Chapter 11
Disclosing and Suppressing Evidence
LEARNING OBJECTIVES
After reading this chapter, students should be able to:
2. Differentiate formal and informal discovery and the reasons why both are used in
criminal cases.
4. Compare and contrast the exclusionary rule and the fruit of the poisonous tree
doctrine.
6. Explain the requirements governing the application for search warrants, the
issuance of search warrants, and the execution of search warrants.
8. Analyze the effect of the exclusionary rule on the operations of the courtroom
work group.
9. Evaluate whether the exclusionary rule should be abolished.
LESSON PLAN
Correlated to PowerPoints
I. Discovery
Learning Objective 1: Explain the reasons why the process of discovery exists in
both civil and criminal cases, but is significantly curtailed in the latter.
Learning Objective 2: Differentiate formal and informal discovery and the
reasons why both are used in criminal cases.
Learning Objective 3: Identify the types of evidence subject to mandatory
criminal discovery.
A. The informal and formal exchange of information between prosecution and
defense is referred to as discovery. Discovery seeks to ensure that the
adversary system does not give one side an unfair advantage over the other.
B. Law on the Books: Rules Requiring Disclosure
i. A series of court decisions, statutes, and court rules provide the
framework for the criminal discovery process.
ii. Discovery in federal cases is governed primarily by sections of Rules 12,
16, and 26 of the Federal Rules of Criminal Procedure.
iii. In state courts, the type of information that is discoverable varies
considerably from state to state. Some jurisdictions allow only limited
2-3
4-5
discovery, other jurisdictions take a middle ground, and a few states have
adopted liberal discovery rules.
iv. Because of growing discontent with the discovery system, American
courts have cautiously expanded mandatory disclosure by the prosecutor,
especially with respect to disclosures of exculpatory evidence and
impeachment evidence.
C. Law in Action: Informal Prosecutorial Disclosure
i. Discovery rules are vitally important to defense attorneys. By learning the
facts of the prosecutor’s case, the defense attorney need not face the
difficult task of trying to force his client to voluntarily disclose this
information.
ii. In jurisdictions that grant limited discovery rights to the defense, defense
attorneys must be more resourceful in determining what actually
happened.
iii. Some prosecutors have an office policy prohibiting assistant prosecutors
from disclosing any information not required by law. But it is more
iv. Informal prosecutorial disclosure stems from a long-held courthouse
theory that an advance glimpse at the prosecutor’s case encourages a plea
of guilty. Informal prosecutorial discovery greatly encourages pleas of
guilty, at least when the prosecution has a strong case.
D. Law and Controversy: Requiring Reciprocal Disclosure
i. Ordinarily, to obtain discoverable information, a party must make a
timely motion before the court. Some jurisdictions, however, provide for
reciprocal disclosure—automatic discovery for certain types of evidence,
without the necessity for motions and court orders.
ii. Who must disclose what to whom, however, varies significantly, causing
controversy in the criminal justice system.
iii. A few states allow the defendant access to discoverable information in
the prosecution’s possession without the defense having a duty to
disclose any information to the prosecution.
iv. Even in such jurisdictions, however, the defense would have an
obligation to disclose certain evidence in support of select affirmative
defenses.
v. In contrast to jurisdictions with only limited disclosure requirements for
the defense, in some states “a defendant who issues a discovery request to
the prosecutor thereby automatically incurs the duty to disclose
information to the prosecutor.
vi. In still others, a defense discovery request gives the prosecutor the
right—presumably almost certain to be exercised—to demand discovery
from the defendant” (Easton & Bridges, 2008, p. 6).
Class Discussion/Activity 1
What is formal discovery? What is informal discovery? Why are both used in
criminal cases?
6
7
See Assignment 1
II. Suppressing Evidence
Learning Objective 4: Compare and contrast the exclusionary rule and the fruit
of the poisonous tree doctrine.
A. The most controversial of the Supreme Court’s criminal justice decisions
have concerned how the police gather evidence.
B. The Exclusionary Rule
i. The exclusionary rule prohibits the prosecutor from using illegally
obtained evidence during a trial.
ii. The exclusionary rule is commonly associated with the search and seizure
of physical evidence under the Fourth Amendment. But the exclusionary
rule is also applicable to interrogations and confessions that violate either
the Fifth Amendment privilege against self-incrimination, or the Sixth
Amendment right to counsel.
iii. It should be noted that the exclusionary rule also applies to the pretrial
confrontations between witnesses and suspects.
C. Fruit of the Poisonous Tree
i. The exclusionary rule is not limited to evidence that is the direct product
ii. The exclusionary rule operates to exclude derivative evidence because it
is considered to be fruit of the poisonous tree.
iii. As you might imagine, judges loathe excluding derivative evidence under
the exclusionary rule. Accordingly, the courts have developed four
doctrines that mitigate the harsh effects of preventing the use of both
illegally obtained evidence and the fruits derived from the illegality.
iv. Exceptions to the fruit of the poisonous tree doctrine include the good
faith exception, the independent source doctrine, the attenuation
exception, and the inevitable discovery doctrine.
Class Discussion/Activity 2
What types of evidence must be disclosed by the prosecution (handed over to the
defense during the discovery process prior to trial)?
Class Discussion/Activity 3
Pair students up and have them research Mapp v. Ohio. As a large group, discuss
the class and its importance regarding the exclusionary rule.
What If Scenario
Pretend you are a police officer who just witnessed your partner shoot and kill a
8
9-10
11
serial child molester and killer after the suspect had given up his fight by dropping
his handgun to the floor at your partner’s order. Your partner claimed that he shot
the suspect while the suspect was still holding up his gun, but you saw it
differently. There were no other witnesses. What would you do and why?
See Assignments 2 and 3
III. Interrogations and Confessions
Learning Objective 5: Summarize how the decision in Miranda v. Arizona
regulates the process of police interrogations of suspects
A. The Voluntariness Standard
i. Based on the Fourteenth Amendment, in Brown v. Mississippi (1936), the
U.S. Supreme Court held that confessions much be “free and voluntary”
or they were in violation of due process.
ii. Since then, confessions based on physical coercion have been
inadmissible in U.S. courts. As a result, such harsh means of interrogation
by police in the United States have largely ceased.
iii. The Court was then confronted with the slightly different issue of
confessions obtained as a result of lengthy interrogations, psychological
B. The Birth of Miranda Warnings
i. In an attempt at greater precision, the Supreme Court under the leadership
of Chief Justice Earl Warren adopted specific procedures for custodial
police interrogations in the path-breaking decision Miranda v. Arizona
(1966).
ii. In addition, the Court shifted the burden of proof from the defense, which
previously had to prove that a confession was not “free and voluntary,” to
iii. Even in the liberal Warren Court era, Miranda applied only to custodial
interrogations.
iv. Another limitation of the Miranda rule is that it applies only to “evidence
of a testimonial or communicative nature” (Schmerber v. California,
1966, p. 761).
C. Interrogations and the Sixth Amendment
i. The right to counsel under the Sixth Amendment differs from the right to
counsel under Miranda which flows from the Fifth Amendment.
12
13
ii. The Sixth Amendment is not concerned with compulsion in the self-
incrimination context; rather, it protects those facing criminal adversarial
proceedings in court.
iii. Once the Sixth Amendment right to counsel attaches, and is invoked or
asserted, a defendant may not be questioned without the defendant’s
lawyer being present unless a valid waiver of the Sixth Amendment right
to counsel is first obtained.
iv. As with the Fifth Amendment right to counsel under Miranda, a
defendant may waive his or her right to counsel under the Sixth
Amendment.
D. Interrogations and the Fourteenth Amendment
i. Neither Miranda nor any Sixth Amendment right to counsel cases
replaced the voluntariness test; rather, the Fifth and Sixth Amendments
work in conjunction with that due process requirement. “[T]he failure to
provide Miranda warnings in and of itself does not render a confession
involuntary” (New York v. Quarles, 1984, p. 655).
ii. However, while satisfaction of Miranda’s requirements is a relevant
consideration in determining the voluntariness of a confession, it is not
conclusive.
iii. Statements given after Miranda warnings may nonetheless be
inadmissible if they were not given voluntarily but rather were coerced
(Berkemer v. McCarty, 1984).
E. Applying the Law of Interrogation
i. With a handful of exceptions, such as Minnick v. Mississippi (1990) and
Dickerson v. United States (2000), the Supreme Court has generally
limited Miranda’s application since Chief Justices Burger.
Write a two-page paper on your reaction to the technique the police used in this
case to coerce four navy sailors into confessing to a rape they did not commit.
Media Tool
Watch PBS video FRONTLINE: The Confessions:
What If Scenario
Imagine you are a defense attorney assigned to represent a suspected terrorist,
who was arrested at LAX upon his arrival from Saudi Arabia. The federal
government is insisting that the suspect be tried as an enemy combatant by a
military tribunal, but you believe he should be tried as a civilian in a civilian
court and be accorded all the constitutional protections guaranteed in the Bill of
Rights. What would your arguments be?
See Assignment 4
IV. Search and Seizure
15
Learning Objective 6: Explain the requirements governing the application for
search warrants, the issuance of search warrants, and the execution of search
warrants.
Learning Objective 7: Identify the major exceptions to the Fourth Amendment’s
warrant requirement.
A. An unreasonable search and seizure occurs when law enforcement infringes
upon a reasonable expectation of privacy by conducting a search or seizure
the Warrants Clause.
B. Although probable cause is usually necessary to conduct a search, seize
evidence, or make an arrest, the Supreme Court has created several notable
exceptions to this rule.
C. Exceptions to the probable cause requirement include the “stop and frisk”
and exigent circumstances exceptions.
D. Search Warrants
i. A search warrant is a written document, signed by a judge or magistrate,
authorizing a law enforcement officer to conduct a search.
ii. The Fourth Amendment specifies that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched and the Persons or things to be
seized.”
iii. Once a police officer decides that a search warrant is necessary, the
officer usually goes back to the station house to prepare the application,
affidavit, and warrant. In a few jurisdictions, search-warrant applications
before they are presented to the magistrate.
iv. Regardless of who actually prepares the documentation, the application
must provide sufficient information to a neutral judicial officer to
determine that there is “a fair probability that contraband or evidence of a
statement of facts sworn to before the magistrate.
v. Only judicial officers who have been specifically authorized to do so may
issue search warrants. The applicant must contact a neutral judicial
officer to approve the warrant based on the application and the affidavit
vi. Outright rejection is rare.
vii. As the text of the Fourth Amendment makes clear, warrants must
describe with particularity “the place to be searched and the persons or
things to be seized.” This requirement means that warrants should be as
detailed as possible.
17–18
viii. The officer serves the warrant, conducts the search, and seizes evidence.
Officers mainly search private residences and impound vehicles for drugs
or stolen goods.
ix. Search warrants must be executed in a timely manner to prevent the
information that established probable cause from going stale.
x. The scope of law enforcement activities during the execution of the
warrant must be strictly limited to achieving the objectives that are set
forth specifically in the warrant.
xi. Search warrants must be executed at a reasonable time of day.
xii. Law enforcement officers are generally required to knock-and-announce
xiii. The police may remain on premises only for as long as it is reasonably
necessary to conduct the search.
xiv. After a search is completed, statutory law generally requires that the
officer file a “return” in court, indicating what items were seized, if any.
E. Warrant Exceptions
i. Despite the importance of warrants in criminal procedure, the majority of
searches are conducted without a warrant under recognized exceptions to
the warrant requirement.
ii. These exceptions include: abandoned property, administrative searches,
aerial searches, border searches, consent searches, inventory searches,
motor vehicle searches, searches incident to lawful arrest, special needs
searches in public schools, searches of public employers and/or their
work spaces, searches of people under correctional supervision, and third-
party disclosure.
F. Electronic Surveillance
i. The law governing electronic surveillance is complex.
ii. Law enforcement personnel must comply with the requirements of many
pieces of legislation, the most important of which is Title III of Omnibus
Crime Control and Safe Streets Act of 1968. That statute provides greater
privacy protections than the Fourth Amendment.
iii. If a conversation takes place in public where other parties can overhear
the conversation, there is no reasonable expectation of privacy.
iv. Title III excludes consent surveillance from its regulatory scheme.
v. Like traditional searches for physical evidence, searches of electronically
stored information (ESI) are also governed by the Fourth Amendment.
19
Thus, ESI searches normally require a duly-authorized warrant supported
by probable cause.
vi. Statutory provisions in the Stored Communications Act, however, allow
law enforcement to access stored communications older than 180 days,
such as email and voice mail, using either a search warrant, or, after
giving notice to the subscriber, a subpoena (18 U.S.C. § 2703(a)).
vii. The federal government recommends that an affidavit should not only list
“the specific hardware to be seized and searched” but also explain “the
viii. Title III does not cover video surveillance. Thus, surreptitious video
surveillance without any audio component is analyzed under state
invasion of privacy laws and under the Fourth Amendment.
ix. If surveillance contains both audio and video components, then the video
sections are controlled by the Fourth Amendment (and state privacy laws)
and audio portions are reviewed under Title III and the Fourth
Amendment.
G. Intelligence Surveillance
i. In 1978, Congress passed the Foreign Intelligence Surveillance Act
(FISA). FISA regulates the electronic surveillance of foreign powers and
their agents within the United States, where a “significant purpose” of the
surveillance is to gather foreign intelligence information that cannot
reasonably be obtained through normal investigative techniques.
H. Applying the Fourth Amendment
i. The Supreme Court modified the common law tradition when it adopted
the exclusionary rule for the Fourth Amendment violations in Weeks v.
United States (1914) and subsequently extended its application to the
states in Mapp v. Ohio (1961).
ii. Critics and supporters of the exclusionary rule agree on one central point:
The grounds for a lawful search are complex and highly technical.
Media Tool
Watch PBS video FRONTLINE: Top Secret America:
Media Tool
Read Domestic Drones on the ACLU website:
See Assignments 5, 6, and 7
20
V. The Exclusionary Rule and the Courtroom Work Group
Learning Objective 8: Analyze the effect of the exclusionary rule on the
operations of the courtroom work group.
A. Pretrial Motions
i. A defense attorney who believes that his or her client was identified in a
defective police lineup, gave a confession because of improper police
activity, or was subjected to an illegal search and seizure can file a
motion to suppress the evidence.
ii. Most states require that suppression motions be made prior to trial.
iii. The defense attorney usually bears the burden of proving that the search
was illegal or that the confession was coerced.
iv. The only exception involves an allegation that the Miranda warnings
were not given, in which case the state has the burden of proof.
v. The judge’s ruling in the pretrial hearing is binding on the later trial.
B. Defense Attorney as Prime Mover
i. Because defense attorneys have the responsibility of protecting the
constitutional rights of their clients, they are the prime movers in
C. The Defensive Posture of the Prosecutor
i. Suppression motions represent only liabilities for prosecutors. At a
minimum, they must do extra work. At worst, they may lose the case
entirely. Despite these drawbacks, prosecutors maintain the upper hand.
D. Trial Judges as Decision Makers
i. The decision to suppress evidence rests with the trial judge. Thus, trial-
court judges are key policymakers in applying and implementing
Supreme Court decisions concerning confessions and search and seizure.
E. Police Testimony
i. At the center of court hearings on police practices and defendants’ rights
are events that happened out in the field or in the police station. What is
known in court, therefore, is largely the product of police testimony.
ii. Police, prosecutors, and defense attorneys often become embroiled in
disputes about what occurred during interrogation.
Class Discussion/Activity 4
How does the exclusionary rule affect the courtroom work group?
What If Scenario
What if there was no exclusionary rule? What alternative might exist? How
would police procedures be different? What impact might there be on criminal
courts and their work groups? Defendants?
21
22
VI. Law and Controversy: Costs of the Exclusionary Rule
Learning Objective 9: Evaluate whether the exclusionary rule should be
abolished.
A. Assessing the number of convictions lost because of the exclusionary rule is
difficult.
B. Case attrition occurs at numerous stages of the proceedings and for various
reasons.
C. Exclusionary rules can lead to the freeing of apparently guilty defendants
during prosecutorial screening.
D. Prosecutors may refuse to file charges because of a search-and-seizure
problem, a tainted confession, or a defective police lineup.
E. After charges are filed, case attrition can also occur when judges grant
KEY TERMS
aerial searches: Surveillance from the air by law enforcement from a reasonable
distance.
affidavit: A written statement of facts sworn to before a magistrate.
alibi defense: A defense alleging that the defendant was elsewhere at the time of the
crime he or she is charged with.
attenuation: Exception to the exclusionary rule in which the police actions are
sufficiently removed from the constitutional violation that the initial illegality is deemed
to be sufficiently weakened making the evidence admissible.
chain of custody: The police process of carefully collecting and labeling the evidence
seized during the execution of the search warrant and then storing the evidence in a
confrontations: Pretrial meetings between witnesses and suspects including show-ups,
line-ups, or photo arrays.
23
consent searches: A warrantless search allowed due to consent by a person the police
believe has the authority to grant such consent.
consent surveillance: When one party to a communication consents to the interception
of the communication.
custodial interrogations: Questioning initiated by law enforcement officers after a
derivative evidence: Evidence indirectly obtained as a result of a constitutional
violation.
discovery: Pretrial procedure in which parties to a lawsuit ask for and receive
information such as testimony, records, or other evidence from each other.
exclusionary rule: A rule created by judicial decisions holding that evidence obtained
through violations of the constitutional rights of the criminal defendant must be excluded
from the trial.
exculpatory evidence: Any evidence that may be favorable to the defendant at trial
either by tending to cast doubt on the defendant’s guilt or by tending to mitigate the
defendant’s culpability.
Foreign Intelligence Surveillance Act (FISA): Regulates the electronic surveillance of
fruit of the poisonous tree: Doctrine barring derivative evidence found as a result the
violation of a defendant’s constitutional right from being used in the prosecution’s case–
in-chief unless the evidence is so far attenuated from the constitutional violation that its
use would not offend due process.
good faith: A sincere intention to be fair, open, and honest.
illegal search and seizure: A search not supported by probable cause.
impeachment evidence: Any evidence that would cast doubt on the credibility of a
witness.
independent source: Exception to the fruit of the poisonous tree doctrine allowing
evidence obtained illegally to be admitted at trial if obtained through a source that is
independent of any unconstitutional police actions
inevitable discovery: Exception to the fruit of the poisonous tree doctrine allowing the
admission of evidence if it would have been discovered anyway through independent,
lawful means.
motor vehicle searches: Exception to the warrant requirement. The mobility of motor
vehicles justifies warrantless searches of them if there is probable cause to believe that
the vehicle contains contraband. This includes any location in which the particular
contraband might be found, such as the truck, the glove compartment, luggage, and other
containers in the vehicle that could hold the contraband.
Omnibus Crime Control and Safe Streets Act of 1968: Statute that provides greater
privacy protections that the Fourth Amendment by: limiting who may apply for wiretaps;
open fields: Exception to the warrant requirement. Because one cannot have a reasonable
expectation of privacy in open areas, like fields, forests, open water, vacant lots, and the
like, police do not have to comply with the Fourth Amendment’s mandates of warrants
and probable cause to search open areas, even if “no trespassing” signs are posted. Only
those areas within the “curtilage” of one’s home receive Fourth Amendment protection.
plain view: When a law enforcement officer is legally in a place in which s/he sees
reciprocal disclosure: Automatic discovery for certain types of evidence, without the
necessity for motions and court orders.
searches incident to lawful arrest: A search conducted by police at the time of arrest
done in order to remove any weapons the suspect may have that could be used to resist
arrest or affect escape.
search warrant: A written order, issued by judicial authority, directing a law
enforcement officer to search for personal property and, if found, to bring it before the
court.
Stored Communications Act: Allows law enforcement to access stored communications
older than 180 days, such as email and voice mail, using either a search warrant, or, after
giving notice to the subscriber, a subpoena (18 U.S.C. § 2703(a)).
suppression motions: Requests that a court of law prohibit specific statements,
documents, or objects from being introduced into evidence in a trial.
unreasonable search and seizure: The Fourth Amendment provides for protection
against unreasonable searches and seizures, or the illegal gathering of evidence, but was
not very effective until the adoption of the exclusionary rule, barring the use of evidence
so obtained (Mapp v. Ohio, 1961).
video surveillance: The use of video cameras that record only images, not sound.
warrantless searches: Searches without a search warrant.
LECTURE NOTES
The process of discovery is not governed by the United States Constitution. It is,
however, applied through the use of previous court cases, statutes, and court rules in
some jurisdictions. Based on the process of discovery, the Federal Rules of Criminal
The Brady Rule is a case that has carried and still carries a great deal of weight with
regards to exculpatory evidence. It applies only to material evidence and recognizes that
the suppression of evidence that is favorable to an accused by prosecution violates due
process if the finding is guilt or punishment. There are cases outside of Brady v.
The Jencks Act required prosecutors to disclose, after direct examination of a
government’s witness and on the defendants motion, any statement a witness made. This
Act also covers the disclosure of all prior statements made by witnesses. Under Giglio v.
United States, the Brady Rule was found to be applicable. This mandated the prosecution
to disclose information that can be used to impeach the credibility of prosecution
witnesses.
The ways police gain their evidence in a case is the most contended issue in the criminal
justice system. The case of Weeks v. United States and Mapp v. Ohio both recognize the
suppression of evidence for federal and state cases. The exclusionary rule applies under
Limitations on the applications of Miranda were put in place in the Burger and Rehnquist
courts. They included making statements taken in violation of Miranda inadmissible in
court only as substantive evidence in the prosecution’s case–in-chief to prove the
defendant’s guilt, public safety exceptions, and exceptions regarding suspects making
voluntary incriminating statements without being questioned. Additionally, Rehnquist
The Fourth Amendment generally requires law enforcement officers to seek a warrant to
search for evidence. Officers apply for a warrant by swearing to the facts they know,
usually in an affidavit. A magistrate considers the facts in the affidavit to determine if
probable cause exists to authorize the warrant to search a particular place or person for
particular evidence connected to a specific crime. Police receiving such a warrant is
issued, must execute the warrant quickly and in a reasonable manner.
Police are allowed to conduct warrantless searches when granted consent to search by
In most cases, exclusionary rule does not generally impact the operations of the
courtroom work group because pretrial motions to suppress evidence are rare. In some
circumstances, such as when questions about the constitutionality of a search or seizure
arise, a motion to suppress will be filed by the defense attorney. In these situations, the
prosecutor is put on the defense and the judge must rule on the credibility of officer
testimony. Such situations can put a strain on courtroom work group relationships.
Controversy still exists regarding the costs of the exclusionary rule. On one side,
POSSIBLE DISCUSSION POINTS FOR CLASS DISCUSSION QUESTIONS
1. Formal discovery in criminal cases concerns the exchange of information mandated
either by the rules of procedure or applicable law. Informal discovery concerns the
2. All potentially exculpatory evidence must be disclosed to the defense. This includes
3. Both states and the federal government are required to use the exclusionary rule to
4. It doesn’t have much impact because pretrial motions to suppress evidence are
relatively rare. When they are brought, the defense attorney is required to take charge
ASSIGNMENTS
1. Locate one court in the United States that requires the use of discovery and one court
2. Locate a case that involves the exclusionary rule. Discuss the case in a minimum of
3. “Fruit of the Poisonous Tree”
4. Describe the changes that Miranda v. Arizona made in police conduct. When do the
Miranda warnings apply? How is the protection provided by Miranda regarding
counsel different than the protection provided by the Sixth Amendment? Discuss this
5. Explain the requirements governing the application for search warrants, the issuance
of search warrants, and the execution of search warrants. What is the purpose of these
requirements? Pretend you are a police officer attempting to gain a search warrant for
a man suspected of burglary. What steps would you need to take to get the warrant?
How would you carry out the warrant? What actions would you be sure to avoid?
6. “Foreign Intelligence Surveillance Court”
LO7
7. “Warrant Exceptions for Police”