The course casebook: Lloyd Weinreb, Leading Constitutional Cases on Criminal Justice (Foundation Press, 2010). The acronym for this book is "CB."

Many of the assignments will be to material in the casebook [CB]. Some additional material -- mostly online material -- will be assigned from time to time.

This is a course in constitutional criminal procedure. This is not a course in constitutional theory and doctrine as such. It is, instead, a course that focuses on the intersection of constitutional law and criminal procedure.

But this course is also not a course about the criminal process as such. The course views the criminal process and criminal procedure through the lens of constitutional theory and doctrine.

There is a price to be paid for the emphasis on constitutional doctrine instead of on the nitty-gritty of the criminal process: We will not study most of the nitty-gritty workings of the criminal process (but we shall not ignore them entirely). The justification for this emphasis on "grand constitutional theory"is nicely stated by the editor of our casebook:

If constitutional law is not the whole or from every perspective the most important part of criminal justice, it is nonetheless an important part, and in its constitutional aspect it is distinctive. While I should not look only to the Supreme Court to learn about the criminal process, therefore, I do not believe that the significance of the cases contained [in the casebook] lies entirely in their immediate, concrete consequences.

Although the importance of the constitutional principles that are considered in this course extends beyond the criminal process, legal actors cannot deal competently with problems of criminal procedure if they are unfamiliar with the body of constitutional principles that we will consider.

But it is necessary to have a certain kind of knowledge of constitutional principles and doctrines.

As the term "grand" in "grand constitutional theory" implies, it is necessary to become familiar with general constitutional principles and theories. It is not enough to memorize the specific holdings of particular Supreme Court cases.

However, familiarity with broad constitutional principles, though necessary, is not sufficient. This is because in most or many instances the broad constitutional principles that the Court and its members proclaim and embrace -- at least from time to time -- are, by themselves, in many instances insufficient to resolve concrete constitutional questions of criminal procedure. There are at least several reasons for this. First, the constitutional principles proclaimed by the Court and its members are almost always extraordinarily vague. Second, there remains substantial disagreement on the Court about which (vague) constitutional principles are controlling. Third, the Court itself is not always, and perhaps not even ordinarily, consistent about the constitutional principles it embraces. (The Court's inconstancy, however, is usually camouflaged. It is your job to unmask such disguises.)

Because of the substantial "indeterminacy" of constitutional doctrines and theory relating to criminal procedure, our examination of (a selection of) the constitutional cases in the casebook will often (though not always) have two key objectives:

(i) We will seek to familiarize ourselves with the various constitutional perspectives that the Court and its various members have used and sometimes still use from time to time.

(ii) We will try to learn or relearn (as the case may be) the art of careful study -- thorough, exhaustive, and painstaking study -- of constitutional cases -- in order to acquire a better understanding of the possible meanings and implications of such cases.

The pursuit of these two objectives will require the active participation of all members of the course. For example, sometimes you will be asked to present and defend the constitutional perspective(s) of a particular member of the Court. At other times you will be asked to go through a case and discuss it in detail, to discuss it line-by-line if necessary.

In addition to the two objectives mentioned immediately above, I will occasionally present some of my personal views of particular problems of criminal procedure or the Court's general "constitutional posture," or approach, toward certain kinds of questions. For example, from time to time I will express doubts about the Court's use of legal history, and sometimes I may criticize the Court's views about uncertainty and probability. My aim in voicing these personal views and perspectives, however, is not to indoctrinate or convert you to my way of thinking. My objective is to provoke you to develop and articulate your own perspective on the Court's constitutional jurisprudence with respect to criminal procedure.

Assignment 1

Assignment 2

Assignment 3

Assignment 4

Assignment 5

Assignment 6

Assignment 7

Assignment 8

Assignment 9

Assignment 10

Assignment 11

Assignment 12

Assignment 13

Assignment 14

For the first class session, I will not ask specific members of the class to present and defend the specific arguments, theories, and perspectives that are found in Palko and Adamson. (I will give such assignments from time to time for class sessions later in the semester.) However, please read these two cases very carefully. We will discuss them in detail. (Our discussion will include concurring and dissenting opinions such as those of Justice Frankfurter and Justice Black in Adamson.)

I have "shared" a Google Doc with all of you. In the week before every class session (including the first one), please put down some of your thoughts about the assigned material -- and in that way share some of your thoughts with the rest of the class. (Be sure to identify yourself and time-stamp your entry.) The thoughts you scribble down need not be elegant. The important thing -- for now at least -- is just to put down some of your musings and questions. Thank you.

*Wolf v. Colorado (1949) CB pp. 332-337 (We will study this case again later in the semester.)
*Rochin v. California (1952) CB pp. 24-31

Four teams of students will discuss and debate the following Problem. (Team assignments will be made in class.)

*Olmstead v. United States (1928) CB pp. 527-535
*Mapp v. Ohio (1961) (an edited version of the opinions is available at CB pp. 338-351; but read the full opinions in the case that you can find by clicking the name of the case)
*Griswold v. Connecticut (1965), CB pp. 32-39
*Katz v. United States (1967) (an edited version of the opinions is available at CB pp. 549-554; but read the full opinions in the case that you can find by clicking the name of the case)
*Duncan v. Louisiana (1968) (an edited version of the opinions is available at CB pp. 40-54; but read the full opinions that you can find by clicking the name of the case)

Teams of students will discuss and debate the following Problem. (Team assignments will be made in class.)

Davis v. Alaska, 415 U.S. 308 (1974)
Crawford v. Washington, 541 U.S. 36 (2004)(an edited version of the opinions is available at CB pp. 549-554; but click on the name of the case and read the full opinions)

Teams of students will discuss and debate the following Problem. (Team assignments will be made in class.)

As I'm sure you have already noticed, the Court uses the language of probability (e.g., "probable cause") a lot. But the Court says surprisingly little about probability. I think it would be useful and important for us to focus on the concept of probability before we begin a detailed examination of cases dealing with matters such as "probable cause." So your (difficult) assignment for this week is:

Due Process, Probability, and Proof beyond a Reasonable Doubt

Boyd v. United States, 116 U.S. 616 (1886)
Review Griswold v. Connecticut (1965), CB pp. 32-39
Schmerber v. California (1966) (an edited version of the opinions is available at CB pp. 838-847; but click the name of the case and read the full opinions in the case)
Review Katz v. United States (1967)
Warden v. Hayden (1967), CB 184-192
Andresen v. Maryland (1976), CB 863-868

Teams of students will discuss and debate the following Problem. (I will make these team assignments by e-mail.)

Thomas Davies, "The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment 'Search and Seizure' Doctrine" (2010) (to retrieve, go to page "Lessons" in ANGEL; read this article carefully).

I will lecture. Later there will be a pass-fail exercise on this material.

Terry v. Ohio (1968) CB 432
Dunaway v. New York (1979) CB 509
Michigan Department of State Police v. Sitz (1990) CB 491
Minnesota v. Dickerson (1993) CB 470
Whren v. United States (1996) CB 77
Ornelas v. United States (1996) CB 83
Illinois v. Wardlow (2000) CB 459
City of Indianapolis v. Edmond (2000) CB 499

Teams of students will discuss and debate the following Problem. (I will make these team assignments by e-mail.)

Spano v. New York (1959) CB 673
Massiah v. United States (1964) CB 690
Escobedo v. Illinois (1964) CB 732
Miranda v. Arizona (1966) CB 742

Each member of seminar of the seminar will prepare and present a short oral disqusition on the following questions:

1. Was the following statement by Justice Goldberg in Escobedo both imprudent and naive?:

We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the "confession" will, in the long run, be less reliable and more subjecxt to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation. ... This Court has ... also recognized that "history amply shows that confessions have often been extorted to save law enforcement the trouble and effort of obtaining valid and independent evidence...." ....

2. Would a prohibition on the use of confessions against defendants in criminal trials effect a revolution in the American criminal process? If so, did Escobedo and Miranda effect a radical transformation of the American criminal process?

3. Was Miranda an exercise in unconstitutional lawmaking and policymaking by the Supreme Court of the United States?

Missouri v. Seibert (2004) CB 761
Moran v. Burbine (1986) CB 770
Berghius v. Thompkins (2010) CB 784
Rhode Island v. Innis (1980) CB 800
Illinois v. Perkins (1990) CB 806
Oregon v. Mathiason (1977) CB 810
Harris v. New York (1971) CB 813
Doyle v. Ohio (1976) CB 819
Oregon v. Elstad (1985) CB 823
United States v. Patane (2006) CB 832
Schmerber v. California (1966) CB 838
Winston v. Lee (1985) CB 857

Comment: This is a lot of reading. If nothing else, please make sure you know what the Court held and its basic rationale for its holding. In class I will comment on the "debatable" aspects of the Court's rationale.

Gideon v. Wainwright (1963)

Study this renowned case. However, we will not discuss the case in class. Instead, I will later distribute a problem that focuses on some central issues in search and seizure doctrine and the privilege against self-incrimination. This problem will be the basis for the open-book but sit-down final examination. (More on this later.)