Unit 3: Interviewing and Interrogation

Law and the Courts: Constitutional Law

It has been said that the government of the United States is a “government of laws, and not of men”. Our government is based on a written constitution which was adopted by the founding fathers. It has proven to be a remarkably elastic document, because the Supreme Court has assumed the authority to interpret it in conformity with the times.

The U.S. Constitution sets forth the powers and duties of Congress, guarantees writs of habeas corpus to people who are illegally imprisoned, and prohibits ex-post facto laws. In other words, a person cannot be punished for an act which was not made illegal until after he committed it.

The Constitution also sets forth the three branches of government, executive, legislative, and judicial. A series of amendments have been made to the Constitution over the years. The Constitution can be amended by Congress only after ratification by a majority ofthe states. It takes a two-thirds vote of each house of Congress to propose amendments to the Constitution, a ratification of three-fourths ofthe states who enact it. The first ten amendments to the Constitution are known as “The Bill of Rights”.

The amendments which have the greatest effect on law enforcement are the first, fourth, fifth, sixth, and eighth, and also the fourteenth amendment. The first amendment states “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances”. The meaning of this amendment is quite clear. It means that we can worship as we see fit; or not worship at all, if we are so inclined; and that all others have the same rights. The first amendment has many implications for law enforcement. It has been interpreted by the federal court to mean that in New Hampshire, a motorist can cover up the legend “Live Free or Die” on his motor vehicle registration plates and not be prosecuted for obscuring a portion of the plate, because you are exercising your right to free speech. It means that newspapers can print stories and editorials which are critical of law enforcement. It means that in enforcing the laws pertaining to disorderly conduct and disturbing the peace, the police must tread a fine line between a person’s right to be heard and to dissent even over the objections of the majority, and the right of others to go about their business without being unreasonably impeded by the dissenters.

Under the First Amendment, there are some limits. The right to free speech must be exercised reasonably. As U.S. Supreme Court Justice Oliver Wendell Holmes once said, “The right to free speech does not include the right to yell ‘fire!’ in a crowded theater, nor to disrupt an orderly assembly, church service, or, session of the court by heckling, speaking out of order, or shouting to the point where the assembly cannot conduct its business.” Likewise, one cannot incite to riot, nor accost others in a public place with vile or obscene language. However, even in enforcing the latter provision, the New Hampshire Supreme Court has said that the test of vile or obscene language is that it must be of such a character that it would provoke the average person to violence before it becomes against the law (State v. Chaplinsky).

The Second Amendment states: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” What the Founding Fathers meant when they passed this amendment has been the source of considerable debate by the proponents and opponents of gun control legislation in recent years. Groups such as the National Rifle Association would argue that it is unconstitutional to impose even some of the current requirements requiring persons to be licensed to carry concealed and loaded handguns, and the federal record keeping requirements that are imposed on gun dealers. On the other hand, the proponents of gun control who feel the crime rate would be reduced in this country if firearms were less readily available, argue that the right to keep and bear arms was intended only to sanction the establishment of a militia such as state National Guard, and did not mean an unfettered right of anyone to purchase or own firearms.

The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, reported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”Under this amendment, a man’s home is his castle; but it may not be used as a place of refuge for criminals. On fresh and immediate pursuit, an officer may follow a criminal who has taken refuge in a house or building to make the arrest. The courts have held that when a person is legally arrested, his or her person and effects may be thoroughly searched by an officer, and any weapon or contraband may be seized without a warrant and properly used as evidence. Nevertheless, the limitations of the Fourth Amendment are clearly visible to law enforcement officers as they go about their work. It is worthwhile to note that the fourth amendment does not ban all searches and seizures; only those which are “unreasonable.” Brief, momentary detention on suspicion that can be articulated that a person has committed, or is about to commit a crime, have been declared legal under the Fourth Amendment by the U.S. Supreme Court in Terry v. Ohio. The courts have stated that arrest is a “seizure” and covered under the Fourth Amendment (Dunaway v. New York), and the requirement that probable cause and a sworn affidavit exist before the issuance of an arrest or search warrant, and that a search warrant be very specific in describing the place to be searched and the items the officer will search for, all result from the fourth amendment.

The Fifth Amendment states: “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person he subject for the same offense to be twice put in jeopardy of life or limbs; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

In recent years, it may seem that the criminal element enjoys the protection that this amendment offers more than the average person. However, it is one of the basic rights that we all treasure, and as such it has the same strength for all persons. We can see in this amendment the authorization for the uniform code of military justice and the separate system of trials which exist for persons in the military; the requirement for grand jury indictments in felony cases; the double jeopardy prohibitions that prevent a person from being tried twice for the same crime; and the rules regarding interrogation of criminal suspects which have led to such landmark U. S. Supreme Court decisions as Miranda v. Arizona.

The Sixth Amendment states: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

The statute of limitations which prevents the prosecution of persons for “stale” crimes; the requirements case in which the New Hampshire Supreme Court has imposed speediness for the trial of criminal cases; the existence of judicial districts and territorial jurisdiction of courts; the hearsay evidence rule which prevents utilizing third-party testimony in a trial when the witness is available; and the right to a public trial and cross-examination of witnesses, all are derived from this amendment. Even more important is that this amendment gives everyone the right to a lawyer. Legal aid for indigent persons, and the various Supreme Court cases which prevent the police from questioning persons who are already under indictment or represented by a lawyer, or those who wish to consult with a lawyer before questioning, find their basis in the sixth amendment.

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. The right of a subject to bail, the size of fines and length of sentences are all affected by this amendment. People working in corrections will find many of the rights of prisoners flow from the Eighth Amendment.

The Fourteenth Amendment, besides dealing with the apportionment of senators and representatives in Congress and the public debt provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state whereby they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Because of this amendment, the U.S. Supreme Court in 1961 in the case of Mapp v. Ohio started a revolution in the criminal law when they propounded a doctrine of dual sovereignty and dual citizenship. In other words, a person who is a citizen of the State of New Hampshire is also a citizen of the United States, and subject to the sovereignty and laws both of the State of New Hampshire and of the United States. A state cannot take away from one of its citizens a right which he or she would otherwise enjoy as a US. citizen. The Supreme Court used this theory to declare that federal court decisions were binding on local state law enforcement officers, and not just on FBI agents and other federal officers. In the Mapp case more restrictive search and seizure requirements were imposed than existed at that time in most states. There followed in rapid succession other decisions such as Escobedo v. Illinois and Miranda v. Arizona dealing with interrogation of suspects, and a host of other decisions which encompassed nearly the entire Bill of Rights. State courts from henceforth could not interpret state laws so as to take away any rights their citizens would otherwise have under the federal Constitution. Although not specifically provided for in the Constitution, the Supreme Court in the Mapp case also adopted the so-called “exclusionary rule” which stated that any evidence in a criminal case which was gathered by illegal or unconstitutional means would not be admissible against a criminal defendant. In other words, the police would be “punished” for any constitutional mistakes they made during the evidence gathering process, by losing the right to use the evidence in court. The exclusionary rule has come under considerable attack recently, there is one school of thought being that since the police can be and often are sued civilly for violating a person’s constitutional rights, this should be an adequate remedy, and as the English courts say, “The criminal should not go free merely because the Constable blundered”. In US. v. Leon, the U. S. Supreme Court recently declared a “good faith”exception to the exclusionary rule in search warrant cases. If the police make a search in good faith reliance on a search warrant which later turns out not to be valid, the evidence is still admissible.

Because the U.S. Constitution is seen as a flexible and elastic document, the stringency with which it is interpreted varies from decade to decade, depending on whether the majority on the court is composed of liberals, moderates, or conservatives.

In the decade of the 1960’s under the late Chief Justice Earl Warren, the court was viewed as extremely liberal, and the revolution in the criminal law which resulted from the Mapp and Miranda cases and their aftermath, came about. As members of the Warren court retired from the bench or died, a succession of Republican presidents replaced them with more conservative legal thinkers, led by Chief Justice Warren Burger. By the 1980’s, a coalition of moderates and conservatives came to dominate the court, and liberals such as Justice William Brennan and Thurgood Marshall found themselves out-voted. To some degree, this was also a reflection of the times, since voting patterns of the citizenry also became more conservative. In a succession of cases, the Supreme Court has modified a number of the earlier decisions in a way which has lifted some of the former restrictions on law enforcement. For example, in N.Y. v. Quarles, the court declared an exigent circumstances exception to the Miranda rule. In this case, police investigating an assault with a weapon and fearful of further violence asked a suspect what he had done with the weapon, without first warning him of his Miranda rights and securing a waiver. The suspect told them, the police retrieved the weapon and the court permitted it to be introduced in evidence. Rules regarding the searches of automobiles have been relaxed, and the “good faith” exception to the exclusionary rule adopted.

However, a new phenomenon arose in the 1980’s, triggered by the fact that although the US. Supreme Court has become more conservative, many state Supreme Courts were still dominated by persons whose thinking was more in line with that of the former Warren court. Each state has its own constitution, patterned after but not identical to the federal one. Increasingly, state Supreme Courts who wish to resist the conservative trend at the national level, and who to some degree resent being preempted by their colleagues on the federal bench, have taken to interpreting nearly identical wording in their state constitutions differently from the federal constitution. Although under the Fourteenth Amendment the state court cannot take away any rights guaranteed to a US. citizen under the federal constitution; it can read additional rights beyond those offered at the federal level into the state constitution. Such individual state departures from the federal rules make the task of law enforcement more difficult, particularly in the area of training. No longer can an FBI agent serve as guest lecturer in search and seizure at a local police academy, unless someone familiar with the state law follows up with an explanation of areas where the state Supreme Court has departed from the federal rule.

Any discussion of constitutional law and particularly the Fourteenth Amendment would be incomplete without a discussion of the impact which this amendment and subsequent laws passed by Congress has had on the area of civil rights. References to due process and equal protection mean that a police officer can be subject to civil suit or even federal criminal penalties for violating a person’s civil rights. Police officers must be careful not to treat one person differently than another, regardless of their age, sex, sexual orientation, national origin, wealth, or position. Officers must also bear in mind that due process of law begins in the initial investigative stage of a case.

Title XVIII, Chapter 13, Section 241, of the United States Code deals with civil rights violations; particularly conspiracy against the rights of citizens. It provides that if two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his or her free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 or imprisoned not more than 10 years or both. This law has resulted in prohibiting unequal treatment such as forced bussing of Negro students, and action of some groups such as the Klu Klux Klan in intimidating black citizens. Police officers are subject to this law, and can be held liable for unequal application of the law. As used in this law, the term “citizens” includes all persons within the boundaries of the United States, including illegal aliens.

Title XVIII, Chapter 13, Section 242 of the United States Code deals with deprivation of rights under color of law. It states that whoever under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any state, territory, or district to the deprivation of any rights, privileges, or immunities secured or protected by the constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, race, or creed than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year or both. This, and Title 42, Section 1983 of the United States Code comprise the criminal and civil penalties which can apply to the actions of police officers. Because of these laws, officers should zealously watch for any and all violations of the civil rights of citizens. Police officers have been staunch guardians of the weak and oppressed in society for many years, not infrequently laying down their lives to protect minorities or unpopular groups.