Criminal Procedure : Week of April 1, 2008

April 1

April 2

• The trinity of questions to ask:
  • What does the rule require?
  • What does the rule permit?
  • What would good practice be?
• If you haven't advised a person or put them in a position to rely on your advice, they're not your client yet.
• What drug is the one most likely to be involved in cases leading to imprisonment? Marijuana.
• One of the major objectives of drug enforcement is forfeiture and confiscation of property and money. The confiscating agency gets the use of that stuff (subject to some rules).
• Which is the more efficient approach:
  • To arrest and incarcerate the suppliers? In order for this strategy to work, you first have to have a lot of drug dealing.
  • To suppress the dealing by having cops on the streetcorners? Cops are more than arrest-production machines: they can be a deterrant.
• How do we measure and reward police performance? By volume of arrests. You have to be a pretty poor manager not to produce more arrests this year than last year.
• If our goal is public safety, what is that? The absence of theft, prostitution, violence, etc. But we can't measure the stuff that doesn't happen. We can only measure the stuff that does happen. The harvesting of failure: we spend money on the cases where prevention has failed. So how do we measure whether we are successful? We can't, but we're willing to pay a lot, apparently, for a symbolic good.
• Standard human psychology: become wed to an idea, and then confirm that belief by looking at things that support it, and minimizing things that make it seem that it's not so.

3 April

• Lawyers assume clients have a problem that they can advise on, and then they advise about that problem. It would be better to ask the client what is needed. See, for example, Dickey's comments on whether suits vs. DOC are right-- the lawyers would always defend against the suits.
• A client counts on the lawyer to be on the lookout for opportunities and danger. Failure to do so is a lapse of professional responsibility.
• A lawyer makes him/herself useful to the client. You're perceived as smart, competent, trustworthy. You're in a good position to be taken seriously as an advisor.
• The rules of professional responsibility are there in order to help lawyers provide value to clients. You can't violate them and still be giving the client the best treatment.
• A police officer can ask anything they want. You don't necessarily have to answer. Where have you been? Why? etc.
• Terry v. Ohio: may police stop people? May they search them? Prior to Terry, this was a very strange area of law. We had the exclusionary rule for evidence obtained in violation of 4A. But the evidence could be admitted if it were obtained in the course of a lawful arrest; in order to be lawful, an arrest must be based on probable cause.

  Basically, officers were doing what they wanted, and just sort of fictionally claiming that there was probable cause.

  So in this case, the USSC decides to do something about the situation. People expected there to be gradations of stops and frisks that would be declared not to violate 4A.

  If an officer limits an individual's autonomy by asserting authority, that's a seizure, and 4A is implicated.

  If there's reason to believe that a crime has occurred, and that a person has information that would be helpful (because of particularized articulable facts from which you can reasonably infer this). OK, this gives you the authority to stop someone for additional discussion. If you've stopped someone, then you're allowed to search them for a weapon-- that's a basic safety issue. The officer (McFadden) is allowed to search Terry because he believes an armed robbery is afoot.

  So searching for weapons might well depend on the kind of crime you think is about to be committed. Armed robbery is one thing, but forgery might be another.

  Anyway, so you can stop someone and talk to them in order to confirm or dispel your suspicion. This is more efficient and reasonable than requiring that everyone be arrested prior to questioning.

  But being searched is offensive. 4A is protecting personal dignity. Scalia: if Thomas Jefferson had been subjected to what Terry was, he'd have shot the cop.

  So McFadden was searching for weapons, ostensibly, because he had reasonable suspicion that Terry was armed. What, however, did it mean, when McFadden said that they "didn't look right?"

  Practically, we'll never be able to prevent people from making observations on the basis of prejudice. And if we want the police to be able to investigate crimes, we need them to be able to make inquiries.