On the SCOTUS’ Application of the Bill of Rights

This example memorandum the United States Supreme Court’s application of the Bill of Rights was written by Alyssa Congdon while attending Albany Law School.

 

Memorandum

Criminal Procedure: Investigation

Alyssa Congdon

 

The Supreme Court of the United States has had its fair share of history in the ups and downs of liberals versus conservatives towards its enforcement of the Federal Constitution upon state courts, which is clearly documented throughout the case law pouring from the court.  Four such cases which reflect the varying effect are Palko v. Connecticut (decided in 1937), Rochin v. California (decided in 1952), Duncan v. Louisiana (decided in 1968), and Michigan v. Long (decided in 1983), throughout which the Bill of Rights is further and further expanded toward the conservative to include application for the states and their authority under the Federal Constitution.

In  Palko v. Connecticut, the Fifth Amendment right against double jeopardy was deemed by the court to not be a privilege and immunity that was able to be asserted against the state under the Fourteenth Amendment as the Defendant wished it to be.    This was the beginning of a very liberal court period, which worked to allow more power to flow towards the arms of the law rather than to the individuals the law may be effecting.  The court believed that if they implied a rule to the states forcing them to follow the federal constitution it would compromise the state sovereignty that the states had worked so hard to achieve, and decided that they would only impose rules that involved fundamental rights.  On a 9-0 vote, it was decided that double jeopardy was not such a fundamental right and was not applicable.

The court in Rochin v. California, however, took a slightly more expanded view on this policy.  While the rights of the accused were still not incorporated into the states, the court defined the privileges and immunities as applicable to the states through the Fourteenth Amendment as being those “so rooted in the traditions and consequences of our people to be ranked fundamental”.  The court later simplified this by suggesting that if it shocked the conscious, or offended even “the most hardened sensibilities” then it could be deemed as fundamental, and therefore a privilege and immunity able to be held against the state.  The case regarded police officers inducing vomiting upon a Defendant not yet under arrest after entering a residence without a warrant and without cause.  In a seven vote majority (with two concurring opinions), the court depicted that this offended such hardened sensibilities as a coerced confession would, and offends the due process due to a defendant.  At the time, this overturned many a states laws.

In 1968 when deciding Duncan v. Louisiana, the court again took a step forward in applying the Bill of Rights to the states by allowing the right to a jury trial to be held as a fundamental right and applicable to the states under the Fourteenth Amendment.  Though not a unanimous verdict, it none-the-less decided that the right to a jury trial under the Sixth Amendment was fundamental to the American scheme of justice, relying not only on case law but also on the facts that most states at the time as well as all of the states entering the Union allowed trial-by-jury as an option, whether it is for a misdemeanor punishable by only a max of two years in prison (as this case was), or a felony facing capital punishment.

Michigan v. Long, however, took a step back towards the liberal side in their viewing of the issue of un-warranted searches and seizures.  In a 5-3 decision (with one Justice concurring in part and dissenting in part), the court ruled that while the right to be free from illegal searches and seizures under the Fourth Amendment does apply to the states under the Fourteenth, it is interpreted in such a way that the un-warranted search and seizure that occurred in the case at hand was allowable and recommended.  While giving some for the individual, this case gives a lot for the governmental reign on power.  It was instrumental in that it allowed no distinction between “reasonable suspicion” and “probable cause”, changing the way that the Fourth Amendment was read for purposes of allowing the ruling to stand, as well as altering the reading of the rule flowing from Terry v. Ohio to allow not only warrantless frisks, but also searches of immediate areas.

Throughout these four cases, the Bill of Rights has had a continued and growing presence.  It is apparent that the court has begun it’s transgression from the all-mighty perch of “allowing the government to reign” to the more humble and purposeful path of protecting the American individual based on the rights protected to the court in the United States Constitution.

On Due Process

This example memorandum discussing Due Process was written by Alyssa Congdon while attending Albany Law School.

 

Memorandum

Criminal Procedure: Investigation

Alyssa Congdon

 

In addressing the cases for class, it is important to understand the fundamental differences between the crime control model and the due process model.  The crime control model focuses more on quantity than quality, and would rather focus on the number of criminals being prosecuted than the way we treat each one.  There is a presumption that a person is guilty if they are charged with the crime, and how that came to be is irrelevant as long as they are factually guilty.  If they are factually guilty in that they broke the law, then they should be convicted and punished regardless of other facts.  The due process model instead focuses on preserving individual liberties, and putting obstacles in the system to force the government to prove the guilt beyond all other liberties.  Due process is more concerned with legal guilt (whether the state can actually prove your guilt legally) versus whether you factually are guilty of the crime.  It protects the rights and values of the defendant or else there can be no guilt, and holds fundamental values at the highest importance.

The majority of cases follow the due process model, as our system is typically one following legal guilty and not factual guilt.  However, there are always sure signs of what side the court is clearly relying on which give away their position.  For example, in Goss, Bassett, Carty, McIntosh, Bayard, and Sullivan all grant more protection to their citizens than the federal court does, showing clear due process model thought processes in giving their citizens more individual rights and protections from the legal system.  In some of these cases the courts are clearly stretching to find the way they do, such in Sullivan when, as the dissent is quick to point out, the court relies on alleged state cases to prevent them from using federal law when in fact the state cases they are quoting from relied on federal law themselves.  The court also used cases that were later overturned.  The court took these steps however to ensure that the rights of their citizens were protected, or that the obstacles in the way of the state were in place as in the due process model, and to do so they had to come up with a basis for their findings.

Goss also attempted this although with more success and less reaching, since they were able to rely on simply stating that the interest was necessary versus relying on fabricated case law.  Goss just simply pointed out the that the United States Supreme Court ruled in the opposite, and why they held the way that they did – it falls within the reasonable expectation of Katz, and most importantly, any privacy interest is very important, and extra protection of that interest is inherently necessary even if it goes against case law.

A great example of the due process model conflicting with the crime control model can be found in the concurring opinion of Carty.  The rationale of the majority was a definite due process step, in that it wanted to protect the individual’s fundamental rights and wanted to go through the steps on an almost case-by-case basis since it was such a specific discretion.  As the court clearly stated they did not want to have all individuals being treated like criminals if 75% of the people were not.  While agreeing with the overall rationale and the due process model application, the concurring opinion was obviously torn between that and the crime control model, as the Justice was not happy about fragmenting the protection to include some but not all instances and following the case by case basis.  Crime control model breeds efficiency rather than individualism, which is evident in the interpretation the concurring Justice took.  The Justice also was quick to point out that following the due process model would preclude other “relevant” information from coming forward which may come from the illegal search (fruit of the poisonous tree), which would not be used in the due process model since not conforming to prove legal guilt but would only be helpful for crime control model of proving factual guilt.

The one case that I saw to be crime control model was Belton.  The court first followed the Supreme Court’s footsteps and could not find the analogous situation that the Supreme Court had allegedly found, so instead of just ending the inquiry there the court continues to try and find a way to use the evidence by attacking it from a different approach using the automobile exception.  After thoroughly showing that the elements could be at least addressed in this case and making all adequate attempts to prove the guilt of the defendant under these circumstances, they were ultimately able to twist the law to force the defendant’s evidence to be used.  The dissent opened up the clear hole in the majorities argument that they specifically did not address in order to not allow their rationale to be unraveled, and that was the original claim of needing a warrant.  As the dissent points out, they should have gotten a warrant if no exigency circumstances, and they clearly could have, so why did they not just simply follow the rules?  Instead the court is forced to tip-toe around the law and stretch it to find for the crime control model and the factual guilt of the defendant.

These models are prevalent in cases today, even when the court is systematically due process prone.  Most courts are torn between the two ideals and the public interest behind each – keep the guilty in jail at all costs, and also protect the individual liberties which are most important for innocent people charged with crimes they did not commit.  It does raise the question, since our legal system is continually expanding the rights of individuals or setting the guidelines for them, will there be a time when it will shift the other way and concede to a crime control model?  And if it does, what then?

Discovery Problems

This example Criminal Law memorandum was written by Alyssa Congdon while attending Albany Law School.

 

Memorandum

To:              Professor Alpern

From:  Alyssa Congdon, J.D. Candidate, Class of 2012Re:

Discovery Problems

 

I.               Discovery, In General

Discovery is an important element of any case that falls onto an attorney’s desk, regardless of what type of case it may be.  Within a criminal trial, Criminal Procedure Law § 240 governs discovery.  Discovery for material not previously disclosed to a defendant by the prosecutor is conducted through motions given before and during trial.

Under  § 240.80, a demand to produce will be made within thirty days after arraignment and before commencement of trial.  The time begins to accrue on the day that the defendant has counsel, if the defendant did not have counsel at the arraignment.  Any refusal to comply motion from the prosecutor must be made within fifteen days of service of the demand, and if there is no refusal then compliance with the demand should start within fifteen days after service or as soon as possible if the information requested is not immediately accessible.  The prosecutor must make a due diligence good faith effort to make property available to the defendant if requested and if it is not within the prosecutor’s possession.  (§240.20(2)).  Now, a prosecutor may refuse to disclose information if they think it is not able to be produced, or they may apply for a protective order if they believe it is needed during the refusal.  This refusal for any reason must be in writing and set forth all the grounds of the beliefs.  (§ 240.35).

Following § 240.50,  protective orders may be issued denying, limiting, conditioning, delaying or regulating discovery for good cause, which could mean embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, such as the protection of the confidentiality of informants.  Any other fact which outweighs the usefulness of the discovery could be used to justify the good cause.  If the court deems proper, they could also order that a protective order is granted, but that the information may be discoverable so long as it is required that any material that is given be maintained in the exclusive possession of the attorney and only be used for preparing a defense.

The court must order discovery if they find that the prosecutor’s refusal is unjustified, if the prosecutor did not file his or her refusal in a timely fashion, or the court may order discovery of other items that the people intent to introduce at trial if the defendant can show that it is material to his preparation of his defense.  (§ 240.40(1))  Further, if a party finds out more material that is subject to discovery then the attorney must promptly comply with the demand, the court order, refuse to comply if authorized, or apply for a protective order immediately.

(§ 240.60).  If during discovery or at any time the court finds that a party has not complied with the discovery that was required under § 240, then the court may take any appropriate action, including ordering discovery, issuing protective orders, or prohibiting the evidence.  (§240.70(1)).

 

II.             Confidential Information Can Be Disclosed Under Certain Circumstances, But Their Worth Must Outweigh Their Prejudice.

 

Following People v. Castillo, 80 NY2d 578, a defendant’s opportunity to have access to confidential information (in Castillo it was to confront the confidential informant in a hearing) must yield to the need for confidentiality if could compromise a particular confidential informant or future investigations by the police in the interest of justice. (See also CPL § 240.50).  If the defendant wants this information to be disclosed, they must show that a compelling reason exists that would outweigh the benefits of the confidentiality.  (Wunsch v. Rochester 108 Misc. 2d 854).

 

a.     Information Regarding A Confidential Informant

 

In the case of a drug sale to a confidential informant (CI), information regarding the CI could prove helpful to a defendant.  However, there are two issues regarding CI requests: one is the identity of the CI, and the second is their background, including their criminal record and how they became a CI.  In order to release CI information, the court must follow the four step process found in People v. Seychel, 136 Misc. 2d 310.  First, the court reviews the warrant for probable cause or to determine whether it was perjurious on its face.  To do so the court can conduct in camera hearing.  Next, the court should conduct an in camera inquiry of the CI to see if his or her life, or future investigations, could be jeopardized by the reveal.  If the court can without hurting the affidavit, then it should attempt to redact the CI information from it.  If it cannot be redacted, then a Darden inquiry (from People v. Darden, 34 NY2d 177) must be done to determine credibility of the CI.

If the CI survives this process, then his/her name should be released and the CI should be treated as any other witness.  Following § 240.44(2), at the conclusion of the direct of the witness at a pre-trial hearing the prosecutor should make available record of a judgment of conviction of witnesses other than the defendant, which, if the information has passed through the four step process of Seychel, would include the criminal record of the CI.

 

b.     Information Regarding Police Officers’ Personnel Files

 

When there is a question of a police officer’s possible history of misconduct, personnel files may be requested in a discovery demand or request.  Information contained within a police officer’s personnel file is very highly confidential.  In People v. Oglesby, 177 Misc. 2d 580, the court decided that  important information which affects credibility may be discoverable.  For example, impeachment material for inconsistent statements or motive to testify or lie would be discoverable, but evidence that only impeaches “general credibility” is not material and therefore not discoverable.  People v. Vilardi, 76 NY2d 67, further explained what is material:  evidence specifically requested by defendant is material if can affect trial outcome, but a general request only requires disclosure if evidence is material and “create[s] reasonable doubt that did not otherwise exist”.   Any statement of witnesses regarding the subject matter of the witness’s testimony for that particular case is typically deemed material and relevant.  (People v. Rosario, 9 NY2d 286).

During a request, a defense attorney should be very specific for any of these purposes for which they intend to use the information.              If the personnel file is requested to show police misconduct, the defendant must allege specific allegations of police officers misconduct and court must do in camera review of personnel file to see if the allegations exist and if they are relevant.  In the defendant’s motion they must show how they believe it to be relevant and also how they have such knowledge.  (People v. Rosario, supra).  This also balances with Civil Rights Law § 50-a, as well as the discretion given to the court in People v. Gissendanner (48 NY2d 543).

Civil Rights Law § 50-a states that personnel files used to evaluate performance are not open to inspection or review without consent or a court order, and that there can be no court order without review and an opportunity to be heard from parties.  The review to determine whether or not there is sufficient basis should be conducted in camera.    Only after meeting these burdens could the file be disclosed.

III.           In the Case of KT, the Prosecutor Has Not Fulfilled Their Pre-Trial Discovery Obligations.

 

In People v. KT, the prosecutor gave KT’s attorney the following as the discoverable materials in full:

·      Indictments for two counts of murder in the second degree;

·      Indictment for one count of attempted robbery in the first degree;

·      The statement made to police by KT;

·      The supplemental report prepared by the Albany Police Department;

·      A fax cover letter and certification by the New York State Police Crime Lab;

·      DNA results and conclusions from the same; and

·      A CPL § 710.30 notice of observation and identification of the defendant, KT.

These documents alone do not fulfill the prosecutor’s obligation.

§ 240.20 states that all statements, transcripts, written documents concerning the physical or mental wellbeing, any photos or drawings made, photocopies of property taken,  property from any defendant, tapes or electronic recordings made, information regarding the date, time and place of the incident must be disclosed to the defendant by the prosecutor, and that the prosecutor must exercise due diligence to retrieve and deliver if they do not possess the property in question.  Additionally, if the prosecutor discovers more information that may be discoverable, they are imposed a duty to disclose this information under § 240.60.  If the prosecutor fails to comply, a court order may be issued mandating such disclosure. § 240.70(1).  Here, the prosecutor has failed to fully comply, specifically with regards to the DNA testing and the identification procedures.

 

a.     DNA Testing

 

§ 240.20(1)(c) requires full disclosure of any document concerning a scientific test when sought by a defendant.  The court in People v. DaGata, 86 NY2d 40, saw this as mandated regardless of whether or not the evidence was exculpatory, and in DaGata the court granted a right to discovery to labratory notes concerning DNA testing.  Following the Criminal Procedure Law, the court ordered the prosecutor to request documents not in possession and turn over to the defendant.  (See also People v. Alvaraz, 2007 NY Slip Op 1632, concerning DNA testing protocols or procedure manuals).  Here, the only information given was a certification and the actual result records.  No information in regards to how they were tested (DNA testing protocols or procedure manuals) nor any notations made were given.  In this area, the prosecutor has failed to meet his or her burden.

 

b.     Identification Procedures

 

Following § 240.44(1), any written or recorded statements related to the case by a witness must be disclosed at the pre-trial hearing after the direct examination closes of that witness.  This includes any recordings or writings relating to the identification procedures used for KT, including any video in the police department made of the identification or any print off s of pictures that were used.  Following case law such as People v. McFarlan, 191 Misc. 2d 531, if the prosecutor interns used a photo array as an identification procedure, then they must submit the print out along with all related information.  A print out such as this is also mandated by the Electronic Signatures and Records Act (ESRA – state and technology law §§ 101-109).  This is necessary since the prosecution must show no undue suggestiveness with respect to line up and that composition was satisfactory and constituted a fair grouping.  (People v. Chipp 75 NY2d 327).   Here, the prosecution cannot show that as they have not disclosed all necessary information, and therefore fail to meet their burden on this respect also.