 Welcome back to our look at the Supreme Court's 1999-2000 term. In this second part of the program, we'll turn to criminal law and procedure, including Fourth and Fifth Amendment cases, cases involving elements of the offense, cases involving trial rights, and sentencing. Lori Levinson of Loyola University Law School and Erwin Chimerinsky of the University of Southern California Law School are back to discuss cases under the Fourth and Fifth Amendments. Erwin, let's start with Dickerson V.U.S., which involved this long dormant, or I guess never used as a matter of fact, 1968 federal statute passed two years after Miranda that said the confessions in federal court were admissible if they were voluntary. Now, this got a lot of press, but the question is, does it really change things for federal judges? Nothing changes federal judges because the Supreme Court reaffirmed Miranda versus Arizona. The law is the same as it's been for the last 34 years. As you pointed out, it involves a man by the name of Dickerson who was indicted for bank robbery, made incriminating statements to an FBI agent. Dickerson's lawyer made a suppression motion saying that Miranda warnings weren't properly given, and the district court agreed and excluded the confession. The United States government appealed solely on the issue of whether or not the Miranda warnings were properly given. But a conservative public interest group filed an amicus brief in the Fourth Circuit, which had argued that this non-used federal statute, part of the Honors Crime Control Act of 1968, 18 United States Code 3501, provides the confession should be admitted so long as they're voluntary. The Fourth Circuit accepted an invitation, applied the law, and admitted the confession. The Supreme Court in a 7-2 decision reversed the Fourth Circuit. Chief Justice Rehnquist wrote for the court. Chief Justice Rehnquist said, Miranda is a constitutional rule, so Congress cannot overrule it. The Supreme Court then went on and said that it was reaffirming Miranda v. Arizona. Chief Justice Rehnquist said, Miranda is deeply embedded in police procedure and the popular culture, and the Supreme Court would not overrule it. That was not the view of Justice Scalia, who wrote a very, really bitter dissent. Explain what the issue was as far as he saw it. Justice Scalia wrote a scathing dissent. He disagreed that Miranda is a constitutional rule. In fact, he said virtually every member of the court in some prior decision had said that Miranda is not a constitutional rule. In the court, this term said it is a constitutional rule, so that's settled. Thanks very much. Laurie, we've had in the last two programs cases come to us, come to the court that we've discussed that have risen under the independent counsel statute. And so to this year, the court heard USV Hubble, which grew out of a use immunity. I gather that the independent counsel can start granted to Webster Hubble, and then they proceeded to try him on some of the information that he had provided. This is going to have a big effect on prosecutors anyway. Explain the case for us. I think it will have a significant impact, at least in that white collar crime area, because what happened here is that the independent counsel issued these very broad subpoenas to Hubble for 11 categories of documents and said, you tell us what fits these categories. What he said is I'm not going to tell you without some Fifth Amendment protection, and he went to the grand jury, asserted the Fifth Amendment, and then they went to the court and got statutory immunity. Once he had that statutory immunity, he turned over over 13,000 documents, and that's what the independent prosecutor used to build his case. What the Supreme Court said is those documents and the use of them was immunized, because the aspect of sorting out what complied with the subpoena was testimonial. Moreover, the documents themselves had derivative use immunity, and that's the new addition by the court, something I think that will change the practices of federal prosecutors, at least in the area of white collar crime. What do you see as the impact of this for prosecutors, and also how are the courts going to see the impact? Well, for the federal prosecutors, I think right now they really have to narrow their subpoenas, you know, those subpoenas for the grand jury. For the courts, it's most likely they're going to see more requests for statutory immunity, as well as a possibility of more search warrants in federal cases, in white collar cases. Okay, thanks a lot. Let's go from a complicated case to a fairly simple one. This is the other Purcurium, Flippo v. West Virginia, and here the court basically just reasserted fairly well-established law. Right, I mean, this was really a straightforward case. The question here is whether there was a general crime scene exception for searches, or whether you needed a warrant. And in this situation, the police were called out. There was a woman who had been killed, her husband had been injured, they did a lengthy investigation, and during the investigation they found a briefcase right on the table. They went ahead without a warrant and opened the briefcase and found some incriminating photos against the husband. What the court said is, you can't do that. There's no general crime scene exception to the warrant requirement, even for murder crime scenes. And if the police could fit into one of the standard exceptions, like plain view or exigent circumstances, that's fine, but there's no general exception. And nothing new here really in this decision? Not really. Let's go from a nine to nothing Purcurium to a five to four decision. It was rather closely watched. This case arose out of an incident in western part of Chicago when Sam Wardlaw, seeing the police patrolling the streets in this high crime area, took off running. And the police spotted an opaque bag which turned out to contain a firearm. A gun. Now, now, amici on both sides of this issue sought a per se rule that running always justified a terry stop or running never justified a terry stop. But the court didn't adopt a per se rule in either case. What did it say? What the court said is what it's been saying. Let's go back to the totality of the circumstances rule. And the court rejected the idea that whenever you had unprovoked flight, that would be enough to do a terry stop. And also rejected that it's never enough. What the court said is, let's give the discretion to the experienced police officer to put that into the mix of factors. The court said it was okay to do the terry stop when you had a high crime area plus unprovoked flight. But the court didn't necessarily say whether the frisk itself was okay. Here what you've got is high crime area and flight. I wonder about the next case. Imagine it's flight in a wealthy area, say a predominantly white suburb. The dissent here said the neighborhood was predominantly African-American. If that difference matters, is the court opening the door to allowing racial profiling? What might this case even mean for racial profiling that whole debate? You know, we really don't know. As the dissent pointed out in this case where you have a high crime area, you're likely to have a high poverty area and a high minority area. So if the court does not allow these searches in very affluent areas, it really would open the door to the racial profiling. Okay, thanks very much, Lori. Irwin, another case that started with the terry stop involved the sufficiency of a tip. This is the case from Florida involving a minor labeled JL in the style of the case. There was a tip that a certain individual would be at a certain place and would have a gun and turn out to be true. But none of nothing in the court said that's enough basis for a search. This did involve the Miami police receiving an anonymous tip over the phone that an African-American teenage male wearing a plaid shirt was at a bus stop and had a concealed weapon. Based on that, the police went and did a stop and frisk and found the weapon. The Supreme Court unanimously held that the anonymous tip was not sufficient to create reasonable suspicion. Justice Ginsburg wrote the opinion for the court. She emphasized that there was no corroboration here beyond just the physical description. She said it's too easy for anybody to call the police, give a physical description of somebody else and say that person has a weapon and for the police then to harass that individual. An anonymous tip by itself without corroboration just isn't enough. And the concurrence plays out various hypotheticals that might justify the tip but this tip, this tip was not enough. That's right. Let's go on and move from stops to luggage. This is a federal case. Sam Bond was on an interstate bus and the Border Patrol stopped it as a cross from one state to the other. And evidently went through a practice that's fairly common and that has split the circuits. They walked down the aisles of the bus and felt the luggage above all the passengers and when they got to Bond's seat, they found a bag and they could feel something heavy. Asked a search, it turned out to be drugs. And the question was, is that good enough to let this evidence in? The court 7-2 said no, it wasn't. Chief Justice Rank was wrote for the court. Chief Justice Rank said, when we travel, we expect that our luggage would be handled. We don't expect that our luggage will be manipulated or probed by law enforcement officials. The Supreme Court said, such tactile probing, such manipulation of luggage, is a search within the meaning of the Fourth Amendment. Erwin, is it really all that straightforward though? I mean, what's the difference between the touch, which the court says is okay, and the manipulation that's not okay? I mean, do federal judges now have to be sort of squeeze experts? Justice Breyer, in his sense, that this case is going to lead to a jurisprudence of squeezing. And I'm sure we'll be talking about the jurisprudence of squeezing in other cases. Well, thanks very much, Erwin. Thank you, Lori. Lori and I will be back in a moment. Now cases about offense elements and sentencing, trial rights, and supervisory lease. Lori, you're the whole show for this next section. Let's start out with a couple of cases involving the elements of the offense. The first one is Carter v. U.S. This is a five to four decision implicating, I guess, a fairly common occurrence in federal courts where Carter was indicted under the bank robbery statute, but he asked for a jury instruction under the bank larceny. And the court said no, he couldn't have that instruction. That's right. What the court said is the bank robbery statute 2113A does not necessarily have as a lesser included crime bank larceny under the B section. And the reason Justice Thomas said that is look at the elements of the crime. Bank larceny, in fact, has three additional elements that bank robbery doesn't have, things like the intent to steal and the amount of the value that is taken. And just looking at the language of the statute, the court said you don't get the instruction because it's not a lesser included crime. Well, would you comment on the dissent because Justice Ginsburg's dissent, I think, brings out these two methods of analysis, the one the court accepted and the one it rejected. That's right. But what the dissent says is, look, we know how we got these different statutes. It comes from the common law and that common law, bank larceny, was a lesser included of the bank robbery. But the court rejects that the majority, they say, no, we're not going to look at this history. What we're going to look at is the text of the statute. So, now the situations, read the statute, don't worry about how it got to be that way. That's what the court's doing. Now, another elements case, which is similar to ones we've been seeing in the last couple of terms, is this case of Castile versus the United States, which grew out of the Branch Davidian incident in Waco. Castile was charged with murder, but under the same statute, firearms, a prong, he was also indicted for possession of a firearm. The statute, though, allowed for sentencing enhancements, in his case, 30 years for a machine gun versus five years simply for possession of a firearm. The court didn't have too much trouble with that, nine to nothing. No, the court didn't. What the court said is, really, this is just an enhancement, this is a separate crime. When you're increasing the penalty for five years to 30 years, really what you have is a separate crime. And the court started out by looking at the language of the statute. That wasn't all that helpful, but really what the court said is, this is the type of factual finding we want and can have jurors make, which was a machine gun use. And also, the increase in the sentence, I think, made a great deal of difference to the court. So instead of this now being from five to 30, now instead of a judge after the conviction in a preponderance of the evidence sentencing determination, whether this is a machine gun, you're going to give it to the jury, charge it, and prove it beyond a reasonable doubt. What's going to be the practical impact of this decision in federal courts now? I think the practical impact is that when you see these large sentence enhancements, the defendants are going to be saying that these, in fact, are separate crimes that have to be pled to the jury and prove beyond a reasonable doubt. Let's talk about a state case that involved the same basic question. This is this case of Apprendi v. New Jersey wherein Apprendi pled guilty to a firearms violation. But then the prosecutor came in after the plea and said he also violated the hate crime statute in New Jersey. He'd shot into the home of a neighbor who was an African-American. And the judge agreed but the Supreme Court, and this was a lot closer, the Supreme Court said no. Yeah, this case could have significant impact. Justice Stevens tries to couch his holding in very narrow terms by saying whenever you have an enhancement that does not include the use of prior convictions that involve taking the crime above the statutory maximum, that something has to be pled and proved to the jury beyond a reasonable doubt. But really what this opens up is the question of whenever you have mandatory minimums or other types of sentencing enhancements, do we now have to charge those and prove them? And the impact is going to be, you think, on federal and state schemes? Well, certainly on state schemes where you don't already have to charge them and prove them, or where the state schemes don't have very high maximums where the judge is just exercising discretion within the maximum. For the federal sentencing guidelines, we're a bit up in the air. The Justice Department right now is looking at this issue to see which types of enhancements it might impact. I don't know that it'll have that much impact in the white collar area but in the drug area it very well could be. And in terms of the types of enhancements, we're not quite sure yet. Which ones go to the characteristics of the crime and which ones are just enhancements, such as the level of participation in the crime, the amount of drug that's used, all of those might be coming back to the federal courts. For one thing, this might turn out to be retroactive and we really could see a flood of habeas petitions to the court. Well let's make it clear though, this decision by itself is not retroactive. We don't know yet. This decision doesn't determine whether it's retroactive. All this decision says is when you have an enhancement and it takes you over the statutory maximum, the judge does not decide that by a preponderance it's an issue for the jury. And so we'll wait to see, I guess, the Department of Justice's instructions to its prosecutors and that will clarify things a bit. And then we'll wait to see if the court declares this decision to be retroactive and applies it to earlier cases. Right, I think we'll see some litigation coming down the pike on this one. Well we'll watch for it. Let's turn from elements of the offense to what I guess someone called trial strategy. We'll talk about the judicial aspects of various kinds of trial strategy and start with this case of Maria Oler who was indicted for bringing drugs in from Mexico. The government sought in an inluminy motion to admit evidence of her past convictions. She objected, she lost. And so then I guess her lawyer said well let's just let's just bring it out in direct examination and maybe we'll take the sting out of it. But then she sought to appeal the the the decision on the motion to let the evidence in in the first place. And the court said you couldn't do that. No the court said look she had a tough strategy call to make. Once the court said that it did a trial court that the prosecutors could use this evidence she could take the stand and introduce it ahead of time. But if she did that she waived the right to appeal the issue. And that's really what it came down to. I think it's a bit of an extension of the loose decision. That there are tough tactical decisions that offense has to make. But that doesn't make it unconstitutional. Well there's another tough decision that that the lawyers make all the time of course in selecting jurors. And that comes up in our next case, this case involving Abel Martini's Salizar. He objected to he asked the trial judge to excuse a juror for cause. Trial judge did not do so. Government later conceded that was error. But as far as the lawyers for Martini Salizar were concerned they had to get rid of this person they thought. So they use one of their peremptories. But then they said an appeal that he was denied due process because he had to use one of his peremptories he shouldn't have had to have used. But Justice Ginsburg for the court a unanimous court said no. No the court said it's not a due process violation. It's not a rule 24 violation. It's another strategy called by the defense. They could take their chances not to excuse that juror and then wait and see if they went on appeal. But if they want to use their peremptory to cure what they saw as an error by the trial judges ruling on a challenge for cause then basically they waive the issue on appeal. So they have a choice to make. Justice Ginsburg said a hard choice is not the same as no choice and that's what was involved here. Yes. Let's talk about this case of Portuandu Portuandu versus Agard. Here Agard objected this is a case that came to the court on habeas. Agard objected because the prosecutor in summing up at the end of this criminal trial commented on the obvious fact that he'd been there throughout the trial and was able if you wish to to tailor his testimony. The the defense objected that this basically deprived him or limited burdened his his fifth and sixth amendment rights. But the court did not agree. No the court rejected that. Basically what the court did is say look this is not the same as a griffin error. That's what the defense tried to argue. Under griffin the prosecution is not allowed to use against the defendant the exercise of the right not to testify in a trial. The defense argued here they're using against me my right to be at the trial in fact under the state law the obligation to be at the trial. And the court said that's not true. All that the prosecution doing is accommodating on the obvious that you sat through this testimony and could tailor your testimony and that it was not a violation of the rights. What's going to be the practical effect on this one? Well I think you're going to see a little bit of what's good for the goose is good for the gander that the defense counsel in turn are going to comment on the fact that case agents sit with the prosecutor throughout the trial and that you can't believe their testimony either. And likewise I think that defense counsel in closing arguments will try to explain it's my client's right to be here during the trial and even ask for some jury instructions on it. Ask the judge to clarify the issue for the jury. We'll watch all that develop. Let's turn to this case of Ramdas versus Angeloni. This was a came to the court on habeas and it indicates how the court regards the state court decision interpreting one of its precedents in this case Simmons versus South Carolina. Now Ramdas was convicted of a capital case and he asked the judge to instruct the capital jury that he was parole and eligible. But the Virginia Supreme Court said that one of his prior convictions that would have kicked in that three strikes law was not final. The jury had convicted him but the judge hadn't entered judgment. So here we have the the court assessing whether or not the Virginia Supreme Court's decision was reasonable. What did it say? It said that it was and it was interesting because as we'll see it applied the new habeas standard it's clarified in another case. Bottom line here is what the court said is the prosecutors could use in arguing during the penalty phase that this person was a future danger based upon these other convictions but because they were not final the defense was not entitled to that Simmons instruction that he was in ineligible for parole. And in this situation there might have been a better argument that in fact that's the case because there were mechanisms he could still file a motion for a new trial. On the other hand Justice O'Connor notes that if all it is is the ministerial act of saying that the judgment is final then really the Simmons instruction should be given. Although Justice O'Connor concurred here Justice Stevens dissented called it grossly unfair. That's right just because of the practical impact and don't forget this is a capital case and the question is when a jury may be confused in the penalty phase what instruction do you give? That's why I think it's important that the court looked to whether the state court had been unreasonable in its interpretation and application of Simmons and it said it had not. And when we get to the habeas part of the program we'll explore a little more what this standard is all about. One final case I want to mention real briefly is US versus Johnson there were two US versus Johnson this one involved supervised release and here Johnson had served a period of incarceration and then part of that sentence was vacated so the practical effect was he'd served more time than his proper sentence so he went to the trial judge and said well why don't you knock that off my supervised release sentence and the trial judge refused to do so court of appeals reversed but the supreme court agreed with the trial court based partly on his reading of the statute just the supervised release statute and its words but also because supervised release is its own sentence with its own purpose the court said it was not to be tampered with just because of this overage that the Johnson had served. Right I think we're going to see more supervised release coming before the court because you have many people who've been sentenced to that and they're now coming under those supervised release provisions. So this will become a part of our our staple of cases. Thanks very much Laurie. For additional thoughts on how some of the cases we've been reviewing will affect the work of federal judges let's go to a discussion I had recently with Judge Fern Smith. Judge Smith was appointed United States district judge for the northern district of California in 1988 and came to Washington in 1999 as director of the federal judicial center. Judge Smith thanks for coming by to talk for a while about these criminal procedure cases this term. My pleasure. Let's start with some search and seizure cases okay every term has them this term was no exception and again there's a dearth of per se rules no per se rules and that we see that in the first case Illinois v ward law where the police sustained a search incident to a Terry stop of an individual who was in a high crime area and when he saw the police he ran the chief justice went to great pains to say we had to rely on the officer's common sense about what gave rise to reasonable suspicion that there were no empirical studies here to evaluate behavior with that being the case where does it leave the trial judge attempting to figure out what factors are enough to justify a search well I think it leaves the trial judges pretty much where they were before I think it's appropriate that there's no per se rule the supreme court did uphold the trial court's finding that it was a high crime area and found that that's a factor worth considering on the other hand they were pretty clear that that in and of itself is not enough to sustain a stop in this case there were two additional factors one that the defendant had been nervous and evasive when the police approached and then had run which they found indicative of suspicious behavior and those three things together were sufficient to justify it I would also add that I think the dissent didn't really disagree with the principle simply found the record insufficient in this particular case and in either in either case uh you said there were three factors here but there's no rule the three factors are the number of factors you need no there's no numerical rule and there's no way to tell what factor is weighted in what particular order or what particular degree well then assessing the behavior of the police and the reliability of the decisions they made what's the obligation of the trial judge to establish a very good record I think and make clear that the court of appeals understands how the trial court got to where it got and I think even to the point of getting involved in the questioning of witnesses directly if the record isn't complete enough in the judge's mind there's no jury there so there's no reason the judge shouldn't take an assertive stand in getting involved and making a record right let's turn to another case this one was in florida this involved a tip and the tip was that tip to the police said you will find a young black man wearing a certain kind of shirt standing in front of a certain store and he will have a gun which turned out to be the case but the court was not willing to sustain that search just as genberg said it lacked the minor indicia of reliability necessary to sustain a search based on a tip uh what does that leave the judge well again I think here you had one factor and one only an anonymous tip justice kennedy made the point that it wouldn't have taken too much to change the balance and specifically mentioned for example if the person making the tip had indicated some predictive behavior which then the young man had followed or if the voice of the person making the tip were familiar those factors might have been enough then to change that balance that appears to be quite delicate what if uh what if the young man had run when he saw the police well again I think you put that in the war law situation then um and that is obviously now an acceptable factor to consider with those two have been enough maybe in any case make a record absolutely let's turn from searches of persons to searches of luggage in this federal case a bond the bond case bond was traveling on a bus and he had his luggage in the rack above his seat the bus stopped for a border patrol search and the border patrol agents as I guess fairly typical went down the aisle and felt felt each piece of luggage and in bonds luggage they felt enough to just to make them want to investigate further and found drugs just as bryer descended this was a seven to two case chief justice writing the pretty and just as bryer said we're going to invite in a jurisprudence of squeezes and he argued against that so where does again where does this leave the court do you think he's right about that well he may well be in any event it's a very catchy phrase but i'm not sure that that's all bad i think anytime the trial court has a great deal of discretion it's because there are a number of unanswered questions and a number of equations that can change the balance i think some of the questions raised here will shake out over time is checked luggage different than carry on luggage is hard sided luggage different than soft sided transparent different than opaque the court mentioned several times that this luggage was right above the owner what happens if you get on a bus and the rack above you is full so you put your luggage seven rows back does that change your expectation of privacy i think only time and the jurisprudence of the different circuits will give us the answers to those questions well we'll just watch how this evolves and of course the jurisprudence of the circuits is pretty important in this case it is i think in any of these cases involving judicial discretion you do get more play among the circuits and we'll just have to watch and see what happens we'll do that and see how many we talk about next time at next year at this time let's turn to trial process all right one case point of wonder versus agar where agar the defendant complained that his fifth and sixth amendment rights to be president to confront his witnesses and his 14th amendment to process rights were violated because the prosecutor called the jury's attention to the fact that agar had sat through the entire trial listened to the testimony of other witnesses and if he wanted to could change his testimony to comport with that the court said true enough but this did not rise to any level of constitutional violation what obligation is that put on trial judges assuming other prosecutors do this i don't know that it puts an obligation on trial judges the court having said that this is not improper on the other hand i think as just as stevens pointed out there's nothing that would prohibit a trial judge from instructing the jury either at the beginning of the case or at the end of the case that the defendant does have a constitutional right to be in the courtroom and explaining why that is and and going from there anything at the end of the trial well i think if he hasn't or she hasn't instructed the beginning that you could wait and see if the prosecutor raises this issue and if so give a curative instruction at that time or simply give it as part of your closing instruction what about telling the prosecutor before trial in the pre-trial conference the prosecutor's not to do this well again just as stevens mentioned that as a possibility i think a lot of trial judges would be reluctant to give that in the face of the supreme court having found that this is not improper and that probably an instruction simply on the defendant's right is a wiser approach okay good enough thanks very much for coming by judge i enjoyed it that concludes the second part of this program we'll take a five minute break and return with part three