Good Law School Exam Question In Criminal Procedure

Probably at the LL.M level, though.

With respect to state court criminal prosecutions:

If the police commit perjury on a search warrant application, the accused is entitled to a pre-trial hearing, and if the perjury is proven the evidence obtained by use of the warrant is to be suppressed.  Franks v. Delaware, 438 US 154 (1978);

If, on the other hand, the police fabricate the entire case against the accused and maliciously prosecute him with perjury, no fundamental right of the accused has been violated and he is entitled to no pre-trial relief.  Albright v. Oliver, 510 US 266 (1994)

Discuss, without using words like “crazy” or any profanity.




Filed under Judicial lying/cheating

14 responses to “Good Law School Exam Question In Criminal Procedure

  1. hcannon

    If Police fabricate the entire case and it is proven how could there even be a trial? Why would one need pre-trial relief? Well all of the required provisions of a fair trial are not found in the Bill of Rights? Citizens are tried unfairly all the time. Having a trial does not mean the trial is warranted. Pre trial..If a defendant can prove that the warrant was gotten by false affidavits then the evidence obtained by the warrant can not be admitted against him.


    • If Police fabricate the entire case and it is proven how could there even be a trial?

      The charges are filed and have to be disposed of. The only results can be that they are dismissed or there is a judgment of conviction. A pre-trial dismissal can occur because because the judge dismisses the charges, or because the state prosecutor withdraws them and consents. They can also be dismissed after trial upon a verdict of not guilty. A judgment of conviction can be based upon either a plea of guilty or a verdict after a trial.

      If there is no right to have charges dismissed by the judge before trial on the ground that the charges are all based on perjury and fabrication, and if the prosecutor will not consent to their withdrawal and dismissal, there must be a trial to determine guilt or not, even if everyone knows or admits beforehand that the answer is “not”, because the charges are based upon perjury and fabrication.

      Franks, which authorizes a pre-trial hearing to determine if evidence obtained pursuant to a search warrant was obtained through perjury by the police should be suppressed is therefore a dead letter: why seek any evidence at all when you can just manufacture it?


  2. That’s not exactly what Franks says (although I wish it were). Franks says that you redact the false stuff from the warrant (or add the material stuff that was omitted) and if there’s still probable cause, then there’s no suppression. It’s only if there’s nothing left that you get suppression. And since probable cause is such an absurdly low standard, Franks violations rarely result in anything being suppressed.

    Which is not to say that your larger point – the system is seriously screwed up – is wrong.


    • Funny I don’t remember that “materiality” stuff. Must be a mental block.

      But it’s not surprising. Perjury itself usually incorporates a materiality requirement. Plus, the materiality test gives the judge another chance to help the police get the bad guy: “Yeah the cops lied but it didn’t matter. The magistrate would have signed it anyway. Because he always signs warrants.”

      Still, the point of the question was not that Franks is stingy or generous in what it does grant, but that there is any pre-trial relief of any kind available once the charges have been formally filed based on police perjury. It would seem that it could not possibly be otherwise – even appellate courts cannot be obtuse and indifferent to police perjury, at least not openly – but how can the state of law remain that perjury in a search warrant application might entitle a criminal defendant to a pre-trial hearing; but but if the whole prosecution is based on perjury your only constitutionally required remedy is a trial in which the defendant, and not the perjurers, is in jeopardy?


  3. There’s a technical, legal answer to your question (it involves the admissibility of evidence as opposed to the evaluation of evidence and the details of a judge’s role as gatekeeper and the special features of the 4th Amendment). But the truth is that on those rare occasions when you can actually prove before trial (not raise an serious issue, but really prove) that the case is wholly fabricated, it’s usually possible to make it go away without a trial. (See the Duke Lacross players, for instance, and yes, I know it wasn’t the cops who mostly fabricated the evidence there, and yes, I also know that’s a really oddball unusual case.)

    Once again, none of that undercuts your point that the system is seriously fucked up, but the details do matter.

    Oh, and if the Five Who Decide on the Supreme Court get there way, it’s likely that the exclusionary rule (which is what keeps the fruits of that dishonestly procured search out) will be abolished one day soon. And then you won’t have your distinction at all.


    • You might find the evolution of this interesting. There is a line of Supreme Court cases beginning with Mooney v. Holohan in 1935 to the effect that it is a violation of due process for a prosecutor to “obtain a conviction” with evidence he knows is perjury and/or fabrication. After Mooney there was Pyle v. Kansas in 1946 and then Napue v. Illinois in 1959. All those cases used the phrase “obtain a conviction”. They did not specify by trial or plea. Presumably the Supremes knew the difference.

      Towards the end of that period there was another Supreme Court case, Costello v. US, holding in the context of federal indictments and trials that there was no due process right to look behind an indictment and see if the evidence underlying it was good enough, for the simple reason that the whole point of the indictment is that it determines the evidence is good enough. This doesn’t apply to the states directly because this was federal criminal practice, but it kind of hovers over everything.

      Then the 9th Circuit in 1978 decides US v. Basurto, which holds that an indictment obtained through the prosecutor’s knowing use of perjury violates due process. The implication was that such indictments should be dismissed, but they didn’t come right out and say that.

      Basurto is not well received for some reason. Over the next decade circuit courts backed away from Basurto considerably, to where I don’t really know. Surely none of them said that indictments obtained through the knowing use of perjury were fine.

      Fast forward to 1994 and you have Albright v. Oliver, holding that there is no due process right against a malicious prosecution by the government. In a plurality opinion by Rehnquist there is footnote 6, wherein the former Chief Justice says

      Similarly, other cases relied on by the dissent, including Mooney v. Holohan, 294 U.S. 103 (1935), Napue v. Illinois, 360 U.S. 264 (1959), Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and United States v. Agurs, 427 U.S. 97 (1976), were accurately described in the latter opinion as “dealing with the defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution.” Id., at 107.

      Note that there is a quotation in that footnote attributed to United States v. Agurs. You will search that opinion in vain for that quote.

      Let me come back to this later.


      • Actually, you’ll find that quote exactly where the footnote says it is. First paragraph of section III of Stevens’s opinion.

        Due process is a legal quagmire. Mostly, and this is much of what Albright says – especially in Scalia’s concurrence – it’s no more than a pass through. Find a right somewhere in statute, rule, or constitution and maybe it carries with it procedural due process protection. Substantive due process was pretty much abandoned as a concept several decades ago. (Though I did convince an Ohio trial court that Ohio’s lethal injection procedures violated substantive due process. Confused the hell out of the judge and a whole passle of prosecutors and assistant attorneys general when I first floated the idea during the 4th or 5th hour of oral argument.)

        In any event, Albright does not say that it’s OK to obtain a conviction (or even to prosecute) based on false evidence. Just that if it’s a problem, it’s a 4th Amendment one subject to the protections of procedural due process. Of course, since then the Court has pretty much said that there’s no remedy for the violation (except I suppose getting unconvicted and even that is far from clear) because prosecutors are absolutely immune. And the effort to undue that rule for cases of fabricated evidence (Pottawattmie County v. McGhee) died when the parties settled.


        • Is “substantive due process” a quagmire? I don’t really think so, oxymoronic though it may be.

          It got a bad rap when it was extended to matters that were largely driven by socio-political agendas outside of criminal procedure, specifically when “due process” was used as the basis for such rulings as Griswold, Eisenstadt and Roe in the 1960’s and 1970’s. The problem there was that the SCOTUS was saying the statutes themselves violated due process. People might disagree over whether a law prohibiting contraceptives is “oppressive” or not, but while such laws may be the result of religious zealotry gone wild, they are not in any sense corrupt and never did implicate what was traditionally understood as “due process”.

          But this application of due process analysis is not remotely comparable to officials using perjury and fabrication to prosecute people. That is classic due process stuff. Nobody is saying that a law against murder is oppressive. But if you’re the police or prosecution and you’re framing somone for a murder you know they didn’t commit that is a total corruption and perversion of the process; thus it could never be the “process” that is “due”. That is the point where “due process” necessarily and properly involves a “substantive” component.

          The Nazis and the commies had show trials. They had the form of process without the substance. Indeed that is one reason violations of due process are so pernicious: it is official lying and perfidy. The so-called “trial” is not a real one, it’s just a show for political purposes.


  4. The quote does not say that Mooney and Napue, etc. were dealing with the right to a fair trial under the fifth amendment, as footnote 6 in Albright alleges. It says that the court is dealing in the Agurs case with the right to a fair trial under the fifth amendment. The Rehnquist opinion in Albright, in that footnote, is just plain wrong. Perhaps he was off his meds that day.

    And yes, Pottawattamie. One interesting thing about that case is that the prosecutors and their amici were all over the idea that the effort to characterize the use of fabricated evidence and perjury pre-trial as a violation of due process was “radical”; yet neither Mooney nor Pyle v. Kansas nor Napue v. Illinois were ever restricted to trial violations until Albright, many many years later. And Albright’s restrictions were “accomplished”, if you want to call it that, in a footnote that mischaracterized the previous opinion in Agurs. Yet the nation’s prosecutors – at least the bad ones – are driving tractor trailers through that opening by the dozen. Pottawattamie proved that.

    Beyond that, the “trial rights” are enumerated in the 6th amendment, not the 5th. Like the right against self-incrimination which is also in the fifth, due process obviously covers more than just the trial itself. In fact the relevant amendments pretty much follow the chronological progression of a criminal action: the 4th deals with the stuff police do: searches and seizures and warrants. The 5th deals with the charging process, prohibiting compelled self incrimination and notably prosecutions in violation of double jeopardy. And the 6th is concerned with the defendants’ rights at trial.

    The prohibition against the government deliberately “framing” someone is obviously a due process issue just like Mooney, Pyle and Napue, and those cases never restricted themselves to perjury and fabricated evidence being used at trial. The notion that they are so restricted is based upon a footnote in Albright v. Oliver that wrongly cites Agurs for something that opinion never said, and nothing else.

    Ramming the pre-trial use of perjury and fabricated evidence into a 4th amendment box doesn’t work. When the police or the prosecutor file charges they know are based on perjury and fabrication you don’t have to wait for the accused to be arrested or “seized” before you know that the constitution has been violated in the most fundamental way, through the basic corruption of the adjudicative process ab initio. That’s the very essence of due process. If we’re confused about that we’re in a lot of trouble.


  5. Sorry, I thought you were saying the quotation wasn’t there. No question that it’s a misreading of earlier cases (or more likely a revisionist history), but courts have done that since there were courts.


    • I have to disagree that it’s a simple “misreading” of a case, like a different and incorrect take on a case’s holding. This was an actual quote from another case, and while some of the words of the quote are there, the meaning is not the same, because the subject of the sentence was actually misrepresented, not misread: no part of the Agurs opinion states that Mooney and Napue deal only with the right to a fair trial under the fifth amendment, yet that is what footnote 6 of Albright asserts.

      Courts have not been doing that since there were courts, and the SCOTUS in particular has not done that. And as Pottawattamie shows, this is not a run of the mill disagreement over interpretations. The nation’s prosecutors have taken the position that the knowing use of fabrication and perjury to charge someone with a crime violates no one’s federal constitutional rights, and that it is “radical” to think otherwise. This is a frightening and intolerable state of the law, but it is the state of the law.


  6. And the Court’s not confused about the essence of due process. It’s conflicted. Listen to Scalia who explains repeatedly that there is no such thing as substantive due process, that it’s just about procedures. That’s the direction the Court’s gone (though Scalia’s the only one who’s straightforward enough to say it). And that makes sense for courts that don’t find in the Constitution a right to fundamental fairness – just to generally fair procedures (by which they mean, mostly, fair to those in power).

    The so-called “conservatives” on the Court embrace that view vigorously. The so-called liberals (and there hasn’t actually been a liberal on the Court since Brennan & Marshall retired) embrace that view, too, though with less enthusiasm.


  7. Actually, you will find that Scalia, in his concurring opinion in Buckley v. Fitzsimmons, specifically declines to say that the use of perjury and fabricated evidence before trial is not a violation of due process.

    Although generally you are of course correct about his views and the other so-called “conservatives”.


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