Criminal Procedure

1
Criminal Procedure

• 7th Edition
• Joel Samaha
• Thomson-Wadsworth Publishing

2
Criminal Procedure in Crisis Times

• Chapter 15

3
Balancing Rights and Security During Emergencies

• Balancing rights and security during is most
• challenging during emergencies.
• The balance tips toward government power over
  individual liberty and privacy during emergencies.

4
Limiting Government Power During Emergencies

• Government power during emergencies is
• limited by two things
• NecessityGovernment can use extraordinary power
  only when and to the extent that it is absolutely
  needed to protect the people from danger.
• TemporarinessThis extraordinary power must end
  as soon as the emergency ends.

5
The History of Criminal Procedure in Wartime

• Clear principles once applied to wars fought
• between two nations
• Declaration of war defined the beginning.
• Laws of war controlled fighting.
• Peace treaties defined the end.
• Total wars (World Wars I and II) required
• the commitment of the whole government,
• including its people and resources.

6
The Cold War

• International communism crossed national
• borders.
• Spies came to U.S. soil.
• They looked and acted like non-Communists.
• They took jobs in strategic industries and
  government, intending to learn our secrets and
  pass them on to Communist governments.
• The government sought to prosecute and/or deport
  them to prevent further infiltration.
• Fighting them required military combat and
  intelligence gathering.

7
The War on Terror

• The War on Terror is a major shift from
• prosecution to prevention.
• Prosecution remains a mission.
• Mission is to gather intelligence to prevent
  future attacks.

8
USA Patriot Act

• Our knowledge of the USA Patriot Act and
• other laws is limited.
• The government argues theres a need for secrecy
  to guard against future attacks.
• The changes are too recent to have produced more
  than a few court cases.
• Questions are based on a constitutional
  requirement to balance the need for government
  power to prevent and prosecute terrorist acts and
  individuals constitutional rights.

9
Surveillance and Terrorism

• The Fourth Amendment protects against
• unreasonable searches and seizures.
• Not all government acts classify as such.
• The Fourth Amendment doesnt protect against
• Wiring informants for sound to capture
  conversations of private individuals (U.S. v.
  White)
• Retrieving lists of telephone numbers of outgoing
  (pen registers, Smith v. Maryland) and incoming
  (trap and trace) calls
• Obtaining bank records of individuals financial
  dealings (U.S. v. Miller)

10
Balancing Power and Privacy

• The federal government established a three
• tiered system to balance government power
• and individual privacy in government
• surveillance.

11
Three Tiers of Federal Law balancing Government
Power and Individual Privacy
12
Tier 1 Real-Time Electronic Surveillance

• Tier 1 Real-time electronic surveillance
• was established in 1968 by the Crime
• Control and Safe Streets Act.
• It protects individual privacy the most.
• It bans the interception of wire, oral, or
  electronic communications while theyre taking
  place.
• It contains a serious crime exception.

13
Serious Crimes

• The serious crimes exception contains
• specific provisions aimed at protecting
• individual privacy before conversations can
• be intercepted
• The application has to be approved by high
  official and a judge.
• The application includes statements about
• facts and circumstances
• whether other investigative procedures have been
  tried and failed
• the projected length of the interception

14
Terrorism as a Serious Crime

• The USA Patriot Act classified terrorism as a
• serious crime. The following crimes are
• not subject to the ban on electronic
• surveillance
• Terrorist acts of violence against Americans
  overseas
• Financial transactions with countries that
  support terrorists
• Providing material support for terrorists
• Providing material support for terrorist
  organizations
• Chemical weapons offenses
• Use of weapons of mass destruction

15
Tier 2 Surveilling Stored Electronic
Communications

• Tier 2 legislation (USA Patriot Act) tips the
• balance in favor of the government by
• Allowing government access to stored
  communicationsvoice mail and email messages, not
  just telephone numbers and e-mail addresses.
• Expanding government electronic surveillance
  power.
• The surveillance applies to any criminal
  investigation.

16
Tier 2 Surveillance Limitations

• There are two limits to the governments
• Tier 2 surveillance power
• Messages stored less than 6 months require a
  warrant and probable cause.
• Messages stored more than 6 months require a
  warrant, but a 90-day delay in notifying the
  subscriber is allowed if the court determines
  notification may have an adverse result.

17
Tier 3 Secret Caller ID

• Tier 3 legislation grants broader government
• power than Tiers 1 and 2 but doesnt
• invade individual privacy as deeply.
• Secret caller ID allows the government to
  access pen registers and trap and trace telephone
  numbers.
• It can be used to investigate any crime without
  court approval and without ever notifying
  subscribers (only needs supervisors approval).

18
Tier 3 and the Patriot Act

• The Patriot Act creates the power to seek a
• court order to retrieve e-mail headers, not
• messages.
• Orders apply to anywhere in the U.S.
• The government must show the court
• The name of the officer who installed and/or
  accessed the device
• The date and time of the device installation,
  access, and disconnection
• The device configuration and modification
• Information captured

19
Controversial Government Surveillance

• Some of the surveillance activities of the
• governments investigation of terrorism are
• controversial. Two programs drawing great
• attention are
• Libraries provision
• The National Security Agencys Terrorist
  Surveillance Program (TSP)

20
Sneak and Peak Searches

• A variation of the no-knock warrant, sneak
• and peek search warrants allow officers to
• enter private places without the owner (or
• occupant) consenting or even knowing
• about it.
• The Patriot Act included their use if the court
  finds reasonable cause to believe notification
  might have an adverse effect.
• Items cant be seized unless it is deemed
  reasonably necessary to do so.

21
Detaining Terrorist Suspects

• In ordinary times, even brief detentions are
• unreasonable Fourth Amendment seizures
• without an objective basis to back them up.
• However, balancing security and rights after
• 9/11 resulted in new official acts changing
• the balance between preserving national
• security and the right of individuals to come
• and go as they please.

22
Sources Authorizing Terrorist Suspect Detentions

• Three acts document the balance shift
• Presidential Proclamation 7463 (September 14,
  2001) declared a national emergency.
• Congressional joint resolution Authorization for
  Use of Military Force (September 14, 2001)
  authorized military force to catch the 9/11
  attackers and their supporters and to prevent
  future terrorist attacks.
• George W. Bushs Military Order of November 13,
  2001, provided rules for detention, treatment,
  and trial of certain non-citizens in the war
  against terrorism.

23
Defining Non-Citizens

• Non-citizens includes any person who
• theres reason to believe
• Is a past or present al Qaeda member
• Has acted in some connection with acts of
  international terrorism or
• Has knowingly harbored one or more individuals
  described in 1 or 2.

24
Hamdi v. Rumsfeld

• Hamdi v. Rumsfeld (2004) raised questions
• about detaining citizens after 9/11.
• The Courts decision affirms the governments
  right to detain citizens.
• The War on Terror isnt a blank check.
• The government has no right to detain citizens
  indefinitely.
• Detained citizens have a right to challenge their
  detention.
• Detainees have a right to counsel.

25
Conditions of Detention

• The conditions of confinement and
• treatment of detainees should
• Provide humane and nondiscriminatory treatment.
• Afford adequate food, water, shelter, clothing,
  and medical treatment.
• Allow free exercise of religion.
• The Secretary of Defense may prescribe
• other conditions.

26
Trials of Suspected Terrorists

• Terrorist suspects can be tried either for
• crimes in ordinary courts (Article III courts)
• or for war crimes by military commissions
• (sometimes called military tribunals).
• Traditional rules govern trials in ordinary
  courts.
• Special rules with fewer rights and more relaxed
  procedures and standards of proof govern military
  commissions.

27
Sources of Military Commission Authority

• The President bases his authority to
• establish military commissions on three
• sources
• U.S. Constitution, Article II, Section 2
• The Authorization for Use of Military Force
• The law of war (Geneva Conventions)

28
The Jurisdiction of Military Commissions

• The jurisdiction of military commissions
• applies only to non-citizens as defined in the
• order.
• Individuals subject to the order dont
  necessarily enjoy the same constitutional rights
  as citizens.
• The order strips Article III courts of
  jurisdiction either to hear or review military
  commission cases (this may not survive
  constitutional challenges).

29
Trial Proceedings of Military Commissions

• According to Hamdan v. Rumsfeld (2006),
• trial proceedings of suspected enemy
• combatant detainees are governed by the
• Uniform Code of Military Justice (UCMJ)
• Law of war (Geneva Conventions, especially
  General Article 3)

30
The Geneva Convention

• The Geneva Convention, General Article 3,
• says that detainees have a right to
• be tried by a regularly constituted court
  affording all the judicial guarantees which are
  recognized as indispensable by civilized
  peoples.
• all the judicial guarantees which are recognized
  as indispensable by civilized peoples.
• Common Article 3 tolerates a great degree
• of flexibility in trying individuals captured
• during armed conflict.