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Chapter Twelve: Disclosing and Suppressing Evidence. Discovery. The informal and formal exchange of information between prosecution and defense, i.e., witness statements, confessions, police reports, laboratory reports, and defendant statements. Disclosure Rules - Civil.

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The informal and formal exchange

of information between prosecution

and defense, i.e., witness statements,

confessions, police reports,

laboratory reports,

and defendant statements.

disclosure rules civil
Disclosure Rules - Civil

Federal Rules of Civil Procedure (1938)

state that every party in a civil action

is entitled

to the disclosure of

any information in the possession of

any person, unless that information

is privileged.

(Applicable in most states).

disclosure rules criminal
Disclosure Rules - Criminal

There is no general constitutional right

to discovery in criminal cases.

(Weatherford v. Bursey)

However, prosecutors cannot suppress

inconsistent and exculpatory evidence; and the materiality of the evidence shall

be considered in its entirety.

(Jencks v. U.S.; Brady v. Maryland; Kyles v. Whitley)


Why is “discovery” important

to the defense attorney?

Why does the prosecutor look

favorably upon “informal” disclosure?

What is “reciprocal” disclosure?

and, what is the danger to the


exclusionary rule
Exclusionary Rule

Applies to:

Identification of Suspects



(5th amendment)

Searches and Seizures

(4th amendment)

how can eyewitness testimony contribute to wrongful convictions
How Can Eyewitness TestimonyContribute to Wrongful Convictions?

At a trial, eyewitness testimony which incriminates an offender is one of the most influential pieces of evidence,


since DNA technology has developed,

eyewitness error has been identified as a

frequent cause of wrongful convictions.*

* Psychological studies show that there is extreme variation with false

identifications in both controlled field studies and actual studies.

how important is eyewitness testimony in criminal cases
How Important is Eyewitness Testimony in Criminal Cases?

The Police

Crimes most likely to be cleared by arrest

are those in which the offenders

were captured within minutes


those in which an eyewitness provided

a specific piece of information.

supreme court decisions
Supreme Court Decisions
  • Simmons v. U.S. (1968): Court recognized “dangers” in the way police utilize lineups and photo arrays.
  • United States v. Wade (1967) and Gilbert v. California (1967): The Court held that a suspect has the “right to counsel” during lineups (note: the suspect has no right to counsel during photo arrays).
  • Stovall v. Denno (1967) and Neil v. Biggers(1972): The Court acknowledges the danger of “suggestive” procedures.
  • Neil v. Biggers(1972) and Manson v. Braithwaite (1977): The Court articulated five minimal factors which could increase the likelihood of an accurate identification. Those factors were: opportunity, length of time, level of certainty, degree of attention, the accuracy of the witness’s prior description of the criminal.

* Major issues: no consideration of system or estimator variables and; the correlation between accuracy and high confidence levels are only somewhat more likely to be correct than those who have a low confidence level.

exclusionary rule14
Exclusionary Rule

The prosecutor is prohibited from

using illegally obtained evidence

during a trial.

“No person…shall be compelled in any

criminal case to be a witness

against himself.”

(5th Amendment)


A confession by a defendant –

an admission of guilt –

is the most damagingevidence

that can be presented

at the defendant’s trial.


Use of physical coercion to obtain

confessions violates the due

process clause of the 14th Amendment.

(Brown v. Mississippi)

Psychologically coerced confessions are not voluntary and therefore not

admissible in court.

(Ashcraft v. Tennessee)

interrogative coercion tactics that are considered illegal and are both physical and psychological
Interrogative ‘Coercion’ Tactics That Are Considered Illegal And Are Both Physical and Psychological
  • Physical force
  • Abuse
  • Torture
  • Threats of harm or punishment
  • Prolonged isolation
  • Deprivation of food or sleep
  • Promises of leniency
  • Failure to notify the suspect of their Miranda rights
  • Certain types of psychological influences

A coerced confession does not

automatically overturn a conviction.

“harmless error”

Arizona v. Fulminante (1991)


“…the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained.”

(Justice William Brennan; Colorado v. Connelly, 1986)

the supreme court and confessions
The Supreme Court and Confessions

The fundamental question asked by

judges is whether the confession was

‘free and voluntary.’

The U.S. Supreme Court has ruled

that voluntariness of a confession

is determined by the

“totality of circumstances.”

(Culombe v. Connecticut, 1961)

three types of false confessions
Three Types of False Confessions
  • Voluntary false confessions : willful, without elicitation.
  • Coerced-compliant confessions : public admission versus private knowledge of innocence. Example: Third-degree tactics.
  • Coerced-internalized confessions : heightened suggestibility; truth and falsehood become confused in the suspect’s mind.
Police can use trickery,

and they can lie to suspects

and otherwise mislead them.

Allowable tactics:

  • Misrepresentation of the facts.
  • Use of techniques that take unfair advantage of emotions, beliefs, or medical condition of the defendant.
  • Failure to inform the suspect of some important fact or circumstance that might make the suspect less likely to confess.
supreme court and trickery
Supreme Court and Trickery

Frazier v. Cupp, (1969)

Police misrepresentation, while relevant, is insufficient to make a voluntary confession inadmissible under a

“totality of the circumstances” analysis.

custodial interrogation
Custodial Interrogation

Miranda v. Arizona (1966)

Chief Justice Earl Warren expressed

concerns over the “police-dominated”

atmosphere of interrogation rooms.

Chief Justice Warren further held that warnings were required to counteract the inherently coercive nature

of stationhouse questioning.


“Miranda has become embedded in

routine police practice to the point

where the warnings have become

part of our national culture.”

Chief Justice Rehnquist

Dickerson v. U.S. (2000)

confession questions
Confession Questions:

Who has the burden to prove that

a confession was not “free and voluntary?”

How has the impact of Miranda changed under the influence of

the Burger and Rehnquist courts?

search and seizure
Search and Seizure

“the right of the people to be

secure in their person, houses,

papers, and effects against

unreasonable searches and seizures,

shall not be violated.”

(4th amendment)

Weeks v. U.S. (1914)

Mapp v. Ohio (1961)

search warrants
Search Warrants

A search warrant is a written document,

signed by a judge or magistrate,

authorizing a law enforcement officer

to conduct a search.

“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.”

(4th Amendment)


What is the “Leon” ruling?

(U.S. v. Leon; 1984)

(see also: Illinois v. Krull; 1987)

Who prepares the warrant,

signs the warrant,

and, executes the warrant?

What is a warrantless search?

Give an example.

pretrial motions
Pretrial Motions

The role of the courtroom workgroup

during suppression motions:

Defense Attorney: Catalyst, bear

the burden of proof.

Prosecutors: Passive role, control the evidence

and the case.

Judges: Final arbiter, key policy-maker, and great

discretion concerning findings of fact.


Are the Court’s decisions in

Mapp and Miranda

major sources of case attrition?

What is the major argument against the

“exclusionary rule?”

Has the “exclusionary rule” had a major

effect on the criminal justice system?