9.2 Constitutional Protections

Constitutional criminal procedure is the heart of the Criminal Law section of the NALA CP Knowledge Exam. The questions reward precise rule statements: when a warrant is required, which exceptions apply, and what remedy follows a violation. These protections, found in the Bill of Rights, apply to the states through the Due Process Clause of the Fourteenth Amendment.

Fourth Amendment: Search and Seizure

The Fourth Amendment protects "persons, houses, papers, and effects" against unreasonable searches and seizures. A search occurs when the government intrudes on a person's reasonable expectation of privacy (Katz v. United States). An arrest — a seizure of the person — is reasonable when supported by probable cause: facts sufficient to lead a reasonable person to believe a crime has been committed and this person committed it.

Warrant Requirements

A valid warrant requires (1) a neutral and detached magistrate, (2) a showing of probable cause under oath, and (3) particularity — the warrant must describe the place to be searched and the persons or things to be seized. General exploratory rummaging is exactly what the amendment forbids.

Exceptions to the Warrant Requirement

Reasonable suspicion is a lower standard than probable cause — specific articulable facts, more than a hunch, less than a fair probability.

The Exclusionary Rule

Evidence seized in violation of the Fourth Amendment must generally be excluded from the prosecution's case-in-chief (Mapp v. Ohio, applying the rule to the states). Under the fruit of the poisonous tree doctrine (Wong Sun v. United States), derivative evidence is also excluded unless the taint is purged by attenuation, an independent source, or inevitable discovery. The leading exception is the good-faith exception (United States v. Leon): evidence is admissible when officers reasonably rely on a warrant later found defective. Note the remedy trap: the exclusionary rule does not bar using illegally seized evidence for impeachment of a testifying defendant.

Fifth Amendment

The Fifth Amendment supplies three heavily tested protections:

1. Self-incrimination and Miranda. No person "shall be compelled in any criminal case to be a witness against himself." Miranda v. Arizona requires warnings — the right to remain silent, that anything said can be used in court, the right to an attorney, and that one will be appointed if the suspect cannot afford counsel — before custodial interrogation. Both elements must be present: custody (formal arrest or equivalent restraint) and interrogation (questioning or its functional equivalent). Volunteered, spontaneous statements are admissible without warnings. A waiver must be knowing, voluntary, and intelligent; if the suspect invokes the right to counsel, questioning must stop until counsel is present (Edwards v. Arizona). Violations bar the statement in the prosecution's case-in-chief.
2. Double jeopardy. No person may be "twice put in jeopardy" for the same offense. Jeopardy attaches when the jury is sworn (jury trial) or the first witness is sworn (bench trial). An acquittal is an absolute bar to retrial. Under Blockburger v. United States, two offenses are the "same" unless each requires proof of an element the other does not. Critically, the separate sovereigns doctrine allows both a state and the federal government (or two states) to prosecute the same conduct — a classic exam trap.
3. Grand jury indictment. Federal felony prosecutions must begin by grand jury indictment unless waived (this clause has not been incorporated against the states).

Sixth Amendment

The Sixth Amendment guarantees, in all criminal prosecutions:

• Speedy and public trial — no fixed deadline; courts weigh the length of delay, reason for it, the defendant's assertion of the right, and prejudice (Barker v. Wingo). The federal Speedy Trial Act sets concrete clocks: indictment within 30 days of arrest and trial within 70 days of indictment or first appearance, subject to excludable delays.
• Impartial jury drawn from a fair cross-section of the community; peremptory strikes may not be based on race or gender (Batson v. Kentucky).
• Notice of the nature and cause of the accusation.
• Confrontation of adverse witnesses — face-to-face cross-examination; out-of-court "testimonial" statements are inadmissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine (Crawford v. Washington).
• Compulsory process for obtaining favorable witnesses.
• Assistance of counsel. Gideon v. Wainwright established appointed counsel for indigent felony defendants; Argersinger v. Hamlin extended the right to any offense for which imprisonment is actually imposed. The right attaches at the initiation of formal charges and covers all critical stages — lineups after indictment, arraignment, plea negotiations, trial, and sentencing. Claims of ineffective assistance require deficient performance plus prejudice (Strickland v. Washington).

Eighth Amendment

The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment. Bail is not a right to release in every case — the federal Bail Reform Act of 1984 permits pretrial detention of defendants who pose a flight risk or danger to the community. Cruel and unusual punishment analysis asks whether the penalty is grossly disproportionate (Weems/Graham line) and severely restricts the death penalty: it may not be imposed for non-homicide crimes against individuals, on defendants who were under 18 at the time of the crime (Roper v. Simmons), or on persons with intellectual disability (Atkins v. Virginia).

Paralegal scenario: Your supervising attorney asks you to flag every statement and seizure in a 400-page police file for a suppression motion. You chart each item: the traffic stop (reasonable suspicion?), the search of the trunk (automobile exception or inventory?), the stationhouse confession (was the client in custody? Mirandized? did he invoke?). Mapping facts to doctrines like this is exactly the analysis — and the exam skill — this section demands.