Fifth Amendment Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/fifth-amendment/ Christian, Political, ‎‏‏‎Social & Legal Free Speech News | Ⓒ2024 Good News Media LLC | Shepherd for the Herd! God 1st Programming Wed, 24 Jan 2024 08:48:32 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.1 https://goodshepherdmedia.net/wp-content/uploads/2023/08/Good-Shepherd-News-Logo-150x150.png Fifth Amendment Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/fifth-amendment/ 32 32 Prosecutor’s Obligation to Disclose Exculpatory Evidence https://goodshepherdmedia.net/prosecutors-obligation-to-disclose-exculpatory-evidence/ Fri, 26 Jan 2024 16:57:52 +0000 https://goodshepherdmedia.net/?p=12255 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 14th 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

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.

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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;

  1. 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.
  2. 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
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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
  1. 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 (6th 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.

 

  1. 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.
  2. 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.
  3. 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:

 

  1. 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.)

 

  1. 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.

 

  1. 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.

 

  1. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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”).
  5. 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.

  6. 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.
  7. 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.

  8. 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.

  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.”

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.

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.

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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Rule 1.1 – Competence (DA REPRESENTS THE STATE)

Rule 1.2 – Assisting in a Crime

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Model Rule 3.8 pt.2 – Special Duties of Prosecutors

Learn More: ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Model Rule 4.1 – Truthfulness in Statements to Others

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Model Rule 4.4 – Respect for the Rights of Others

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Model Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer

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Model Rule 8.1 Bar Admission & Disciplinary Matters

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Model Rule 8.4 pt.1 – Lawyer Misconduct

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ABA Formal Op. 493 pt.1 – Rule 8.4(g): Purpose, Scope & Application

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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

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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

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Anti-SLAPP Law in California

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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

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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

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Penal Code 148.5 PC –  Making a False Police Report in California

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National District Attorneys Association puts out its standards
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The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

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How to File a Complaint Against a Judge in California?

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14th Amendment this CODE PROTECT$ all US CITIZEN$

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Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
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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

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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?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

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
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Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

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Orange County Data, BodyCam, Police Report, Incident Reports,
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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
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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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Confrontation Clause – Sixth Amendment

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Prosecutor’s Obligation to Disclose Exculpatory Evidence

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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

 

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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?

Cleaning Up Your Record

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

 Epic Criminal / Civil Right$ SCOTUS Help – Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

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Family Treatment Court Best Practice Standards

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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.

 

 

 

 

 

 

 

 

 

 

 

 

]]> What is a Due Process Violation? https://goodshepherdmedia.net/what-is-abuse-of-due-process/ Mon, 10 Oct 2022 19:13:06 +0000 https://goodshepherdmedia.net/?p=1829

What is a Due Process Violation?

it violates your Constitutional Rights afforded to you in the following amendments

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.

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, 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

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; 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.

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.

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 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:

  1. An unbiased tribunal.
  2. Notice of the proposed action and the grounds asserted for it.
  3. Opportunity to present reasons why the proposed action should not be taken.
  4. The right to present evidence, including the right to call witnesses.
  5. The right to know opposing evidence.
  6. The right to cross-examine adverse witnesses.
  7. A decision based exclusively on the evidence presented.
  8. Opportunity to be represented by counsel.
  9. Requirement that the tribunal prepare a record of the evidence presented.
  10. 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.

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

  1.  Jump to essay-1U.S. Const. amend. V.
  2.  Jump to essay-2Due Process, Black’s Law Dictionary 610 (10th ed. 2014).
  3.  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)).
  4.  Jump to essay-4Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).
  5.  Jump to essay-5E.g., Zablocki v. Redhail, 434 U.S. 374, 386–87 (1978) (citing Loving v. Virginia, 388 U. S. 1 (1967)).
  6.  Jump to essay-6Sinking Fund Cases, 99 U.S. 700, 719 (1879).
  7.  Jump to essay-7Wong Wing v. United States, 163 U.S. 228, 238 (1896).
  8.  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).
  9.  Jump to essay-9South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966).
  10.  Jump to essay-10Wight v. Davidson, 181 U.S. 371, 384 (1901).
  11.  Jump to essay-11Lovato v. New Mexico, 242 U.S. 199, 201 (1916).
  12.  Jump to essay-12Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920).
  13.  Jump to essay-13Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946).
  14.  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).
  15.  Jump to essay-15French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).
  16.  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).
  17.  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:

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 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

  1.  Jump to essay-1U.S. Const. amend. XIV.
  2.  Jump to essay-2For discussion of the Fifth Amendment’s Due Process Clause, see Amdt5.5.1 Overview of Due Process.
  3.  Jump to essay-3See Amdt14.S1.5.1 Overview of Procedural Due Process to Amdt14.S1.5.8.2 Protective Commitment and Due Process.
  4.  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.
  5.  Jump to essay-5See Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights.
  6.  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).
  7.  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).
  8.  Jump to essay-8Munn v. Illinois, 94 U.S. 113 (1877).
  9.  Jump to essay-9Sinking Fund Cases, 99 U.S. 700, 718–19 (1879).
  10.  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).
  11.  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).
  12.  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).
  13.  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).
  14.  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).
  15.  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).
  16.  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).
  17. source
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Due Process vs Substantive Due Process learn more HERE

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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?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

 Epic Criminal / Civil Right$ SCOTUS Help – Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) 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.

 

 

 

]]> Fifth Amendment https://goodshepherdmedia.net/fifth-amendment/ Wed, 03 Nov 2021 02:34:55 +0000 https://goodshepherdmedia.net/?p=2339

Fifth Amendment – Amendment V

Fifth Amendment

The Fifth Amendment protects the right to private property in two ways.  First, it states that a person may not be deprived of property by the government without “due process of law,” or fair procedures. In addition, it sets limits on the traditional practice of eminent domain, such as when the government takes private property to build a public road. Under the Fifth Amendment, such takings must be for a “public use” and require “just compensation” at market value for the property seized. But in Kelo v. City of New London (2005), the Supreme Court interpreted public use broadly to include a “public purpose” of economic development that might directly benefit private parties. In response, many state legislatures passed laws limiting the scope of eminent domain for public use.

if you are a landlord suffering from tenants who refuse to pay due to SOME COVID-19 ORDINANCE after March 1, 2022 should read this

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.

Fifth Amendment

The Fifth Amendment creates a number of rights relevant to both criminal and civil legal proceedings. In criminal cases, the Fifth Amendment guarantees the right to a grand jury, forbids “double jeopardy,” and protects against self-incrimination. It also requires that “due process of law” be part of any proceeding that denies a citizen “life, liberty or property” and requires the government to compensate citizens when it takes private property for public use.

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Amendment V

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 offense 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.

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CITED FROM https://constitution.congress.gov/constitution/amendment-5/

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