What Is This Book?
This book introduces criminal procedure law in the United States, with a focus on the “investigation” stage of the criminal justice system. Specifically, the book focuses on legal constraints placed upon police and prosecutors, constraints largely derived from Supreme Court interpretations of the Fourth, Fifth, and Sixth Amendments to the Constitution. Major topics include searches and seizures, warrants and when they are required, interrogations, witness identifications of suspects, and the right to counsel during various stages of investigation and prosecution.
At the end of the semester, students should have a solid foundation in the “black-letter law” of criminal procedure. This material is tested on the bar examination, and it is the sort of information that friends and family will expect lawyers to know, even lawyers who never practice criminal law. For example, a lawyer lacking basic familiarity with the Miranda Rule risks looking foolish at Thanksgiving dinner. In addition, the legal issues covered in this book relate to some of the most intense ongoing political and social debates in the country. The law governing stop-and-frisk procedures, for example, is not merely trivia one should learn for an exam. It affects the lives of real people. The reliability of eyewitness identifications affects the likelihood of wrongful convictions, a phenomenon persons of all political persuasions oppose. In short, policing and prosecution affect everyone in America, and an informed citizen—especially a lawyer—should understand the primary arguments raised in major controversies in criminal procedure law.
To be sure, understanding the holdings of major cases is essential to more nuanced participation in these debates, and this book devotes the bulk of its pages to Supreme Court opinions, which your authors have edited for length. (To save space, we have omitted internal citations, as well as portions of court opinions, without using ellipses to indicate our edits.) The book then aims to go beyond the information available in majority opinions, concurrences, and dissents. To do so, it includes supplementary material on developments in law and policy. For example, advances in technology raise questions about precedent concerning what counts as a “search” under Fourth Amendment law. The book also provides perspectives on the practical implications of Supreme Court decisions, perspectives often given scant attention by the Justices. For example, state courts have grappled with scientific evidence about witness reliability that has not yet been addressed in Supreme Court opinions resolving due process challenges related to identifications.
Further, in addition to helping students identify situations in which constitutional rights may have been violated, the book explores what remedies are available for different violations. For a criminal defendant, the most desirable remedy will normally be exclusion of evidence obtained though illegal means—for example, drugs found in a defendant’s car or home during an unlawful search. Contrary to common misconceptions among the general public, however, not all criminal procedure law violations result in the exclusion of evidence. Students will read the leading cases on the exclusionary rule, confronting arguments on when the remedy of exclusion—which quite often requires that a guilty person avoid conviction—is justified by the need to encourage adherence by law enforcement to the rules presented in this book concerning searches, seizures, interrogations, and so on.
Your authors have attempted to create a book that presents material clearly and does not hide the ball. Students who read assigned material should be well prepared for class, armed with knowledge of what rules the Supreme Court has announced, along with the main arguments for and against the Court’s choices.
The remainder of this Introduction consists of further effort by your authors to convince you of the importance of the material presented later in the book. Many students possess this book because they are enrolled in a required course or know that this material is tested on the bar exam. Others of you plan to practice criminal law. Still others study criminal procedure to learn more about important societal controversies. Regardless, your authors do not take your attention for granted.
A Note on the Text
Universities exist to promote the search for knowledge and to transmit human knowledge to future generations. Public universities in particular have a tradition of sharing knowledge with the broader populace, not merely their own students, and they also have a tradition of providing excellent education at affordable prices. This book exists to further these important missions of the University of Missouri. Designed by MU professors, it suits the pedagogical preferences of its authors. Available at no cost, it reduces students’ cost of attendance.
In addition, this book is available under a Creative Commons license, meaning that anyone—inside or outside the university—can use it to study criminal procedure and can share it at will. Faculty at other universities are free to adopt it.
The project was inspired, in part, by an article one of your authors published in 2016, calling on law schools and law faculty to create free casebooks for students.1 It turned out that calling upon others to create books did not in itself produce these books. Your authors have since become the change they wished to see in legal education. Because the book is new—and is the first casebook produced by either of your authors—student feedback is especially welcome. Future students will benefit from any improvements.
To increase the book’s value as a free resource, the text when possible contains links to sources at which students can learn more at no cost. For example, Supreme Court cases are freely available online, and anyone who wishes to read the full unedited version of any case may do so. (Even when a link has not been provided, when naming cases we usually have included a full citation, which should allow students easy access to free versions of the text.) Your authors have edited cases so that reading assignments would be kept reasonable for a one-semester course; however, there is always more to learn.
In addition, this book aims to go beyond providing a “nutshell” summary of American criminal procedure law. From time to time, particularly when assigned cases raise issues about which there are important ongoing debates in American society, the readings will investigate these issues in greater depth than might be possible were the text confined to opinions written by Supreme Court Justices. More than one hundred years ago, Roscoe Pound—then dean of the University of Nebraska College of Law, later dean at Harvard—published the great legal realist article “Law in Books and Law in Action.”2 If this book is successful, students will spend time considering the practical effects—the law in action—of the opinions contained in Supreme Court reporters.