Lesson 4
Constitutional Criminal Procedure:
Fourth, Fifth, and Sixth Amendments
Theme: Very little criminal procedure had been constitutionalized, that is applied to states, before the 1960's and the Warren Court era. Today however, constitutional law pervades criminal procedure, but it is not necessarily "good" constitutional law because much of it is inattentive to the text, history and structure of the Constitution. This lesson will analyze the Fourth Amendment's exclusionary rule, the Fifth Amendment's self-incrimination and double jeopardy clauses, and the rights of the accused under the Sixth Amendment in terms of what makes "good" constitutional law.
Choper et al., Ch. 6, "Nature and Scope of Fourteenth Amendment Due Process: Applicability of the Bill of Rights to the States"
Choper et al., Ch. 7, "Constitutional Criminal Procedure"
Akhil Reed Amar. 1997. The Constitution and Criminal Procedure: First Principles. Yale University Press.
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, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized. Amendment 4 (1791)
Fourth Amendment Case Briefs
Mapp v. Ohio 81 S. Ct. 1684 (1961), 262
U. S. v. Leon 104 S. Ct. 3405 (1984), 267
Katz v. U.S. 88 S. Ct. 507 (1967), 278
Terry v. Ohio 88 S. Ct. 1868 (1968), 297
Indianapolis v. Edmond 121 S. Ct. 447 (2000), 312
Amar. Ch. 1 Fourth Amendment: First Principles
1. The Court has fused the warrant and search and seizure provisions, so that a search to be reasonable must be accompanied by a warrant. This unjustified expansion of constitutional rights often leads to dangerous and unjustified contractions elsewhere.
a. The requirement that all searches and seizures be reasonable includes the civil as well as the criminal. Therefore the Fourth Amendment should be
connected to the rest of the Constitution not just criminal law, but constitutional tort law as well.
b. As a consequence of this fusing of search and seizure with requirement for warrants, it has led the Court to contract the meaning of search and seizure and to grant exceptions for warrantless searches and seizures.
i. United States v. Watson-arrest exception to under common law. If arrests don't require a warrant, then why should less intrusive searches and seizures?
ii. Search of an arrestee or "incident to arrest exception," under common law.
iii. "exigent circumstances exception." Hot pursuit, crimes in progress, etc.
iv. Consent searches.
v. Plain view searches unless you have a reasonable expectation of privacy.
vi. Unintrusive nondiscriminatory searches like a metal detector at airports, or inspections of homes for building codes
vii. Probable cause has become reasonable cause. It is not the likelihood of finding the stolen goods or contraband, but the context the danger relative to the object.
c. The exclusionary rule as a remedy. The Court has undermined the tort remedy (may sue the government) while excluding evidence of a
criminal's guilt.
i. Boyd v. U. S. (1886) the Court conflated the Fourth Amendment and the Fifth Amendments self-incrimination clause. But the Fifth Amendment is a wrong that only occurs at trial, it is a prevention of the violation not a remedy for it.
ii. Exclusion as a deterrent to the government only rewards the guilty. Why should the payment flow to the guilty? This renders the Fourth Amendment contemptible in the eyes of citizens.
2. An alternative approach to the Fourth Amendment that considers rights, remedies, and regimes of enforcement.
a. Rights. The core of the Fourth Amendment should be reasonableness not probable cause
i. Common-Sense (Tort) Reasonableness would consider the danger relative to the intrusion. Greater
intrusiveness requires greater justification.
ii. Constitutional Reasonableness. The Fourth Amendment must be connected to the other values of the Constitution such as the First Amendment and due process clause or equal protection.
b. Remedies. Strict entity liability instead of exclusion of the evidence.
c. Punitive Damages. Heavy fines on the government entity, that need not all go to the plaintiff, but also to a fund for enhancing Fourth Amendment rights.
d. Regimes. Legislatures should fashion reasonable rules delineating the search and seizure authority of government officials. Departments should issue guidelines that would implement these laws. The jury should be the final arbiter as to reasonableness, because reasonableness is largely a matter of common sense.
Summary: The original sin about the Fourth Amendment is placing it in criminal procedure, when it also should apply to civil procedure thereby fusing search and
seizure with warrants and probable cause. This expansion of a right has led to the diminishing of other rights, and the chiseling of exceptions to warrants, and
search and seizure so that the guilty go free if the government makes a mistake. A better way to think about the Fourth Amendment is to based it on reasonableness, not probable cause, and that there should be a tort remedy for its violation.
Queries for Discussion
1. What is the strict or per se approach to reading the Fourth Amendment? What exceptions has the Court made to this approach and why? 4-9
2. Should police have "greater power to make seizures than magistrates have to authorize them"? p.18
3. In what way can "probable cause" read as "reasonable cause"? p. 20
4. How well does the case of Boyd v. U. S. (1886) support the exclusionary rule? 22-23 Has the Court followed or distinguished this precedent? 23-24
5. If deterrence is the key the government should pay. Then why should the payment go to the guilty? 28-29
6. If searches or seizures must only be reasonable, and warrants are issued only for stolen or contraband goods, who would determine what is reasonable, and what is probable cause according to Prof. Amar's proposal? 31-45
Legal Problem
Lesson 4
Fourth Amendment
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, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized. Amendment 4 (1791)
Bubba got on a bus in Atlanta and two police officers got on as well. The officers after the bus had started proceeded to interview some of the passengers at random asking for their tickets and identification and permission to look through their bags for illegal drugs. They indicated that the person was free to deny their request. Bubba refused the officers requested to go through his canvas bag, and at he next stop he decided to get off the bus. Meanwhile one of the officers radioed, without Bubba knowing it, to an officer at the next stop giving her a description of Bubba. She was at the door of the bus when Bubba got off with a K-9 drug unit and the dog immediately discovered the scent drugs in Bubba's canvas bag. Bubba was stopped and his bag searched and it contained cocaine. At the trial Bubba claims that the evidence should be excluded because it was seized without probable cause. The prosecutor states that it was the K-9 unit that gave the probable cause, and that the K-9 unit had inspected all passengers that exited the bus not just Bubba.
1. What issues are raised in this case?
2. What precedents can you use or distinguish to convict or to exclude the evidence?
3. What decision should the court make citing what precedents and distinguishing which precedents?
. . .nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; 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. . . . Amendment 5 (1791)
Fifth Amendment Case Briefs
1. Dickerson . U. S. 120 S. Ct. 2326 (2000), 381
2. Rhode Island v. Innis 100 S. Ct. 1682 (1980), 392
3. Minnick v. Mississippi 111 S. Ct. 486 (1990), 399
4. Moran v. Burbine 106 S. Ct. (1986), 406
Amar, Ch. 2 Fifth Amendment: The Self Incrimination Clause
No person . . . shall be compelled in any criminal case to be a witness against himself . . .
Issue: The key question is what sort of immunity does the clause require before a person may be compelled to tell all outside of his own “criminal case” before a petit jury?
Thesis: Amar proposes that self-incriminating words compelled from a defendant must be excluded from a criminal cases—the best reason for this is the reliability of the evidence, so that we do not have fishing expeditions into the person’s mind or body. But “fruits” or hard evidence from their pretrial testimony should be entered into the trial, for the same rational, its reliability. The cornerstone for the rule on self-incrimination should be the reliability of the testimony.
The most striking flaw in the current application of the privilege is that it protects the wrong “person” – the guilty witness rather than the innocent defendant. This undercuts the right of an innocent defendant to mount a truthful defense. This denies their Sixth Amendment’s explicit right to obtain witnesses in their favor.
The Fifth Amendment does not prohibit all self-incrimination but only compelled self-incrimination. Some of the Framers were concern about the use of torture to obtain confessions making them unreliable. Getting the third degree is still a concern today, but there are also more subtle forms of coercions.

1. Making the person who takes the “Fifth” worse off than the person who sings. In Griffin v. California (1965) the Court established that a defendant had an absolute right not to take the stand and that no adverse inference of guilt could be drawn from this. The Court has not made clear how this adverse inference should apply in the sentencing phase of a trial. Federal Sentencing guidelines authorize a defendant to have a lower sentence who accepts responsibility for his offense. This is a type of silence penalty.
2. Outside of the Court the Supreme Court has held that threat of removal from government employment was compulsion under the Fifth Amendment. This leaves the government “worse off” for silence than it would for a private employer. But in prison disciplinary cases the Court allowed adverse inferences in a hearing against a prisoner who refused to respond to questions.
In Any Criminal Case
1. Government can compel testimony of criminal conduct, if it grants immunity. The question is what type of immunity?
2. Transactional immunity. Absolute prohibition on the use of the testimony for any criminal transaction. Counselman v. Hitchcock (1892)
3. Use plus use-fruits immunity. Can compel testimony if you grant immunity for the use of the testimony and its fruits. You can prosecute if you can demonstrate that it is on evidence derived from a legitimate source wholly independent of the compelled testimony. Kastigar v. U. S. (1972) This is extremely difficult to do as witnessed in the case against Ollie North, of the Iran-Contra affair, and has led to an attempt to “can’ the independent evidence before the grant of immunity.
Witness Against Oneself
The Court has moved to say fundamentally that papers unless they are personal diaries, do not witness, because the defendant was not compelled to keep them in the first place. To witness is to have knowledge of the crime, in that sense blood cannot be a witness, rather it is evidence.
Privilege and the Cruel Trilemma
Historically certain relationships have been privileged from compelled testimony, priest and penitent, and husband and wife. With out this privilege the defendant would be forced to choose among self-accusation, perjury, or contempt. No other criminal procedure provision of the Bill of Rights is designed to give special protection from conviction of guilty defendants for the purpose of preserving these relationships. This doesn’t answer the question as to why there should be privilege in criminal cases, but not criminal cases.
Queries for Discussion
1. According to Prof Amar what is the essential problem with self-incrimination under the Fifth Amendment?
Does the self-incrimination clause prevent a person in a criminal case from being compelled to testify against himself even when that person is not on trial but only a witness, why? 49-50
2. When may there be an inference of guilt for refusal to testify in the criminal justice process? 51-57
3. What is the difference between transaction immunity, and use plus use-fruits immunity? What does the latter lead to? 57-60.
4. When can personal property be used as a witness against a defendant, and when can it not? 62-64
5. When can personal property be used as a witness against a defendant, and when can it not? 62-64
6. What is privilege and the cruel trilemma? Who general receives privilege and why is this not true for civil cases? 65-67
7. What is Prof. Amar’s solution to the essential problem with self-incrimination under the Fifth Amendment? Is reliability of the evidence the best touchstone for interpreting the Fifth Amendment’s self-incrimination clause, and why? 73-88
Legal Problem
Lesson 4
Fifth Amendment
The subcontractor Acme Electric sued Block Building Enterprises for failing to fulfill the terms of their contract in a civil case. They subpoenaed the testimony of the President of Block Building Enterprises Herman Hulk. In a related action the State Highway Department sued Block Building Enterprises for a similar failure to fulfill the terms of their contract on the same building project and deposed Mr. Hulk to give information about the writing of the contract on pain of no longer receiving state contracts. Mr. Hulk refused to testify in both cases on Fifth Amendment grounds.
1. What are the issues in each of these cases?
2. Which precedents would be controlling in each of these instances?
How should a judge rule on Mr. Hulk’s refusal to testify on Fifth Amendment grounds in each case?
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. Amendment 6 (1791)
Sixth Amendment Case Briefs
1. Argersinger v. Hamlin 92 S. Ct. 2006 (1972), 326
2. Scott v. Illinois 83 S. Ct. (1963), 329
3. Douglas v. California 83 S. Ct. 814 (1963), 332
4. Ross v. Moffitt 94 S. Ct. 2437 (1974), 336
Amar Ch. 3 Sixth Amendment First Principles,

Ch. 4 The Future of Constitutional Criminal Procedure
Theme: The Sixth Amendment is the heart of constitutional criminal procedure. The Sixth Amendment in particular and constitutional criminal procedure in general are designed to protect the innocent and to elicit the truth. This can be seen in the cluster of three rights that are found in the Sixth Amendment: (1) There is a right to a speedy trial, which protects the innocent from a prolonged de facto punishment of extended accusations that limit their liberty and defame their name. The government must give an innocent person the right to clear their name at a trial and the long pretrial detention must ensure the accuracy of the trial itself so that there is no loss of exculpatory evidence. (2) There must be a public trial to protect the innocent from and erroneous verdict of guilt. Witnesses from the prosecution may be less willing to lie with the public looking on and bystanders can bring can bring information to the attention of the court. The people of the community, that is a petit jury, will only convict a defendant. (3) A fair trial also protects the innocent person provision for counsel, confrontation and the compulsory process for witnesses.
The Issue: For Amar the constitutional jurisprudence of the Sixth Amendment is the touchstone that the guilty should have the same rights as the innocent, but never more, and never because they are guilty. And this is exactly what the Court often does in its upside down interpretation of constitutional criminal procedure. The exclusionary rule creates hugh windfalls for the guilty, but have no direct remedy for the innocent. In the name of self-incrimination there is great tenderness for the guilty, but reliable physical evidence is also excluded, which is another windfall for the guilty. But for the innocent to choose to testify and to do so poorly may result in their own conviction.

Under the Sixth Amendment the court follows its upside logic of the excluding reliable evidence in the requirement of a speedy trial by the mother of all upside-down exclusions in the remedy for speedy trial by dismissal of the case with prejudice, that is excluding all evidence of guilt forever. This provides another windfall for the guilty, while leaving the innocent with an extended accusation that is uncompensated. According to Amar what is behind the Sixth Amendment is the protection of the innocent and a commitment to truth-seeking trials. For this to be done there must be a respect for the text of the Amendment as well.
The Future of Constitutional Procedure:
It is Amar’s view that the essence of Constitutional rules about criminal procedure is that the Constitution seeks to protect the truth and the innocent. The interpretation by the Court of the Constitution that produces windfalls for the guilty, without the same for the innocent are wrong-headed and portray these American vales. Egregious examples of this are the following: (1) The government should never profit from its own wrongdoing. Hence illegally obtained evidence must be excluded. (2) No man should be an instrument in his own destruction. Therefore reliable physical fruits of immunized testimony should be excluded. If you really followed the first it would require that the government return stolen goods to thieves and illegal drugs to drug dealers. The second would prevent coerced fingerprinting and DNA sampling. We can’t live by these so-called constitutional principles because in the end they are a windfall for the guilty. Rules that reward the guilty and that do not protect the innocent are not what the text or the intent of the Fourth, Fifth, and Sixth Amendments should be about.
Queries for Discussion:
What is the major evil of prolonged pretrial detention? Is dismissal with prejudice the “only possible remedy”? What are some alternatives that would promote innocent-protection and truth seeking? 96-116
What are the elements to a public trial? In what way do these elements favor the guilty or the innocent? “To judge is to be judged.” How is this relevant to the role of the public in a trial? 116-124
What is the primary object of the confrontation clause? 130 How does the Court’s application of a per se hearsay rule make it difficult for an innocent defendant? 131.
When does the right of counsel attach, and what are the ethical limits of counsel’s role in assisting the accused in making their defense? 138-144
Would you agree or disagree with Amar’s thesis about what constitutional criminal procedure ought to be? 154-155.
Case Table
Lesson 4
Constitutional Criminal Procedure:
Fourth, Fifth, and Sixth Amendments

Comment Concept
Wolf v. Colorado, 257      
Mapp v. Ohio, 258      
U. S. v. Leon, 267      
Katz v. U. S., 278      
California v. Greenwood, 282      
Florida v. Bostick, 304      
Indianapolis v. Edmond, 312      
Betts v. Brady, 321      
Gideon v. Wainwright, 324      
Agersinger v. Hamlin, 326      
Scott v. Illinois, 329      
Griffin v. Illinois, 331      
Douglas v. California, 332      
Ross v. Moffitt, 336      
Massiah v. U. S.,345      
Escobedo v. Illinois, 348      
Miranda v. Arizona, 355      
Dickerson v. U.S., 381      
Harris v. New York, 388      
Oregon v. Hass, 388      
Michigan v. Mosely,388      
Berkemer v. McCarty, 390      
Rhode Island v. Innis 392,      
Illinois v. Perkins, 397      
Minnick v. Mississippi, 400      
Moran v. Burbine 407