#10987 - Miscellaneous - Criminal Procedure: Investigations

Odds and Ends

1. Bodily Extractions

   1. DPC is violated when it shocks the conscious

      1. Ridiculous to think that coerced confessions must be excluded but extractions by force not

         1. Rochin: police took him to hospital and forced him to vomit in order to recover pills that he swallowed

   2. 5th amen only applies to testimonial or communicative evidence

      1. Extraction of physical evidence is not testimonial

         1. Schmerber: Police ordered doctor to take his blood against his will, 5th amen does not apply

   3. Search within 4th amen

      1. Schmerber: taking blood was a search but it was reasonable because of exigent circumstances

      2. Reasonableness of surgical intrusions beneath the skin require a case by case weighing

      3. Balance individual’s interest in privacy and security vs society’s interest in conducting procedure

         1. Winston v Lee: Unreasonable to require surgery to get out bullet in shoulder

         2. Maryland v King: taking a buccal swab is reasonable under the 4th amen because it is legitimate routine booking procedure and is important for identification purposes; no more intrusive than a fingerprint

      4. Factors to look at

         1. Health and safety risk

         2. Degree of intrusion

         3. VS community’s interest in determining guilt

         4. Need for evidence

2. Lineups

   1. 5th amen

      1. Compelling an accused merely to exhibit his person for observation involves no compulsion of accused having to give testimonial evidence

   2. 6th amen

      1. After indictment, entitled to have lawyer present during a lineup; this is a critical stage of the proceeding

         1. Wade: He was entitled to have his counsel present absent an intelligent waiver

   3. Wade only applies after indictment (Kirby)

      1. Evidence of out of court ID is not excluded

      2. Witness can still pick out D at trail so long as prosecutor can show they are basing ID on something other than lineup

   4. Wade does not apply to pictures (Ash)

   5. DPC

      1. In order for DPC to be violated need to show that the

         1. Identification procedure is unnecessarily and unduly suggestive

         2. Substantially likely to result in misidentification

      2. Simmons: not unnecessarily suggestive in showing photos to bank employees because it was essential for FBI to determine if they were on the right track swiftly

      3. Neils: victim gave an accurate description, spent a long time with her attacker, had been shown several suspects and had never misidentified someone in the past—so not so suggestive as to violate DPC

3. Incriminating Documents

   1. Gov can get a search warrant to search your computer or get your papers

      1. Old rule (Boyd): police wanted invoice of glass because they were alleging failure to pay duty on an import

         1. Heart of 4th amen is protection against seizure of docs

         2. Something special about papers—papers are a route into mind

         3. Especially invasive

         4. Mere evidence rule originated here

   2. 5th amen protects against compelled self incrimination, not the disclosure of private information

      1. Andersen: a party is privileged from producing the evidence, but not from its production; he was not compelled to make the documents pertaining to Lot 13T; police could seize papers

      2. This may be different if you seized someone’s private diary and used that to convict him of a crime

   3. But there is a testimonial aspect to subpoenas

      1. Act of handing over documents can be testimonial

      2. Gov uses immunity to get around this

      3. Prosecutors must give use and derivative use immunity

      4. 5th amen protects against a prosecutor’s use of incriminating documents derived directly or indirectly from compelled testimony

         1. Hubbel: broad fishing expedition for documents, D’s act of producing the documents led to the his prosecution

4. Nontestimonial statements

   1. Blood isn’t testimony

   2. Words aren’t testimony if only use of the words is the nontestimonial or physical characteristics of the words

      1. Dionisio: compelling him to give a voice exemplar is nontestimonial; he is being forced to speak, but words are only being used for physical characteristics

      2. Muniz: just interested in whether his speech was slurred; but one question...