimony, since disclosure of the test results, the bases for those results, and the expert’s qualifications will often provide all the necessary information material to preparation of the defense. But, depending on the complexity of the forensic evidence, or where multiple forensic tests have been performed, the process can be complicated because it may require the prosecutor to work in tandem with various forensic scientists to identify and prepare additional relevant information for disclosure. Although prosecutors generally should consult with forensic experts to understand the tests or experiments conducted, responsibility for disclosure ultimately rests with the prosecutor assigned to the case. In meeting obligations under Rule 16(a)(l)(E), (F), and (G), the Jencks Act, and Brady/Giglio, and to comply with the Department’s policies of broad disclosure, the prosecutor should be attuned to the following four steps:

First, the prosecutor should obtain the forensic expert’s laboratory report, which is a document that describes the scope of work assigned, the evidence tested, the method of examination or analysis used, and the conclusions drawn from the analyses conducted. Depending on the laboratory, the report may be in written or electronic format; the laboratory may routinely route the report to the prosecutor, or the prosecutor may need to affirmatively seek the report from the forensic expert or his or her laboratory. In most cases the best practice is to turn over the forensic expert’s report to the defense if requested. This is so regardless of whether the government intends to use it at trial or whether the report is perceived to be material to the preparation of the defense. If the report contains personal information about a victim or witness, or other sensitive information, redaction may be appropriate and necessary. This may require court authorization if the forensic expert will testify, as the report likely will be considered a Jencks Act statement. (See the Additional Considerations section below.)

Second, the prosecutor should disclose to the defense, if requested, a written summary for any forensic expert the government intends to call as an expert at trial. This statement should summarize the analyses performed by the forensic expert and describe any conclusions reached. Although the written summary will vary in length depending on the number and complexity of the tests conducted, it should be sufficient to explain the basis and reasons for the expert’s expected testimony. Oftentimes, an expert will provide this information in an “executive summary” or “synopsis” section at the beginning of a report or a “conclusion” section at the end. Prosecutors should be mindful to ensure that any separate summary provided pursuant to Rule 16(a) should be consistent with these sections of the report. Further, any changes to an expert’s opinion that are made subsequent to the initial disclosure to the defense ordinarily should be made in writing and disclosed to the defense.

Third, if requested by the defense, the prosecutor should provide the defense with a copy of, or access to, the laboratory or forensic expert’s “case file,” either in electronic or hard-copy form. This information, which may be kept in an actual file or may be compiled by the forensic expert, normally will describe the facts or data considered by the forensic expert, include the underlying documentation of the examination or analysis performed, and contain the material necessary for another examiner to understand the expert’s report. The exact material contained in a case file varies depending on the type of forensic analysis performed. It may include such items as a chain-of-custody log; photographs of physical evidence; analysts’ worksheets or bench notes; a scope of work; an examination plan; and data, charts and graphs that illustrate the results of the tests conducted.In some circumstances, the defense may seek laboratory policies and protocols. To the extent that a laboratory provides this information online, the prosecutor may simply share the web address with the defense. Otherwise, determinations regarding disclosure of this information should be made on a case-by-case basis in consultation with the forensic analysts involved, taking into account the particularity of the defense’s request and how relevant the request appears to be to the anticipated defenses.

Fourth, the prosecutor should provide to the defense information on the expert’s qualifications. Typically, this material will include such items as the expert’s curriculum vitae, highlighting relevant education, training and publications, and a brief summary that describes the analyst’s synopsis of experience in testifying as an expert at trial or by deposition. The prosecutor should gather potential Giglio information from the government agency that employs the forensic expert. If using an independent retained forensic expert, the prosecutor should disclose the level of compensation as potential Giglio information; the format of this disclosure is left to the discretion of the individual prosecuting office. Disclosure should be made according to local rules but at least as soon as is reasonably practical and, of course, reasonably in advance of trial. It is important that the prosecutor leave sufficient time to obtain documents and prepare information ahead of disclosure. When requesting supporting documents from a laboratory’s file regarding a forensic examination, the prosecutor should consult the guidelines set by the laboratory for the manner in which discovery requests should be made, and for the time required for them to process and deliver the materials to the prosecutor. Further, if multiple forensic teams have worked on a case, the prosecutor should build in sufficient time to consult with, and obtain relevant materials from, each relevant office or forensic expert.

Additional Considerations

Certain situations call for special attention. These may include cases with classified information or when forensic reports reveal the identities of cooperating witnesses or undercover officers, or disclose pending covert investigations. In such cases, when redaction or a protective order may be necessary, prosecutors should ordinarily consult with supervisors.

Laboratory case files may include written communications, including electronic communication such as emails, between forensic experts or between forensic experts and prosecutors. Prosecutors should review this information themselves to determine which communications, if any, are protected and which in formation should be disclosed under Brady/Giglio, Jencks, or Rule 16. If the circumstances warrant (for example, where review of a case file indicates that tests in another case or communications outside the case file may be relevant), prosecutors should request to review additional materials outside the case file.

Finally, when faced with questions about disclosure, prosecutors should consult with a supervisor, as the precise documents to disclose tend to evolve, based especially upon the practice of particular laboratories, the type and manner of documentation at the laboratory, and current rulings from the courts.

[added December 2017]

9-5.004 – GUIDANCE ON THE USE, PRESERVATION, AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS IN FEDERAL CRIMINAL CASES

All prosecution team members should be aware of the government’s obligations regarding the preservation and disclosure of electronic communications, or “e-communications,” which include emails, text messages, SMS (short message service), instant messages, voice mail, pin-to-pin communications, and similar means of electronic communication. Although e‑communications offer benefits in the form of speed and efficiency, all team members should understand that case-related e‑communications may potentially be disclosed to the defense. Thus, all team members should understand the risks of e‑communications; the need to comply with agency rules regarding documentation and record-keeping during an investigation; the importance of careful and professional communication; and the obligation to preserve and produce such communications when appropriate. All members of the prosecution team, including federal, state, and local law enforcement officers, are responsible for making available to the prosecutor all potentially discoverable e‑communications. It is the prosecutor’s responsibility to oversee the gathering, review, and production of discovery. The prosecutor should discuss these matters with all members of the prosecution team at the outset and during the investigation.

The following guidance applies at all phases of a criminal case including investigation, trial preparation, trial, and post-trial:

Prosecution team members should exercise the same care in generating case-related e-communications that they exercise when drafting more formal reports, and only write and send e-communications that are appropriate for displaying to the court, the jury, and the public.
Prosecution team members should exercise caution when using e-communications with non-law enforcement witnesses. Individuals not on the prosecution team, including victims, lay witnesses, and outside experts, should be informed that e-communications are a written record that may be disclosed to the defense and that appropriate care should be exercised.
Substantive e-communications among prosecution team members, including communications containing factual information relating to witnesses, evidence, or investigative activity, should be avoided except when, to meet operational needs, they are the most effective means of communication. Substantive case information should be recorded in formal reports.
E-communications, like formal reports, should state facts accurately and completely; be professional in tone; and avoid witticism, careless commentary, opinion, or over-familiarity in tone.
Prosecution team members should not use personally owned electronic communication devices, personal email accounts, social networking sites, or similar accounts to transmit case-related information to witnesses or other team members.
Prosecution team members should preserve for later review and possible disclosure all substantive e-communications created or received by team members during the course of an investigation and prosecution, and all e-communications sent to or received from lay witnesses, regardless of content.
E-communications should be preserved in their native electronic format; when that is not feasible, another method of preservation should be identified and used.
If the e-communication contains sensitive information, the prosecutor should consider whether to file a motion for a protective order, seek supervisory approval to delay disclosure, make appropriate redactions, summarize the substance of an e‑communication in a letter rather than disclosing the e-communication itself, or take other safeguarding measures. Sensitive information includes information that would affect the privacy or safety of any person, reveal investigative techniques or national security information, or compromise the integrity of another investigation. If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.
Prosecutors handling an investigation or case involving national security related issues or intelligence community equities should consult with the National Security/Anti-Terrorism Advisory Council (ATAC) Coordinator in their office and/or the National Security Division for specific guidance on searching for, gathering, reviewing, and disclosing communications in these areas, as well as special procedures (such as the Classified Information Procedures Act, or “CIPA”) that may apply.

For background and additional guidance on these matters, see the March 30, 2011, Deputy Attorney General Cole memorandum, Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases.*

*Note that the discussion of personal use of social media in Deputy Attorney General Cole’s 2011 memorandum has been superseded by JM 1-9.000 (Personal Use of Social Media).

[added December 2019]

9-5.100 – POLICY REGARDING THE DISCLOSURE TO PROSECUTORS OF POTENTIAL IMPEACHMENT INFORMATION CONCERNING LAW ENFORCEMENT AGENCY WITNESSES (“GIGLIO POLICY”)

On December 9, 1996, the Attorney General issued a Policy regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”). It applies to all Department of Justice Investigative agencies that are named in the Preface below. On October 19, 2006, the Attorney General amended this policy to conform to the Department’s new policy regarding disclosure of exculpatory and impeachment information, see JM 9-5.001. On July 11, 2014, the policy was revised in several respects, including with regard to the candid conversation between a prosecutor and an agency employee; the definition of impeachment information; record-keeping; information that must be provided to agencies; the transfer of Giglio-related information between prosecuting offices; and the notification of a prosecuting office of Giglio issues when an agency employee is transferred to a new district.

In early 1997, the Secretary of the Treasury issued the 1996 version of the Giglio Policy for all Treasury investigative agencies, and that policy remains in effect for Treasury investigative agencies.

Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”)

Preface: The following policy is established for: the Federal Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, the United States Marshals Service, the Department of Justice Office of the Inspector General, and the Department of Justice Office of Professional Responsibility (“the investigative agencies”). It addresses their disclosure of potential impeachment information to the United States Attorneys’ Offices and Department of Justice litigating sections with authority to prosecute criminal cases (“Department of Justice prosecuting offices”). The purposes of this policy are to ensure that prosecutors receive sufficient information to meet their obligations under Giglio v. United States, 405 U.S. 150 (1972), and to ensure that trials are fair, while protecting the legitimate privacy rights of Government employees. NOTE: This policy is not intended to create or confer any rights, privileges, or benefits to prospective or actual witnesses or defendants. It is also not intended to have the force of law. United States v. Caceres, 440 U.S. 741 (1979).

The exact parameters of potential impeachment information are not easily determined. Potential impeachment information, however, has been generally defined as impeaching information which is material to the defense. It also includes information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.[FN1] This information may include but is not strictly limited to: (a) specific instances of conduct of a witness for the purpose of attacking the witness’ credibility or character for truthfulness; (b) evidence in the form of opinion or reputation as to a witness’ character for truthfulness; (c) prior inconsistent statements; and (d) information that may be used to suggest that a witness is biased.

FN1. The italicized language was added in 2006 when JM 9-5.001 was issued. It broadens the definition of “potential impeachment information.”

This policy is not intended to replace the obligation of individual agency employees to inform prosecuting attorneys with whom they work of potential impeachment information prior to providing a sworn statement or testimony in any investigation or case. In the majority of investigations and cases in which agency employees may be affiants or witnesses, it is expected that the prosecuting attorney will be able to obtain all potential impeachment information directly from agency witnesses during the normal course of investigations and/or preparation for hearings or trials.

This policy is intended to provide guidance to prosecuting offices and investigative agencies regarding what potential impeachment information must be produced to the prosecuting office. It does not address the issue of what information the prosecution must produce to the defense, or to the court for ex parte, in camera review. That determination can only be made after considering the potential impeachment information in light of the role of the agency witness, the facts of the case, and known or anticipated defenses, and after considering JM 9-5.001, relevant Department guideance, the Federal Rules of Evidence, case law, local court rulings and judicial predisposition, and other relevant guidance, policy, regulations and laws.

Procedures for Disclosing Potential Impeachment Information Relating to Department of Justice Employees

Obligation to Disclose Potential Impeachment Information. It is expected that a prosecutor generally will be able to obtain all potential impeachment information directly from potential agency witnesses and/or affiants. Prosecutors should have a candid conversation with each potential investigative agency witness and/or affiant with whom they work regarding any on-duty or off-duty potential impeachment information, including information that may be known to the public but that should not in fact be the basis for impeachment in a federal criminal court proceeding, so that prosecuting attorneys can take appropriate action, be it producing the material or taking steps to preclude its improper introduction into evidence. Likewise, each investigative agency employee is obligated to inform prosecutors with whom they work of potential impeachment information as early as possible prior to providing a sworn statement or testimony in any criminal investigation or case. Each investigative agency should ensure that its employees fulfill this obligation. Potential impeachment information that may relate directly to agency employee witnesses is defined more fully in paragraphs 5 and 6.Because there are times when an agency employee will be unaware that he or she is the subject of a pending investigation, prosecutors will receive the most comprehensive potential impeachment information by having both the candid conversation with the agency employee and by submitting a request for potential impeachment information to the investigative agency. Therefore, in all cases, a prosecutor should carefully consider and is encouraged to request potential impeachment information from the investigative agency. This policy sets forth procedures for those cases in which a prosecutor decides to make such a request.
Agency Officials. Each of the investigative agencies shall designate an appropriate official(s) to serve as the point(s) of contact concerning Department of Justice employees’ potential impeachment information (“the Agency Official”). Each Agency Official shall consult periodically with the relevant Requesting Officials about Supreme Court case law, circuit case law, and district court rulings and practice governing the definition and disclosure of impeachment information.
Requesting Officials. Each of the Department of Justice prosecuting offices shall designate one or more senior official(s) to serve as the point(s) of contact concerning potential impeachment information (“the Requesting Official”). Each Requesting Official shall inform the relevant Agency Officials about Supreme Court case law, circuit case law, and district court rulings and practice governing the definition and disclosure of impeachment information.
Request to Agency Officials. Upon initiation of a case or matter within the prosecuting office, or anytime thereafter, a prosecutor may request potential impeachment information relating to an agency employee associated with that case or matter. The prosecutor shall notify the appropriate Requesting Official, who may request potential impeachment information relating to the employee from the employing Agency Official(s) and the designated Agency Official(s) in the Department of Justice Office of the Inspector General (“DOJ-OIG”) and the Department of Justice Office of Professional Responsibility (“DOJ-OPR”).
Disclosure of Potential Impeachment Information by Agency Employee and Agency(a) Agency Review and Disclosure. Upon receiving the request described in Paragraph 4, the Agency Official(s) from the employing agency, the DOJ-OIG, and the DOJ-OPR shall each conduct a review, in accordance with its respective agency plan, for potential impeachment information regarding the identified employee.(b) Agency Employee. Before serving as an affiant or witness in any case or matter, the agency employee shall advise the prosecuting attorney(s) of the existence of any potential impeachment information. Potential impeachment information can include both on-duty and off-duty conduct. Prosecutors should be mindful that some potential impeachment information, including potential impeachment information stemming from off-duty conduct, may not be in agency files and may only be known to the agency employee.(c) Potential Impeachment Information. Agency witnesses and Agency Officials should make broad disclosures of potential impeachment information to the prosecutor so that the prosecutor can assess the information in light of the role of the agency witness, the facts of the case, and known or anticipated defenses, among other variables. Potential impeachment information is defined in the Federal Rules of Evidence, case law, unpublished court rulings, and Department of Justice policy and guidance. Unless advised by a Giglio Requesting Official or prosecutor that case law or court rulings in the district require broader disclosures, potential impeachment information relating to agency employees may include, but is not limited to, the categories listed below:

i) any finding of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding of lack of candor during a criminal, civil, or administrative inquiry or proceeding;ii) any past or pending criminal charge brought against the employee;

iii) any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation;

iv) prior findings by a judge that an agency employee has testified untruthfully, made a knowing false statement in writing, engaged in an unlawful search or seizure, illegally obtained a confession, or engaged in other misconduct;

v) any misconduct finding or pending misconduct allegation that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—that the prosecutor intends to rely on to prove an element of any crime charged, or that might have a significant bearing on the admissibility of prosecution evidence. Accordingly, agencies and employees should disclose findings or allegations that relate to substantive violations concerning:

(1) failure to follow legal or agency requirements for the collection and handling of evidence, obtaining statements, recording communications, and obtaining consents to search or to record communications;(2) failure to comply with agency procedures for supervising the activities of a cooperating person (C.I., C.S., CHS, etc.);

(3) failure to follow mandatory protocols with regard to the forensic analysis of evidence;

vi) information that may be used to suggest that the agency employee is biased for or against a defendant (See United States v. Abel, 469 U.S. 45, 52 (1984). The Supreme Court has stated, “[b]ias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.”); andvii) information that reflects that the agency employee’s ability to perceive and recall truth is impaired.
Treatment of Allegations Which Are Unsubstantiated, Not Credible, or Have Resulted in Exoneration. Allegations that cannot be substantiated, are not credible, or have resulted in the exoneration of an employee generally are not considered to be potential impeachment information. Upon request, such information which reflects upon the truthfulness or bias of the employee, to the extent maintained by the agency, will be provided to the prosecuting office under the following circumstances: (a) when the Requesting Official advises the Agency Official that it is required by a Court decision in the district where the investigation or case is being pursued; (b) when, on or after the effective date of this policy: (i) the allegation was made by a federal prosecutor, magistrate judge, or judge; or (ii) the allegation received publicity; (c) when the Requesting Official and the Agency Official agree that such disclosure is appropriate, based upon exceptional circumstances involving the nature of the case or the role of the agency witness; or (d) when disclosure is otherwise deemed appropriate by the agency. The agency is responsible for advising the prosecuting office, to the extent determined, whether any aforementioned allegation is unsubstantiated, not credible, or resulted in the employee’s exoneration.Note. With regard to allegations disclosed to a prosecuting office under this paragraph, the GiglioRequesting Official shall ensure that special care is taken to protect the confidentiality of such information and the privacy interests and reputations of agency employee-witnesses, in accordance with paragraphs 7(b) and 12 below.
Prosecuting Office Records(a) Information in System of Records. For the purpose of ensuring that potential impeachment information is handled consistently within a prosecuting office, whenever potential impeachment information has been disclosed to the court or defense, or when a decision has been made that an agency employee should not testify or serve as an affiant because of potential impeachment information, Department of Justice prosecuting offices may retain the following types of information in a Giglio system of records that can be accessed by the identity of the disclosing agency’s employee:

i) the potential impeachment information;ii) any written analysis or substantive communications, including legal advice, relating to that disclosure or decision; and

iii) any related pleadings or court orders.

In all other circumstances, prosecuting offices may keep any written legal analysis and substantive communications integral to the analysis, including legal advice relating to the decision, and a summary of the potential impeachment information in the Giglio system of records. The complete description of the potential impeachment information received from the Agency Official may be maintained in the criminal case file, but it may not be maintained in the Giglio system of records.(b) Secure Records with Limited Access. Giglio Requesting Official(s) shall ensure that the information in their office’s Giglio system of records is securely maintained and is accessible only upon a request to a Giglio Requesting Official or other senior management entrusted with this responsibility. The information shall only be disclosed to requesting prosecutors within that office on a case-related, need-to-know basis. It should be noted that much of the information in the Gigliosystem of records is sensitive information which if released or reviewed without a case-related need could negatively impact the privacy and reputation of the agency-employee to whom it relates, and could violate the Privacy Act.

(c) Duty to Update. Before any prosecutor or Giglio Requesting Official uses or relies upon information included in the prosecuting office’s Giglio system of records, the Requesting Official shall contact the relevant Agency Official(s) to determine the status of the potential impeachment information, the Agency Official(s) shall provide an update, and the Requesting Official shall update the prosecuting office’s Giglio system of records to ensure that the information in the system of records is accurate.
Information That Must Be Provided to Agencies. When Agency Officials have provided potential impeachment information to a Requesting Official, the Requesting Official shall inform the employing Agency Official how the prosecuting office used the information. A circumstance may arise in which a prosecutor or Requesting Official learns of potential impeachment information relating to an agency employee from a source other than the agency—including but not limited to the agency employee. In such circumstance, the Requesting Official shall notify the Agency Official of such information and provide the Agency with a timely opportunity to meaningfully express its views regarding the information, as required by Paragraph12. Regardless of the source of the information, the Requesting Official will:

(a) advise the employing Agency Official whether the employee provided an affidavit or testimony in a criminal proceeding or whether a decision was made not to use the employee as a witness or affiant because of potential impeachment issues;(b) advise the employing Agency Official whether the information was disclosed to a Court or to the defense and, if so, whether the Court ruled that the information was admissible for use as impeachment information; and

(c) provide the employing Agency Official a copy of any related pleadings, and any judicial rulings, findings or comments relating to the use of the potential impeachment information.

The agency shall maintain judicial rulings and related pleadings on information that was disclosed to the Court or the defense in a manner that allows expeditious access upon the request of any Requesting Official.
Continuing Duty to Disclose. Each agency plan shall include provisions which will assure that, once a request for potential impeachment information has been made, the prosecuting office will be made aware of any additional potential impeachment information that arises after such request and during the pendency of the specific criminal case or investigation in which the employee is a potential witness or affiant. A prosecuting office which has made a request for potential impeachment information shall promptly notify the relevant agency when the specific criminal case or investigation for which the request was made ends in a judgment or declination, at which time the agency’s duty to disclose shall cease.
Providing Records and Information to Another Federal Prosecuting Office and Disposition of Records(a) Distribution of Information to Another Federal Prosecuting Office with Notice to Agency Official(s). If an agency employee has been transferred to another judicial district, or will testify or serve as an affiant in another judicial district, the prosecuting office in the originating district may provide any relevant information from its Giglio system of records relating to that agency employee to a Giglio Requesting Official in the new district. Moreover, nothing shall prohibit the Requesting Official in the new district from consulting with the Requesting Official in the former district about the manner in which the former district handled certain potential impeachment information.The Giglio Requesting Official(s) providing the information shall notify the Agency Official(s) when distributing materials from its Giglio system of records to another prosecuting office, unless the information relates to pending investigations or other incomplete matters, the status of which may have changed or been resolved favorably to the agency employee. With regard to pending investigations or other incomplete matters, to avoid the unnecessary disclosure of potentially derogatory information regarding an agency employee, the Giglio Requesting Official transferring the information shall notify the relevant Agency Official(s) before providing any information to another prosecuting office, except as noted in paragraph 13. The Agency Official(s) shall provide a prompt update. Whether notice is provided before or contemporaneously with the transfer, the GiglioRequesting Official shall also advise the Agency Official(s) what materials will be or have been distributed.(b) Duty to Update. The Requesting Official in the new prosecuting office shall seek an update from Agency Official(s) as part of the Giglio analysis, and shall allow the agency the timely opportunity to fully express their views as required by Paragraph 12 and to provide an update. The Requesting Official in the new district is not bound by the former district’s decisions regarding disclosure of information to the Court or defense, or use of the agency employee as a witness or affiant, and should review the former district’s information along with other relevant information, when making an independent decision regarding disclosure to the Court or defense, use of the agency employee as a witness or affiant, and other related issues.(c) Removal of Records Upon Transfer, Reassignment, or Retirement of Employee. Upon being notified that an agency employee has retired, been transferred to an office in another judicial district, or been reassigned to a position in which the employee will neither be an affiant nor witness, and subsequent to the resolution of any litigation pending in the prosecuting office in which the agency employee was involved, the Requesting Official shall remove from the prosecuting office’s system of records any record that can be accessed by the identity of the employee. More specifically, the records must be removed at the conclusion of the direct and collateral appeals, if any, or within one year of the agency employee’s retirement, transfer, or reassignment, whichever is later.
Notification. When an agency employee is transferred to a new district, the Agency shall ensure that a Requesting Official in the new district is advised of any potential impeachment material known to the Agency when the employee begins meaningful work on a case or matter within the prosecuting district or is reasonably anticipated to begin meaningful work on such a case or matter.
Prosecuting Office Plans to Implement Policy. Each prosecuting office shall develop a plan to implement this policy. The plan shall include provisions that require: (a) communication by the prosecuting office with the Agency Official about the disclosure of potential impeachment information to the Court or defense counsel, including indicating what materials are being distributed, and allowing for the Agency to promptly update the information and express its views on whether certain information should be disclosed to the Court or defense counsel; (b) preserving the security and confidentiality of potential impeachment information through proper storage and restricted access within a prosecuting office; (c) when appropriate, seeking an ex parte, in camera review and decision by the Court regarding whether potential impeachment information must be disclosed to defense counsel; (d) when appropriate, seeking protective orders to limit the use and further dissemination of potential impeachment information by defense counsel; (e) allowing the relevant agencies the timely opportunity to fully express their views; and (f) information contained within the Giglio system of records may not be disclosed to persons outside of the Department of Justice except in a criminal case to which the United States is a party, and where otherwise authorized by law, regulation, or court order.
Exception to Requirements Regarding Providing Notice to Agencies and Soliciting Agency Views. In rare circumstances, a Giglio issue may arise immediately before or during a court proceeding, and a prosecuting office may determine that it does not have time to solicit the agency’s views or provide notice before it must take action on the matter. In such a case, the prosecuting office shall provide notice or solicit agency views as promptly as the circumstances reasonably permit. Many situations of this type can be avoided by ensuring that prosecutors and agency employee witnesses have candid conversations and that prosecutors submit formal Giglio requests sufficiently in advance of any proceedings.
Investigative Agency Plans to Implement Policy. Each investigative agency shall develop a plan to effectuate this policy.[updated January 2020]

9-5.110 – TESTIMONY OF FBI LABORATORY EXAMINERS

In situations where FBI laboratory examinations have resulted in findings having no apparent probative value, yet defense counsel intends to subpoena the examiner to testify, the United States Attorney (USA) should inform defense counsel of the FBI’s policy requiring payment of the examiner’s travel expenses by defense counsel. The USA should also attempt to secure a stipulation concerning this testimony. This will avoid needless expenditures of time and money attendant to the appearance of the examiner in court.

[updated December 2006]

9-5.150 – AUTHORIZATION TO CLOSE JUDICIAL PROCEEDINGS TO MEMBERS OF THE PRESS AND PUBLIC

Procedures and standards regarding the closure of judicial proceedings to members of the press and public are set forth in 28 C.F.R. § 50.9. Government attorneys may not move for or consent to the closure of any criminal proceeding without the express prior authorization of the Deputy Attorney General.

There is a strong presumption against closing proceedings, and the Department foresees very few cases in which closure would be warranted. Only when a closed proceeding is plainly essential to the interests of justice should a Government attorney seek authorization from the Deputy Attorney General to move for or consent to closure of a judicial proceeding. Government attorneys should be mindful of the right of the public to attend judicial proceedings and the of the Department’s obligation to the fair administration of justice.

Any request for authorization to move for or consent to closure, in addition to setting forth the relevant and procedural background, should include a detailed explanation of the need for closure, addressing each of the factors set forth in 28 C.F.R. § 50.9(c)(1)-(6). In particular, the request should address in detail how an open proceeding will create a substantial likelihood of danger to specified individuals; how ongoing investigations will be jeopardized; or how a person’s right to a fair trial will be impaired. The request must also consider reasonable alternatives to closure, such as delaying the proceeding, if possible, until the reasons justifying closure cease to exist. An applicable form is available to Department attorneys.

Whenever authorization to close a judicial proceeding is being sought pursuant to 28 C.F.R. § 50.9 in a case or matter under the supervision of the Criminal Division, the request should be directed to the Policy and Statutory Enforcement Unit, Office of Enforcement Operations. In cases or matters under the supervision of other divisions of the Department of Justice, the appropriate division should be contacted.

Because of the vital public interest in open judicial proceedings, every 60 days after termination of any proceeding closed pursuant to 28 C.F.R. § 50.9, Government attorneys must review the records of the proceedings to determine whether the reasons for closure still apply. As soon as the justification for closure ceases to exist, the Government must file an appropriate motion to have the records unsealed. See 28 C.F.R. § 50.9(f). While the Criminal Division monitors compliance with this requirement, it is the affirmative obligation of the U.S. Attorney’s Offices to ensure that sealed records are reviewed in accordance with the regulation’s requirements. U.S. Attorney’s Offices should acknowledge this obligation in any request for authorization to move for or consent to closure. source

[updated January 2020]

The Prosecutor’s Disclosure Obligation

Prosecutors and police have a duty to seek out and voluntarily disclose every bit of evidence that helps a person accused of a crime defend themselves from prosecution. This kind of “exculpatory” evidence can come in the form of improper evidence handling, insufficient officer training, negative officer performance reviews, and even dishonesty or wrongdoing by a police officer.

Unfortunately, not all police officers or prosecutors understand the full extent of this obligation. In fact, some police officers in Washington have even actively attempted to keep information about their past misconduct secret from those they have accused of a crime.

The duty to disclose derives from (1) the Constitutional Due Process requirement for disclosure set out in Brady v. Maryland, (2) the Criminal Rules on discovery, and (3) the Rules of Professional Conduct.

Here we provide an overview designed to give a basic understanding of the duties and obligations of the government as they relate to disclosure obligations. We end with a brief discussion of the new model policy on Potential Impeachment Disclosure (PID), and new areas of future disclosure obligations.

CONSTITUTIONAL DUE PROCESS

There are over 30,000 cases in the United States that discuss the government’s obligation to provide exculpatory information to the defense. Every prosecutor and defense attorney should be familiar with the following cases.

Brady v. Maryland, 373 U.S. 83 (1963) (Prosecution violates a defendant’s due process rights by failing to turn over potentially exculpatory evidence).
United States v. Bagley, 473 U.S. 667 (1985) (Brady rule applies to impeachment evidence).
Silva v. Brown, 416 F.3d 980 (9th Cir. 2005) (Impeachment evidence is especially likely to be “material” under Brady; thus, the government must reveal promises of leniency or immunity for its witnesses).
Kyles v. Whitley, 514 U.S. 419 (1995) (The prosecutor bears the primary responsibility of identifying and turning over Brady evidence. The prosecutor’s obligation to turn over all exculpatory evidence extends to evidence that is in the possession of the police, including information that the police have not disclosed to the prosecutor. “This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence”).
United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) (“The prudent prosecutor will resolve doubtful questions in favor of disclosure.”).
In re Personal Restraint Petition of Gentry, 137 Wn.2d 378, 397 n. 9 (1999) (Even after conviction, the prosecutor is required by the ethics of the office “to inform the appropriate authority of . . . information that casts doubt upon the correctness of the conviction.”).
State v. Copeland, 89 Wn. App. 492, 497-98, 949 P.2d 458 (1998) (A prosecutor must disclose prior criminal convictions of witnesses intended to be called for trial if that information is in the knowledge, control or possession of any member of the prosecution office, even where the deputy prosecutor on the case is not actually aware of the prior conviction of the witness).
State v. Garcia, 45 Wn. App. 132, 724 P.2d 412 (1986) (A prosecutor must disclose the substance of an eyewitness’ oral recantation and any prosecutor notes for an in camera review of the conversation even though the prosecutor did not believe the recantation). This rule also applies to non-lawyer support staff at a prosecutor’s office, such as victim/witness advocates and secretaries.
State v. Blackwell, 120 Wn.2d 822, 828 (1993) (If the defense can first show materiality, the burden shifts to the prosecution to attempt to obtain evidence held in an officer’s file). If the prosecution will not comply with a request for any information in a police officer’s file, a motion can be brought under Blackwell. However, filling public records request is often a quicker solution.

CRIMINAL DISCOVERY RULES

Discovery in Criminal cases is controlled by CrR 4.7 in Superior Court, and CrRLJ 4.7 in District Court. Although these rules differ somewhat, there is not meaningful difference as it relates to Brady obligations.

CrR 4.7(a)(1): Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney’s possession or control no later than the omnibus hearing.
CrR 4.7(a)(1)(vi): Any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.
CrR 4.7(3): Except as is otherwise provided as to protective orders, the prosecuting attorney shall disclose to defendant’s counsel any material or information within the prosecuting attorney’s knowledge which tends to negate defendant’s guilt as to the offense charged.
CrR 4.7(4): The prosecuting attorney’s obligation under this section is limited to material and information within the knowledge, possession, or control of members of the prosecuting attorney’s staff.
CrR 4.7(d): Upon defendant’s request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant. If the prosecuting attorney’s efforts are unsuccessful and if such material or persons are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to the defendant.

RULES OF PROFESSIONAL CONDUCT

The Rules of Professional Conduct contain two rules exclusively for prosecutors that relate to the prosecutor’s obligations under Brady.

RPC 3.8(d) compels prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense and, in connection with sentencing, disclose to the defense and to the tribunal all mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

A prosecutor’s obligations under RPC 3.8(d) are very similar to the disclosure obligations imposed by Constitutional Due Process. As such, failure to comply with the Brady obligations can result in negative licensing ramifications for a criminal prosecutor. The more knowing and willful a violation of this rule, the more negative the ramifications have been.

RPC 3.8(g) is a newer rule, coming into effect in December 2011. Under RPC 3.8(g), when a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted, defendant is innocent of the offense of which the defendant was convicted the prosecutor shall promptly disclose that evidence to an appropriate court or authority, and if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence to the defendant unless a court authorizes delay, and make reasonable efforts to inquire into the matter, or make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter.

CASE STUDIES

Two recent Washington cases show how prosecutors have dealt with their Brady obligations, and how some police officers have greatly resisted prosecutorial efforts to disclose findings of their misconduct.

Lackey V. Lewis County:

The Lewis County Sheriff’s Office conducted an internal investigation on Deputy Lackey. The investigation made findings that Lackey had committed job related acts of dishonesty and other violations.

The Sheriff sent Lackey a letter sustaining the findings and indicating that Lackey was to be separated from employment for the other violations. The letter also stated that the investigative report was being forwarded to the Lewis County Prosecutor for an analysis under Brady and that a determination of lack of veracity would constitute an additional and independent basis for termination.

The Prosecutor responded by letter, writing “the disciplinary file you provided contains findings that Deputy Lackey committed job-related acts of dishonesty or untruthfulness … I am obligated to provide this information to defendants and defense attorneys in every case in which Deputy Lackey is likely to testify as a witness for the State.”

Lackey was separated from employment but appealed through Civil Service. A settlement was reached between Lackey and the Sheriff’s Office. The parties to the agreement were the Lewis County Sheriff’s Office, the Deputies Guild, and Lackey. The Prosecutor was not a party to the agreement.

The Sheriff’s Office “agreed to remove any reference to findings of dishonesty in the plaintiff’s termination letter; however, the findings were to remain in the plaintiff’s permanent investigation file.” The agreement also stated that the letter from the Prosecutor would be sealed by the Sheriff.

The settlement agreement further stated that the Brady memo from Mr. Golden to Mr. Walton would remain sealed by the Sheriff unless directed to be disclosed by a court order, public records request, or other applicable and controlling laws.

NOTE: Police union contracts and settlement agreements cannot prevent the disclosure of Brady material as a defendant’s constitutional right is paramount. An officer’s privacy interest cannot prevent disclosure of disciplinary records as such records are considered to be of legitimate concern to the public. See, e.g. Dawson v. Daly, 120 Wn.2d 782, 795-96, 845 P.2d 995 (1993); Cowles Pub’g Co. v. State Patrol, 44 Wn. App. 882, 724 P.2d 379 (1986), rev’d on other grounds, 109 Wn.2d 712, 748 P.2d 597 (1988).

Lackey then obtained provisional employment in Mason County, pending a background investigation. The Lewis County Prosecutor became aware of this and sent Lackey a letter stating he would be sending his analysis letter to the Mason County Prosecutor, but gave Lackey 10 days to object. The letter was subsequently sent.

Lackey was separated from his new job. He then filed claims against Lewis County and the Lewis County Prosecutor for sharing Brady information, Due Process violation and deprivation of property interest, defamation, invasion of privacy, and an injunction.

All federal claims were dismissed by the federal court.

“The court can find no law prohibiting a prosecutor from sharing potentially exculpatory or impeaching evidence with prosecutors of another jurisdiction. Such a law would be antithetical to a prosecutor’s duty of disclosure mandated by Brady v. Maryland. A reasonable prosecutor in Mr. Golden’s position could feel obliged to offer such information to a fellow prosecutor to remain in compliance with Brady and its progeny; and a reasonable prosecutor in Mr. Golden’s position would not have known that his conduct in releasing the Brady letter would violate any clearly established constitutional right.”

The court also wrote “The plaintiff has failed to identify any law that recognizes a police officer’s right to a name-clearing hearing after a Brady determination has been made, or any law prohibiting a prosecutor from transmitting a Brady determination to another jurisdiction.”

Lackey v. Lewis County_ 2009 U.S. Dist. LEXIS 94674.pdf

Doyle V. Lee, 166 Wn. App. 397 (2012):

Doyle left his employment with the Sierra County Sheriff’s Office after a settlement agreement dismissing a disciplinary action in exchange for his resignation. The agreement precluded Doyle from applying for or accepting employment with Sierra County for five years. Before this agreement was reached, Doyle had first been subject to termination, and later was placed on unpaid, one-year probation.

Later in 2007, Doyle became employed by the Quincy Police Department (who presumably did not know about the Sierra County issue when they hired him).

In 2009, Doyle called the police Moses Lake Police Department (MLPD) reporting documents related to his Sierra County employment had been stolen. MLPD recovered and reviewed the documents. Believing the documents showed that an investigation resulted in a finding that Doyle was dishonest, MLPD passed this information to then Grant County Prosecutor Angus Lee. Lee preliminarily determined the dishonesty finding and the supporting information were potential impeachment materials that his office was required to disclose to criminal defendants in compliance with Brady.

Mr. Lee notified Doyle of his determination and invited him to provide any information he wished to assist in making the final determination.

Doyle responded by suing for declaratory relief, and seeking an Ex Parte order to prohibit Mr. Lee from using, or disseminating any of the documents.

The trial court entered a preliminary injunction, but allowed the prosecution to comply with Brady mandate by submitting the materials to the criminal trial courts for in camera review on cases where Doyle was a potential witness. Each criminal trial judge that ruled on the in camera review ordered disclosure of the materials under Brady and Bagley.

Mr. Lee moved for summary judgment to dissolve the preliminary injunction and to dismiss the case. Finding that the Sierra County outcome was adverse to Doyle and that such information would be of public concern, the trial court ordered the immediate termination of the preliminary injunction and granted Mr. Lee’s motion for summary dismissal.

In affirming the trial court’s summary judgment, the appellate court wrote “a sustained finding of dishonesty existed resulting in adverse consequences to Officer Doyle. Under Brady, a prosecutor is required to disclose exculpatory evidence, including an officer’s dishonesty…. Mr. Lee complied with the Brady mandates by giving the documents to numerous affected defense attorneys.”

The court also awarded Mr. Lee tens of thousands in attorneys fees for having to defend against the action.

Doyle v. Lee_ 166 Wn. App. 397.pdf

MODEL POTENTIAL IMPEACHMENT DISCLOSURE POLICY

In 2013, after the Lackey and Doyle cases, prosecutors in Washington State, through the Washington Association of Prosecuting Attorney’s, published a model policy for the handling of Brady/Doyle material for officers. Although some prosecutor’s offices still use the term “Brady Cop”, many have adopted the model policy and the term “Potential Impeachment Disclosure” (PID) when referring to disclosure obligations involving a police officer.

The model policy was designed to achieve compliance with the above requirements, and create state-wide uniformity in the way potential impeachment of recurring government witness issues are handled. According to the model policy, “All County deputy prosecuting attorneys are required to know and follow this protocol and all relevant law concerning potential impeachment of recurring government witness disclosure obligations.”

Under the model policy, the PID standard is likely to be satisfied by reliable information that an officer was dishonest in connection with the performance of official duties. It is less likely to be satisfied by dishonesty in connection with an officer’s private affairs. Under unusual circumstances, information about private acts might be subject to the PID policy if the acts could be admissible under Evidence Rule 608(b) as evidence of untruthfulness.

PID Model Policy WAPA 2013.pdf

Clark County PID:

Below you can download the “Brady Policy” and list maintained by the Clark County Prosecutor’s Office and the Vancouver City Attorney’s Office.

PID GUIDELINES

The PID Standard depends on what a reasonable person could believe, not on what the prosecutor’s office or a law enforcement agency does believe.
Consequently, disclosure may be required in cases where the prosecutor’s office and/or the law enforcement agency believe that no misconduct occurred, if a reasonable person could draw a different conclusion.
If the prosecutor’s office concludes that an officer is subject to PID, that conclusion does not necessarily reflect a conclusion that the officer committed misconduct, or that the officer is not credible as a witness.
PID is about meeting the government’s obligation to disclose. It is NOT about making a determination on admissibility, or on an officer’s credibility, or employability.
A determination that disclosure is required is not a stipulation by the prosecution as to admissibility. In fact, it is not uncommon for the prosecution to make a disclosure of material to the defense, but then later argue for suppression or exclusion of that material at trial.
When the determination is questionable, the prosecution should submit the material to the court in camera for a determination on the disclosure obligation . If the defense believes there is material that is not being disclosed pursuant to Brady and its progeny, the defense should move the court for an in camera review of the material it believes exists and is not being disclosed.
If material is submitted for in camera review, it may or may not be disclosed by the court. As a result, the defense either obtains the requested material, or builds a record for any future appeal regarding what was not disclosed.

THE FUTURE OF BRADY

A review of the case law regarding Brady material reveals that the law is expanding and will continue to expand the scope of discovery beyond simple acts of dishonesty by an officer. Brady disclosure obligations at their heart deal with ANY information that may tend to negate or call into question the testimony of a witness, thereby making the information material for impeachment purposes.

Mental and Physical Health: depression and other mental health disorders are increasingly common across America. Police officers and jail guards are no exception. In fact, it has been reported that jail guards suffer from PTSD at higher rates than combat veterans. The drugs some take to treat these issues may be very relevant to a particular officer’s ability to observe and recall a particular incident. Likewise, if an officer has been diagnosed and in need of medication, the absence of appropriate medication may also be relevant.

Evidence of prejudice towards a protected class: Prejudice and bias against a group of people can be very relevant to impeachment of an officer’s testimony. This kind of information can often be found in comments that officers make publicly on social media.

Performance Reports: Most government witnesses (especially at the State Crime Laboratory) are subject to regular performance testing and evaluations. Adverse or substandard performance reviews or evaluations are potentially very relevant to impeaching the testimony of a government witness.

Substance Abuse: If an officer was on drugs or alcohol, or dealing with a bad hangover, at the time of arrest, this information is very relevant to the officer’s ability to observe and recall an incident many months later at trial. As such, use/abuse of drugs or can be relevant information. source

7 Types of Exculpatory Evidence that Can Trigger a Brady Violation

The Brady rule applies to all types of evidence a defendant may be able to use to protect himself or herself from a conviction. Some examples include:

1. Evidence of Police Misconduct

If the police racially profiled you, violated your constitutional rights, or engaged in any other form of misconduct before, during, or after your arrest, this could have a substantial impact on your criminal case. As a result, you are entitled to know if prosecutors have any evidence of police misconduct in their possession.

2. Evidence that Someone Else Committed the Crime

Evidence that someone else committed the crime in question has strong exculpatory value, and it is almost certainly material to the prosecution’s case against you. This could include a confession, witness statements, surveillance footage, or any of a variety of other forms of evidence.

3. Records that Suggest You Didn’t Commit the Crime

If the police report or any other records suggest that you didn’t commit the crime (or may not have committed the crime), this is also something you are entitled to know. Prosecutors should disclose these records; and, if they don’t, this could entitle you to legal remedies as discussed in detail below.

4. Physical Evidence that Casts Doubt on Your Guilt

Along with documentary evidence, any physical evidence that casts doubt on your guilt is also highly likely to be material and exculpatory. This could include anything from the weapon used to commit the crime in question to a piece of property that you allegedly stole.

5. Information about a Deal with an Informant or Witness

If any of the government’s witnesses received a deal in connection with their decision to testify, this is key information that could have a major impact on the judge’s or jury’s decision. This means that defendants are generally entitled to disclosure of this information as well.

6. Information that Discredits a State’s Witness

Along with information about a deal, any other information that discredits a state’s witness could also trigger the prosecution’s obligation to voluntarily disclose. For example, if a witness changes his or her story on the witness stand after giving prosecutors a pre-trial statement, failure to disclose the prior statement may constitute a Brady violation.

7. Information that Casts Doubt on an Alleged Victim’s Testimony

Information that casts doubt on an alleged victim’s testimony can also trigger the Brady rule. This includes (but is not limited to) prior inconsistent statements, evidence that the victim is lying, and evidence that the victim has made similar false allegations in the past.

But, it is important to keep in mind that judges examine possible Brady violations on a case-by-case basis. To establish a Brady violation, you must be able to show that the evidence is material and exculpatory based on the circumstances of your case. Other types of evidence may constitute “Brady material” as well, and the types of evidence listed above may or may not qualify depending on the facts at hand.

Potential Consequences of the Prosecution’s Failure to Disclose Exculpatory Evidence

Let’s say prosecutors withhold exculpatory evidence before or during your trial. What does this mean for the outcome of your case? The potential consequences of the prosecution’s failure to disclose exculpatory evidence include:

Production of the Exculpatory Evidence – If it is still possible to “correct” a Brady violation, then the judge may simply order the prosecution to disclose the evidence to the defense.
Mistrial – If a Brady violation cannot be corrected, the judge may order a mistrial.
Dismissal – If a Brady violation is particularly egregious, the judge may order the case dismissed rather than declaring a mistrial.
Reversal – If a Brady violation only comes to light after a defendant’s conviction, then the defendant may be entitled to a reversal—either with or without the possibility of a retrial.
No Consequences – If the judge determines that the withheld evidence is not material and exculpatory, then the prosecution’s failure to disclose it may not have any consequences. source

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

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S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

14. Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).

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The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

What is Probable Cause? and.. How is Probable Cause Established?

The Truth News — Tue, 26 Dec 2023 19:11:48 +0000

What is Probable Cause? and.. How is Probable Cause Established?

Probable Cause

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable Cause.—The concept of “probable cause” is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define “probable cause”; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. “In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.”¹¹⁶ Probable cause is to be determined according to “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”¹¹⁷ Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.¹¹⁸ For the same reason, reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.”¹¹⁹ Courts will sustain the determination of probable cause so long as “there was substantial basis for [the magistrate] to conclude that” there was probable cause.¹²⁰

Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.¹²¹ In United States v. Ventresca,¹²² however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. “Recital of some of the underlying circumstances in the affidavit is essential,” the Court said, observing that “where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause,” the reliance on the warrant process should not be deterred by insistence on too stringent a showing.¹²³

Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States¹²⁴ may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully fit the description, and arrested him. The Court held that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,¹²⁵ apparently considered the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas¹²⁶ held insufficient an affidavit that merely asserted that the police had “reliable information from a credible person” that narcotics were in a certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that evidence was present or that crimes had been committed—and, second, the affiant must present information that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,¹²⁷ the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.

The Court rejected the “totality” test derived from Jones and held that the informant’s tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant’s credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris¹²⁸ approved a warrant issued largely on an informer’s tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant’s residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a “prudent person,” that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant’s reputation, could supplement this determination.

subject and returned to the “totality of the circumstances” approach to evaluate probable cause based on an informant’s tip in Illinois v. Gates.¹²⁹ The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant’s reliability and his basis for knowledge as independent requirements. Instead, “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”¹³⁰ In evaluating probable cause, “[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”¹³¹

¹¹⁶ Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). “[T]he term ‘probable cause’ . . . means less than evidence which would justify condemnation.” Lock v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An “anticipatory” warrant does not violate the Fourth Amendment as long as there is probable cause to believe that the condition precedent to execution of the search warrant will occur and that, once it has occurred, “there is a fair probability that contraband or evidence of a crime will be found in a specified place.” United States v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). “An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.’” 547 U.S. at 94.

¹¹⁷ Brinegar v. United States, 338 U.S. 160, 175 (1949).

¹¹⁸ United States v. Ventresca, 380 U.S. 102, 108–09 (1965).

¹¹⁹ Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review).

¹²⁰ Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party “must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause.” Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).

¹²¹ Byars v. United States, 273 U.S. 28 (1927) (affiant stated he “has good reason to believe and does believe” that defendant has contraband materials in his possession); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely stated his conclusion that defendant had committed a crime). See also Nathanson v. United States, 290 U.S. 41 (1933).

¹²² 380 U.S. 102 (1965).

¹²³ 380 U.S. at 109.

¹²⁴ 358 U.S. 307 (1959). For another case applying essentially the same probable cause standard to warrantless arrests as govern arrests by warrant, see McCray v. Illinois, 386 U.S. 300 (1967) (informant’s statement to arresting officers met Aguilar probable cause standard). See also Whitely v. Warden, 401 U.S. 560, 566 (1971) (standards must be “at least as stringent” for warrantless arrest as for obtaining warrant).

¹²⁵ 362 U.S. 257 (1960).

¹²⁶ 378 U.S. 108 (1964).

¹²⁷ 393 U.S. 410 (1969). Both concurring and dissenting Justices recognized tension between Draper and Aguilar.See id. at 423 (Justice White concurring), id. at 429 (Justice Black dissenting and advocating the overruling of Aguilar).

¹²⁸ 403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S. 143, 147 (1972) (approving warrantless stop of motorist based on informant’s tip that “may have been insufficient” under Aguilar and Spinelli as basis for warrant).

¹²⁹ 462 U.S. 213 (1983). Justice Rehnquist’s opinion of the Court was joined by Chief Justice Burger and by Justices Blackmun, Powell, and O’Connor. Justices Brennan, Marshall, and Stevens dissented.

¹³⁰ 462 U.S. at 213.

¹³¹ 462 U.S. at 238. For an application of the Gates “totality of the circumstances” test to the warrantless search of a vehicle by a police officer, see, e.g. Florida v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013). source

Probable Cause: Definition, Legal Requirements

What Is Probable Cause?

Probable cause is a requirement in criminal law that must be met before a police officer can make an arrest, conduct a search, seize property, or get a warrant.

KEY TAKEAWAYS

Probable cause is a requirement in criminal law that must be met before a police officer can make an arrest, conduct a search, seize property, or get a warrant.
The probable cause requirement stems from the Fourth Amendment of the U.S. Constitution, which states that citizens have the right to be free from unreasonable government intrusion into their persons, homes, and businesses.
Illinois v. Gates is a landmark case in the evolution of probable cause and search warrants.1

Understanding Probable Cause

Probable cause requires that the police have more than just suspicion—but not to the extent of absolute certainty—that a suspect committed a crime. The police must have a reasonable basis in the context of the totality of the circumstances for believing that a crime was committed. The probable cause requirement stems from the Fourth Amendment of the U.S. Constitution, which provides for the right of citizens to be free from unreasonable government intrusion into their persons, homes, and businesses.

Probable cause is important in two aspects of criminal law:

Police must have probable cause before they search a person or property, and before they arrest a person.
The court must find that there is probable cause to believe the defendant committed the crime before they are prosecuted.

When a search warrant is in effect, police must generally search only for the items described in the warrant, although they can seize any contraband or evidence of other crimes that they find. However, if the search is deemed to be illegal, any evidence found becomes subject to the “exclusionary rule” and cannot be used against the defendant in court.

What is malicious prosecution California?

CACI No. 1501. Wrongful Use of Civil Proceedings

“The tort of malicious prosecution lies to compensate an individual who is maliciously hailed into court and forced to defend against a fabricated cause of action.” Pace v Hillcrest Motor Co. (1980) 101 CA3d 476, 478. To establish the cause of action, a plaintiff must plead and prove that (CACI 1500, 1501):

Malicious prosecution is when someone sues or files criminal charges against someone else without probable cause and with harmful intent. It can be a civil or criminal lawsuit.

Some examples of malicious prosecution include:

Providing false evidence to the police that someone committed a crime
Suing someone for hurting them even if they never caused harm
A police officer or government official filing criminal charges against someone because of personal animosity, bias, or another reason outside the interests of justice

“The tort of malicious prosecution lies to compensate an individual who is maliciously hailed into court and forced to defend against a fabricated cause of action.” Pace v Hillcrest Motor Co. (1980) 101 CA3d 476, 478.

CA Penal Code § 170 (2022) – Misuse of the Warrant System – Crimes Against Public Justice

CA Penal Code § 170 (2022) click here

Penal Code § 170 . Every person who maliciously and without probable cause procures a search warrant or warrant of arrest to be issued and executed, is guilty of a misdemeanor.

In United States criminal law, probable cause is the standard^[1] by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the U.S. Supreme Court’s 1964 decision Beck v. Ohio, is when “whether at [the moment of arrest] the facts and circumstances within [an officer’s] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense.”^[2]

It is also the standard by which grand juries issue criminal indictments. The principle behind the standard is to limit the power of authorities to perform random or abusive searches (unlawful search and seizure), and to promote lawful evidence gathering and procedural form during criminal arrest and prosecution. The standard also applies to personal or property searches.^[3]

The Supreme Court in Berger v. New York 1967 explained that the purpose of the probable cause requirement of the Fourth Amendment is to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed.^[4] The term probable cause itself comes from the Fourth Amendment of the United States Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable in this case may relate to statistical probability or to a general standard of common behavior and customs. The context of the word probable here is not exclusive to community standards, and could partially derive from its use in formal mathematical statistics as some have suggested;^[5] but cf. probō, Latin etymology.

In U.S. immigration proceedings, the “reason to believe” standard has been interpreted as equivalent to probable cause.^[6]

Probable cause should not be confused with reasonable suspicion, which is the required criteria to perform a Terry stop in the United States of America. The criteria for reasonable suspicion are less strict than those for probable cause. source

The Constitution protects you from having your person or property searched without probable cause. But what is probable cause?

This guide explains how probable cause is defined and what probable cause requirements means for you. You’ll also see some examples of probable cause so you can better understand how this legal rule applies in the real world.

The Probable Cause Requirement

The Fourth Amendment of the U.S. Constitution protects people against being unlawfully searched or unfairly arrested by police. The text of the amendment reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Because of this amendment, police cannot conduct a search without probable cause of wrongdoing. And they cannot arrest you unless there is probable cause of a crime being committed.

If you are searched without probable cause, any evidence collected must be suppressed. This means it cannot be used against you in court. If you are arrested without probable cause, the arrest is considered invalid and any evidence collected as a result of it will be suppressed.

Amdt4.5.3 Probable Cause Requirement

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The concept of probable cause is central to the meaning of the Warrant Clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define probable cause; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.¹ Probable cause is to be determined according to the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.² Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.³ For the same reason, reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.⁴ Courts will sustain the determination of probable cause so long as there was substantial basis for [the magistrate] to conclude that there was probable cause.⁵

Footnotes

Jump to essay-1Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). [T]he term ‘probable cause’. . . means less than evidence which would justify condemnation. Lock v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An anticipatory warrant does not violate the Fourth Amendment as long as there is probable cause to believe that the condition precedent to execution of the search warrant will occur and that, once it has occurred, there is a fair probability that contraband or evidence of a crime will be found in a specified place. United States v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.’ 547 U.S. at 94.
Jump to essay-2Brinegar v. United States, 338 U.S. 160, 175 (1949).
Jump to essay-3United States v. Ventresca, 380 U.S. 102, 108–09 (1965).
Jump to essay-4Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review).
Jump to essay-5Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause. Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).
source

read ALL OF THE FOURTH AMENDMENT BELOW JUST CLICK THE LINK

Fourth Amendment – Search and Seizure

What Is the Definition of Probable Cause?

According to the U.S. Supreme Court, probable cause exists when the “facts and circumstances” that police officers know about, based on “reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.”

In other words, if a reasonably cautious person was provided with the information the police officers had at the time, that person would have a valid reason to believe that a crime was taking place. This reasonable belief of criminal activity is sufficient to justify either a search or an arrest.

Probable cause is determined based on the totality of the circumstances, so all available information can be considered in deciding if there is valid justification to either conduct a search or to arrest a suspect.

Satisfying the Probable Cause Requirement

Law enforcement officials must obtain a search warrant before conducting a search when it is possible to do so. A judge should only issue a search warrant if there is probable cause, which means there is enough credible information to suggest evidence of a crime will be discovered during the search.

Law enforcement officials must also obtain an arrest warrant before arresting someone when it is possible and practical to do so. Again, there must be probable cause or credible information suggesting someone most likely committed a criminal offense before an arrest warrant is issued.

Warrantless searches and warrantless arrests can occur in certain circumstances such as when police see evidence of a crime in plain view or when there are exigent circumstances because failure to act could result in the destruction of evidence or harm to others.

When a warrantless search or arrest occurs, law enforcement officials need to provide proof of probable cause after the fact. If law enforcement cannot satisfy the probable cause requirement, the evidence collected will be suppressed or the arrest will be deemed invalid.

Exceptions to the Probable Cause Requirement

There are very limited exceptions when evidence is still admissible even if it was obtained without probable cause.

Exceptions include circumstances where police were acting in good faith, but there was a problem they were unaware of. For example, if police arrest someone because they believe there is a valid warrant, but it turns out a mistake was made and there wasn’t, then evidence collected after the arrest would still be admissible.

Examples of Probable Cause

There are many different examples of probable cause that could justify a search or justify an arrest. Here are some common examples:

A law enforcement officer pulls someone over for a traffic violation. The officer notices drug paraphernalia on the front seat or notices the driver is slurring their words and is visibly intoxicated and likely committing a DUI. The drug paraphernalia or the obvious intoxication provides probable cause for a search of the vehicle and/or for an arrest.
A law enforcement officer observes someone pointing a gun at a convenience store employee in an apparent robbery. This unlawful act the officer observed provides probable cause for arrest.
A law enforcement officer visits a person’s home after a report of domestic violence and observes weapons in the home and bruises on the alleged victim. This provides probable cause for a search of the home and, if the available evidence creates a reasonable suspicion of a crime, also probable cause for an arrest.

Probable cause may come from officers directly observing evidence suggestive of criminal activity or from credible reports of criminal misconduct from trustworthy sources.

What If an Arrest or Search Occurs Without Probable Cause?

If you believe you were searched or arrested without probable cause, you can argue your constitutional rights were violated.

If a judge determines there was no probable cause and no exceptions such as the good faith exception apply, evidence collected as a result of the unlawful search or unlawful arrest will not be admissible in court against you.

In some cases, you may also have grounds for a lawsuit if you were searched or arrested without probable cause. However, suing the government can be a challenge even in situations where you believe your rights were violated as a result of sovereign immunity rules.

When you suspect a violation of your rights, it is very important to talk with an experienced attorney. If you have been charged with a crime, a lawyer can also help you to determine if you may be able to get evidence suppressed based on a constitutional violation. You should reach out to an attorney ASAP to protect yourself as you navigate the criminal justice system. source

California Penal Code § 170 – Misuse of the Warrant System – Crimes Against Public Justice

Probable Cause – Definition

Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search). Under exigent circumstances, probable cause can also justify a warrantless search or seizure. Persons arrested without a warrant are required to be brought before a competent authority shortly after the arrest for a prompt judicial determination of probable cause.

Overview

Constitutional Basis

Although the Fourth Amendment states that “no warrants shall issue, but upon probable cause”, it does not specify what “probable cause” actually means. The Supreme Court has attempted to clarify the meaning of the term on several occasions, while recognizing that probable cause is a concept that is imprecise, fluid and very dependent on context. In Illinois v. Gates, the Court favored a flexible approach, viewing probable cause as a “practical, non-technical” standard that calls upon the “factual and practical considerations of everyday life on which reasonable and prudent men […] act”.1 Courts often adopt a broader, more flexible view of probable cause when the alleged offenses are serious.

Application to Arrests

The Fourth Amendment requires that any arrest be based on probable cause, even when the arrest is made pursuant to an arrest warrant. Whether or not there is probable cause typically depends on the totality of the circumstances, meaning everything that the arresting officers know or reasonably believe at the time the arrest is made.2 However, probable cause remains a flexible concept, and what constitutes the “totality of the circumstances” often depends on how the court interprets the reasonableness standard.3

A lack of probable cause will render a warrantless arrest invalid, and any evidence resulting from that arrest (physical evidence, confessions, etc.) will have to be suppressed.4 A narrow exception applies when an arresting officer, as a result of a mistake by court employees, mistakenly and in good faith believes that a warrant has been issued. In this case, notwithstanding the lack of probable cause, the exclusionary rule does not apply and the evidence obtained may be admissible.5 Unlike court clerks, prosecutors are part of a law enforcement team and are not “court employees” for purposes of the good-faith exception to the exclusionary rule.6

Application to Search Warrants

Probable cause exists when there is a fair probability that a search will result in evidence of a crime being discovered.7 For a warrantless search, probable cause can be established by in-court testimony after the search. In the case of a warrant search, however, an affidavit or recorded testimony must support the warrant by indicating on what basis probable cause exists.8

A judge may issue a search warrant if the affidavit in support of the warrant offers sufficient credible information to establish probable cause.9 There is a presumption that police officers are reliable sources of information, and affidavits in support of a warrant will often include their observations.10 When this is the case, the officers’ experience and training become relevant factors in assessing the existence of probable cause.11 Information from victims or witnesses, if included in an affidavit, may be important factors as well.12

The good faith exception that applies to arrests also applies to search warrants: when a defect renders a warrant constitutionally invalid, the evidence does not have to be suppressed if the officers acted in good faith.13 Courts evaluate an officer’s good faith by looking at the nature of the error and how the warrant was executed.14

Probable Cause in the Digital Age

While the Fourth Amendment’s probable cause requirement has historically been applied to physical seizures of tangible property, the issue of searches and seizures as applied to data has come to the Supreme Court’s attention in recent years.

In Riley v California (2014), the Supreme Court held: “The police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.” This would seem to group cell phones in with traditional items subject to traditional court tests and rules for searches and seizures.

Riley, however, did not end the inquiry into digital data’s interaction with the Fourth Amendment. For the 2018 term, the Supreme Court has agreed to hear Carpenter v. United States. Carpenter, accused of several robberies, was arrested after “his phone company shared data on his whereabouts with law-enforcement agents.”

Mr. Carpenter is challenging the “constitutionality of the Stored Communications Act, a law permitting phone companies to divulge information when there are ‘specific and articulable facts’ that are ‘relevant and material’ to a criminal investigation.” His complaint states that “his privacy rights under the Fourth Amendment were violated when his phone company shared data on his whereabouts with law-enforcement agents.” This case will likely have a significant impact on the role that probable cause plays in the ability of data companies to share user information with law enforcement.

1. See Illinois v. Gates, 462 U.S. 213, 232 (1983).
2. United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004).
3. Prosecutor’s Manual for Arrest, Search and Seizure, § 6-6(b) (2004).
4. See Mapp v. Ohio, 367 U.S. 643 (1961), at 648, 655.
5. See Ariz. v. Evans, 514 U.S. 1 (1995).
6. People v. Boyer, 305 Ill. App. 3d 374 (1999), at 379-80.
7. See Gates, 462 U.S. at 238.
8. Whiteley v. Warden, 401 U.S. 560, 564 (1971).
9. Prosecutor’s Manual for Arrest, Search and Seizure, § 3-2(c) (2004).
10. See Franks v. Delaware, 438 U.S. 154, 171 (1978).
11. See United States v. Mick, 263 F.3d 553, 566 (6th Cir. 2001).
12. See United States v. Schaefer, 87 F.3d 562, 566 (1st Cir. 1996).
13. See United States v. White, 356 F.3d 865 (8th Cir. 2004).
14. See, e.g., United States v. Clark, 638 F.3d 89, 100–05 (2d Cir. 2011)
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Supreme Court Interpretation of Probable Cause

The Fourth Amendment’s protection against unreasonable searches and seizures generally means law enforcement must have a warrant or “probable cause” to search someone’s property or make an arrest. But probable cause can come in many forms, and what qualifies as probable cause is something the Supreme Court has grappled with for many years.

What the Fourth Amendment Says

What is probable cause?

How is probable cause established?

How Does Law Enforcement Establish Probable Cause?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.¹ In United States v. Ventresca,² however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. Recital of some of the underlying circumstances in the affidavit is essential, the Court said, observing that where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the reliance on the warrant process should not be deterred by insistence on too stringent a showing.³

Probable Cause Based on Tips from Informants

Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States⁴ may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully fit the description, and arrested him. The Court held that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,⁵ apparently considered the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas⁶ held insufficient an affidavit that merely asserted that the police had reliable information from a credible person that narcotics were in a certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that evidence was present or that crimes had been committed—and, second, the affiant must present information that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,⁷ the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.

The Court rejected the totality test derived from Jones and held that the informant’s tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant’s credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris⁸ approved a warrant issued largely on an informer’s tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant’s residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a prudent person, that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant’s reputation, could supplement this determination.

The Court expressly abandoned the two-part Aguilar–Spinelli test and returned to the totality of the circumstances approach to evaluate probable cause based on an informant’s tip in Illinois v. Gates.⁹ The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant’s reliability and his basis for knowledge as independent requirements. Instead, a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.¹⁰ In evaluating probable cause, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.¹¹

Probable Cause vs. First Amendment Rights

Where the warrant process is used to authorize the seizure of books and other items that may be protected by the First Amendment, the Court has required the government to observe more exacting standards than in other cases.¹² Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures. Thus, in Marcus v. Search Warrant,¹³the seizure of 11,000 copies of 280 publications pursuant to warrant issued ex parte by a magistrate who had not examined any of the publications but who had relied on the conclusory affidavit of a policeman was voided. Failure to scrutinize the materials and to particularize the items to be seized was deemed inadequate, and it was further noted that police were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.¹⁴A state procedure that was designed to comply with Marcus by the presentation of copies of books to be seized to the magistrate for his scrutiny prior to issuance of a warrant was nonetheless found inadequate by a plurality of the Court, which concluded that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since [appellant] was not afforded a hearing on the question of the obscenity even of the seven novels [seven of 59 listed titles were reviewed by the magistrate] before the warrant issued, the procedure was constitutionally deficient.¹⁵

Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity. In a later decision the Court held that, with adequate safeguards, no pre-seizure adversary hearing on the issue of obscenity is required if the film is seized not for the purpose of destruction as contraband (the purpose in Marcus and A Quantity of Books), but instead to preserve a copy for evidence.¹⁶ It is constitutionally permissible to seize a copy of a film pursuant to a warrant as long as there is a prompt post-seizure adversary hearing on the obscenity issue. Until there is a judicial determination of obscenity, the Court advised, the film may continue to be exhibited; if no other copy is available either a copy of it must be made from the seized film or the film itself must be returned.¹⁷

The seizure of a film without the authority of a constitutionally sufficient warrant is invalid; seizure cannot be justified as incidental to arrest, as the determination of obscenity may not be made by the officer himself.¹⁸ Nor may a warrant issue based solely on the conclusory assertions of the police officer without any inquiry by the magistrate into the factual basis for the officer’s conclusions.¹⁹ Instead, a warrant must be supported by affidavits setting forth specific facts in order that the issuing magistrate may ‘focus searchingly on the question of obscenity.’²⁰ This does not mean, however, that a higher standard of probable cause is required in order to obtain a warrant to seize materials protected by the First Amendment. Our reference in Roaden to a ‘higher hurdle of reasonableness’ was not intended to establish a ‘higher’ standard of probable cause for the issuance of a warrant to seize books or films, but instead related to the more basic requirement, imposed by that decision, that the police not rely on the ‘exigency’ exception to the Fourth Amendment warrant requirement, but instead obtain a warrant from a magistrate.’²¹

In Stanford v. Texas,²² the Court voided a seizure of more than 2,000 books, pamphlets, and other documents pursuant to a warrant that merely authorized the seizure of books, pamphlets, and other written instruments concerning the Communist Party of Texas. The constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain. . . . No less a standard could be faithful to First Amendment freedoms.²³

However, the First Amendment does not bar the issuance or execution of a warrant to search a newsroom to obtain photographs of demonstrators who had injured several policemen, although the Court appeared to suggest that a magistrate asked to issue such a warrant should guard against interference with press freedoms through limits on the type, scope, and intrusiveness of the search.²⁴

Footnotes

1. Byars v. United States, 273 U.S. 28 (1927) (affiant stated he has good reason to believe and does believe that defendant has contraband materials in his possession); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely stated his conclusion that defendant had committed a crime). See also Nathanson v. United States, 290 U.S. 41 (1933).

2. 380 U.S. 102 (1965).

3. 380 U.S. at 109.

4. 8 U.S. 307 (1959). For another case applying essentially the same probable cause standard to warrantless arrests as govern arrests by warrant, see McCray v. Illinois, 386 U.S. 300 (1967) (informant’s statement to arresting officers met Aguilar probable cause standard). See also Whiteley v. Warden, 401 U.S. 560, 566 (1971) (standards must be at least as stringent for warrantless arrest as for obtaining warrant).

5. 362 U.S. 257 (1960).

6. 378 U.S. 108 (1964).

7. 393 U.S. 410 (1969). Both concurring and dissenting Justices recognized the tension between Draper and Aguilar. See id. at 423 (Justice White concurring), id. at 429 (Justice Black dissenting and advocating the overruling of Aguilar).

8. 403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S. 143, 147 (1972) (approving warrantless stop of motorist based on informant’s tip that may have been insufficient under Aguilar and Spinelli as basis for warrant).

9. 462 U.S. 213 (1983). Justice Rehnquist’s opinion of the Court was joined by Chief Justice Burger and by Justices Blackmun, Powell, and O’Connor. Justices Brennan, Marshall, and Stevens dissented.

10. 462 U.S. at 213.

11. 462 U.S. at 238. For an application of the Gates totality of the circumstances test to the warrantless search of a vehicle by a police officer, see, e.g. Florida v. Harris, 568 U.S. 237 (2013).

12. Marcus v. Search Warrant, 367 U.S. 717, 730–31 (1961); Stanford v. Texas, 379 U.S. 476, 485 (1965). For First Amendment implications of seizures under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), see First Amendment: Obscenity and Prior Restraint.

13. 367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957).

15. A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964).

16. Heller v. New York, 413 U.S. 483 (1973).

17. Id. at 492–93. But cf. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986), rejecting the defendant’s assertion, based on Heller, that only a single copy rather than all copies of allegedly obscene movies should have been seized pursuant to warrant.

18. Roaden v. Kentucky, 413 U.S. 496 (1973). See also Lo-Ji Sales v. New York, 442 U.S. 319 (1979); Walter v. United States, 447 U.S. 649 (1980). These special constraints are inapplicable when obscene materials are purchased, and there is consequently no Fourth Amendment search or seizure. Maryland v. Macon, 472 U.S. 463 (1985).

19. Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam).

20. New York v. P.J. Video, Inc., 475 U.S. 868, 873–74 (1986) (quoting Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).

21. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).

22. 379 U.S. 476 (1965).

23. 379 U.S. at 485–86. See also Marcus v. Search Warrant, 367 U.S. 717, 723 (1961).

24. Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 566 (containing suggestion mentioned in text), and id. at 566 (Justice Powell concurring) (more expressly adopting that position). In the Privacy Protection Act, Pub. L. No. 96-440, 94 Stat. 1879 (1980), 42 U.S.C. § 2000aa, Congress provided extensive protection against searches and seizures not only of the news media and news people but also of others engaged in disseminating communications to the public, unless there is probable cause to believe the person protecting the materials has committed or is committing the crime to which the materials relate.

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What Is Reasonable Doubt?

Reasonable doubt is legal terminology referring to insufficient evidence that prevents a judge or jury from convicting a defendant of a crime. It is the traditional standard of proof that must be exceeded to secure a guilty verdict in a criminal case in a court of law.

In a criminal case, it is the job of the prosecution to convince the jury that the defendant is guilty of the crime with which he has been charged and, therefore, should be convicted. The phrase “beyond a reasonable doubt” means that the evidence presented and the arguments put forward by the prosecution establish the defendant’s guilt so clearly that they must be accepted as fact by any rational person.

If the jury cannot say with certainty based on the evidence presented that the defendant is guilty, then there is reasonable doubt and they are obligated to return a non-guilty verdict.

The Reasonable Doubt Standard

Penal Code Title 7, Chapter 2, Section 1096 of the California Penal Code states that a defendant in a criminal trial must be proven guilty to a moral certainty and beyond a reasonable doubt.

Section 1096 also states that a defendant is presumed innocent until the contrary is proven. If there is a reasonable doubt about the defendant’s guilt, they are entitled to an acquittal.

1096. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: “It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” source

“Beyond a reasonable doubt” means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant’s guilt in order to render a guilty verdict.

California law establishes standards which must be met when making an arrest. Section 836 of Title 3, Chapter 5 (“Making of Arrest”) of the California Penal Code (PC) states that a peace officer may make an arrest in obedience to a warrant, or may, without a warrant, arrest a person:

• Whenever he/she has reasonable cause to believe that the person to be arrested has committed a public offense in his or her presence; or

• When a person arrested has committed a felony, although not in his or her presence; or

• Whenever he/she has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.

As defined by Black”s Law Dictionary, reasonable or probable cause is the state of facts which would lead a reasonable person to believe and suspect that the person sought is guilty of a crime. In other words, there must be more evidence for than against the prospect that the suspect has committed a crime, yet reserving some possibility for doubt. Case law pursuant to PC Section 836 further states that probable cause does not require evidence to convict but only to show that the person should stand trial.

Pursuant to California Penal Code Section 836, peace officers are authorized to make an arrest based on probable cause. As such, the Police must believe that there is more evidence for than against the prospect that the person sought is guilty of a crime, yet reserving some possibility for doubt. source

KEY TAKEAWAYS

Reasonable doubt is insufficient evidence that prevents a judge or jury from convicting a defendant of a crime.
If it cannot be proved without a doubt that a defendant in a criminal case is guilty, then that person should not be convicted.
Each juror must walk into the courtroom presuming the accused is innocent and it is the job of the prosecutor to convince them otherwise.
Reasonable doubt is used exclusively in criminal cases because the consequences of a conviction are severe.
Other commonly used standards of proof in criminal cases are probable cause, reasonable belief and reasonable suspicion, and credible evidence.

Understanding Reasonable Doubt

Under U.S. law, a defendant is considered innocent until proven guilty. Reasonable doubt stems from insufficient evidence. If it cannot be proved without a doubt that the defendant is guilty, that person should not be convicted. Verdicts do not necessarily reflect the truth, they reflect the evidence presented. A defendant’s actual innocence or guilt may be an abstraction.

Beyond a reasonable doubt is the highest standard of proof used in any court of law and is widely accepted around the world. It is used exclusively in criminal cases because the consequences of a conviction are severe—a criminal conviction could deprive the defendant of liberty or even life.

Difference Between Belief And Certainty

It isn’t unusual for a juror to believe that the defendant is a criminal but not be convinced with certainty that they committed the particular crime they are charged with. That isn’t good enough to find the defendant guilty.

Reasonable doubt comes from certainty rather than belief. Belief and instinct are important in many instances in life but cannot be used to convict a defendant if not based on fact.2

Unreasonable Doubt

The reasonable doubt standard forces jurors to ignore doubts considered unreasonable when determining if a defendant is guilty. Unreasonable doubt, which often stems from the possibility that nonexistent or unpresented evidence might explain a defendant’s actions and lead to exoneration, is not enough to acquit the defendant.3

Exculpatory Evidence

Evidence favorable to the defendant in a criminal trial can also create reasonable doubt as to whether the accused committed the crime. The defendant’s team should not be viewed with more skepticism than the prosecutor’s team. Each shred of evidence should be given the same consideration. This is important as any reasonable doubt, however small, that the defendant did not do it is grounds for an acquittal.4

Other Standards of Proof

Other commonly used standards of proof in criminal cases are:

Probable Cause: A requirement found in the Fourth Amendment that the police have more than just suspicion that a suspect committed a crime before making an arrest, conducting a search, or serving a warrant.5
Reasonable Belief and reasonable suspicion: A reasonable presumption by a police officer that a crime was, is, or will be committed. This is more than a hunch and less than probable cause and is used to determine the legality of a police officer’s decision to take action.
Credible Evidence: Evidence that is deemed worthy of being presented in a court and to the jury.

Meanwhile, evidentiary standards in civil cases include:

Clear and convincing evidence: The judge or jurors have concluded that there is a high probability that the facts of the case as presented by one party represent the truth. The standard of clear and convincing evidence is used in some civil cases, and it may appear in some aspects of a criminal case, such as a decision on whether a defendant is fit to stand trial.6 The language appears in several U.S. state laws.
Preponderance of the evidence: Both sides have presented their cases, and one side seems more likely to be true. Most civil cases require a “preponderance of the evidence,” as this is a lower standard of proof.

Presumption of Innocence

The criminal justice system seeks to unearth the truth, convict the guilty, and let the innocent walk free. In order for this to work, each juror must walk into the courtroom presuming the accused is innocent.7

“It is better that 100 guilty persons should escape than one innocent person should suffer.”—Benjamin Franklin 8

This presumption requires that jurors have a skeptical mindset that must be overcome before they can reach a guilty verdict. The jurors must not just want to believe something or be swayed by prejudices. They must view each shred of evidence presented by the prosecution with skepticism.

Why Is Reasonable Doubt Important?

The reasonable doubt standard aims to reduce the chances of an innocent person being convicted. Criminal cases can result in hefty convictions, including death or life sentences, so a person should only be charged if the jurors are 100% confident, based on the evidence presented, of their guilt.

How Do You Prove Reasonable Doubt?

The jurors must walk into the courtroom presuming the accused is innocent. Reasonable doubt exists unless the prosecution can prove that the accused is guilty. This can be achieved by supplying evidence and inviting people to testify on the stand.

What Are the Three Burdens of Proof?

The three burdens of proof for criminal cases are “beyond a reasonable doubt,” “probable cause,” and “reasonable suspicion.”

What Is the Difference Between Doubt and Reasonable Doubt?

A doubt can be considered reasonable when it’s connected to evidence or an absence of evidence. Sympathies or prejudices are not reasonable grounds for doubt.

The Bottom Line

Reasonable doubt is an important legal standard that strives to prevent innocent people from getting convicted for a crime they didn’t commit. If it cannot be proved without a reasonable doubt that the defendant is guilty, then they should not be convicted of the crime as charged. source

Reasonable suspicion

Overview

Reasonable suspicion is a standard used in criminal procedure. Reasonable suspicion is used in determining the legality of a police officer’s decision to perform a search.

When an officer stops someone to search the person, courts require that the officer has either a search warrant, probable cause to search, or a reasonable suspicion to search. In descending order of what gives an officer the broadest authority to perform a search, courts have found that the order is search warrant, probable cause, and then reasonable suspicion.

Reasonable Suspicion As Applied to a Stop & Frisk

In Terry v. Ohio 392 U.S. 1 (1968), the Supreme Court held that if a police officer believes that an individual has a weapon which poses a danger to the officer, the officer may stop that individual to search the individual for a weapon. The Court held that to determine whether the police officer acted reasonably in the stop, a court should not look at whether he has a hunch, but rather “to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”

In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), a Nevada state statute “requires a person detained by an officer [during a Terry stop] to identify himself” by providing his name. In Hiibel, the Supreme Court held that because the statute only asked for a name, not identification, and because it did “not alter the nature of the stop itself, changing neither its duration nor its location,” the statute “properly balances the intrusion on the individual’s interests against the promotion of legitimate government interests.” Thus the Court held that the statute is constitutional. source

Probable Cause vs Reasonable suspicion

Definition of Probable Cause – Probable cause means that a reasonable person would believe that a crime was in the process of being committed, had been committed, or was going to be committed.

Legal Repercussions of Probable Cause – Probable cause is enough for a search or arrest warrant. It is also enough for a police officer to make an arrest if he sees a crime being committed.

Definition of Reasonable Suspicion – Reasonable suspicion has been defined by the United States Supreme Court as “the sort of common-sense conclusion about human behavior upon which practical people . . . are entitled to rely.” Further, it has defined reasonable suspicion as requiring only something more than an “unarticulated hunch.” It requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion.

Reasonable suspicion means that any reasonable person would suspect that a crime was in the process of being committed, had been committed or was going to be committed very soon.

Legal Repercussions of Reasonable Suspicion – If an officer has reasonable suspicion in a situation, he may frisk or detain the suspect briefly. Reasonable suspicion does not allow for the searching of a person or a vehicle unless the person happens to be on school property. Reasonable suspicion is not enough for an arrest or a search warrant.

Stop and Frisk – In Terry v. Ohio, 392 U.S. 1 (1968), the court recognized that a limited stop and frisk of an individual could be conducted without a warrant based on less than probable cause. The stop must be based on a reasonable, individualized suspicion based on articulable facts, and the frisk is limited to a pat-down for weapons. An anonymous tip that a person is carrying a gun is not, by itself, sufficient to justify a stop and frisk. Florida v. J.L., 529 U.S. 266 (2000).

Florida v. Bostick 501 U.S. 429, 437 (1991) – A person’s refusal to cooperate is not sufficient for reasonable suspicion.

Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). – A person’s flight in a high crime area after seeing police was sufficient for reasonable suspicion to stop and frisk.

The same requirement of founded suspicion for a “person” stop applies to stops of individual vehicles. United States v. Arvizu, 534 U.S. 266 (2002). The scope of the “frisk” for weapons during a vehicle stop may include areas of the vehicle in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032 (1983). The police may order passengers and the driver out of or into the vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408 (1997). The passengers may not be detained longer than it takes the driver to receive his citation. Once the driver is ready to leave, the passengers must be permitted to go as well. During a stop for traffic violations, the officers need not independently have reasonable suspicion that criminal activity is afoot to justify frisking passengers, but they must have reason to believe the passengers are armed and dangerous. Arizona v. Johnson, 129 S Court. 781, 784 (2009).

The Difference Between the Two – The terms probable cause and reasonable suspicion are often confused and misused. While both have to do with a police officer’s overall impression of a situation, the two terms have different repercussions on a person’s rights, the proper protocol and the outcome of the situation.

Reasonable suspicion is a step before probable cause. At the point of reasonable suspicion, it appears that a crime may have been committed. The situation escalates to probable cause when it becomes obvious that a crime has most likely been committed.

Probable Cause to Search
In order to obtain a search warrant, the court must consider whether based on the totality of the information there is a fair probability that contraband, evidence or a person will be found in a particular place. Illinois v. Gates, 462 U.S. 213 (1983).

Probable Cause to Arrest
In order to arrest a suspect the officer must have a good faith belief that a crime has been committed and the individual he is arresting committed the crime. In Maryland v. Pringle, 540 U.S. 366 (2003). In Pringle, an officer was permitted to arrest three individuals in a vehicle where marijuana was discovered. The court reasoned that, even though the officers did not have evidence that any one of the three occupants was responsible for the drugs, probable cause existed as to all of them because co-occupants of a vehicle are often engaged in a common enterprise and all three denied knowing anything about the drugs.

Texas – Goldberg v. State, 95 SW.3d 345 (Tex. App. 2002).

An arrest is proper when it is based upon article 14.03 (a)(1) of the Texas Code of Criminal Procedure, which permits a peace officer to arrest a person without a warrant if the person is found in a suspicious place and under circumstances that reasonably show that such person has been guilty of some felony or breach of the peace.

Facts: Mr. Goldberg was accused of entering a wig store, punching one attendant in the throat, and cutting the other attendant’s wrist and stabbing her when she attempted to call for help. The assailant quickly left the store. A witness in the parking lot followed the assailant to his vehicle. The witness provided police with a license plate number for the vehicle. The police traced the vehicle and located the defendant, the son of the owner of the vehicle. The police handcuffed Mr. Goldberg, performed a pat down and informed him of his rights. Mr. Goldberg stated he was willing to talk to the officers. He was later uncuffed.

The officer felt the hood of the vehicle and it was still warm. Mr. Goldberg denied driving the vehicle or knowledge of the crime. The officers also noticed a blood stain on Mr. Goldberg’s shirt and a red mark on his chest. Goldberg consented to a search of the house, his apartment and the vehicle. The officers found fibers matching the wigs at the wig shop. Mr. Goldberg claimed that the vehicle had been stolen several times but the person always returned the vehicle to the residence. Mr. Goldberg was taken to the police station and consented to a police interrogation. He later was released to his mother. Mr. Goldberg challenged the arrest as unlawful.

The court found that even if the detention rose to the level of an arrest when the defendant was transported to the police station it was proper. Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. Guzman v. State, 955 SW.2d at 87; Amores v. State, 816 SW.2d 407, 413 (Tex. Crim. App.1991). Probable cause deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. Guzman, 955 SW.2d at 87. source

Principles of Probable Cause and Reasonable Suspicion

Although there is certainly more to probable cause and reasonable suspicion than just principles, it’s a good place to start, so that is where we will begin this four-part series. In part two, which begins on page 9, we will explain how officers can prove that the information they are relying upon to establish probable cause or reasonable suspicion was sufficiently reliable that is has significance. Then, in the Fall 2014 edition we will cover probable cause to arrest, including the various circumstances that officers and judges frequently consider in determining whether it exists. The series will conclude in the Winter 2015 edition with an discussion of how officers can determine whether they have probable cause to search.

It is ordinarily a bad idea to begin an article by admitting that the subjects to be discussed cannot be usefully defined. But when the subjects are probable cause and reasonable suspicion1, and when the readership is composed of people who have had some experience with them, it would be pointless to deny it. Consider that the Seventh Circuit once tried to provide a good legal definition but concluded that, when all is said and done, it just means having “a good reason to act.”2 Even the Supreme Court— whose many powers include defining legal terms— decided to pass on probable cause because, said the Court, it is “not a finely-tuned standard”3 and is actually an “elusive” and “somewhat abstract” concept.4 As for reasonable suspicion, the uncertainty is even worse. For instance, in United States v. Jones the First Circuit would only say that it “requires more than a naked hunch.”5

But this imprecision is actually a good thing because probable cause and reasonable suspicion are ultimately judgments based on common sense, not technical analysis. Granted, they are important judgments because they have serious repercussions. But they are fundamentally just rational assessments of the convincing force of information, which is something the human brain does all the time without consulting a rule book. So instead of being governed by a “neat set of rules,”6 these concepts mainly require that officers understand certain principles— principles that usually enable them to make these determinations with a fair degree of consistency and accuracy.

First, however, it is necessary to explain the basic difference between probable cause and reasonable suspicion, as these terms will be used throughout this series. Both are essentially judgments as to the existence and importance of evidence. But they differ as to the level of proof that is required. In particular, probable cause requires evidence of higher quality and quantity than reasonable suspicion because it permits officers to take actions that are more intrusive, such as arresting people and searching things. In contrast, reasonable suspicion is the standard for lesser intrusions, such as detentions and pat searches. As the Supreme Court explained:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quality or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.7

What Probability is Required?

When people start to learn about probable cause or reasonable suspicion, they usually want a number: What probability percentage is required?8 Is it 80%? 60%? 50%? Lower than 50? No one really knows, which might seem strange because, even in a relatively trivial venture such as sports betting, people would not participate unless they had some idea of the odds.

Nevertheless, the Supreme Court has refused to assign a probability percentage to these concepts because it views them as nontechnical standards based on common sense, not mathematical precision.9 “The probable cause standard,” said the Court, “is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of circumstances.”10 Similarly, the Tenth Circuit observed, “Besides the difficulty of agreeing on a single number, such an enterprise would, among other things, risk diminishing the role of judgment based on situation-sense.”11 Still, based on inklings from the United States Supreme Court, it is possible to provide at least a ballpark probability percentage for probable cause.

Reasonable suspicion, on the other hand, remains an enigma.

Probable cause

Many people assume that probable cause requires at least a 51% probability because anything less would not be “probable.” While this is technically true, the Supreme Court has ruled that, in the context of probable cause, the word “probable” has a somewhat different meaning. Specifically, it has said that probable cause requires neither a preponderance of the evidence nor “any showing that such belief be correct or more likely true than false,”12 and that it requires only a “fair” probability, not a statistical probability.13 Thus, it is apparent that probable cause requires something less than a 50% chance.14 How much less? Although no court has tried to figure it out, we suspect it is not much lower than 50%.

Reasonable suspicion

As noted, the required probability percentage for reasonable suspicion is a mystery. Although the Supreme Court has said that it requires “considerably less [proof] than preponderance of the evidence”15 (which means “considerably less” than a 50.1% chance), this is unhelpful because a meager 1% chance is “considerably less” than 51.1% but no one seriously thinks that would be enough. Equally unhelpful is the Supreme Court’s observation that, while probable cause requires a “fair probability,” reasonable suspicion requires only a “moderate” probability.16 What is the difference between a “moderate” and “fair” probability? Again, nobody knows. What we do know is that the facts need not rise to the level that they “rule out the possibility of innocent conduct.”17 As the Court of Appeal explained, “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity.”18 We also know that reasonable suspicion may exist if the circumstances were merely indicative of criminal activity. In fact, the California Supreme Court has said that if the circumstances are consistent with criminal activity, they “demand“ an investigation.”19

Basic Principles

Having given up on a mathematical solution to the problem, we must rely on certain basic principles. And the most basic principle is this: Neither probable cause nor reasonable suspicion can exist unless officers can cite “specific and articulable facts” that support their judgment.20 This demand for specificity is so important that the Supreme Court called it the “central teaching of this Court’s Fourth Amendment jurisprudence.” 21 The question, then, is this: How can officers determine whether their “specific and articulable” facts are sufficient to establish probable cause or reasonable suspicion? That is the question we will address in the remainder of this article.

Totality of the circumstances

Almost as central as the need for facts is the requirement that, in determining whether officers have probable cause and reasonable suspicion, the courts will consider the totality of circumstances. This is significant because it is exactly the opposite of how some courts did things many years ago. That is, they would utilize a “divide-and-conquer”22 approach which meant subjecting each fact to a meticulous evaluation, then frequently ruling that the officers lacked probable cause or reasonable suspicion because none of the individual facts were compelling. This practice officially ended in 1983 when, in the landmark decision in Illinois v. Gates, the Supreme Court announced that probable cause and reasonable suspicion must be based on an assessment of the convincing force of the officers’ information as a whole. “We must be mindful,” said the Fifth Circuit, “that probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers. We weigh not individual layers but the laminated total.23 Thus, in People v. McFadin the court responded to the defendant’s “divide-and-conquer” strategy by utilizing the following analogy:

Defendant would apply the axiom that a chain is no stronger than its weakest link. Here, however, there are strands which have been spun into a rope. Although each alone may have insufficient strength, and some strands may be slightly frayed, the test is whether when spun together they will serve to carry the load of upholding [the probable cause determination].24

Here is an example of how the “totality of the circumstances” test works and why it is so important. In Maryland v. Pringle 25 an officer made a traffic stop on a car occupied by three men and, in the course of the stop, saw some things that caused him to suspect that the men were drug dealers. One of those things was a wad of cash ($763) that the officer had seen in the glove box. He then conducted a search of the vehicle and found cocaine. But a Maryland appellate court ruled the search was unlawful because the presence of money is “innocuous.” The Supreme Court reversed, saying the Maryland court’s “consideration of the money in isolation, rather than as a factor in the totality of the circumstances, is mistaken.”

Common sense

Not only did the Court in Gates rule that probable cause must be based on a consideration of the totality of circumstances, it ruled that the significance of the circumstances must be evaluated by applying common sense, not hypertechnical analysis. In other words, the circumstances must be “viewed from the standpoint of an objectively reasonable police officer.”26 As the Court explained:

Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a practical, nontechnical conception. In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.27

Legal, but suspicious, activities

It follows from the principles discussed so far that it is significant that officers saw the suspect do something that, while not illegal, was suspicious in light of other circumstances.28 As the Supreme Court explained, the distinction between criminal and noncriminal conduct “cannot rigidly control” because probable cause and reasonable suspicion “are fluid concepts that take their substantive content from the particular contexts in which they are being assessed.”29 For example, in Massachusetts v. Upton the state court ruled that probable cause could not have existed because the evidence “related to innocent, nonsuspicious conduct or related to an event that took place in public.” Acknowledging that no single piece of evidence was conclusive, the Supreme Court reversed, saying the “pieces fit neatly together.”30 Similarly, the Court of Appeal noted that seeing a man running down a street “is indistinguishable from the action of a citizen engaged in a program of physical fitness.” But it becomes “highly suspicious” when it is “viewed in context of immediately preceding gunshots.”31

Another example of how noncriminal activities can become highly suspicious is found in Illinois v. Gates.32 It started with an anonymous letter to a police department saying that a local resident, Lance Gates, was a drug trafficker; and it explained in some detail the procedure that Gates and his wife, Sue, would follow in obtaining drugs in Florida. DEA agents followed both of them (Gates flew, Sue drove) and both generally followed the procedure described by the letter writer. This information led to a search warrant and Gates’ arrest. On appeal, he argued that the warrant was not supported by probable cause because the agents did not see him or his wife do anything illegal. It didn’t matter, said the Supreme Court, because the “seemingly innocent activity became suspicious in light of the initial tip.”

Multiple incriminating circumstances

Here is a principle that, while critically important, is often overlooked or underappreciated: The chances of having probable cause or reasonable suspicion increase exponentially with each additional piece of independent incriminating evidence that comes to light. This is because of the unlikelihood that each “coincidence of information”33 could exist in the absence of a fair or moderate possibility of guilt.

For example, in a Kings County murder case probable cause to arrest the defendant was based on the following: When the crime occurred, a car similar to defendant’s “uniquely painted” vehicle had been seen in a rural area, two-tenths of a mile from where a 15-year old girl had been abducted. In addition, an officer saw “bootprints and tire prints” nearby and “he compared them visually with boots seen in, and the treads of the tires of, defendant’s car, which he knew was parked in front of defendant’s hotel and registered to defendant. He saw the condition of the victim’s body; he knew that defendant had a prior record of conviction for forcible rape. He also knew of the victim’s occasional employment as a babysitter at the farm where defendant worked.” In ruling that these pieces of independent incriminating evidence constituted probable cause, the California Supreme Court said:

The probability of the independent concurrence of these factors in the absence of the guilt of defendant was slim enough to render suspicion of defendant reasonable and probable.34

Similarly, in a case from Santa Clara County,35 a man named Anthony Spears, who worked at a Chili’s in Cupertino, arrived at the restaurant one morning and “discovered” that the manager had been shot and killed before the restaurant had opened for the day. In the course of their investigation, sheriff ’s deputies learned that Spears had left home shortly before the murder even though it was his day off, there were no signs of forced entry, and that Marlboro cigarette butts (the same brand that Spears smoked) had been found in an alcove near the manager’s office. Moreover, Spears had given conflicting statements about his whereabouts when the murder occurred; and, after “discovering” the manager’s body, he told other employees that the manager had been “shot” but the cause of death was not apparent from the condition of the body.

Based on this evidence, detectives obtained a warrant to search Spears’ apartment and the search netted, among other things, “large amounts of bloodstained cash.” On appeal, Spears argued that the detectives lacked probable cause for the warrant but the court disagreed, saying, “[W]e believe that all of the factors, considered in their totality, supplied a degree of suspicion sufficient to support the magistrate’s finding of probable cause.”

While this principle also applies to reasonable suspicion to detain, a lesser amount of independent incriminating evidence will be required. The following are examples from various cases:

The suspect’s physical description and his clothing were similar to that of the perpetrator.36
In addition to a description similarity, the suspect was in a car similar in appearance to that of the perpetrator.37
The suspect resembled the perpetrator and he was in the company of a person who was positively identified as one of two men who had just committed the crime.38
The suspect resembled the perpetrator plus he was detained shortly after the crime occurred at the location where the perpetrator was last seen or on a logical escape route.39
In addition to resembling the perpetrator, the suspect did something that tended to demonstrate consciousness of guilt; e.g., he lied to officers or made inconsistent statements, he made a furtive gesture, he reacted unusually to the officer’s presence, he attempting to elude officers.40
The suspect resembled the perpetrator and possessed fruits of the crime.41
The number of suspects in the vehicle corresponded with the number of people who had just committed the crime, plus they were similar in age, sex, and nationality.42

Unique circumstances

The odds of having reasonable suspicion or probable cause also increase dramatically if the matching or similar characteristics were unusual or distinctive. As the Court of Appeal observed, “Uniqueness of the points of comparison must also be considered in testing whether the description would be inapplicable to a great many others.”43

For example, the courts have taken note of the following unique circumstances:

The suspect and perpetrator both had bandages on their left hands;44
The suspect and perpetrator were in vehicles of the same make and model with tinted windows and a dark-colored top with light-colored side.45 Conversely, the Second Circuit noted that “when the points of similarity are less unique or distinctive, more similarities are required before the probability of identity between the two becomes convincing.”46

Inferences based on circumstantial evidence As noted earlier, probable cause and reasonable suspicion must be based on “specific and articulable facts.” However, the courts will also consider an officer’s inferences as to the meaning or significance of the facts so long as the inference appeared to be reasonable. It is especially relevant that the inference was based on the officer’s training and experience.47 In the words of the Supreme Court, “The evidence must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”48 Or, as the Court explained in United States v. Arvizu:

The process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.49

For example, in People v. Soun 50 the defendant and three other men killed the owner of a video store in San Jose during a botched robbery. The men were all described as Asian, but witnesses provided conflicting descriptions of the getaway car. Some said it was a two-door Japanese car, but one said it was a Volvo “or that type of car.” Two of the witnesses provided a partial license plate number. One said he thought it began with 1RCS, possibly 1RCS525 or 1RCS583. The other said he thought it was 1RC(?)538.

A San Jose PD officer who was monitoring these developments at the station made two inferences:

(1) the actual license plate probably began with 1RCS, and (2) the last three numbers included a 5 and an 8. So he started running these combinations through DMV until he got a hit on 1RCS558, a 1981 Toyota registered in Oakland. Because the car was last seen heading toward Oakland, officers notified OPD and, the next day, OPD officers stopped the car and eventually arrested the occupants for the murder. This, in turn, resulted in the seizure of the murder weapon. On appeal, one of the occupants, Soun, argued that the weapon should have been suppressed because the detention was based on nothing more than “hunch and supposition.” On the contrary, said the court, what Soun labeled “hunch and supposition” was actually “intelligent and resourceful police work.”

Similarly, in People v. Carrington 51 the California Supreme Court ruled that police in Los Altos reasonably inferred that two commercial burglaries were committed by the same person based on the following: “the two businesses were located in close proximity to each other, both businesses were burglarized on or about the same date, and in both burglaries blank checks were stolen.”

Hunches and unsupported conclusions

It is well known that hunches play an important role in solving crimes. “A hunch,” said the Ninth Circuit, “may provide the basis for solid police work; it may trigger an investigation that uncovers facts that establish reasonable suspicion, probable cause, or even grounds for a conviction.”52 Still, hunches are absolutely irrelevant in determining the existence of probable cause or reasonable suspicion. In other words, a hunch “is not a substitute for the necessary specific, articulable facts required to justify a Fourth Amendment intrusion.”53

The same is true of unsupported conclusions.54 For example, in ruling that a search warrant affidavit failed to establish probable cause, the court in U.S. v. Underwood 55 noted that much of the affidavit was “made up of conclusory allegations” that were “entirely unsupported by facts.” Two of these allegation were that officers had made “other seizures” and had “intercepted conversations” that tended to prove the defendant was a drug trafficker. “[T]hese vague explanations,” said the court, “add little if any support because they do not include underlying facts.”

Information known to other officers

Information is ordinarily irrelevant unless it had been communicated to the officer who acted on it; i.e., the officer who made the detention, arrest, or search, or the officer who applied for the search or arrest warrant.56 To put it another way, a search or seizure made without sufficient justification cannot be rehabilitated in court by showing that it would have been justified if the officer had been aware of information possessed by a colleague. As the California Supreme Court explained, “The question of the reasonableness of the officers’ conduct is determined on the basis of the information possessed by the officer at the time a decision to act is made.”57

There is, however, an exception to this rule known as the “official channels rule” by which officers may detain, arrest, or sometimes search a suspect based solely on an official request to do so from another officer or agency. Under this rule, officers may also act based on information transmitted via a law enforcement database, such as NCIC and CLETS.58

Although the officers who act upon such transmissions are seldom aware of many, if any, of the facts known to the originating officer, this does not matter because, as the U.S. Supreme Court pointed out, “[E]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.”59

For example, in U.S. v. Lyons 60 state troopers in Michigan stopped and searched the defendant’s car based on a tip from DEA agents that the driver might be transporting drugs. On appeal, Lyons argued that the search was unlawful because the troopers had no information as to why she was a suspected of carrying drugs. But the court responded “it is immaterial that the troopers were unaware of all the specific facts that supported the DEA’s reasonable suspicion analysis. The troopers possessed all the information they needed to act—a request by the DEA (subsequently found to be well-supported).”

Note that, although officers “are entitled to presume the accuracy of information furnished to them by other law enforcement personnel,”61 the officers who disseminated the information may later be required to prove in court that they had received such information and that they reasonably believed it was reliable.62

Information inadmissible in court

In determining whether probable cause or reasonable suspicion exist, officers may consider both hearsay and privileged communications.63 For example, although a victim’s identification of the perpetrator might constitute inadmissible hearsay or fall within the marital privilege, officers may rely on it unless they had reason to believe it was false. As the Court of Appeal observed, “The United States Supreme Court has consistently held that hearsay information will support issuance of a search warrant…. Indeed, the usual search warrant, based on a reliable police informer’s or citizen-informant’s information, is necessarily founded upon hearsay.”64 On the other hand, information may not be considered if it was inadmissible because it was obtained in violation of the suspect’s constitutional rights; e.g., an illegal search or seizure.65

Mistakes of fact and law

If probable cause was based on information that was subsequently determined to be inaccurate or false, the information may nevertheless be considered if the officers reasonably believed it was true. As the Court of Appeal put it, “If the officer’s belief is reasonable, it matters not that it turns out to be mistaken.”66 Or, in the words of the Supreme Court, “[W]hat is generally demanded of the many factual determinations that must regularly be made by agents of the government is not that they always be correct, but that they always be reasonable.”67

The courts are not, however, so forgiving with mistakes of law. This is because officers are expected to know the laws they enforce and the laws that govern criminal investigations. Consequently, information will not be considered if it resulted from such a mistake, even if the mistake was made in good faith.68 As the California Supreme Court explained, “Courts on strong policy grounds have generally refused to excuse a police officer’s mistake of law.”69 Or, as the Ninth Circuit put it, “If an officer simply does not know the law and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable.”70

References

Ornelas v. United States (1996) 517 U.S. 690, 695.
Hanson v. Dane County (7th Cir. 2010) 608 F.3d 335. 338.
Ornelas v. United States (1996) 517 U.S. 690, 695.
United States v. Arvizu (2002) 534 U.S. 266, 274 [“abstract”]; United States v. Cortez (1981) 449 U.S. 411, 417 [“elusive”].
U.S. v. Jones (1st Cir. 2012) 700 F.3d 615, 621.
See United States v. Sokolow (1989) 490 U.S. 1, 7; United States v. Arvizu (2002) 534 U.S. 266, 274; Ker v. California (1963) 374 U.S. 23, 33; In re Rafael V. (1982) 132 Cal.App.3d 977, 982; In re Louis F. (1978) 85 Cal.App.3d 611, 616.
Alabama v. White (1990) 496 U.S. 325, 330.
See Illinois v. Gates (1983) 462 U.S. 213, 231 “In dealing with probable cause, as the very name implies, we deal with probabilities.”].
See Texas v. Brown (1983) 460 U.S. 730, 742; Illinois v. Gates (1983) 462 U.S. 213, 232.
See Maryland v. Pringle (2003) 540 U.S. 366, 371.
U.S. v. Ludwig (10th Cir. 2011) 641 F.3d 1243, 1251.
Texas v. Brown (1983) 460 U.S. 730, 742. Also see People v. Carrington (2009) 47 Cal.4th 145, 163.
See Illinois v. Gates (1983) 462 U.S. 213, 238; Safford Unified School District v. Redding (2009) 557 U.S. 364, 371.
See U.S. v. Melvin (1st Cir. 1979) 596 F.2d 492, 495 [“appellant reads the phrase ‘probable cause’ with emphasis on the word ‘probable’ and would define it mathematically to mean more likely than not or by a preponderance of the evidence. This reading is incorrect.”]; People v. Alcorn (1993) 15 Cal.App.4th 652, 655; U.S. v. Garcia (5th Cir. 1999) 179 F.3d 265, 269.
Illinois v. Wardlow (2000) 528 U.S. 119, 123. Also see United States v. Arvizu (2002) 534 U.S. 266, 274.
Safford Unified School District v. Redding (2009) 557 U.S. 364, 371.
United States v. Arvizu (2002) 534 U.S. 266, 277.
People v. Brown (1990) 216 Cal.App.3d 1442, 1449 [edited].
In re Tony C. (1978) 21 Cal.3d 888, 894. Also see United States v. Arvizu (2002) 534 U.S. 266, 277.
U.S. v. Pontoo (1st Cir. 2011) 666 F.3d 20, 27. Also see Illinois v. Gates (1983) 462 U.S. 213, 239.
Terry v. Ohio (1968) 392 U.S. 1, 21, fn.18.
United States v. Arvizu (2002) 534 U.S. 266, 274.
U.S. v. Edwards (5th Cir. 1978) 577 F.2d 883, 895. Also see U.S. v. Valdes-Vega (9th Cir. 2013) 739 F.3d 1074.
(1982) 127 Cal.App.3d 751, 767.
(2003) 540 U.S. 366. Also see Massachusetts v. Upton (1984) 466 U.S. 727, 734 [“The informant’s story and the surrounding facts possessed an internal coherence that gave weight to the whole.”].
Ornelas v. United States (1996) 517 U.S. 690, 696.
Illinois v. Gates (1983) 462 U.S. 213, 231. Also see United States v. Cortez (1981) 449 U.S. 411, 418.
See United States v. Sokolow (1989) 490 U.S. 1, 9 [“Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.”]; People v. Glenos (1992) 7 Cal.App.4th 1201, 1207; U.S. v. Ruidiaz (1st Cir. 2008) 529 F.3d 25, 30 [“a fact that is innocuous in itself may in combination with other innocuous facts take on added significance”].
Safford Unified School District v. Redding (2009) 557 U.S. 364, 371.
(1984) 466 U.S. 727, 731-32.
People v. Juarez (1973) 35 Cal.App.3d 631, 636.
(1983) 462 U.S. 213.
Ker v. California (1963) 374 U.S. 23, 26. Also see People v. Pranke (1970) 12 Cal.App.3d 935, 940 [“when such remarkable coincidences coalesce, they are sufficient to warrant a prudent man in believing that the defendant has committed an offense”]; U.S.v. Abdus-Price (D.C. Cir. 2008) 518 F.3d 926, 930 [a “confluence” of factors]; U.S. v. Carney (6th Cir. 2012) 675 F.3d 1007 [“interweaving connections”].
People v. Hillery (1967) 65 Cal.2d 795, 804.
People v. Spears (1991) 228 Cal.App.3d 1.
See Chambers v. Maroney (1970) 399 U.S. 42, 46-47; People v. Adams (1985) 175 Cal.App.3d 855, 861; People v. Anthony (1970)7 Cal.App.3d 751, 763.
See People v. Hill (2001) 89 Cal.App.4th 48, 55; People v. Soun (1995) 34 Cal.App.4th 1499, 1524-25; People v. Watson (1970)12 Cal.App.3d 130, 134-35; People v. Davis (1969) 2 Cal.App.3d 230, 237; People v. Huff (1978) 83 Cal.App.3d 549, 557; In re Dung T. (1984) 160 Cal.App.3d 697, 712-13; People v. Flores (1974) 12 Cal.3d 85, 91; People v. Jones (1981) 126 Cal.App.3d 308, 313-14; People v. Moore (1975) 51 Cal.App.3d 610, 617; People v. Adams (1985) 175 Cal.App.3d 855, 861; People v. Orozco (1981) 114 Cal.App.3d 435, 445.
See People v. Bowen (1987) 195 Cal.App.3d 269, 274; In re Lynette G. (1976) 54 CA3 1087, 1092; In re Carlos M. (1990) 220 CA3 372, 382 [“[W]here, as here, a crime is known to have involved multiple suspects, some of whom are specifically described and others whose descriptions are generalized, a defendant’s proximity to a specifically described suspect, shortly after and near the site of the crime, provides reasonable grounds to detain for investigation a defendant who otherwise fits certain general descriptions.”].
People v. Atmore (1970) 13 Cal.App.3d 244, 246.
People v. Fields (1984) 159 Cal.App.3d 555, 564; People v. Turner (1994) 8 Cal.4th 137, 186; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005.
People v. Hagen (1970) 6 Cal.App.3d 35, 43; People v. Morgan (1989) 207 Cal.App.3d 1384, 1389; People v. Anthony (1970) 7Cal.App.3d 751, 763; People v. Rico (1979) 97 Cal.App.3d 124, 129.
People v. Soun (1995) 34 Cal.App.4th 1499, 1524. Also see People v. Brian A. (1985) 173 Cal.App.3d 1168, 1174 [“Where there were two perpetrators and an officer stops two suspects who match the descriptions he has been given, there is much greater basis to find sufficient probable cause for arrest. The probability of there being other groups of persons with the same combination of physical characteristics, clothing, and trappings is very slight.”]; People v. Britton (2001) 91 Cal.App.4th 1112, 1118-19 [“This evasive conduct by two people instead of just one person, we believe, bolsters the reasonableness of the suspicion”]. Compare In re Dung T. (1984) 160 Cal.App.3d 697, 713.
In re Brian A. (1985) 173 Cal.App.3d 1168, 1174
People v. Joines (1970) 11 Cal.App.3d 259, 264. Also see P v. Hill (2001) 89 CA4 48, 55 [medallion and scar].
U.S. v. Abdus-Price (D.C. Cir. 2008) 518 F.3d 926, 930-31. Also see P v. Orozco (1981) 114 CA3 435, 440 [a “cream, vinyl top over a cream colored vehicle”]; P v. Flores (1974) 12 C3 85, 92 [a “unique” paint job].
U.S. v. Jackson (2nd Cir. 2004) 368 F.3d 59, 64.
See United States v. Cortez (1981) 449 U.S. 411, 418; People v. Ledesma (2003) 106 Cal.App.4th 857, 866; In re Frank V. (1991) 233 Cal.App.3d 1232, 1240-41; U.S. v. Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, 1105 [“An officer is entitled to rely on his training and experience in drawing inferences from the facts he observes, but those inferences must also be grounded in objective facts and be capable of rational explanation.”].
Illinois v. Gates (1983) 462 U.S. 213, 232.
(2002) 534 U.S. 266, 273.
(1995) 34 Cal.App.4th 1499. Also see Maryland v. Pringle (2003) 540 U.S. 366, 371-72 [it was reasonable to believe that all three occupants of a vehicle possessed five baggies of cocaine that were behind the back-seat armrest because they were stopped at 3:16 A.M., there was $763 in rolled-up cash in the glove box, and none of the men offered “any information with respect to the ownership of the cocaine or the money”]; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 712-13.
(2010) 47 Cal.4th 145.
U.S. v. Thomas (9th Cir. 2000) 211 F.3d 1186, 1192.
Ibid. Also see U.S. v. Cash (10th Cir. 2013) 733 F.3d 1264, 1274 [reasonable suspicion “must be based on something more than an inchoate and unparticularized suspicion or hunch”].
See Illinois v. Gates (1983) 462 U.S. 213, 239 [a “wholly conclusory statement” is irrelevant]; People v. Leonard (1996) 50 Cal.App.4th 878, 883 [“Warrants must be issued on the basis of facts, not beliefs or legal conclusions.”]; U.S. v. Garcia-Villalba (9th Cir. 2009) 585 F.3d 1223, 1234; Gentry v. Sevier (7th Cir. 2010) 597 F.3d 838, 845 [“The officer was acting solely upon a general report of a ‘suspicious person,’ which did not provide any articulable facts that would suggest the person was committing a crime or was armed.”].
(9th Cir. 2013) 725 F.3d 1076.
See Ker v. California (1963) 374 U.S. 23, 40, fn.12 [“It goes without saying that in determining the existence of probable cause we may concern ourselves only with what the officers had reason to believe at the time of their entry.” Edited.]; Maryland v. Garrison (1987) 480 U.S. 79, 85 [“But we must judge the constitutionality of [the officers’] conduct in light of the information available to them at the time they acted.”]; Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216, 222 [officer “had not been told that Harris and Ellis had identified the car from which shots were fired as a 1960 or 1961 Dodge.”]; People v. Adams (1985) 175 Cal.App.3d 855, 862 [“warrantless arrest or search cannot be justified by facts of which the officer was wholly unaware at the time”]; People v. Superior Court (Haflich) (1986) 180 Cal.App.3d 759. 766 [“The issue of probable cause depends on the facts known to the officer prior to the search.”]; John v. City of El Monte (9th Cir. 2008) 515 F.3d 936, 940 [“The determination whether there was probable cause is based upon the information the officer had at the time of making the arrest.”]; U.S. v. Ellis (7th Cir. 2007) 499 F.3d 686, 690 [“As there was no communication from Officers Chu and McNeil at the front door to [Officer] Lopez at the side door, it was improper to imputer their knowledge to Lopez.”].
People v. Gale (1973) 9 Cal.3d 788, 795.
See Whiteley v. Warden (1971) 401 U.S. 560, 568; People v. Soun (1995) 34 Cal.App.4th 1499, 1521; U.S. v. Ramirez (9th Cir. 2007) 473 F.3d 1026, 1037
United States v. Hensley (1985) 469 U.S. 221, 232.
(6th Cir. 2012) 687 F.3d 754, 768.
U.S. v. Lyons (6th Cir. 2012) 687 F.3d 754, 768.
See United States v. Hensley (1985) 469 U.S. 221, 232. Also see People v. Madden (1970) 2 Cal.3d 1017.
See United States v. Ventresca (1965) 380 U.S. 102, 108; People v. Navarro (2006) 138 Cal.App.4th 146, 147.
People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, 472.
See Lozoya v. Superior Court (1987) 189 Cal.App.3d 1332, 1340; U.S. v. Barajas-Avalos (9th Cir. 2004) 377 F.3d 1040, 1054.
Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 134. Also see Hill v. California (1971) 401 U.S. 797, 802.
Illinois v. Rodriguez (1990) 497 U.S. 177, 185. Edited.
See People v. Reyes (2011) 196 Cal.App.4th 856, 863; People v. Cox (2008) 168 Cal.App.4th 702, 710.
People v. Teresinski (1982) 30 Cal.3d 822, 831.
U.S. v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 113
source

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Mi$Conduct – Judicial Mi$Conduct Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment

What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170 – Crimes Against Public Justice

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process?

What is a Due Process Violation? 4th & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC – Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

Misconduct by Government Know Your Rights Click Here

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court?

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

Retrieving Evidence / Internal Investigation Case

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

Cleaning Up Your Record

Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

PARENT CASE LAW

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Right to Travel freely – U.S. SUPREME COURT

The Truth News — Mon, 25 Dec 2023 08:00:26 +0000

Right to Travel freely – U.S. SUPREME COURT

Due Process Cause of the 14th amendment (which applies to the states)

Due Process Clause of the 5th amendment (which applies to the federal government)

AND OTHER HIGH COURT CITATIONS PROVING NO LICENSE IS NECESSARY FOR NORMAL USE OF AN AUTOMOBILE ON common ways.

“The right of a citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but a common right which he has under his right to life, liberty and the pursuit of happiness. Under this constitutional guaranty one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s rights, he will be protected, not only in his person, but in his safe conduct.“ Thompson v. Smith, 154 SE 579, 11 American Jurisprudence, Constitutional Law, Section 329, Page 1135.

“The right of the citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel, includes the right to drive a horse drawn carriage or wagon thereon or to operate an automobile thereon, for the usual and ordinary purpose of life and business.” – Thompson vs. Smith, supra.; Teche Lines vs. Danforth, Miss., 12 S.20 784.

“… The right of the citizen to drive on a public street with freedom from police interference… Is a fundamental constitutional right” – White, 97 Cal.App.3d.141, 158 Cal.Rptr. 562, 566 – 67 (1979).

“Citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access.” Caneisha Mills v. D.C. 2009.

“The use of the automobile as a necessary adjunct to the earning of a livelihood in modern life requires us in the interest of realism to conclude that the right to use an automobile on the public highways partakes of the nature of a liberty within the meaning of the constitutional guarantees…” Berberian v. Lussier (1958) 139 a2d 869, 672, see also: Schecter v. Killingsworth, 380 p.20136, 140; 93 Ariz. 273 (1963).

“The right to operate a motor vehicle [an automobile] upon the public streets and highways 15 not a mere privilege. It is a right of liberty, the enjoyment of which is protected by the guarantees of the federal and state constitutions.” Adams v. City of Pocatello, 416 p.2d 46, 48; 91 Idaho 99 (1966).

“A traveler has an equal right to employ an automobile as a means of transportation and to occupy the public highways with other vehicles in common use.” Campbell v. Walker, 78 Atl. 601, 603, 2 Boyce (Del.) 41.

“The owner of an automobile has the same right as the owner of other vehicles to use the highway, a traveler on foot has the same right to the use of the public highways as an automobile or any other vehicle.” Simeone v. Lindsay, 65 Atl. 778, 779; Hannigan v. Wright, 63 Atl. 234, 236.

“The right of the citizen to drive on the public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality is a Fundamental constitutional right which must be protected by the courts.“ People v. Horton 14 Cal. App. 3rd 667 (1971).

“The right to make use of an automobile as a vehicle of travel long the highways of the state, is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling in some other vehicle.” House v. Cramer, 112 N.W. 3; 134 Iowa 374; Farnsworth v. Tampa electric co. 57 so. 233, 237, 62 Fla. 166.

“The automobile may be used with safety to others users of the highway, and in its proper use upon the highways there is an equal right with the users of other vehicles properly upon the highways. The law recognizes such right of use upon general principles.” Brinkman v Pacholike, 84 N.E. 762, 764, 41 Ind. App. 662, 666.

“The law does not denounce motor carriages, as such, on public ways. They have an equal right with other vehicles in common use to occupy the streets and roads. It is improper to say that the driver of the horse has rights in the roads superior to the driver of the automobile. Both have the right to use the easement.” Indiana Springs Co. V. Brown, 165 Ind. 465, 468.

“A highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle.” Schlesinger v. City of Atlanta, 129 S.E. 861, 867, 161 Ga. 148,159; Holland v. Shackelford, 137 S.E. 2d 298, 304, 220 Ga. 104; Stavola v. Palmer, 73 a.2d 831, 838,136 Conn. 670.

“There can be no question of the right of automobile owners to occupy and use the public streets of cities, or highways in the rural districts.” Liebrecht v. Crandall, 126 N.W. 69, 110 Minn. 454, 456.

“The word ‘automobile’ connotes a pleasure vehicle designed for the transportation of persons on highways.” – American Mutual Liability Ins. Co. vs. Chaput, 60 A.2d 118, 120; 95 NH 200.

Saenz v. Roe, 526 U.S. 489, 498, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). The constitutional right to travel “embraces at least three different components”:

[1] the right of a citizen of one State to enter and to leave another State,

[2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and

[3] for those travelers who elect to be permanent residents, the right to be treated like other citizens of that State.

A law only implicates this right when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.

ArtIV.S2.C1.13 Right to Travel and Privileges and Immunities Clause

Article IV, Section 2, Clause 1:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

In Saenz v. Roe, the Court characterized the constitutional right to travel as having at least three different components:

It protects:
[1]the right of a citizen of one State to enter and to leave another State,
[2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and,
[3] for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.⁴

Footnotes

Jump to essay-1See, e.g., Ward v. Maryland, 79 U.S. 418, 430 (1870) ([The Privileges and Immunities] clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union . . . .); Paul v. Virginia, 75 U.S. 168, 180 (1868) (stating that the Privileges and Immunities Clause includes the right of free ingress into other States, and egress from them), overruled on other grounds by United States v. S.-E. Underwriters Ass’n, 322 U.S. 533 (1944); see generally United States v. Guest, 383 U.S. 745, 762–67 (1966) (Harlan, J., concurring in part and dissenting in part) (surveying cases).
Jump to essay-2See Guest, 383 U.S. at 759 (Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.).
Jump to essay-3Doe v. Bolton, 410 U.S. 179, 200 (1973), abrogated on other grounds by Dobbs v. Jackson Women’s Health Org., No. 19-1393 (U.S. June 24, 2022).
Jump to essay-4526 U.S. 489, 500 (1999) (numbering added).
Jump to essay-5Id. at 501 (citing Articles of Confederation of 1781 art. IV, § 1).
Jump to essay-6Id. at 501–502.
Jump to essay-7Id. at 502–03 (citing U.S. Const. amend. XIV, § 1). The Commerce Clause is another potential textual basis for the right to travel. See Guest, 383 U.S. at 758 (citing Edwards v. California, 314 U.S. 160, 173 (1941)).
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Amdt14.S1.8.13.2 Interstate Travel as a Fundamental Right

Fourteenth Amendment, Section 1:

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 process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The doctrine of the right to travel actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between states, a right venerable for its longevity, but still lacking a clear doctrinal basis.¹ The second, expressly addressed by the first sentence of Article IV, provides a citizen of one state who is temporarily visiting another state the Privileges and Immunities of a citizen of the latter state.² The third is the right of a new arrival to a state, who establishes citizenship in that state, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified period before taking advantage of the benefits of that state’s citizenship.

Footnotes

Jump to essay-1Saenz v. Roe, 526 U.S. 489 (1999). For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of ‘free ingress and regress to and from’ neighboring states which was expressly mentioned in the text of the Articles of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ Id. at 501 (citations omitted).
Jump to essay-2Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.).
source

What other rights and freedoms relate to the right to freedom of movement?

The right to freedom of movement may also be relevant to:

the right to liberty and security under article 9 of the ICCPR
the right to participate in public life under article 25 of the ICCPR
the right to peaceful assembly under article 21 of the ICCPR
the right to freedom of association under article 22 of the ICCPR
the right to privacy under article 17 of the ICCPR
the conditions for expulsion of aliens in article 13 of the ICCPR.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 12

Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
Everyone shall be free to leave any country, including his own.
The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
No one shall be arbitrarily deprived of the right to enter his own country.

See also: ICCPR article 13; CRC article 10; CRPD article 18; CERD article 5; CEDAW article 15.

Motor Vehicle: 18 USC Part 1 Chapter 2 Section 31 Definitions:

“(6) Motor vehicle. – the term ‘motor vehicle’ means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways…” .
“10) the term ‘used for commercial purposes’ means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit.
“A motor vehicle or automobile for hire is a motor vehicle, other than an automobile stage, used for the transportation of persons for which remuneration is received.” – International Motor Transit Co. Vs. Seattle, 251 p. 120.
“The term ‘motor vehicle’ is different and broader than the word ‘automobile.'” – City of Dayton vs. Debrosse, 23 NE.2d 647, 650; 62 Ohio App. 232.
“Thus self – driven vehicles are classified according to the use to which they are put rather than according to the means by which they are propelled” – Ex Parts Hoffert, 148 NW 20.
“The Supreme Court, in Arthur v. Morgan, 112 U.S. 495, 5 S.Ct. 241, 28 L.ed. 825, held that carriages were properly classified as household effects, and we see no reason that automobiles should not be similarly disposed of.” Hillhouse v United States, 152 f. 163, 164 (2nd Cir. 1907).
“… A citizen has the right to travel upon the public highways and to transport his property thereon…” State vs. Johnson, 243 p. 1073; Cummins vs. Homes, 155 p. 171; Packard vs. Banton, 44 S.Ct. 256; Hadfield vs. Lundin, 98 wash 516, Willis vs. Buck, 263 p. L 982; Barney vs. Board of railroad commissioners, 17 P.2d 82.
“The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamental right of which the public and the individual cannot be rightfully deprived.” Chicago motor coach vs. Chicago, 169 NE 22; Ligare vs. Chicago, 28 ne 934; Boon vs. Clark, 214 SSW 607; 25 Am.Jur. (1st) Highways Sect.163.
“The right of the citizen to travel upon the highway and to transport his property thereon in the ordinary course of life and business… 15 the usual and ordinary right of the citizen, a right common to all.” – Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781.
“Every citizen has an unalienable right to make use of the public highways of the state; every citizen has full freedom to travel from place to place in the enjoyment of life and liberty.” People v. Nothaus, 147 Colo. 210.
“No state government entity has the power to allow or deny passage on the highways, byways, nor waterways… Transporting his vehicles and personal property for either recreation or business, but by being subject only to local regulation i.e., safety, caution, traffic lights, speed limits, etc. Travel is not a privilege requiring licensing, vehicle registration, or forced insurances.” Chicago Coach Co. V. City of Chicago, 337 Ill. 200, 169 N.E. 22.
“Traffic infractions are not a crime.” People v. Battle.
“Persons faced with an unconstitutional licensing law which purports to require a license as a prerequisite to exercise of right… May ignore the law and engage with impunity in exercise of such right.” Shuttlesworth v. Birmingham 394 U.S. 147 (1969).
“The word ‘operator’ shall not include any person who solely transports his own property and who transports no persons or property for hire or compensation:” Statutes at Large California Chapter 412 p.83.
“Highways are for the use of the traveling public, and all have the right to use them in a reasonable and proper manner; the use thereof is an inalienable right of every citizen.” Escobedo v. State 35 C2d 870 IN 8 Cal Jur 3d p.27.
“Right – – a legal right, a Constitutional Right means a Right protected by the law, by the constitution, but government does not create the idea of right or original rights; it acknowledges them… ” Bouvier’s Law Dictionary, 1914, p. 2961.
“Those who have the right to do something cannot be licensed for what they already have right to 00 as such license would be meaningless.” City of Chicago v Collins 51 NE 907, 910.
“A license means leave to do a thing which the licensor could prevent.” Blatz Brewing Co. V. Collins, 160 P.2d 37, 39; 69 Cal. A. 2. 639.
“The object of a license is to confer a right or power, which does not exist without it.” Payne v. Massey (19) 196 SW 2nd 493, 145 Tex 273.
“The court makes it clear that a license relates to qualifications to engage in profession, business, trade or calling; thus, when merely traveling without compensation or profit, outside of business enterprise or adventure with the corporate state, no license is required of the natural individual traveling for personal business, pleasure and transportation.” Wingfield v. Fielder 20 ca. 3d 213 (1972).
“If [state] officials construe a vague statute unconstitutionally, the citizen may take them at their word, and act on the assumption that the statute is void.” – Shuttlesworth v. Birmingham 394 U.S. 147 (1969).
“With regard particularly to the U.S. Constitution, it is elementary that aright secured or protected by that document cannot be overthrown or impaired by any state police authority.” Donnolly vs. Union Sewer Pipe Co., 184 us 540; Lafarier vs. Grand Trunk R.R. Co., 24 a. 848; O’Neil vs. Providence Amusement Co., 108 A. 887.
“The right to travel (called the right of free ingress to other states, and egress from them) is so fundamental that it appears in the articles of confederation, which governed our society before the constitution.” (Paul v. Virginia).
“[T]he right to travel freely from state to state … Is a right broadly assertable against private interference as well as governmental action. Like the right of association, it is a virtually unconditional personal right, guaranteed by the constitution to us all.” (U.S. Supreme Court, Shapiro v. Thompson).
Edgerton, Chief Judge: “Iron curtains have no place in a free world… ‘Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the constitution.” Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.ed. 186.
“Our nation has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.” Id., at 197. Kent vs. Dulles see Vestal, Freedom of Movement, 41 Iowa L. Rev. 6, 13 – 14.
“The validity of restrictions on the freedom of movement of particular individuals, both substantively and procedurally, is precisely the sort of matter that is the peculiar domain of the courts.” comment, 61 Yale L.J. at page 187.
“A person detained for an investigatory stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” Justice White, Hiibel.
“Automobiles have the right to use the highways of the state on an equal footing with other vehicles.” Cumberland Telephone & Telegraph Co. v. Yeiser 141 Kentucky 15.
“Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the law of the road.” Swift v City of Topeka, 43 Kansas 671, 674.
The Supreme Court said in U.S. v Mersky (1960) 361 U.S. 431: an administrative regulation, of course, is not a “statute”.
“A traveler on foot has the same right to use of the public highway as an automobile or any other vehicle.” Cecchi v. Lindsay, 75 Atl. 376, 377, 1 Novae (Del.) 185.
“Automotive vehicles are lawful means of conveyance and have equal rights upon the streets with horses and carriages.” Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 205; see also: Christy v. Elliot, 216 Ill. 31; Ward v. Meredith, 202 Ill. 66; Shinkle v. McCullough, 116 Ky. 960; Butler v. Cabe, 116 Ark. 26, 28 – 29.
“Automobiles are lawful vehicles and have equal rights on the highways with horses and carriages.” Daily v. Maxwell, 133 S.W. 351, 354. Matson v. Dawson, 178 N.W. 2d 589, 591.
“A farmer has the same right to the use of the highways of the state, whether on foot or in a motor vehicle, as any other citizen. Draffin v. Massey, 92 S.E.2d 38, 42.
“Persons may lawfully ride in automobiles, as they may lawfully ride on bicycles.” Doherty v. Ayer, 83 N.E. 677,197 Mass. 241, 246; Molway v. City of Chicago, 88 N.E. 485, 486, 239 Ill. 486; Smiley v. East St Louis Rv. Co., 100 N.E. 157, 158.
“A soldier’s personal automobile is part of his ‘household goods[.]” U.S. V Bomar, C.A.S.(Tex.), 8 F.3d 226, 235″ 19A Words and Phrases – Permanent Edition (West) Pocket Part 94. “[it is a jury question whether … an automobile … is a motor vehicle[.]” United States v Johnson, 718 F.20 1317, 1324 (5th Cir. 1983).
Other right to use an automobile cases:

Edwards vs. California, 314 U.S. 160
Twinng vs New Jersey, 211 U.S. 78
Williams vs. Fears, 179 U.S. 270, at 274
Crandall vs. Nevada, 6 Wall. 35, at 43 – 44
The Passenger Cases, 7 Howard 207, at 492
U.S. vs. Guest, 383 U.S. 745, At 757 – 758 (1966)
Griffin vs. Breckenridge, 403 U.S. 88, at105 – 106 (1971)
Califano vs. Tors, 435 U.S. 1, At 4, Note 6 – Shapiro vs. Thompson, 324 U.S. 618 (1969)
Alifano vs. Aznavavorian, 439 U.S. 170 At 176 (1978)

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READ UP MORE….. on Malicious Prosecution and Thompson Vs. Clark and other SCOTUS Rulings here

Footnotes

Saenz v. Roe, 526 U.S. 489 (1999). For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of “free ingress and regress” to and from neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ Id. at 501 (citations omitted).
Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.).
Saenz v. Roe, 526 U.S. 489, 502–03 (1999).
Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Because the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the Privileges and Immunities Clause, Article IV, § 2, cl. 1.
Intrastate travel is protected to the extent that the classification fails to meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three-judge court), aff’d. per curiam, 405 U.S. 1035 (1972), with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the commerce clause cases, in which discrimination may run against in-state as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).
Shapiro v. Thompson, 394 U.S. 618, 629–31, 638 (1969); Dunn v. Blumstein, 405 U.S. 330, 338–42 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); Jones v. Helms, 452 U.S. 412, 420–21 (1981). See also Oregon v. Mitchell, 400 U.S. 112, 236–39 (1970) (Justices Brennan, White, and Marshall), and id. at 285–92 (Justices Stewart and Blackmun and Chief Justice Burger).
Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham v. Richardson, 403 U.S. 365, 375–76 (1971).
Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314 U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source of the right to travel and the reasons for reliance on the Equal Protection Clause are questions puzzled over and unresolved by the Court. United States v. Guest, 383 U.S. 745, 758, 759 (1966), and id. at 763–64 (Justice Harlan concurring and dissenting), id. at 777 n.3 (Justice Brennan concurring and dissenting); Shapiro v. Thompson, 394 U.S. 618, 629–31 (1969), and id. at 671 (Justice Harlan dissenting); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 31–32 (1973); Jones v. Helms, 452 U.S. 412, 417–19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Justice Brennan concurring), 78-81 (Justice O’Connor concurring).
394 U.S. 618 (1969).
The durational residency provision established by Congress for the District of Columbia was also voided. 394 U.S. at 641–42.
394 U.S. at 627–33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff’d sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the state solely to obtain welfare assistance.
394 U.S. at 633–38. Shapiro was reaffirmed in Graham v. Richardson, 403 U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (voiding requirement of one year’s residency in the county as a condition to indigent’s receiving nonemergency hospitalization or medical care at county’s expense). When Connecticut and New York reinstituted the requirements, pleading a financial emergency as the compelling state interest, they were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff’d per curiam, 404 U.S. 1054 (1972); Lopez v. Wyman, Civ. No. 1971-308 (W.D.N.Y. 1971), aff’d per curiam, 404 U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971).
405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five and seven years respectively for candidates for elective office were sustained in Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975).
For additional discussion of durational residence as a qualification to vote, see Voter Qualifications, supra.
Saenz v. Roe, 526 U.S. 489, 505 (1999).
419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits. Id. at 418.
419 U.S. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which was true in the prior cases as well and there held immaterial), and that possibly the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny.
Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), aff’d per curiam, 401 U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452 & n.9 (1973), and id. at 456, 464, 467 (dicta). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 256 (1974), the Court, noting the results, stated that some waiting periods . . . may not be penalties and thus would be valid.
Saenz v. Roe, 526 U.S. at 505.
Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was the Court’s invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986).
La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or other professions have evoked differing responses by lower courts.
E.g., McCarthy v. Philadelphia Civil Service Comm’n, 424 U.S. 645 (1976) (ordinance requiring city employees to be and to remain city residents upheld). See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 (1974). See also Martinez v. Bynum, 461 U.S. 321 (1983) (bona fide residency requirement for free tuition to public schools).
Jones v. Helms, 452 U.S. 412 (1981) (statute made it a misdemeanor to abandon a dependent child but a felony to commit the offense and then leave the state).

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What is a Due Process Violation? 4th & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

ARE PEOPLE LYING ON YOU?
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Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC – Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

Misconduct by Government Know Your Rights Click Here

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

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Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court?

Removing Corrupt Judges, Prosecutors, Jurors
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Anti-SLAPP Law in California

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How to Recover “Punitive Damages” in a California Personal Injury Case

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What is Tort?

Tort Claims Form
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Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

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Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

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CACI No. 1501 – Wrongful Use of Civil Proceedings

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Can I Use Text Messages in My California Divorce?

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How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
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case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

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The Decision Briefing Merits After the San Jose Decision

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Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

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Prosecutor’s Obligation to Disclose Exculpatory Evidence

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ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

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Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

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PARENT CASE LAW

RELATIONSHIP WITH YOUR CHILDREN &
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YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

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9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
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Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
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Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

The Truth News — Thu, 02 Mar 2023 08:58:45 +0000

Dwayne Furlow v. Jon Belmar, No. 21-2640 (8th Cir. 2022)

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Officer NOT entitled to qualified immunity Warrant issued by biased police without probable cause, the need for a neutral magistrate to issue a warrant based on actual probable cause.

Opinion Summary

The St. Louis County Police Department (“SLCPD”) in Missouri utilizes what it calls a “Wanteds System.” This system allows officers to issue electronic notices (“Wanteds”) authorizing any other officer to seize a person and take him into custody for questioning without any review by a neutral magistrate before issuance. The Wanteds may pend for days, months, or, in some cases, indefinitely.

The Eighth Circuit affirmed the district court’s grant of qualified immunity to Officers and its dismissal of the municipal liability claim and Count Three. The court reversed the district court’s grant of qualified immunity to the Detective. The court explained that the Wanteds System is broad enough to encompass situations that do not violate the Constitution, including those involving an arrest immediately after an officer has entered a wanted. The court wrote that Plaintiffs’ facial challenge to the Wanteds System fails. Further, the court explained that the SLCPD Wanteds System, although fraught with the risk of violating the Constitution in certain circumstances and/or the danger of evidence being suppressed due to an invalid arrest, is not facially unconstitutional. The burden is then on Plaintiffs to show a persistent pattern of unconstitutional misconduct. The court concluded that the evidence in the record does not show a persistent pattern of unconstitutional arrests so pervasive that it can be said to constitute custom or usage with the force of law. Nor do the proposed classes describe a group of individuals who demonstrate that such a custom or practice exists. The district court did not err in dismissing the Plaintiffs’ municipal liability claim.

Court Description: [Erickson, Author, with Shepherd and Stras, Circuit Judges] Civil case – Civil rights. In this challenge to St. Louis County Missouri’s system allowing police officers to issue electronic “wanted” notices authorizing any other officer to seize a person and take him into custody for questioning without any review by a neutral magistrate before issuance, the district court granted the defendants’ motion for summary judgment and denied the plaintiffs’ motion for class certification. Plaintiffs, who were arrested on wanteds, appeal. Held: Because circumstances may exist under which the Wanteds System is constitutional, plaintiff’s facial challenge to the system fails; defendant officers Partin and Walsh were entitled to qualified immunity for plaintiff’s arrest because there was doubt that the officers’ actions violated clearly established law; however, with respect to the actions of defendant Clements, even a minimal investigation on her part would have shown that any probable cause for the arrest had vanished, and she was not entitled to qualified immunity; defendant Walsh was entitled to qualified immunity for the arrest of plaintiff Furlow because there was arguable probable cause he had committed a domestic assault; the evidence does not show a persistent pattern of unconstitutional arrests so pervasive that it can be said to constitute a custom or usage with the force of law, and the district court did not err in dismissing the plaintiffs’ municipal liability claim; the district court did not err in dismissing plaintiffs’ substantive due process claim where plaintiffs stated a Fourth Amendment claim; on remand, the district court can reconsider whether class certification is appropriate in light of this decision. Judge Shepherd, concurring in part and dissenting in part. Judge Stras, concurring in part and concurring in the judgment.

What is a Due Process Violation?

The Truth News — Mon, 10 Oct 2022 19:13:06 +0000

What is a Due Process Violation?

it violates your Constitutional Rights afforded to you in the following amendments

Fourth Amendment
Fifth Amendment
Fourteenth Amendment
Prosecutorial misconduct – When prosecutors abuse their power by breaking the law or breaching a professional code of conduct. click here
Malicious Prosecution and Thompson Vs. Clark and other SCOTUS Rulings click here

Due Process Introduction

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures. Most of this essay concerns that promise. We should briefly note, however, three other uses that these words have had in American constitutional law.

Incorporation The Fifth Amendment’s reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states (see Barron v City of Baltimore (1833)). However, this attitude faded in Chicago, Burlington & Quincy Railroad Company v. City of Chicago (1897), when the court incorporated the Fifth Amendment’s Takings Clause. In the the middle of the Twentieth Century, a series of Supreme Court decisions found that the Due Process Clause incorporated” most of the important elements of the Bill of Rights and made them applicable to the states. If a Bill of Rights guarantee is “incorporated” in the “due process” requirement of the Fourteenth Amendment, state and federal obligations are exactly the same.

Substantive due process The words “due process” suggest a concern with procedure rather than substance, and that is how many–such as Justice Clarence Thomas, who wrote “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness”–understand the Due Process Clause. However, others believe that the Due Process Clause does include protections of substantive due process–such as Justice Stephen J. Field, who, in a dissenting opinion to the Slaughterhouse Cases wrote that “the Due Process Clause protected individuals from state legislation that infringed upon their “privileges and immunities” under the federal Constitution. Field’s dissenting opinion is often seen as an important step toward the modern doctrine of substantive due process, a theory that the Court has developed to defend rights that are not mentioned in the Constitution.” Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, marry, and to raise one’s children as a parent. In Lochner v New York (1905), the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. Substantive due process is still invoked in cases today, but not without criticism (See this Stanford Law Review article to see substantive due process as applied to contemporary issues). The promise of legality and fair procedure Historically, the clause reflects the Magna Carta of Great Britain, King John’s thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes Great Britain’s Seventeenth Century struggles for political and legal regularity, and the American colonies’ strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause often thought to embody that commitment.

The clause also promises that before depriving a citizen of life, liberty or property, government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesn’t say anything about discipline.

Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.” How can we know whether process is due what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If “due process” refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling to accept legislative judgments have to find answers somewhere else. The Supreme Court’s struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government.

Distinguishing Due Process

Bi-Metallic established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn’t govern how a state sets the rules for student discipline in its high schools; but it does govern how that state applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved.

Process was due before the government could take an action that affected a citizen in a grave way.

In the early 1970s, however, many scholars accepted that “life, liberty or property” was directly affected by state action, and wanted these concepts to be broadly interpreted. Two Supreme Court cases involved teachers at state colleges whose contracts of employment had not been renewed as they expected, because of some political positions they had taken. Were they entitled to a hearing before they could be treated in this way? Previously, astate job was a “privilege” and the answer to this question was an emphatic “No!” Now, the Court decided that whether either of the two teachers had “property” would depend in each instance on whether persons in their position, under state law, held some form of tenure. One teacher had just been on a short term contract; because he served “at will” — without any state law claim or expectation to continuation — he had no “entitlement” once his contract expired. The other teacher worked under a longer-term arrangement that school officials seemed to have encouraged him to regard as a continuing one. This could create an “entitlement,” the Court said; the expectation need not be based on a statute, and an established custom of treating instructors who had taught for X years as having tenure could be shown. While, thus, some law-based relationship or expectation of continuation had to be shown before a federal court would say that process was “due,” constitutional “property” was no longer just what the common aw called “property”; it now included any legal relationship with the state that state law regarded as in some sense an “entitlement” of the citizen.

Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away. This restated the formal “right/privilege” idea, but did so in a way that recognized the new dependency of citizens on relations with government, the “new property” as one scholar influentially called it.

When process is due

In its early decisions, the Supreme Court seemed to indicate that when only property rights were at stake (and particularly if there was some demonstrable urgency for public action) necessary hearings could be postponed to follow provisional, even irreversible, government action. This presumption changed in 1970 with the decision in Goldberg v. Kelly, a case arising out of a state-administered welfare program. The Court found that before a state terminates a welfare recipient’s benefits, the state must provide a full hearing before a hearing officer, finding that the Due Process Clause required such a hearing.

What procedures are due

The Goldberg Court answered this question by holding that the state must provide a hearing before an impartial judicial officer, the right to an attorney’s help, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made and explained in an opinion. The Court’s basis for this elaborate holding seems to have some roots in the incorporation doctrine.

Many argued that the Goldberg standards were too broad, and in subsequent years, the Supreme Court adopted a more discriminating approach. Process was “due” to the student suspended for ten days, as to the doctor deprived of his license to practice medicine or the person accused of being a security risk; yet the difference in seriousness of the outcomes, of the charges, and of the institutions involved made it clear there could be no list of procedures that were always “due.” What the Constitution required would inevitably be dependent on the situation. What process is “due” is a question to which there cannot be a single answer.

A successor case to Goldberg, Mathews v. Eldridge, tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts. The approach it defined has remained the Court’s preferred method for resolving questions over what process is due. Mathews attempted to define how judges should ask about constitutionally required procedures. The Court said three factors had to be analyzed:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Respecting the second, it found the risk of error in using written procedures for the initial judgment to be low, and unlikely to be significantly reduced by adding oral or confrontational procedures of the Goldberg variety. It reasoned that disputes over eligibility for disability insurance typically concern one’s medical condition, which could be decided, at least provisionally, on the basis of documentary submissions; it was impressed that Eldridge had full access to the agency’s files, and the opportunity to submit in writing any further material he wished. Finally, the Court now attached more importance than the Goldberg Court had to the government’s claims for efficiency. In particular, the Court assumed (as the Goldberg Court had not) that “resources available for any particular program of social welfare are not unlimited.” Thus additional administrative costs for suspension hearings and payments while those hearings were awaiting resolution to persons ultimately found undeserving of benefits would subtract from the amounts available to pay benefits for those undoubtedly eligible to participate in the program. The Court also gave some weight to the “good-faith judgments” of the plan administrators what appropriate consideration of the claims of applicants would entail.

Matthews thus reorients the inquiry in a number of important respects. First, it emphasizes the variability of procedural requirements. Rather than create a standard list of procedures that constitute the procedure that is “due,” the opinion emphasizes that each setting or program invites its own assessment. About the only general statement that can be made is that persons holding interests protected by the due process clause are entitled to “some kind of hearing.” Just what the elements of that hearing might be, however, depends on the concrete circumstances of the particular program at issue. Second, that assessment is to be made concretely and holistically. It is not a matter of approving this or that particular element of a procedural matrix in isolation, but of assessing the suitability of the ensemble in context. Third, and particularly important in its implications for litigation seeking procedural change, the assessment is to be made at the level of program operation, rather than in terms of the particular needs of the particular litigants involved in the matter before the Court. Cases that are pressed to appellate courts often are characterized by individual facts that make an unusually strong appeal for proceduralization.

Indeed, one can often say that they are chosen for that appeal by the lawyers, when the lawsuit is supported by one of the many American organizations that seeks to use the courts to help establish their view of sound social policy.

Finally, and to similar effect, the second of the stated tests places on the party challenging the existing procedures the burden not only of demonstrating their insufficiency, but also of showing that some specific substitute or additional procedure will work a concrete improvement justifying its additional cost.

Thus, it is inadequate merely to criticize. The litigant claiming procedural insufficiency must be prepared with a substitute program that can itself be justified.

The hard problem for the courts in the Mathews approach, which may be unavoidable, is suggested by the absence of fixed doctrine about the content of “due process” and by the very breadth of the inquiry required to establish its demands in a particular context. A judge has few reference points to begin with, and must decide on the basis of considerations (such as the nature of a government program or the probable impact of a procedural requirement) that are very hard to develop in a trial.

An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.

What Does the 4th Amendment Mean?

The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.

The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government.

Home

Searches and seizures inside a home without a warrant are presumptively unreasonable.
Payton v. New York, 445 U.S. 573 (1980).

However, there are some exceptions. A warrantless search may be lawful:

If an officer is given consent to search; Davis v. United States, 328 U.S. 582 (1946)
If the search is incident to a lawful arrest; United States v. Robinson, 414 U.S. 218 (1973)
If there is probable cause to search and exigent circumstances; Payton v. New York, 445 U.S. 573 (1980)
If the items are in plain view; Maryland v. Macon, 472 U.S. 463 (1985).

A Person

When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer’s suspicions.
Terry v. Ohio, 392 U.S. 1 (1968)
Minnesota v. Dickerson, 508 U.S. 366 (1993)

Schools

School officials need not obtain a warrant before searching a student who is under their authority; rather, a search of a student need only be reasonable under all the circumstances.
New Jersey v. TLO, 469 U.S. 325 (1985)

Cars

Where there is probable cause to believe that a vehicle contains evidence of a criminal activity, an officer may lawfully search any area of the vehicle in which the evidence might be found.
Arizona v. Gant, 129 S. Ct. 1710 (2009),

An officer may conduct a traffic stop if he has reasonable suspicion that a traffic violation has occurred or that criminal activity is afoot.
Berekmer v. McCarty, 468 U.S. 420 (1984),
United States v. Arvizu, 534 U.S. 266 (2002).

An officer may conduct a pat-down of the driver and passengers during a lawful traffic stop; the police need not believe that any occupant of the vehicle is involved in a criminal activity.
Arizona v. Johnson, 555 U.S. 323 (2009).

The use of a narcotics detection dog to walk around the exterior of a car subject to a valid traffic stop does not require reasonable, explainable suspicion.
Illinois v. Cabales, 543 U.S. 405 (2005).

Special law enforcement concerns will sometimes justify highway stops without any individualized suspicion.
Illinois v. Lidster, 540 U.S. 419 (2004).

An officer at an international border may conduct routine stops and searches.
United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

A state may use highway sobriety checkpoints for the purpose of combating drunk driving.
Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

A state may set up highway checkpoints where the stops are brief and seek voluntary cooperation in the investigation of a recent crime that has occurred on that highway.
Illinois v. Lidster, 540 U.S. 419 (2004).

However, a state may not use a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics.
City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

Due process in criminal cases: The 4th Amendment

In an earlier post we introduced the subject of how the concept of due process interacts with the criminal justice system. Although not all of the amendments that comprise the Bill of Rights to the U.S. Constitution are related to procedural due process, the 4th, 5th, 6th and 8th Amendments are directly connected to it. We will briefly cover each of these amendments going forward, starting with the 4th Amendment.

The 4th Amendment safeguards against unreasonable searches and seizures of persons and property, and except for situations that courts have carved out as exceptions (see below) requires the use of search and arrest warrants based on probable cause. Evidence gathered by the police in violation of the 4th Amendment cannot be used against you; courts have referred to this exclusion as the “fruit of the poisonous tree” rule.

Characteristics of the 4th Amendment include:

As with due process rights overall, it protects against government action and not actions of private individuals.
It is not a prohibition on all searches and seizures. To qualify for its protection, you must have a reasonable expectation of privacy in the place or the item that the police seek to seize.
What constitutes a “search or seizure” depends on the immediate circumstances. For example, if a police officer stops you on the street and starts asking you questions, that is not a search or a seizure (and conversely you are not obligated to answer any of those questions). But if the officer seeks to search your clothing or personal effects without a warrant, then he must have at least a reasonable suspicion in advance that you have been engaged in some criminal activity.
If a police officer has probable cause to believe that you have committed a crime, then he can arrest you without having to obtain an arrest warrant first. Or, if you have committed a misdemeanor crime in the officer’s presence no arrest warrant is needed. But unless the officer is in “hot pursuit” of someone who has committed a felony and is trying to flee, any arrest in a private place will ordinarily require the issuance of an arrest warrant.

Torres v. Madrid (2021)

Author: John Roberts

The application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.

Kansas v. Glover (2020)

Author: Clarence Thomas

When an officer lacks information negating an inference that a vehicle is driven by its owner, an investigative traffic stop made after running a vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable.

Collins v. Virginia (2018)

Author: Sonia Sotomayor

The automobile exception does not permit the warrantless entry of a home or its curtilage to search a vehicle therein.

Carpenter v. U.S. (2018)

Author: John Roberts

The government’s acquisition of an individual’s cell-site records was a Fourth Amendment search.

Utah v. Strieff (2016)

Author: Clarence Thomas

The discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest.

Rodriguez v. U.S. (2015)

Author: Ruth Bader Ginsburg

Without reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

Fernandez v. California (2014)

Author: Samuel A. Alito, Jr.

The holding in Randolph is limited to situations in which the objecting occupant is physically present.

Heien v. North Carolina (2014)

Author: John Roberts

When an officer’s mistake of law was reasonable, there was a reasonable suspicion justifying a stop under the Fourth Amendment.

Riley v. California (2014)

Author: John Roberts

Without a warrant, the police generally may not search digital information on a cell phone seized from an individual who has been arrested.

Florida v. Jardines (2013)

Author: Antonin Scalia

Using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a search within the meaning of the Fourth Amendment.

Maryland v. King (2013)

Author: Anthony Kennedy

When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

U.S. v. Jones (2012)

Author: Antonin Scalia

The government’s attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

Davis v. U.S. (2011)

Author: Samuel A. Alito, Jr.

Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.

Kentucky v. King (2011)

Author: Samuel A. Alito, Jr.

The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.

Arizona v. Johnson (2009)

Author: Ruth Bader Ginsburg

In a traffic stop setting, the first Terry condition (a lawful investigatory stop) is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have cause to believe that any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

Arizona v. Gant (2009)

Author: John Paul Stevens

Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

Safford Unified School District #1 v. Redding (2009)

Author: David Souter

The required knowledge component of reasonable suspicion for a school administrator’s evidence search is that it raise a moderate chance of finding evidence of wrongdoing.

Herring v. U.S. (2009)

Author: John Roberts

When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.

Brendlin v. California (2007)

Author: David Souter

When police make a traffic stop, a passenger in the car (not only the driver) is seized for Fourth Amendment purposes and thus may challenge the stop’s constitutionality.

Scott v. Harris (2007)

Author: Antonin Scalia

When opposing parties tell two different stories, one of which is blatantly contradicted by the record so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purposes of ruling on a motion for summary judgment. Also, a police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.

Georgia v. Randolph (2006)

Author: David Souter

A physically present co-occupant’s stated refusal to permit entry to a residence rendered a warrantless entry and search unreasonable and invalid as to them.

Brigham City v. Stuart (2006)

Author: John Roberts

Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.

Illinois v. Caballes (2005)

Author: John Paul Stevens

A dog sniff conducted during a lawful traffic stop that reveals no information other than the location of a substance that no individual has a right to possess does not violate the Fourth Amendment.

Illinois v. Lidster (2004)

Author: Stephen Breyer

A highway checkpoint where police stopped motorists to ask for information about a recent accident was reasonable under the Fourth Amendment.

Groh v. Ramirez (2004)

Author: John Paul Stevens

When a warrant did not describe the items to be seized, the fact that the application for the warrant adequately described the items did not save the warrant.

Hiibel v. Sixth Judicial District Court of Nevada (2004)

Author: Anthony Kennedy

Terry principles permit a state to require a suspect to disclose their name in the course of a Terry stop.

Thornton v. U.S. (2004)

Author: William Rehnquist

Belton governs even when an officer does not make contact until the person arrested has left the vehicle.

U.S. v. Banks (2003)

Author: David Souter

A 15-to-20-second wait before forcible entry satisfied the Fourth Amendment.

Maryland v. Pringle (2003)

Author: William Rehnquist

To determine whether an officer had probable cause to make an arrest, a court must examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.

U.S. v. Drayton (2002)

Author: Anthony Kennedy

The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.

Illinois v. McArthur (2001)

Author: Stephen Breyer

Police officers acted reasonably when, with probable cause to believe that a man had hidden marijuana in his home, they prevented that man from entering the home for about two hours while they obtained a search warrant.

Ferguson v. Charleston (2001)

Author: John Paul Stevens

A state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure.

Atwater v. Lago Vista (2001)

Author: David Souter

The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.

Kyllo v. U.S. (2001)

Author: Antonin Scalia

When the government uses a device that is not in general public use to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment search, and it is presumptively unreasonable without a warrant.

Indianapolis v. Edmond (2000)

Author: Sandra Day O’Connor

A vehicle checkpoint violates the Fourth Amendment when its primary purpose is indistinguishable from the general interest in crime control.

Florida v. J.L. (2000)

Author: Ruth Bader Ginsburg

An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer’s stop and frisk of that person.

Bond v. U.S. (2000)

Author: William Rehnquist

A border patrol agent’s physical manipulation of a bus passenger’s carry-on bag violated the Fourth Amendment proscription against unreasonable searches.

Illinois v. Wardlow (2000)

Author: William Rehnquist

An individual’s presence in a “high crime area”, standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity. However, a location’s characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation.

Wyoming v. Houghton (1999)

Author: Antonin Scalia

Police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.

Knowles v. Iowa (1998)

Author: William Rehnquist

While the authority to conduct a full field search as incident to an arrest was established as a bright line rule under Robinson, that rule should not be extended to a situation in which the concern for officer safety is not present to the same extent, and the concern for destruction or loss of evidence is not present at all.

Richards v. Wisconsin (1997)

Author: John Paul Stevens

A no-knock entry is justified when the police have a reasonable suspicion that knocking and announcing their presence would be dangerous or futile under the circumstances, or that it would inhibit the effective investigation of the crime.

Maryland v. Wilson (1997)

Author: William Rehnquist

An officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

Whren v. U.S. (1996)

Author: Antonin Scalia

The temporary detention of a motorist on probable cause to believe that they have violated the traffic laws does not violate the Fourth Amendment prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist without an additional law enforcement objective.

Ohio v. Robinette (1996)

Author: William Rehnquist

The Fourth Amendment does not require that a lawfully seized defendant be advised that they are free to go before their consent to search will be recognized as voluntary.

Arizona v. Evans (1995)

Author: William Rehnquist

The exclusionary rule does not require the suppression of evidence seized in violation of the Fourth Amendment when the erroneous information resulted from clerical errors of court employees.

Wilson v. Arkansas (1995)

Author: Clarence Thomas

The common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.

Minnesota v. Dickerson (1993)

Author: Byron White

The police may seize non-threatening contraband detected through the sense of touch during a protective patdown search of the sort permitted by Terry, so long as the search stays within the bounds marked by Terry.

Florida v. Bostick (1991)

Author: Sandra Day O’Connor

There is no per se rule that every encounter on a bus is a seizure. The appropriate test is whether, taking into account all the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers’ requests or otherwise terminate the encounter.

California v. Acevedo (1991)

Author: Harry Blackmun

In a search extending only to a container within a vehicle, the police may search the container without a warrant when they have probable cause to believe that it holds contraband or evidence.

California v. Hodari D. (1991)

Author: Antonin Scalia

To constitute a seizure of the person, just as to constitute an arrest, there must be either the application of physical force, however slight, or submission to an officer’s show of authority to restrain the subject’s liberty.

Florida v. Jimeno (1991)

Author: William Rehnquist

A criminal suspect’s Fourth Amendment right to be free from unreasonable searches is not violated when they give police permission to search their car, and the police open a closed container in the car that might reasonably hold the object of the search.

New York v. Harris (1990)

Author: Byron White

When the police have probable cause to arrest a suspect, the exclusionary rule does not bar the use of a statement made by the defendant outside their home, even if the statement is taken after an arrest made in the home in violation of Payton.

Alabama v. White (1990)

Author: Byron White

Factors for determining whether an informant’s tip establishes probable cause are also relevant in the Terry reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard.

Maryland v. Buie (1990)

Author: Byron White

The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer has a reasonable belief based on specific and articulable facts that the area to be swept harbors a person posing a danger to those on the arrest scene.

Michigan Dept. of State Police v. Sitz (1990)

Author: William Rehnquist

The use of highway sobriety checkpoints does not violate the Fourth Amendment.

Florida v. Riley (1989)

Author: Byron White

The Fourth Amendment does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant to observe what is visible to the naked eye.

California v. Greenwood (1988)

Author: Byron White

The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.

Murray v. U.S. (1988)

Author: Antonin Scalia

The Fourth Amendment does not require the suppression of evidence initially discovered during police officers’ illegal entry of private premises if the evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry.

Illinois v. Krull (1987)

Author: Harry Blackmun

The Fourth Amendment exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance on a statute authorizing warrantless administrative searches, which is subsequently found to violate the Fourth Amendment.

Arizona v. Hicks (1987)

Author: Antonin Scalia

A truly cursory inspection, which involves merely looking at what is already exposed to view without disturbing it, is not a search for Fourth Amendment purposes and therefore does not even require reasonable suspicion.

Colorado v. Bertine (1987)

Author: William Rehnquist

Reasonable police regulations related to inventory procedures, administered in good faith, satisfy the Fourth Amendment.

Dow Chemical Co. v. U.S. (1986)

Author: Warren Burger

The Fourth Amendment did not prohibit the Environmental Protection Agency from taking, without a warrant, aerial photographs of the defendant’s plant complex from an aircraft lawfully in public navigable airspace.

Tennessee v. Garner (1985)

Author: Byron White

A police officer may not seize an unarmed, non-dangerous suspect by shooting them dead. However, when an officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

New Jersey v. T.L.O. (1985)

Author: Byron White

The Fourth Amendment prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, but the more lenient standard of reasonable suspicion applies.

California v. Carney (1985)

Author: Warren Burger

The two justifications for the vehicle exception to the warrant requirement of the Fourth Amendment come into play when a vehicle is being used on the highways or is capable of such use and is found stationary in a place not regularly used for residential purposes. The vehicle is readily mobile, and there is a reduced expectation of privacy stemming from the pervasive regulation of vehicles capable of traveling on highways.

Winston v. Lee (1984)

Author: William Brennan

The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure to obtain evidence for fairly determining guilt or innocence.

Massachusetts v. Upton (1984)

Author: Per Curiam

Even when no single piece of evidence in an affidavit was conclusive, the pieces fit neatly together and thus supported the magistrate’s determination of probable cause.

Oliver v. U.S. (1984)

Author: Lewis Powell

The government’s intrusion upon open fields is not one of the unreasonable searches proscribed by the Fourth Amendment. No expectation of privacy legitimately attaches to open fields.

U.S. v. Leon (1984)

Author: Byron White

The Fourth Amendment exclusionary rule should not be applied to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.

Segura v. U.S. (1984)

Author: Warren Burger

Securing a dwelling on the basis of probable cause to prevent the destruction or removal of evidence while a search warrant is being sought is not an unreasonable seizure of the dwelling or its contents.

U.S. v. Place (1983)

Author: Sandra Day O’Connor

The investigative procedure of subjecting luggage to a sniff test by a well-trained narcotics detection dog does not constitute a search within the meaning of the Fourth Amendment.

Michigan v. Long (1983)

Author: Sandra Day O’Connor

If a state court decision indicates clearly and expressly that it is based on bona fide separate, adequate, and independent state grounds, the Supreme Court will not review the decision. Also, a search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts that, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and that the suspect may gain immediate control of weapons.

Illinois v. Gates (1983)

Author: William Rehnquist

The rigid two-pronged test under Aguilar and Spinelli for determining whether an informant’s tip establishes probable cause for issuance of a warrant is abandoned, and the totality of the circumstances approach that traditionally has informed probable cause determinations is substituted in its place.

Illinois v. Lafayette (1983)

Author: Warren Burger

Consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect.

U.S. v. Ross (1982)

Author: John Paul Stevens

Police officers who have legitimately stopped a vehicle and who have probable cause to believe that contraband is concealed somewhere in it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant.

Steagald v. U.S. (1981)

Author: Thurgood Marshall

An arrest warrant, as opposed to a search warrant, is inadequate to protect the Fourth Amendment interests of persons not named in the warrant when their home is searched without their consent and in the absence of exigent circumstances.

New York v. Belton (1981)

Author: Potter Stewart

When a policeman has made a lawful custodial arrest of the occupant of an automobile, they may search the passenger compartment of that automobile as a contemporaneous incident of that arrest. The police may also examine the contents of any containers found within the passenger compartment.

U.S. v. Cortez (1981)

Author: Warren Burger

In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances (the whole picture) must be taken into account. Based upon that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

Payton v. New York (1980)

Author: John Paul Stevens

The Fourth Amendment prohibits the police from making a warrantless and non-consensual entry into the home of a suspect to make a routine felony arrest.

Rawlings v. Kentucky (1980)

Author: William Rehnquist

When the arrest followed quickly after the search of the defendant’s person, it is not important that the search preceded the arrest, rather than vice versa.

Arkansas v. Sanders (1979)

Author: Lewis Powell

In the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband.

U.S. v. Caceres (1979)

Author: John Paul Stevens

The exclusionary rule does not require that all evidence obtained in violation of regulations concerning electronic eavesdropping be excluded.

Franks v. Delaware (1978)

Author: Harry Blackmun

When a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.

Zurcher v. Stanford Daily (1978)

Author: Byron White

When the state does not seek to seize persons but instead seeks to seize things, there is no apparent basis in the language of the Fourth Amendment for also imposing the requirements for a valid arrest: probable cause to believe that a third party occupying the place to be searched is implicated in the crime. In other words, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.

U.S. v. Ceccolini (1978)

Author: William Rehnquist

The exclusionary rule should be invoked with much greater reluctance when the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object.

Rakas v. Illinois (1978)

Author: William Rehnquist

A person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of their Fourth Amendment rights infringed.

Andresen v. Maryland (1976)

Author: Harry Blackmun

Although the Fifth Amendment may protect an individual from complying with a subpoena for the production of their personal records in their possession, a seizure of the same materials by law enforcement officers is different because the individual against whom the search is directed is not required to aid in the discovery, production, or authentication of incriminating evidence.

U.S. v. Watson (1976)

Author: Byron White

The cases construing the Fourth Amendment reflect the common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in their presence, as well as for a felony not committed in their presence if there was reasonable ground for making the arrest.

Gerstein v. Pugh (1975)

Author: Lewis Powell

The Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following an arrest.

U.S. v. Edwards (1974)

Author: Byron White

Once an accused has been lawfully arrested and is in custody, the effects in their possession at the place of detention that were subject to search at the time and place of the arrest may lawfully be searched and seized without a warrant even after a substantial time lapse between the arrest and later administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.

Schneckloth v. Bustamonte (1973)

Author: Potter Stewart

When the subject of a search is not in custody, and the state would justify a search on the basis of their consent, the state must demonstrate that the consent was voluntary. Voluntariness is determined from the totality of the surrounding circumstances. While knowledge of a right to refuse consent is a factor to be taken into account, the state need not prove that the person knew that they had a right to withhold consent.

U.S. v. Robinson (1973)

Author: William Rehnquist

In the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment but also a reasonable search under the Fourth Amendment.

Vale v. Louisiana (1970)

Author: Potter Stewart

Only in a few specifically established and well delineated situations may a warrantless search of a dwelling withstand constitutional scrutiny. These include when there was consent to the search, the officers were responding to an emergency, the officers were in hot pursuit of a fleeing felon, or the goods ultimately seized were in the process of destruction or were about to be removed from the jurisdiction.

Chimel v. California (1969)

Author: Potter Stewart

An arresting officer may search the arrestee’s person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and they may search the area within the immediate control of the person arrested, meaning the area from which the person might gain possession of a weapon or destructible evidence.

Spinelli v. U.S. (1969)

Author: John Marshall Harlan II

A tip was inadequate to provide the basis for a finding of probable cause that a crime was being committed when it did not set forth any reason to support the conclusion that the informant was reliable and did not sufficiently state the underlying circumstances from which the informant drew their conclusions or sufficiently detail the defendant’s activities.

Terry v. Ohio (1968)

Author: Earl Warren

When a police officer observes unusual conduct that leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, when he identifies himself as a policeman and makes reasonable inquiries in the course of investigating this behavior, and when nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, the officer is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons that might be used to assault him.

Warden v. Hayden (1967)

Author: William Brennan

The exigencies of a situation in which officers were in pursuit of a suspected armed felon in the house that he had entered only minutes before they arrived permitted their warrantless entry and search. Moreover, the distinction prohibiting seizure of items of only evidential value and allowing seizure of instrumentalities, fruits, or contraband is not required by the Fourth Amendment.

McCray v. Illinois (1967)

Author: Potter Stewart

A state court does not have a duty to require the disclosure of an informer’s identity at a pretrial hearing held for the purpose of determining only the question of probable cause when there was ample evidence in an open and adversary proceeding that the informer was known to the officers to be reliable and that they made the arrest in good faith upon the information that the informer supplied.

Katz v. U.S. (1967)

Author: Potter Stewart

The government’s activities in electronically listening to and recording the defendant’s words violated the privacy on which he justifiably relied while using a telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment.

Schmerber v. California (1966)

Author: William Brennan

The interests in human dignity and privacy that the Fourth Amendment protects forbid any intrusions beyond the body’s surface on the mere chance that desired evidence might be obtained. There must be a clear indication that such evidence will be found.

Aguilar v. Texas (1964)

Author: Arthur Goldberg

Although an affidavit supporting a search warrant may be based on hearsay information, the magistrate must be informed of some of the underlying circumstances on which the person providing the information relied and some of the underlying circumstances from which the affiant concluded that the undisclosed informant was creditable or their information reliable.

Wong Sun v. U.S. (1963)

Author: William Brennan

Statements made by a suspect in his bedroom at the time of his unlawful arrest were the fruit of the agents’ unlawful action and should have been excluded. The narcotics taken from a third party as a result of statements made by the suspect at the time of his arrest were likewise fruits of the unlawful arrest and should not have been admitted. However, when another suspect had been lawfully arraigned and released on his own recognizance after his unlawful arrest and had returned voluntarily several days later when he made an unsigned statement, the connection between his unlawful arrest and the making of that statement was so attenuated that the unsigned statement was not the fruit of the unlawful arrest and was properly admitted.

Mapp v. Ohio (1961)

Author: Tom C. Clark

All evidence obtained by searches and seizures in violation of the federal Constitution is inadmissible in a criminal trial in a state court.

Draper v. U.S. (1959)

Author: Charles Evans Whittaker

Even if the information received by an agent from an informer was hearsay, the agent was legally entitled to consider it in determining whether he had probable cause under the Fourth Amendment and reasonable grounds to believe that the defendant had committed or was committing a violation of the narcotics laws.

Wolf v. Colorado (1949)

Author: Felix Frankfurter

In a prosecution in a state court for a state crime, the Fourteenth Amendment does not forbid the admission of relevant evidence, even though obtained by an unreasonable search and seizure.

Olmstead v. U.S. (1928)

Author: William Howard Taft

Wiretapping was not a search or seizure within the meaning of the Fourth Amendment. (This case was overruled by Katz v. U.S. in 1967.)

Carroll v. U.S. (1925)

Author: William Howard Taft

The Fourth Amendment recognizes a necessary difference between a search for contraband in a store, dwelling, or other structure for the search of which a warrant may readily be obtained, and a search of a ship, wagon, automobile, or other vehicle that may be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Burdeau v. McDowell (1921)

Author: William Rufus Day

The government may retain for use as evidence in the criminal prosecution of their owner incriminating documents that are turned over to it by private individuals who procured them through a wrongful search without the participation or knowledge of any government official.

Gouled v. U.S. (1921)

Author: John Hessin Clarke

Search warrants may not be used as a means of gaining access to a person’s house or office and papers solely for the purpose of making search to secure evidence to be used against them in a criminal or penal proceeding.

Weeks v. U.S. (1914)

Author: William Rufus Day

The tendency of those executing federal criminal laws to obtain convictions by means of unlawful seizures and enforced confessions in violation of federal rights is not to be sanctioned by the courts that are charged with the support of constitutional rights.

What is the 14th Amendment Due Process Clause?

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 process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fifth Amendment

The Fifth Amendment says to the federal government that no one shall be“deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.

Amdt5.5.1 Overview of Due Process

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law.¹ Generally, due process guarantees protect individual rights by limiting the exercise of government power.² The Supreme Court has held that the Fifth Amendment, which applies to federal government action, provides persons with both procedural and substantive due process guarantees. If the federal government seeks to deprive a person of a protected life, liberty, or property interest, the Fifth Amendment’s Due Process Clause requires that the government first provide certain procedural protections.³ Procedural due process often requires the government to provide a person with notice and an opportunity for a hearing before such a deprivation.⁴ In addition, the Supreme Court has interpreted the Fifth Amendment’s Due Process Clause to include substantive due process guarantees that protect certain fundamental constitutional rights from federal government interference, regardless of the procedures that the government follows when enforcing the law.⁵ Substantive due process has generally dealt with specific subject areas, such as liberty of contract, marriage, or privacy.

The Fifth Amendment’s Due Process Clause protects all persons within U.S. territory, including corporations,⁶ aliens,⁷ and, presumptively, citizens seeking readmission to the United States.⁸ However, the states are not entitled to due process protections against the federal government.⁹ The clause is effective in the District of Columbia¹⁰ and in territories that are part of the United States,¹¹ but it does not apply of its own force to unincorporated territories.¹² Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.¹³ The Clause restrains Congress in addition to the Executive and Judicial Branches and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by enacting legislation to that effect.¹⁴

Due process cases may arise under both the Fifth and Fourteenth Amendments. Both amendments use the same language but have a different history.¹⁵ The Supreme Court has construed the Fourteenth Amendment’s Due Process Clause to impose the same due process limitations on the states as the Fifth Amendment does on the federal government.¹⁶ Fourteenth Amendment due process case law is therefore relevant to the interpretation of the Fifth Amendment. Except for areas in which the federal government is the actor, much of the Constitution Annotated‘s discussion of due process appears in the Fourteenth Amendment essays.¹⁷

Footnotes

Jump to essay-1U.S. Const. amend. V.
Jump to essay-2Due Process, Black’s Law Dictionary 610 (10th ed. 2014).
Jump to essay-3See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961)).
Jump to essay-4Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).
Jump to essay-5E.g., Zablocki v. Redhail, 434 U.S. 374, 386–87 (1978) (citing Loving v. Virginia, 388 U. S. 1 (1967)).
Jump to essay-6Sinking Fund Cases, 99 U.S. 700, 719 (1879).
Jump to essay-7Wong Wing v. United States, 163 U.S. 228, 238 (1896).
Jump to essay-8United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927).
Jump to essay-9South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966).
Jump to essay-10Wight v. Davidson, 181 U.S. 371, 384 (1901).
Jump to essay-11Lovato v. New Mexico, 242 U.S. 199, 201 (1916).
Jump to essay-12Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920).
Jump to essay-13Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946).
Jump to essay-14Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856). See also Massachusetts Supreme Judicial Court Chief Justice Lemuel Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857).
Jump to essay-15French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).
Jump to essay-16Cf. Arnett v. Kennedy, 416 U.S. 134 (1974); Heiner v. Donnan, 285 U.S. 312, 326 (1932) (The restraint imposed upon legislation by the due process clauses of the two amendments is the same.); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 610 (1936).
Jump to essay-17See Amdt14.S1.3 Due Process Generally.

Amdt14.S1.3 Due Process Generally

The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.

Fourteenth Amendment, Section 1:

The Fourteenth Amendment’s Due Process Clause provides that no state may deprive any person of life, liberty, or property, without due process of law.¹ The Supreme Court has applied the Clause in two main contexts. First, the Court has construed the Clause to provide protections that are similar to those of the Fifth Amendment’s Due Process Clause except that, while the Fifth Amendment applies to federal government actions, the Fourteenth Amendment binds the states.² The Fourteenth Amendment’s Due Process Clause guarantees procedural due process, meaning that government actors must follow certain procedures before they may deprive a person of a protected life, liberty, or property interest.³ The Court has also construed the Clause to protect substantive due process, holding that there are certain fundamental rights that the government may not infringe even if it provides procedural protections.⁴

Second, the Court has construed the Fourteenth Amendment’s Due Process Clause to render many provisions of the Bill of Rights applicable to the states.⁵ As originally ratified, the Bill of Rights restricted the actions of the federal government but did not limit the actions of state governments. However, following ratification of the Reconstruction Amendment, the Court has interpreted the Fourteenth Amendment’s Due Process Clause to impose on the states many of the Bill of Rights’ limitations, a doctrine sometimes called incorporation against the states through the Due Process Clause. Litigants bringing constitutional challenges to state government action often invoke the doctrines of procedural or substantive due process or argue that state action violates the Bill of Rights, as incorporated against the states. The Due Process Clause of the Fourteenth Amendment has thus formed the basis for many high-profile Supreme Court cases.⁶

The Fourteenth Amendment prohibits states from depriving any person of life, liberty, or property without due process of law. The Supreme Court has held that this protection extends to all natural persons (i.e., human beings), regardless of race, color, or citizenship.⁷ The Court has also considered multiple cases about whether the word person includes artificial persons, meaning entities such as corporations. As early as the 1870s, the Court appeared to accept that the Clause protects corporations, at least in some circumstances. In the 1877 Granger Cases, the Court upheld various state laws without questioning whether a corporation could raise due process claims.⁸ In a roughly contemporaneous case arising under the Fifth Amendment, the Court explicitly declared that the United States equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.⁹ Subsequent decisions of the Court have held that a corporation may not be deprived of its property without due process of law.¹⁰ By contrast, in multiple cases involving the liberty interest, the Court has held that the Fourteenth Amendment protects the liberty of natural, not artificial, persons.¹¹ Nevertheless, the Court has at times allowed corporations to raise claims not based on the property interest. For instance, in a 1936 case, a newspaper corporation successfully argued that a state law deprived it of liberty of the press.¹²

A separate question concerns the ability of government officials to invoke the Due Process Clause to protect the interests of their office. Ordinarily, the mere official interest of a public officer, such as the interest in enforcing a law, does not enable him to challenge the constitutionality of a law under the Fourteenth Amendment.¹³ Moreover, municipal corporations lack standing to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator, the state.¹⁴ However, the Court has acknowledged that state officers have an interest in resisting an endeavor to prevent the enforcement of statutes in relation to which they have official duties, even if the officials have not sustained any private damage.¹⁵ State officials may therefore ask federal courts to review decisions of state courts declaring state statutes, which [they] seek to enforce, to be repugnant to the Fourteenth Amendment.¹⁶

Footnotes

Jump to essay-1U.S. Const. amend. XIV.
Jump to essay-2For discussion of the Fifth Amendment’s Due Process Clause, see Amdt5.5.1 Overview of Due Process.
Jump to essay-3See Amdt14.S1.5.1 Overview of Procedural Due Process to Amdt14.S1.5.8.2 Protective Commitment and Due Process.
Jump to essay-4See Amdt14.S1.6.1 Overview of Substantive Due Process to Amdt14.S1.6.5.3 Civil Commitment and Substantive Due Process.
Jump to essay-5See Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights.
Jump to essay-6Among numerous other examples, see, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Gideon v. Wainwright, 372 U.S. 335 (1963); Griswold v. Connecticut, 381 U.S. 479 (1965); McDonald v. Chicago, 561 U.S. 742 (2010).
Jump to essay-7Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines v. Rhodetis, 398 U.S. 306, 309 (1970).
Jump to essay-8Munn v. Illinois, 94 U.S. 113 (1877).
Jump to essay-9Sinking Fund Cases, 99 U.S. 700, 718–19 (1879).
Jump to essay-10Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co. v. Paramount Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge, 278 U.S. 105 (1928).
Jump to essay-11Nw. Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906); W. Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907); Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925).
Jump to essay-12Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936) (a corporation is a ‘person’ within the meaning of the equal protection and due process of law clauses). In First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), faced with the validity of state restraints upon expression by corporations, the Court did not determine that corporations have First Amendment liberty rights—and other constitutional rights—but decided instead that expression was protected, irrespective of the speaker, because of the interests of the listeners. See id. at 778 n.14. In Citizens United v. FEC, 558 U.S. 310 (2010), the Court held that the First Amendment prohibits banning political speech based on the speaker’s corporate identity. While Citizens United involved federal regulation, it overruled a prior case that had upheld a related state regulation, Austin v. Michigan Chamber of Com., 494 U.S. 652 (1990).
Jump to essay-13Pennie v. Reis, 132 U.S. 464 (1889); Taylor & Marshall v. Beckham (No. 1), 178 U.S. 548 (1900); Tyler v. Judges of Ct. of Registration, 179 U.S. 405, 410 (1900); Straus v. Foxworth, 231 U.S. 162 (1913); Columbus & Greenville Ry. v. Miller, 283 U.S. 96 (1931).
Jump to essay-14City of Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919); City of Trenton v. New Jersey, 262 U.S. 182 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36 (1933). But see Madison Sch. Dist. v. WERC, 429 U.S. 167, 175 n.7 (1976) (reserving question whether municipal corporation as an employer has a First Amendment right assertable against a state).
Jump to essay-15Coleman v. Miller, 307 U.S. 433, 442, 445 (1939); Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); S.C. Highway Dep’t v. Barnwell Bros., 303 U.S. 177 (1938).
Jump to essay-16Coleman, 307 U.S. at 442–43. The converse is not true, however, and the interest of a state official in vindicating the Constitution provides no legal standing to attack the constitutionality of a state statute in order to avoid compliance with it. Smith v. Indiana, 191 U.S. 138 (1903); Braxton Cnty. Ct. v. West Virginia, 208 U.S. 192 (1908); Marshall v. Dye, 231 U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also Coleman v. Miller, 307 U.S. 433, 437–46 (1939).
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Due Process vs Substantive Due Process learn more HERE

Understanding Due Process PDF Explaining how this clause caused over 200 overturns in just DNA alone Click Here

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