What to Look for When Reading Cases

As the semester progresses, students will learn to answer two key questions presented in every single criminal procedure case: First, were someone’s rights (usually constitutional rights) violated? Second, if so, so what?

Answering the first question requires knowledge of the Supreme Court’s decisions interpreting the Fourth, Fifth, and Sixth Amendments to the Constitution, among other provisions. For example, the Court has considered over several cases—decided over several decades—what counts as a “search” for purposes of the Fourth Amendment. It has debated what the Due Process Clauses of the Fifth and Fourteenth Amendments require of police officers conducting interrogations. And it has weighed how to protect the right to counsel guaranteed by the Sixth Amendment to all criminal defendants.

Answering the second question— “So what?”—requires knowledge of the remedies the Supreme Court has provided for violations of the rights of criminal suspects and defendants. For a defendant, the most desirable remedy is often the exclusion of evidence obtained illegally. When the “exclusionary rule” applies, evidence gained during an unlawful search or interrogation, for example, may become unavailable to prosecutors, which may lead to the dismissal of criminal charges. The proper scope of the exclusionary rule has been hotly debated for decades, and even its existence is not taken for granted by everyone on the Supreme Court. When exclusion of evidence is not available, the best remedy may be money damages, although that remedy has its own shortcomings. Students will learn the basics of when various remedies are available for violations of criminal procedure rules.

In a sense, the rules governing searches, seizures, interrogations, and so on can be considered the “substantive” law of criminal procedure. These rules constitute the bulk of most criminal procedure courses, and this one is no exception. Questions in this category include: When do police need a warrant? When must police give “Miranda warnings”? What must states provide for criminal defendants too poor to hire a lawyer?

The remedies are what one might call the “procedural” aspect of criminal procedure law. Questions in this category include: If police executing a search warrant break down someone’s door without justification, can the homeowner exclude evidence found during the ensuing search? Does the answer change if the warrant was somehow defective? When can prosecutors use confessions obtained in violation of the Miranda Rule? The portion of assigned readings explicitly devoted to remedies is far less than that given to “substantive” criminal procedure rights. Keep in mind, however, that rights without remedies are largely worthless,[1] and those students who one day prosecute crimes or represent defendants will care deeply about the practical consequences of Supreme Court doctrine.


[1] Don’t take our word for it. Sir John Holt, the Lord Chief Justice of England, wrote in Ashby v. White (1703), “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.” 14 St. Tr. 695, 92 Eng. Rep. 126, 136. Fans of Latin put it this way: “ubi jus ibi remedium.”


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Criminal Procedure: Undergraduate Edition Copyright © 2022 by Christopher E. Smith is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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