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reach trial. Point out the obvious benefits of such a process to persons charged with
crimes.
2. Discuss the various formal constitutional safeguards extended to criminal defendants
quoted on p. 145). Do students agree with these basic policies? Briefly discuss the process
improper law enforcement conduct. See, for example, Florida v. Cayward, 552 So.2d 971
(Fla. App. 1989) (use of faked scientific reports to secure confession violates due process).
a. Discuss the Fourth Amendment protection against “unreasonable searches and
seizures.” Two key questions here, as identified in the discussion at pp. 145-46, are
whether there was a search at all and whether, if there was a search, the search was
Court’s tendency in recent years to restrict the application of the exclusionary rule.
(See below.)
1) You may find it helpful to have the class analyze Fourth Amendment questions by
considering scenarios from actual cases and then asking the students to identify
a) Was a reasonable expectation of privacy at stake? (That question is a key one
in determining whether the actions of law enforcement agents constituted a
search.) Problem #4 (United States v. Hall, a former text case in which a law
enforcement officer found evidence in a dumpster on the defendant
issue at the heart of United States v. SDI Future Health, Inc.
1. United States v. SDI Future Health, Inc. (p. 149): The Ninth Circuit holds
corporate premises not reserved for their exclusive use.
Points for Discussion: Ask what standing is, in a general sense. What
about in the context of a search that allegedly violated the Fourth
reasonable expectation of privacy in regard to the corporate premises in
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general and in regard to computers in the company’s general business office?
Who—or what—does have standing here? (The corporation.) Do Kaplan and
Brunk have a reasonable expectation of privacy as to any part of the corporate
premises? If so, what part or parts? (Their individual offices within the
corporate premises.) How does the court distinguish this case from Gonzales,
the case on which Kaplan and Brunk unsuccessfully sought to rely?
b) Was the government action sufficiently intrusive to constitute a “search?”
Discuss the resolutions of this issue in United States v. Place, Illinois v.
helicopter hovering 400 feet above ground was not “search” for Fourth
Amendment purposes because it did not violate reasonable expectations of
privacy; note that when aerial surveillance was from lower height, such as 50
to 200 feet, some courts have held that surveillance amounted to search for
the Fourth Amendment.
Points for Discussion: Would there have been any Fourth Amendment
problem if the officers had simply kept an eye on Jones and followed him as
he drove on the public streets? (No.) So why can’t they make things easier,
implications for privacy that technological advances may hold (a
consideration that probably influenced the Court in Kyllo, the case dealing
gathered through the use of the GPS device? (Under the exclusionary rule,
the evidence could not properly be used against Jones.)
c) Ask students whether the Fourth Amendment sets up a warrant requirement in
preference for warrants, however, even if a warrant is not always necessary.
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of situations in which the Supreme Court has held that a warrantless search
145 of the text.) An insufficiently specific warrant or a warrant issued without
an adequate showing of probable cause may be attacked in an effort by a
defendant to have the court classify the resulting search as unreasonable.
d) Major exceptions to the warrant “requirement” (really, as noted above, the
motor vehicles lawfully stopped by law enforcement officers, and searches of
“closely regulated” businesses (see New York v. Burger, 482 U.S. 691
(1987)). Regarding consensual searches, note Georgia v. Randolph
(mentioned at p. 153), in which the Supreme Court held that a co-occupant’s
of the search.
1. Does the search-incident-to–arrest exception for warrantless searches
entitle law enforcement officers to check the content of an arrestee’s
contradicted what had become a frequent law enforcement practice. The
privacy interests associated with smartphones and other cellphones played
good candidate for class discussion.
2. The exigent circumstances exception to the warrant “requirement” took
devote class time to discussion of the case.
Kentucky v. King: The Supreme Court holds that the exigent
circumstances exception justified a warrantless entry into an apartment
Points for Discussion: Ask a student to summarize the facts leading up to
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apartment and announcing presence, hearing noises inside, etc.) What
was found when the officers entered the apartment? What relief was
warrant? Why, according to the Court, shouldn’t we expect them to seek a
warrant? What argument did the defendants make in their unsuccessful
of apartments in complexes where the officers think there might be drug
activity going on even though the officers lack individualized suspicion
with regard to any apartment, and then enter the apartments once they
hear noises that might be consistent with evidence destruction? Does the
decision, or is the decision simply an application of the exception that
doesn’t extend its sweep?
f) Does the exclusionary rule—the basic remedial device when Fourth
tree” doctrine and provide basic examples of its operation under the
160–61 of the text). Discuss the potential implications of these exceptions to
the exclusionary rule. What do your students think of the exclusionary rule?
What do they think of the exceptions to it? Play the devil’s advocate.
g) Hudson v. Michigan (formerly a text case): The Supreme Court holds that the
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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
Points for Discussion: Ask the students what the knock-and-announce rule is,
there was a Fourth Amendment violation here, but Justice Scalia’s majority
opinion concludes that the exclusionary rule nevertheless should not apply. Is
rule? (That is the view of the dissenters). Engage the students in a debate
about these sorts of questions. In addition, note the Sanchez-Llamas case,
context.
b. Note the underlying purposes and major components of the USA PATRIOT Act,
which was enacted in the wake of the September 11. 2001 terrorist attacks on the
United States. (See pp. 154–55 of the text.) Mention the “sunset” provision inserted
in the statute by Congress (that portions of the statute were to expire in 2005 if not
Surveillance Act (FISA), the role of the FISA Court, the warrantless surveillance
conducted by the Bush Administration, the 2008 amendment to FISA, and the
controversy over (and implications of) the disclosures by Edward Snowden. Unless
you want the Patriot Act/terrorism discussion to occupy a great deal of class time, you
defendants.
1) Emphasize the protection against compelled testimonial self-incrimination. Note
the meaning and significance of the terms compelled and testimonial.
a) Discuss the purposes and content of the famous Miranda warnings (noting
that the content stems from the purposes of furthering Fifth and Sixth
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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
Amendment interests). Note when the warnings must be given (prior to
commencing custodial interrogation). Examine the impact Miranda has had in
enforcing the “right to silence.” Note that Miranda was a controversial
decision in 1966 but has since become an accepted cornerstone of law
enforcement practice. Surveys of police chiefs have revealed their view that
the obligation to give the Miranda warnings prior to commencing custodial
interrogation has not significantly compromised law enforcement interests.
Point out the effect of Miranda, as supplemented by the exclusionary rule:
the U.S. Supreme Court’s decision in Berghuis v. Thompkins (discussion of
which follows).
b) Berghuis v. Thompkins (p. 157): The Supreme Court holds that an arrestee
who had been given the Miranda warnings before interrogation began waived
though he had not been answering their questions. (Because he didn’t
unambiguously indicate a desire to remain silent.) What the Court seem to
say is necessary for an unambiguous indication of a desire to remain silent?
(Expressly saying so.) If Thompkins had said “I want to invoke my right to
dissenters’ observation that the majority opinion creates the counterintuitive
requirement that one can invoke his sight to remain silent only by speaking
up?
c) Note also the other limits on the right to silence. Most notably, the right does
Miranda warnings) to discredit his trial testimony that he acted in self-
defense. Stress, however, that this exception merely allows the use of pre-trial
silence to impeach the accused’s testimony at trial. If the accused refuses to
take the witness stand—which he of course has a right to do—his silence
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rule, see United States v. Robinson, 485 U.S. 25 (1988). There, the Court held
Note, too, the Salinas decision (see p. 156).
d) Some commentators have argued that over roughly the past three decades, the
Supreme Court has engaged in significant dilutions of the right to silence and
of the applicability and effect of Miranda. Is Berghuis v. Thompkins
(discussed above) an example? Is Salinas (see p. 156)? In what may be a
to incriminating admissions (Illinois v. Perkins, 496 U.S. 292 (1990)). Note,
however, that Moran has been rejected on state constitutional grounds by
some state courts. You may also wish to mention Colorado v. Connelly, 479
U.S. 157 (1986), in which the Court refused to conclude that a confession
Connelly?
e) Discuss the evolution and significant erosion of the so-called “private papers”
protection afforded by the Fifth Amendment. Note in particular that corporate
officers enjoy virtually no protection under this doctrine. The corporation has
no Fifth Amendment privilege to assert, and corporate officers cannot assert
Amendment concerns.
2) Discuss the protection afforded by the Double Jeopardy Clause of the Fifth
Amendment. Emphasize that there are no double jeopardy problems in connection
with criminal and civil proceedings stemming from the same underlying conduct
(e.g., a prosecution for criminal battery and a civil damages suit for the tort of
States v. Halper, 490 U.S. 435 (1989).
d) Discuss the various procedural safeguards embodied in the Sixth Amendment,
focusing specifically on the right to counsel. Note that this provision has been
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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
interpreted to mean that indigents have a right to court-appointed counsel, at
public expense, and that inadequacy of trial counsel can be a ground for setting
aside a conviction. Note Miranda‘s requirement that the accused must be informed
of his right to counsel before custodial interrogation commences. What are your
students’ reactions to McNeil v. Wisconsin (discussed at p. 161) and Davis v.
United States (mentioned in a footnote on p. 161)? Is it fair to characterize the
decisions as further attempts by the Court to narrow the applicability and effect of
Miranda?
crime.
2. Note the difficulties inherent in using the criminal law to control such behavior.
a. The criminal law was designed with individual wrongdoers in mind; corporate crime
is organizational crime.
b. Discuss the evolution of corporate criminal liability as outlined in the text. Note some
given proper statutory language.
d. Discuss the controversy surrounding which corporate agents’ intent may properly be
attributed to the corporation. .
e. Instances of white-collar crime present significant ethical issues in addition to those of
a legal nature. Note the ethical issues raised in the Ethics in Action box on p. 159.
arguments in favor of such liability.
1) Discuss the numerous problems associated with imposing individual liability in
the corporate context. Note the rationales for the creation of regulatory offenses of
the strict liability and vicarious liability varieties. Discuss the criticisms of such
offenses. United States v. Park, a 1975 decision, is a classic case that may merit
Comments on Park appear below:
United States v. Park: The CEO of a supermarket chain is convicted of violating
the Federal Food, Drug, and Cosmetic Act by failing to take adequate steps to
prevent violations.
Points for Discussion: Note that the Court established two elements as required
The Court clearly rejected a pure vicarious liability standard here by saying that
proof of Park‘s position, standing alone, was insufficient. Instead, Park was being