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Crim B4

Chapter 2

A remedy is a method of rectifying wrongdoing. When a person believes he or she has been harmed in some way, that person may seek relief from the harm, or make the person who caused the harm “pay” for the damage done. A remedy is thus an enforcement mechanism for violations of people’s rights. Criminal procedure cannot be fully appreciated without some discussion of the remedies that may be used to cure constitutional rights violations.

Remedies may be legal or extralegal in nature. Extralegal remedies are those conducted outside the legal process. An example of an extralegal remedy is vigilantism. If one man is assaulted by another, the assaulted individual may seek revenge and opt to solve the perceived injustice with his fists. Legal remedies are remedies made available by the law, by court decisions, or by a police policy or procedure.

The bulk of the discussion in this chapter is on remedies for constitutional rights violations. The most frequently discussed remedy in criminal procedure is the exclusionary rule. This rule is a creation of the courts and is not found in any statutes.

The first section of this chapter discusses the exclusionary rule and the so-called “fruit of the poisonous tree” doctrine. The second section touches on criminal remedies other than the exclusionary rule, notably state and federal law. The third section looks at civil remedies that are sought by filing lawsuits. The chapter closes with a discussion of non-judicial remedies, including internal review, civilian review, and mediation.

Considered the most significant remedy in criminal procedure, it requires that evidence obtained in violation of the Constitution cannot be used in a criminal trial to prove guilt.
The Rule and Its History
In Boyd v. United States, 116 U.S. 616 (1886), the Court held that business records should have been excluded because a compulsory production of the private books and papers of the owner compelled him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search-and-seizure—and an unreasonable search-and-seizure—within the meaning of the Fourth Amendment.
In Weeks v. United States, 232 U.S. 383 (1914), the Court relied solely on the Fourth Amendment as a basis for exclusion. Without a warrant, police entered the home of Fremont Weeks and seized documents that tied him to criminal activity. The Court held that the documents were seized in violation of the Fourth Amendment and should have been returned to Weeks.
In Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), a similar set of circumstances was presented. Silverthorne allegedly avoided paying taxes. Without a warrant, federal agents seized documents from him and made copies. The Court declared that authorizing such activities would encourage law enforcement to circumvent the Constitution. Justice Holmes stated that without an enforcement mechanism, “the Fourth Amendment [is reduced] to a form of words” and little else.
In Elkins v. United States, 364 U.S. 206 (1960), the Court denounced the so-called “silver platter” doctrine, which permitted the use of evidence in federal court that had been obtained illegally by state officials.
A Turning Point: Mapp v. Ohio
In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court decided that the exclusionary rule applied to the states. It concluded that other remedies, such as reliance on the due process clause to enforce Fourth Amendment violations, had proven “worthless and futile.”
In Ker v. California, 374 U.S. 23, the Court decided that federal standards must be applied when determining whether the exclusionary rule should apply. States can also apply more restrictive procedures for evaluating admissibility of evidence, but they cannot relax the Mapp standard.
In Cady v. Dombrowski, 413 U.S. 433, the Court decided that evidence obtained in violation of a state rule or law that is not of a constitutional dimension need not be excluded under Mapp. It may, however, be excluded under state law.
Arguments for and Against the Rule
The debate over the exclusionary rule centers on three important issues: (1) whether the rule deters police misconduct; (2) whether the rule imposes unnecessary costs on society; and (3) whether alternative remedies would be effective and should be pursued.
Critics of the exclusionary rule argue that the rule does very little to deter police misconduct. They claim that most constitutional rights violations are unintentional and the potential for exclusion of evidence will not prevent such accidental violations. They further argue that even in cases where the police act in bad faith, the officers. Critics also claim that any possible benefit of the exclusionary rule is outweighed by its social costs will often commit perjury to mask a constitutional rights violation. They further claim that alternative remedies such as civil litigation, criminal prosecution, and discipline within police departments are effective and should be pursued.
Supporters of the exclusionary rule respond that the rule is not intended to deter individual officers (specific deterrence) but is intended to have a broader, systemic deterrent effect (general deterrence). This is supported by that fact that many police departments have amended their policies in the wake of the Mapp decision and encouraged their officers to adhere to constitutional safeguards.
Additionally, supporters believe its benefits outweigh the costs. For example, they argue, quite persuasively, that the exclusionary rule is rarely applied. Motions to exclude evidence based on alleged constitutional rights violations are relatively rare, and they succeed even more rarely. Second, supporters believe the rule is beneficial because it does help innocent people. Since Mapp and other significant decisions, innocent people have been subjected to fewer unconstitutional searches, not only because the police fear the exclusion of evidence, but because of the potential for civil liability, citizen complaints, and the like. Supporters of the exclusionary rule also argue that public cynicism, to the extent it exists, should be directed at wayward government officials, not the exclusionary rule.
When the Exclusionary Rule Does Not Apply
The exclusionary rule does not apply in following four situations: grand jury investigations, habeas corpus proceedings, parole revocation hearings, and civil proceedings.
Exceptions to the Exclusionary Rule
The Supreme Court has seen fit to allow evidence in cases involving honest mistakes as well as other circumstances. There are two exceptions to the exclusionary rule: (1) the “good faith” exception and (2) the impeachment exception.
Good Faith Exception.
As a general rule, when an honest mistake is made during the course of a search or seizure, any subsequently obtained evidence will be considered admissible. The “good faith” exception was announced in two related cases: United States v. Leon, 468 U.S. 897 (1984) and Massachusetts v. Sheppard, 468 U.S. 981 (1984).
Impeachment Exception.
In some cases, evidence that has been excluded as direct evidence of guilt may be used for the purpose of impeachment (attacking the credibility) of a witness. This is known as the impeachment exception. The impeachment exception was upheld in Walder v. United States, 347 U.S. 62 (1954).

  • Teaching Note: An important limit on the impeachment exception is that it applies only to the impeachment of criminal defendants, not other witnesses. This restriction was established in James v. Illinois, (493 U.S. 307 [1990]).

The “Fruit of the Poisonous Tree” Doctrine
In the “fruit of the poisonous tree” doctrine, the “poisonous tree” is the initial unconstitutional search or seizure. Anything obtained from the tree is considered “forbidden fruit” that should be excluded. The doctrine was first announced by the Supreme Court in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
The Silverthorne holding was reaffirmed in the case of Nardone v. United States, 308 U.S. 338 (1939), a case in which illegally intercepted phone messages formed a vital component of the prosecution’s case. The Supreme Court noted that it should be left to the discretion of “experienced trial judges” to determine whether “a substantial portion of the case against [the accused] was a fruit of the poisonous tree.”
Exceptions to Fruit of the Poisonous Tree
The “purged taint” exception to the fruit of the poisonous tree doctrine is also known as the attenuation exception. In Nardone, Justice Frankfurter observed that in some cases, “sophisticated argument may prove a causal link obtained through [illegality] and the government’s proof. As a matter of good sense, however, such a connection may have become so attenuated as to dissipate the taint.”
The independent source exception was first established in Segura v. United States, 468 U.S. 796 (1984). In that case, police requested a search warrant to search an apartment based on information they received from a suspect about a drug sale.
The inevitable discovery exception states that if evidence would be found regardless of unconstitutional police conduct, then it is admissible. This exception was first recognized by the Supreme Court in Nix v. Williams, 467 U.S. 431 (1984).
Federal Law
At the federal level, the most common statute for holding police officers criminally liable is 18 U.S.C. Section 242. Section 242 is to criminal liability what Section 1983 is to civil liability. It can be used to prosecute either a state or a federal law enforcement officer.
To be held liable under Section 242, a law enforcement officer must act with specific intent to deprive a person of important constitutional (or other federal) rights (Screws v. United States, 325 U.S. 91 [1945]).
For criminal liability to be imposed under Section 242, a constitutional right must be clearly established (United States v. Lanier, 520 U.S. 259 [1997]).
State Law
Police officers often engage in many actions that would be crimes if performed by ordinary citizens. However, they enjoy immunity from criminal liability for these actions, if the actions are committed (justifiably) as part of their official duties. On these occasions, police officers are shielded from criminal liability by the law enforcement or public duty defense to criminal liability. Beyond the public duty defense, police officers do not have much in the way of defense against criminal liability.
When a person’s constitutional or other federal civil rights are violated, that person can bring a lawsuit in civil court.

  • Teaching Note: Discuss with students what the purpose of civil litigation is. Aside from sometimes being the only remedy available, civil lawsuits are attractive because money can be awarded. The plaintiff, or the person filing the lawsuit, seeks payment for injuries or perceived injuries suffered, known as damages. In addition to damages, the plaintiff can also seek injunctive relief, which basically means he or she wants the Court to bring the injurious or offensive action to a halt.

42 U.S.C. Section 1983: Liability of State Officials
42 U.S.C. Section 1983 provides a remedy in federal court for the “deprivation of any rights . . . secured by the Constitution and laws” of the United States.
Color of Law.
One of the requirements for a successful Section 1983 lawsuit is that the defendant, the person being sued, acted under color of law. The Supreme Court has stated that someone acts under color of law when he or she acts in an official capacity (Lugar v. Edmondson Oil Co., 457 U.S. 922 [1982]).
One or more of the following conditions are satisfied:

  • They have identified themselves as officers.

  • They are performing a criminal investigation.

  • They have filed official police documents.

  • They are making an arrest.

  • They are invoking police powers in or outside their jurisdiction.

  • They are settling a personal vendetta with police power.

  • They are displaying weapons or police equipment.

Constitutional Violation.
The second requirement for a successful Section 1983 lawsuit is that a constitutional rights violation has taken place. The plaintiff must establish that the defendant’s conduct violated a specific constitutional provision, such as the Fourth Amendment. Not all constitutional rights violations are (or should be) actionable under Section 1983. Recently, the courts have required that constitutional rights violations alleged under Section 1983 be committed with a certain level of culpability. That is, the plaintiff generally has to prove that the defendant officer intended for the violation to occur.
Theories of Liability.
The term theory of liability is the legal premise upon which a case rests. It is the legal argument on who should be held accountable—and why. Typically, in Section 1983 cases the plaintiff’s lawsuit will target an individual officer, that officer’s supervisor, the city or municipality for which the officer works, or any combination of each.

  • Supervisory Liability

  • Municipal/County Liability

  • Individual Liability

Bivens Claims against Federal Officials - A Bivens claim is primarily limited to law enforcement officers. Other federal officials enjoy absolute immunity, meaning that the official cannot be sued under any circumstances, at least as far as their official duties are concerned. Federal officials who enjoy absolute immunity include federal judges (Bradley v. Fisher, 80 U.S. 335 [1871]) and federal prosecutors (Yaselli v. Goff, 275 U.S. 503 [1927]).

The Qualified Immunity Defense.
Qualified immunity is a judicially created defense to a Section 1983 suit, much like the exclusionary rule has been created through judicial decisions. In some cases, qualified immunity is more than a defense; it may afford immunity from suit. Qualified immunity was developed to accommodate two conflicting policy concerns: effective crime control, and the protection of people’s civil liberties.
Malley v. Briggs, 475 U.S. 335 (1986) further clarified the standard to be applied to qualified immunity. In that case, the plaintiffs filed a Section 1983 suit alleging that a police officer applied for and obtained a warrant that failed to establish probable cause. Rather than focus on the probable cause issue, the Supreme Court identified the question as being “whether a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” It went on to note that “[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of immunity be lost.”
Three non-judicial remedies are available for police misconduct. First, an internal review is a process by which a police department investigates complaints against its own officers. Typically, an internal affairs division takes up this task. The second remedy, civilian review, is a mechanism by which private citizens serve in some capacity to review complaints of police misconduct. Not to be confused with civilian review, mediation asks an objective third party, such as an ombudsman, to resolve a grievance between a police officer and a citizen who complains of wrongdoing.
Internal Review
Many police agencies have developed innovative and highly respected internal review mechanisms.
Civilian Review
A study of citizen complaints against police has identified three distinct forms of the process: (1) civilian review; (2) civilian input; and (3) civilian monitor. Pure civilian review is the strongest form—a civilian panel investigates, adjudicates, and recommends punishment to the police chief. The second strongest form is civilian input. In this form, a civilian panel receives and investigates a complaint, leaving adjudication and discipline to the department itself. The weakest of the three, the civilian monitor form, leaves investigation, adjudication, and discipline to the department, but a civilian is allowed to review the adequacy and impartiality of the process.

Relying on a neutral third party to render decisions is the most desirable approach to address the problem of police misconduct. In a mediation, a neutral third party, or ombudsman (sometimes called a “mediator” or “arbitrator”), recommends a decision.

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