Criminal Procedure

CRIMINAL PROCEDURE

USC Law School

In Memoriam

Professor Charles H. Whitebread

1943-2008

A teacher who could make the law live

Professor Rich Walton

(213) 891-5290 [email protected]

1 Spring 2009 Hours and Locations

Class: LAW 101, Tuesday & Thursday 1:20 – 2:35 p.m. Office Hour: Thursday 12:00 – 1:00, University Club, or by appointment

Course Materials

Required: Yale Kamisar et al, MODERN CRIMINAL PROCEDURE: CASES—COMMENTS— QUESTIONS (12th Ed. 2007) (“Text”). Yale Kamisar et al. 2008 SUPPLEMENT TO TWELFTH EDITIONS (2008) (“Supplement”). Supplementary Materials (“Materials”), available at the Copy Center.

Optional: Charles H. Whitebread et al, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS (5th Ed. 2007) (highly recommended, and on reserve in the library). Federal Sentencing Guidelines Manual (USSG), available at: http://www.ussc.gov/2007guid/GL2007.pdf (relevant portions are excerpted in the Supplement) Federal Rules of Evidence (library or online) (relevant portions are excerpted in the Supplement). Federal Rules of Criminal Procedure (FRCP) (library or online) (relevant portions are excerpted in the Supplement).

Grading “There are two things you need to know about Criminal Procedure: One. Cops lie and cheat—and they get away with it because they carry guns. Two. When the big green door slams, make sure you know which side of it you’re going to be on.” -Prof. Charles H. Whitebread

Grades will be awarded primarily on the basis of a 3 hour open book in-class final, but attendance and participation may be considered (+ or – one-half letter grade) in determining your course grade. I reserve the right—in cases of extreme absence or lack of preparation—to adjust grades downwards.

SofTest may be used for the final.

2 Food For Thought “Hiya, folks! I’m Charlie Whitebread and everything you need to know for the next 14 weeks is locked right here in my brain.” -Prof. Charles H. Whitebread

1. I expect you to be prepared for class. 2. I expect you to be in class. Class discussions frequently cover material not in the assigned reading, and your final will cover classroom discussions. If you miss class, get notes. 3. I expect you to speak in class. Volunteers will be noted and rewarded. Others may be called upon randomly. If you are not prepared, please send me a note before, or speak with me at the beginning of, class. “Passes” are not accepted. 4. You will find it unusually difficult to “cram” for this course at the last minute. Our casebook is the US Supreme Court, rendering tough decisions on doctrines nuanced with complexities. Regular attendance and faithful reading will serve you well. Any other study technique will likely result in an unsatisfactory grade for the course. 5. Laptops are for educational use. Playing games, web surfing, IMing, and other non-class activities may expand your social network and aid your hand-eye coordination, but they will not help you pass this class, and are a severe distraction to your classmates. Non-class use of laptops violates rule 2, above, and will have a negative impact upon the class participation portion of your grade.

3 Class Topic Assigned Reading Optional Reading In the Beginning: Why Criminal Procedure? 1 & 2 Process & Incorporation: Text: 2-17 (not including notes), 24- Materials: Tab C, Anatomy of a Criminal 30, 34-35 (notes 3 and 4), 35-40 Prof. Charles H. Investigation, and the (through note 3), 42-45 (not Whitebread, Outlines Limitations of Due including notes), 47 (section 6 Process onwards)-50. Supplement: 1-11; 59-62 Materials: Tab A (US Constitution, Amendments 1-10, 14). At the End: Meaningful Enforcement of Constitutional Rights 3-4 The Exclusionary Rule Text: 218-251 (including note 4); Materials: Tab D, 872-886 Prof. Charles H. Whitebread, Outline And Everything in Between: The Fourth Amendment 4-6 Scope: Text: 251 (note 4 onwards)-282; Materials: Tab E, Searches—Government 465-474. Prof. Charles H. Action, Standing, and Supplement: 60 (Amend. IV) Whitebread, Outline Reasonable Expectation Materials: Tab B, pp. 2-29 (Prof. of Privacy Julie O’Sullivan’s redacted versions of Jacobsen, Rakas, Olson, and Carter); Tab A (Fourth Amendment) 7 Exception: Text: 282-307 Probable Cause Seizures—Definition, Scope, and Restrictions 8 Exception: Text: 399-429 Materials: Tab F, Reasonable Suspicion for Prof. Charles H. Stop and Frisk Whitebread, Outline 9 Exception: Text: 435-446 Reasonable Balancing for Materials: Tab B, pp. 29-55 (Prof. Administrative Searches Julie O’Sullivan’s redactions of and Special Needs Edmond and Earls). 10-11 Warrants—Why, How, Text: 322-353; 429-435 Text: 307-322; 515- and When You Don’t 536 Need One for Persons; Supplement: 32; 63- Pretextual Searches 84 (18 USC §§ 2510 et seq.).

4 Class Topic Assigned Reading Optional Reading 12 Warrantless Searches of Text: 353-371 Premises Materials: Tab B, pp. 55-59 (Prof. Julie O’Sullivan’s redaction of Buie and Olson). 13 Warrantless Searches of Text: 371-399 Vehicles and Effects 14 Consent Searches and the Text: 449-464 Plain View Doctrine Materials: Tab B, pp. 59-67 (Prof. Julie O’Sullivan’s redaction of Hicks and Horton). 15 The Exclusionary Rule in Text: 886-913 (top) Application: The Fruit of Materials: Tab B, pp. 67-78 the Poisonous Tree and Impeachment 16 Grand Jury Text: 789-793 Text: 793-808 Investigations: Fourth Materials: Tab B, pp. 78-83; Tab G, Amendment Limitations Prof. Charles H. Whitebread, Outline The Fifth Amendment: Privilege Against Self- Incrimination 17 Testimony Text: 821-835 Materials: Tab H, Materials: Tab B, pp. 83-85, 78-83 Prof. Charles H. Whitebread, Outline 18 Documents Text: 835-864 The Unique Problem of Confessions 19 The Court Struggles: Due Text: 543-551 Materials: Tab I, Process “Voluntariness” Prof. Charles H. Whitebread, Outline 19 The Court Tries: Sixth Text: 551-559 Amendment Right to Counsel 20-23 The Court Triumphs: Text: 559-618; 628-648; 656-665 Supplement: 37-46 Miranda to Dickerson—a Fifth Amendment Right Against Self- Incrimination 24 The Court Revives: Text: 670-676; 722-727; 735-736; Revisiting the Sixth 90 (note 7)-92 Amendment and the Scope of Miranda [INTENTIONALLY BLANK]

5 Class Topic Assigned Reading Optional Reading The Most Important Right of All: Counsel 25-26 The Right to “Effective” Text: 79-99; 115-131; 144-165; Materials: Tab J, Counsel 206-213 Prof. Charles H. Supplement: 12-18; 20-31 Whitebread, Outline; Article RE Federal Public Defenders Identifying the Accused 27 Pre-Trial Identification Text: 744-768 Materials: Tab K, Procedures: Lineups, Prof. Charles H. Showups, and Others Whitebread, Identification Outline 28 Review and Closing Materials: Tab L, Thoughts Prof. Charles H. Whitebread, Outline