Business, Legal & Accounting Glossary
The rules used to handle a civil case from the time the initial complaint is filed through pretrial discovery, the trial itself and any subsequent appeal. Each state adopts its own rules of civil procedure (often set out in a separate Code of Civil Procedure), but many are influenced by or modelled on the Federal Rules of Civil Procedure.
n. the complex and often confusing body of rules and regulations set out in both state (usually Code of Civil Procedure) and federal (Federal Code of Procedure) laws which establish the format under which civil lawsuits are filed, pursued and tried. Civil procedure refers only to form and procedure, and not to the substantive law which gives people the right to sue or defend a lawsuit.
The methods, procedures, and practices used in civil cases.
The judicial system is essentially divided into two types of cases: civil and criminal. A study of civil procedure is a study of the procedures that apply in cases that are not criminal.
Generally, criminal trials are used by the government to protect and provide relief to the general public by attempting to punish an individual. Civil trials can be used by anyone to enforce, redress, or protect their legal rights through court orders and monetary awards. The two types of trials are very different in character and thus have separate procedural rules and practices.
Procedural law is distinguished from substantive law, which creates, defines, and regulates the rights and duties of individuals. Federal and state constitutions, statutes, and judicial decisions form the basis for substantive civil law on matters such as contracts, torts, and probate. Procedural law prescribes the methods by which individuals may enforce substantive laws. The basic concern of procedural law is the fair, orderly, efficient, and predictable application of substantive laws. Procedural guidance can be found in court-approved rules, in statutes, and in judicial decisions.
Federal Rules of Civil Procedure State and federal courts maintain separate procedural rules. On the federal level, the Federal Rules of Civil Procedure govern the process of civil litigation in U.S. district courts, which are trial courts. At least one U.S. district court operates in each state. Each district court also exists within one of thirteen federal circuits. Any appeals of decisions by a U.S. district court are heard by the court of appeals for the federal circuit in which the district court sits. Appeals of decisions by a U.S. court of appeals may be heard by the Supreme Court of the United States.
The Supreme Court and the courts of appeals use procedures contained in the Federal Rules of Appellate Procedure and in the U.S. Supreme Court Rules. As reviewing courts, they are concerned with the district courts’ application of the Federal Rules of Civil Procedure.
The Federal Rules of Civil Procedure are now contained in title 28 of the U.S. Code. Before 1938, the procedural rules in U.S. district courts varied from circuit to circuit. The rules in the western United States, for example, were generally less complex than those in the East. To add to the confusion, federal civil cases were designated either at law, which essentially meant that the relief sought was monetary, or equitable, which meant that the court was asked to act on principles of fairness and, generally, to award nonmonetary relief. The distinction was important because the procedural rules for a case at law differed from those for an equity suit.
In response to widespread criticism of procedural complexity, the U.S. Congress in 1934 passed the Federal Rules Enabling Act (28 U.S.C.A. §§ 2071, 2072). This act conferred on the Supreme Court the power to make new rules for federal courts. In 1938, new rules were recommended by an advisory committee appointed by the Supreme Court and approved by Congress. The new rules featured simplified pleading requirements, comprehensive discovery procedures, a pretrial conference to narrow the scope of a trial and define issues, and broad provisions for joining parties and claims to a lawsuit. In addition, legal and equitable claims were merged to proceed with the same set of rules.
The first set of uniform federal rules was not perfect. As time passed, it became clear that continuous oversight of the rules was necessary to ensure their improvement. In 1958, Congress created the Judicial Conference of the United States, a freestanding body to study federal civil procedure and propose amendments to the Supreme Court. The Judicial Conference, in turn, created the ongoing Committee on Rules of Practice and Procedure to help fashion the best procedural rules for federal courts. Amendments to the Federal Rules of Civil Procedure now occur on a regular basis.
State courts generally follow the same judicial hierarchy as federal courts. In all states, a party to a civil suit is entitled to at least one review of a trial court decision. In some states, a party may be entitled to two appeals: one in a court of appeals, and one in the state supreme court.
Procedural rules in state courts are similar to the federal rules. Indeed, many states base their procedural rules on federal rules. Thus, there is a large measure of uniformity among the states, and among state and federal courts.
A civil action is commenced with the filing of a complaint. The plaintiff must file the complaint with the court and must give a summons to the court and a copy of the complaint to the defendant. The complaint must set forth the claims and the legal bases for them.
Before filing the complaint, the plaintiff must decide where to file it. As a general rule, cases are filed in the state, not federal, courts. The question of whether a particular court has authority over a certain matter and certain parties is one of jurisdiction. Federal courts generally have jurisdiction over civil actions in three situations. The most common is when the parties to the suit live in different states and the amount of money in controversy exceeds $50,000. The second instance is when a claim is specifically authorized by federal statute. The third is when a claim is made by or against the federal government or its agents.
The jurisdiction of state courts depends on a number of variables. Plaintiffs filing in state court generally prefer to file in their home state. However, this may be difficult in a case where the defendant lives in another state and the injury occurred outside the plaintiff’s home state. A court in the plaintiff’s home state can gain jurisdiction over an out-of-state defendant in several ways. For example, if the defendant enters the plaintiff’s home state, the plaintiff may serve the defendant there and force the defendant to appear there for trial. Or the plaintiff can show the court that the defendant has some minimal amount of contact with the plaintiff’s home state. Or the plaintiff can show that the defendant has property in the plaintiff’s home state and the property is the subject matter of the dispute.
In addition to jurisdiction, the plaintiff must also consider the venue. The venue is the term describing the particular county, or geographical area, in which a court with jurisdiction may hear and determine a case. The plaintiff makes a decision on the venue after deciding whether to file suit in state or federal court. For example, if a plaintiff decides to file suit in state court, and has settled on a particular state, the plaintiff must decide in which county to file suit. The overriding consideration in determining the best venue in a case is the convenience to the parties.
Once the plaintiff determines where to file the complaint, the plaintiff must prepare pleadings and motions. Pleadings are the plaintiff’s initial allegations and the defendant’s responses to those allegations. Motions are requests made by the parties for a specific order by the court. Courts usually schedule pretrial conferences to review and rule on pleadings and motions, sort out preliminary issues, and prepare a case for trial.
Before a case can proceed, the court must determine whether the plaintiff has the standing to bring the suit. In order to hear the suit, the court must find that the plaintiff has some legally protectable, tangible interest in the outcome of the litigation. Other plaintiffs may join the original plaintiff if they seek the same relief concerning the same transaction or event and the complaints involve a common question of law or fact. This is called joinder.
In some cases, joinder may be compulsory. Under Rule 19, a person must be joined if (1) complete relief cannot be accorded to the parties without joining the missing person or (2) the missing person claims an interest in the action, and absence from the suit will impair that person’s ability to protect the interest, or absence would subject the parties to multiple or inconsistent obligations regarding the matter of the suit. Both plaintiffs and defendants may be ordered by the court to join a suit.
The court must also determine before trial that the issues in the case are justiciable. This means that the case must be ready and proper for judicial determination. Courts do not hear hypothetical, abstract, or political cases. For example, a person may not file a suit against a legislator over the legislator’s vote on a matter before the legislature. Nor may a person file a suit against another unless she can demonstrate that the other has caused her some injury or harm.
If the complaint does not state a claim upon which judicial relief can be granted, the defendant may move for summary judgment. This is a request that the court issue a final judgment on the case in favour of the defendant. The plaintiff also may submit a motion for summary judgment, either soon after filing the complaint or after the defendant submits a summary judgment motion. When deciding a motion for summary judgment, the court must consider the pleadings in the light most favourable to the party opposing the motion.
The parties to a lawsuit prepare their case based on information gained through the process of discovery. Discovery consists of a variety of methods including depositions and interrogatories. A deposition is an interview of a party or witness conducted by a lawyer. Usually, this interview is conducted orally with a lawyer for the other side present and able to participate; sometimes, it is conducted using written questions. Information about a party may be secured through written interrogatories or requests to produce documents or things. These requests may be served only upon a party. A request for production may seek any item within a party’s control.
Procedural rules on depositions and other forms of discovery address a number of concerns, including how a deposition is conducted, the permissible scope of a deposition, who may conduct a deposition, when a party may object to a question at a deposition, when a party may object to an interrogatory, when a party may enter upon land for inspection, when a party may make physical or mental inspections of another party, and what happens when a party does not cooperate with a court order directing compliance with discovery.
If the parties cannot reach a settlement, the case will go to trial. Just before trial, the plaintiff must decide whether to ask for a jury trial. Not all civil cases may be tried before a jury. The right to a jury trial is usually tied to the amount of money at issue: if the case concerns less than a certain amount, such as $10,000, the case may be limited to trial before a judge. In federal court, however, all parties have the right to a jury trial. If a plaintiff or defendant is granted a jury trial, both sides will have the opportunity to screen potential jurors for bias.
At trial, each side is given the opportunity to make an opening statement to the fact finder, be it judge or jury. The plaintiff then presents evidence. Evidence can include testimony from witnesses and tangible items presented through witnesses. When the plaintiff has presented her or his case, the defendant has the option of presenting evidence. After the defendant presents evidence, the parties make closing arguments to the fact finder.
After final arguments, the judge must determine what laws apply to the case. Both parties submit proposed instructions to the judge. If the case is tried before a jury, the judge must read instructions to the jury. If the case is tried before a judge, the judge will give the parties an opportunity to argue that certain favourable law controls the case.
At this point, either party may move the court for a directed verdict. This is a request that the court decide in the party’s favour before deliberating on the case or sending it to the jury. A directed verdict may be granted only if no substantial evidence supports a finding in the opposing party’s favour and the opposing party bears the burden of producing evidence on the issue. If the judge does not issue a directed verdict, the fact finder retires to deliberate the case in secret.
The final phase of the trial is judgment. The court has the option of requesting different types of verdicts. If it requests a general verdict, it is looking for a flat finding of liability or no liability. If it requests a special verdict, it expects the fact finder to answer specific factual questions, and then the judge determines the legal consequences of the answers.
In a complex jury trial, the court may request that the jury deliver a general verdict along with answers to special interrogatories. This form of verdict allows the judge to ensure that the jury delivers the correct verdict based on its factual findings.
The number of jurors on a civil jury can be as few as five or as many as twelve, depending on the jurisdiction. In most jurisdictions, including federal courts, the jury’s decision must be unanimous, but some jurisdictions allow a verdict with something less than unanimity, such as an agreement among nine of twelve jurors.
If the defendant has failed to appear for the proceedings, judgment will be entered for the plaintiff. However, in this situation, the defendant may contest the judgment when the plaintiff attempts to collect on it, by filing a separate suit and challenging the jurisdiction of the court.
When the verdict is delivered, the losing party may seek a reversal of the judgment. Sometimes a verdict is unsatisfactory to both parties, and both parties seek a reversal; this might happen, for example, when one party wins the lawsuit but receives a small damages award. Reversal of a verdict may be pursued through a motion for judgment notwithstanding the verdict, or JNOV (for judgment non obstante veredicto, which is Latin for “notwithstanding the verdict”). The standard for this order is the same as that for a directed verdict. A reversal of judgment usually occurs only in jury trials; judges generally are not inclined to reverse their own decisions.
A court may grant a new trial if procedural problems at trial prejudiced a party or worked against the interests of a party, and affected the verdict. Such problems include juror misconduct and unfair withholding of evidence by an opposing party. A new trial may also be granted if the damages authorized by the jury were excessive or inadequate. In extreme cases, a new trial may be granted if newly discovered evidence comes to light after the case is given to the jury.
All jurisdictions give parties to a civil suit the right to at least one appeal. A decision may be reversed if an error at trial prejudiced the appellant (the party bringing the appeal). Appeals courts generally do not reverse verdicts based on the weight of evidence. Instead, they limit their review of cases to mistakes of law. This is a nebulous concept, but generally, it refers to mistakes relating to procedural and constitutional violations.
Sometimes a party may appeal a court order or decision to a higher court during the trial. Known as an interlocutory appeal, this option is limited. A party may appeal during a trial if the party stands to suffer irreparable harm if the order or decision is not immediately reviewed. A party may also appeal an order or decision during trial if it affects a matter that is collateral to, or separate from, the litigation.
Some parties come to court seeking provisional remedies, which are forms of temporary relief available in urgent situations. Temporary restraining orders and injunctions are court orders that direct a party to perform a certain act or refrain from performing a certain act. For example, if a party wants to bring suit to prevent the imminent demolition of what he believes is a historic building, he may petition the court for a temporary restraining order to prevent demolition while the suit is filed. A temporary restraining order will last up to ten days. When the ten days have expired, the litigant may seek either renewal of the temporary restraining order or a preliminary injunction.
A preliminary injunction, if granted, requires a party to perform an act or refrain from performing an act until the end of the trial. A permanent injunction is a court order that requires a defendant to perform an act or refrain from performing an act permanently.
After a judgment is reached, the winning party must enforce it. If the losing party does not voluntarily relinquish the disputed property or pay the monetary judgment, the winning party may seize and sell the property of the losing party. This is accomplished by filing the judgment in the county where the property is located and proceeding to obtain ownership of the property through another civil suit. If the losing party has no money, the winning party may seek to garnish a portion of the losing party’s wages. If the losing party does not work and has no property, the winning party may be unable to collect on the judgment.
Civil cases often are expensive and time-consuming. In August 1990, the U.S. Congress passed the Civil Justice Act of 1990 to help remedy these problems (28 U.S.C.A. §§ 471-482). The U.S. Senate explained that the Civil Justice Act was “to promote for all citizens, rich or poor, individual or corporation, plaintiff or defendant, the just, speedy and inexpensive resolution of civil disputes in our Nation’s federal courts” (S. Rep. No. 101-416, 101 Cong., 2d Sess., at 1 [Aug. 3, 1990]). The act ordered each U.S. district court to implement a Civil Justice Expense and Delay Reduction Plan under the direction of an advisory group comprising “those who must live with the civil justice system on a regular basis” (S. Rep. No. 101-416, at 414 [quoting statement of Senate Judiciary Committee Chairman Biden, Cong. Rec. S416 (Jan. 25, 1990)]).
The advisory groups in each federal district were appointed by the chief judge of the federal circuit, and they generally consisted of judges, clerks, and law professors. These experts prepared a report on methods for reducing expense and delay in civil litigation. The report was then considered by the federal circuit court judges in forming the Civil Justice Expense and Delay Reduction Plan.
One major challenge that faced the advisory groups was how to get courts to best use modern technology. Since the passage of the act, many federal circuits have authorized the filing of court documents by facsimile and other electronic means, which may include the use of computers.
Federal courts have also acted to improve scheduling. The U.S. District Court for the District of New Hampshire, for example, created four separate categories for scheduling civil cases: administrative, expedited (“rocket docket”), standard, and complex. The determination of a case’s category is made at the preliminary pretrial conference. Most cases fall into the standard category, which means a trial will be held within one year of the preliminary pretrial conference. A rocket docket case can be tried within six months of the preliminary pretrial conference, if the parties agree and the trial will last no more than five days. Administrative and complex cases are scheduled with special attention. By identifying the length and complexity of a case at the preliminary pretrial conference, federal circuit courts are able to minimize unnecessary delays.
In all jurisdictions, preliminary pretrial conferences have become important in civil litigation. The court, after consulting the parties, schedules and holds this conference within a certain amount of time after the filing of the complaint. At this conference, the court attempts to resolve all the issues that can be resolved outside of trial. These issues include the control and scheduling of discovery, the admissibility of evidence, the possibility of separate trials, and orders limiting the length of the trial presentation. To reach, or decide, substantive issues more quickly, many federal courts ask litigants to file any motions for summary judgment or motions to dismiss before the preliminary pretrial conference. Most households received the short form of the 1990 census questionnaire and returned it by mail. Census workers went to shelters in an attempt to count homeless people in the 1990 census. Critics of the homeless count in the 1990 census claim that census workers did not go far enough in searching out the homeless population. William Kunstler was a cofounder of the Center for Constitutional Rights, which has taken on cases for disadvantaged and sometimes controversial clients. The Center for Law and Social Policy works to improve the economic condition of low-income families and help them gain access to the civil justice system through education, advocacy, and research. The CIA was established after World War II. In the 1950s and 1960s much of its work concerned evaluating the military strength of the Soviet Union. Efforts of the CIA during the Gulf War helped the United States to identify bombing targets such as this communications building in Baghdad, Iraq. [formtop] [frtxf]CERTIFICATE OF BIRTH Birth No. (Type or Print) First NameMiddle NameLast Name 1. FULL NAME OF CHILD 2. SEX (Month) (Day) (Year)3b. HourAM 3a. DATE OF CHILD’SPM BIRTH < ru;36p;.5q> a. New York City c. Name of Hospital or Institution. If not in hospital, street address. 4. PLACE OF b. Borough BIRTH 5a. MOTHER’S FULL MAIDEN NAME5b. MOTHER’S BIRTHPLACE, City and State. If Not U.S.A., Country. a. State b. County c. City, town or location d. Inside city limits e. Street and house number 6. MOTHER’S (Specify Yes or No) USUAL RESIDENCE 7a. FATHER’S FULL NAME7b. FATHER’S BIRTHPLACE, City and State. If not U.S.A., Country. This certificate is filed pursuant to paragraph three of subdivision a. of Section 567-2.0 of the Administrative Code of the City of New York. Approved for Filing 19….. (Signed) Father Borough Registrar Mother (Signature)Address Date of Original Report 19….. BUREAU OF RECORDS AND STATISTICS DEPARTMENT OF HEALTH THE CITY OF NEW YORK THIS CERTIFICATE NOT VALID UNLESS FILED IN THE HEALTH DEPARTMENTCertificates Containing Alterations, Omissions or Prepared WithBall Point Pens are Unacceptable. DO NOT WRITE IN THIS SPACE, MARGIN RESERVED FOR CODING AND BINDING Died: Date Place Cert. No. [formend2] A sample birth certificate from New York City. [formtop] [frtxf][Date] $ This certificate evidences that on or after the day of, 19, The X Bank and Trust Company will pay to the order of [name of payee] the sum of Dollars with interest from the date hereof to the above-specified maturity (but no interest shall accrue after maturity) at the rate of per cent per annum computed on the basis of a 360 day year for the number of days elapsed, upon presentment of this certificate properly endorsed. This certificate evidences a deposit by the above-named payee in the amount shown hereinabove. THE X BANK & TRUST COMPANY By Cashier Countersigned: Vice President (If face amount in excess of $ this certificate not valid unless countersigned.) A sample certificate of deposit. [formtop] [frtxf][Stamped across the face of the check]No. CERTIFIEDPAYABLE ONLY IF UNALTEREDSINCE ISSUANCE AND IF PROPERLY ENDORSED[Date] BANK[Address]Authorized SignatureDO NOT DESTROY An example of a certification notice used by a bank. [formtop] [frtxf]No. 94 993 Dec 2, 1994, OFFICE OF THE CLERK In TheSupreme Court of the United States October Term, 1994 STATE OF ILLINOIS, Petitioner,v. GREGORY TURNER, Respondent. On Petition for a Writ of Certiorari to the Appellate Court of Illinois, First Judicial District PETITION FOR A WRIT OF CERTIORARI ROLAND W. BURRIS Attorney General of Illinois ARLEEN C. ANDERSON Assistant Attorney General 100 W. Randolph St., Suite 1200 Chicago, Illinois 60601 Attorneys for Petitioner JACK O’MALLEY Cook County State’s Attorney 309 Richard J. Daley Center Chicago, Illinois 60602 RENEE G. GOLDFARB Counsel of Record KEVIN SWEENEY JAMES P. NAVARRE Assistant State’s Attorneys Of Counsel QUESTION PRESENTED
Whether the exclusionary rule requires that a voluntary confession be suppressed when the suspect was confronted during questioning with evidence seized as a result of an illegal search, even though a confession is not a product of an illegal search and the exclusionary rule can have no real deterrent effect on police misconduct under those circumstances. A sample petition for a writ of certiorari.
In The Supreme Court of the United States October Term, 1994 STATE OF ILLINOIS, Petitioner,v. GREGORY TURNER, Respondent. On Petition for a Writ of Certiorari to the appellate Court of Illinois, First Judicial District
PETITION FOR A WRIT OF CERTIORARI
Petitioner, the State of Illinois, respectfully prays that a writ of certiorari issue to review the judgment and opinion of the Appellate Court of Illinois, First Judicial District, in this matter. OPINIONS BELOW
The opinion of the Appellate Court of Illinois, First District, Sixth Division, reversing respondent’s conviction for first-degree murder, is reported as People v. Turner, 259 Ill. App. 3d 979, 197 Ill. Dec. 777, 631 N.E. 2d 1236 (1st Dist. 1994) and is reproduced as Appendix A to this petition. The order of the Illinois Supreme Court denying leave to appeal in this matter is reproduced as Appendix B to this petition. JURISDICTION
The decision of the Appellate Court of Illinois in this matter was entered on March 18, 1994. A timely petition for leave to appeal to the Illinois Supreme Court was filed by the petitioner and was denied by the Illinois Supreme Court on October 6, 1994. This Court’s jurisdiction is invoked under 28 U.S.C. sec. 1257(3). CONSTITUTIONAL PROVISION INVOLVED
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…. STATEMENT OF THE CASE
Respondent Gregory Turner confessed to stabbing sixteen-year-old [S.T.] to death. During questioning by the police, the respondent had been confronted with a pair of bloody shoes found near his bed. The trial judge suppressed evidence of the shoes as the product of an illegal search, but ruled that respondent’s confession was voluntary and admissible. Respondent was convicted of first-degree murder at a bench trial. The Appellate Court of Illinois reversed respondent’s murder conviction, ruling that under the exclusionary rule respondent’s confession had to be suppressed because respondent was confronted with illegally seized evidence during questioning. People v. Turner, 259 Ill. App. 3d 979, 631 N.E. 2d 1236 (1st Dist. 1994). Evidence in the Trial Court
On June 9, 1988, the body of high school student [S.T.] was found in an alley on the south side of Chicago. She had been stabbed twice in the chest and swabs from her vagina and anus tested positive for semen.
The Chicago police wanted to talk to the respondent, who was a 27-year-old parolee because a friend of the victim had said that [S.T.] had been afraid of the respondent. An officer reached the respondent on the phone and the respondent agreed to come into the station. After respondent came into the station on his own, the police talked to him in an interview room and the respondent gave the officers an alibi.
Two detectives then left the station to check out the alibi and, after talking to two of respondent’s relatives, found that the alibi was false. Then the detectives went to respondent’s home and talked to his parents. According to the findings of the trial judge, the detectives told the respondent’s mother that respondent was cooperating in the investigation and that the respondent had said that it was okay to search his room.
With the permission of the respondent’s mother, the detectives searched the area in the basement where the respondent slept and found a pair of shoes with blood on the soles. The detectives asked respondent’s mother if they could take the shoes and she said yes.
Later a different detective questioned respondent again in the interview room and respondent was told that his alibi did not check out and that bloody shoes had been found by his bed. Respondent then confessed that he had killed [S.T.] He later gave a written confession to a court reporter and an assistant state’s attorney.
In the confession, the respondent said that on the night of the murder he had sex with [S.T.] in his bed in the basement of his home. Afterwards, he left the basement with the victim because she was loudly demanding $30.00 from him. The respondent said that he stabbed the victim because she had threatened to claim that he had raped her, and he was afraid of a rape accusation because he was on parole. Trial Court Proceedings
The trial judge suppressed evidence of the bloody shoes found by respondent’s bed, finding that the police had told falsehoods to respondent’s mother in order to get consent to search. However, the trial judge allowed the respondent’s confession to go into evidence, ruling that the respondent had not been under arrest when he confessed. Also, the judge ruled that the confession had not been caused by the fact that respondent had been confronted with the bloody shoes since the respondent had also been confronted with the fact that his alibi was false.
At trial, the theory of the prosecution was that the respondent had raped [S.T.] and then had killed her when she threatened to tell her mother. However, the trial judge acquitted the respondent of aggravated criminal sexual assault. But the judge found respondent guilty of first-degree murder and the respondent was later sentenced to 30 years in custody. That conviction was reversed on appeal on the grounds that respondent’s confession should have been suppressed under the exclusionary rule since respondent was confronted with illegally seized evidence during questioning. People v. Turner, 259 Ill. App. 3d 979, 631 N.E. 2d 236 (1st Dist. 1994). REASONS FOR GRANTING THE WRIT
THE EXCLUSIONARY RULE DOES NOT REQUIRE THAT A VOLUNTARY CONFESSION BE SUPPRESSED WHEN THE SUSPECT WAS CONFRONTED WITH ILLEGALLY SEIZED EVIDENCE DURING QUESTIONING SINCE A CONFESSION IS NOT THE PRODUCT OF AN ILLEGAL SEARCH AND BECAUSE THE EXCLUSIONARY RULE CAN HAVE NO REAL DETERRENT EFFECT ON POLICE MISCONDUCT UNDER THOSE CIRCUMSTANCES.
The exclusionary rule is not part of the Fourth Amendment but is a device created by judges to deter the police from illegally seizing evidence. Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). Therefore the exclusionary rule does not apply to types of cases in which it will not significantly deter police misconduct. New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990); United States v. Leon, 469 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). This is just such a case. Here respondent Gregory Turner confessed to murder when he was confronted with illegally seized evidence, but the police had no way of knowing in advance that their search would eventually produce an incriminating statement. Seldom if ever will officers anticipate that an illegal search will later lead to a confession. Therefore a voluntary confession should be admissible even when the suspect is confronted with illegally seized evidence during questioning because the exclusionary rule can have no real deterrent effect on police misconduct under those circumstances. A sample petition for a writ of certiorari (continued). [formtop] [frtxf]
Certiorari should be granted here to apply this important rule of law. More exactly, certiorari should be granted for the following reasons:
Certiorari Should Be Granted Because This Case Involves An Important Issue Concerning The Admissibility Of Confessions Which Has Not Been Decided By This Court.
This Court has not decided whether a voluntary confession must be suppressed when the suspect was confronted with illegally seized evidence during questioning. Nevertheless, this is an important legal issue which the defense may attempt to raise in many criminal cases in which a suspect has confessed to a crime. Therefore certiorari should be granted to settle an important constitutional issue about the scope of the exclusionary rule which has not yet been decided by this Court. U.S. Sup. Ct. Rule 10.1(c).
Here respondent’s confession to the murder of [S.T.] was found to be voluntary and admissible by the trial judge. However, the Appellate Court ruled that the confession had to be suppressed because the respondent had been told during questioning that shoes with blood on them had been found near his bed. People v. Turner, 259 Ill. App. 3d 979, 631 N.E. 2d 1236 (1st Dist. 1994). Those shoes had been seized by the police with the consent of the respondent’s mother, but the trial court found that this consent had been obtained through deceit. The ruling by the Appellate Court of Illinois should be reversed because it extends the exclusionary rule to a situation when it should not and does not apply.
The exclusionary rule applies to a type of evidence if and only if suppression of such evidence will deter illegal searches and seizures. New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990); Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). Therefore the exclusionary rule does not apply here. A confession is not evidence found during an illegal search and in almost all cases the police will have no idea at the time of a search that they will find evidence which will later lead to a confession. Ordinarily, the police will not be able to predict in advance what they will find during a search and they certainly will not be able to predict what effect the evidence would have if mentioned during the interrogation of a suspect. Accordingly, there will be no deterrent effect in suppressing a confession because the suspect was confronted with illegally seized evidence during questioning. In almost every case the police will have no idea that a search will produce evidence which will later lead to a confession, so there will be no deterrent effect in suppressing such confessions.
Instead, the way to deter illegal searches and seizures is to suppress the evidence found during those searches, as was done here. The trial judge suppressed evidence of the bloody shoes found by respondent’s bed, and petitioner has not challenged that ruling on review. But it makes no sense to suppress a voluntary confession just because the suspect was told about illegally seized evidence before he confessed. A confession is not evidence found during an illegal search nor is it a predictable result of such a search, so there is no real deterrent effect on police misconduct in suppressing such a confession.
Thirty years ago this Court did come close to deciding whether a confession must be suppressed if the suspect was confronted with illegally seized evidence during questioning. Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). However, the record in Fahy did not show whether the suspect had been confronted with the evidence before his initial confession, so the most this Court said was that such an inquiry would be appropriate on remand. Moreover, the language in Fahy concerning the scope of the exclusionary rule is obsolete, since this Court has since held that the exclusionary rule does not apply A sample petition for a writ of certiorari (continued). [formtop] [frtxf]when it cannot significantly deter police misconduct. See, e.g., Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); United States v. Leon, 469 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974).
Therefore certiorari should be granted to resolve an important issue which has not previously been decided by this Court. Usually a suspect who confesses to a crime will have been confronted by the police during questioning with the evidence incriminating him. Defense attorneys can always claim before trial that such evidence was illegally seized and, even if few such claims will succeed, such claims certainly will delay trials and consume scarce court time. Thus this Court should hold that a voluntary confession is not made inadmissible by the exclusionary rule even if the suspect was confronted with illegally seized evidence during questioning. B.
The Extension Of The Exclusionary Rule By The Appellate Court Of Illinois Conflicts With A Number Of Decisions Of This Court.
This Court has clearly and repeatedly held that the exclusionary rule is not part of the Fourth Amendment, but is a remedial device designed to exclude evidence only when exclusion would have the effect of deterring illegal searches and seizures. New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990); Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); United States v. Leon, 469 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). In this case the Appellate Court of Illinois extended the exclusionary rule to apply to a situation where it could have no real deterrent effect. Therefore certiorari should be granted because the lower court ruling conflicts with a number of decisions by this Court.
In particular, the Appellate Court’s opinion conflicts with this Court’s 1990 Harris decision, which held that a confession was admissible although the suspect had been unlawfully arrested in his home without a warrant. New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). Harris held that the exclusionary rule does not require that a confession be suppressed in either of the following two situations:
1. When the confession is not the product of the violation of the Fourth Amendment; or
2. When the exclusionary rule would not deter police misconduct.
Both holdings indicate that respondent’s confession should have been ruled admissible. Respondent’s confession was not the product of the alleged violation of the Fourth Amendment by the police, nor could the exclusionary rule have any significant deterrent effect under the circumstances of this case.
Here respondent confessed to murder after the police told him that his alibi did not check out and that bloody shoes had been found near his bed. Those shoes had been found and taken by the police with the consent of the respondent’s mother. Although evidence on the point was conflicting, the trial judge found that the bloody shoes had been seized illegally because the police had given false information to respondent’s mother in order to get her consent to search. However, under this Court’s reasoning in Harris, respondent’s confession cannot be considered the product of the Fourth Amendment violation in this case. In Harris, this Court held that the suspect’s confession was not the product of the Fourth Amendment violation since that violation consisted of arresting the suspect in his apartment without a warrant and the interrogation of that suspect was lawful. Similarly, here the Fourth Amendment violation consisted of a seizure from respondent’s home when he was not present, and there was nothing unconstitutional about the interrogation of the respondent. In this case, the Fourth Amendment protected the respondent’s house and its contents but did not bar interrogation of the respondent in an effort to get a voluntary confession. Therefore, as in Harris, the confession was not the product of the Fourth Amendment violation, so the respondent’s voluntary confession to murder was admissible.
Also, the exclusionary rule does not apply to respondent’s confession because under the circumstances of this case that rule can have no significant effect in deterring police misconduct. When officers search for evidence, they will not know in advance if they will find evidence which will later lead a suspect to confess. Ordinarily, the officers will not know what, if anything they will find during the search. Usually, they will not even have a suspect in custody when the search is performed. And almost never will the officers have any way of knowing whether the evidence, if any, found during their search will play a role in leading a suspect to confess. Since the police will not know or expect that an illegal search will produce evidence which will later lead to a confession, the threat of suppressing such confessions cannot deter illegal searches. The exclusionary rule does not apply when it can have no significant deterrent effect. Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). Therefore, the exclusionary rule does not require that a voluntary confession be suppressed, even when the suspect was confronted by illegally seized evidence during questioning.
This is particularly true since the direct and simple way to deter illegal searches is to suppress the evidence seized during them. That is what was done in the respondent’s case. The trial judge suppressed evidence of the bloody shoes found near respondent’s bed, and that evidence was not used at respondent’s trial. The State, while it argued in the trial court that the seizure of the shoes was lawful, did not challenge on appeal the suppression of that evidence. There is no need to suppress voluntary confessions which are not the product of illegal searches, when illegal searches may be more effectively deterred by suppressing evidence discovered during them.
To summarize, for two separate reasons described in this Court’s Harris opinion the exclusionary rule does not require that a voluntary confession be suppressed when the suspect is confronted with illegally seized evidence during questioning. First, a voluntary confession cannot be considered the product of an unlawful entry into a building, so the exclusionary rule does not apply. Second, under those circumstances, the exclusionary rule can have no real deterrent effect since the police will not know at the time of a search whether they will find evidence which will later induce a confession. Therefore under the Fourth Amendment use of respondent’s voluntary confession at his murder trial was lawful. Attenuation Analysis
Petitioner’s main argument for a grant of certiorari is not based on the doctrine of attenuation, which provides that a confession may be admissible even following an illegal arrest if the confession is not directly caused by the Fourth Amendment violation. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). Attenuation provides only an alternative reason for review by this Court. As this Court held in Harris, when the exclusionary rule does not apply then there is no need to engage in an attenuation analysis. New York v. Harris, 495 U.S. 15, 19, 110 S. Ct. 1640, 1643, 109 L. Ed. 2d 13, 21 (1990). Only when the exclusionary rule applies is there any reason to consider whether intervening circumstances have “purged the taint” of a Fourth Amendment violation. Here the exclusionary rule does not apply to respondent’s confession, so it is unnecessary to determine whether the connection between the search and the confession was direct or attenuated.
Brown and other confession cases applying an attenuation analysis involved illegal arrests leading to confessions. See Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 2248 (1979); Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). That is not what happened here since the trial judge found that the petitioner was not under arrest when he confessed. It is logical to say that a confession may be the product of an illegal arrest, but it makes much less sense to say that a confession is the product of an illegal search which produced only physical evidence. Also, suppressing confessions may be a way to deter illegal arrests, but suppressing confessions will not significantly deter illegal searches of property.
However, assuming for the sake of argument that the doctrine of attenuation did apply here, then the opinion of the Appellate Court of Illinois failed to follow this Court’s decisions. The Appellate Court held that a confession must be suppressed when illegally seized evidence “may” have been a factor in the decision to confess. People v. Turner, 259 Ill. App. 3d 979, 991, 631 N.E. 2d 1236, 1244 (1st Dist. 1994) (See Appendix A, p. A-18). However, this Court has said that when there are intervening circumstances attenuating a Fourth Amendment violation then a voluntary confession is admissible. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); United States v. Ceccolini, 435 U.S. 268, A sample petition for a writ of certiorari (continued). [formtop] [frtxf]98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978). In the respondent’s case, there was such a circumstance since the detectives also told him that they had checked out his alibi and knew it was false. The Appellate Court of Illinois held that when a suspect is confronted with illegally seized evidence during questioning, then the confession must necessarily be suppressed even if the suspect was also confronted with incriminating evidence that had been lawfully discovered. That holding is contrary to this Court’s Fourth Amendment decisions and provides another reason to reverse the Appellate Court’s decision. Summary
During a search of respondent’s house, the detectives found incriminating evidence, but they certainly did not find respondent’s confession there. Accordingly, that confession was not the product of the Fourth Amendment violation in this case, so the exclusionary rule did not apply to that confession. Also, the exclusionary rule does not apply because it will have no real deterrent effect on police misconduct under circumstances similar to this case. Certiorari should be granted in order to define the scope of the exclusionary rule and to correct the lower court’s failure to follow this Court’s decisions. C.
Certiorari Should Be Granted To Resolve A Conflict Among State Court Decisions On Whether A Confession Must Be Suppressed If The Suspect Has Been Confronted With Illegally Seized Evidence During Questioning.
Another reason why this Court should grant certiorari is that state reviewing courts are divided on the question of whether a voluntary confession must be suppressed where it follows an unlawful search. Several courts have held that a voluntary confession should not be suppressed although it came after an illegal search and seizure. See, e.g., State v. Manns, 220 Neb. 426, 370 N.W. 2d 157, 160-61 (1985) (the defendant’s confession was not the fruit of an illegal search during which stolen property was recovered where the defendant received Miranda warnings and where the defendant’s confession was voluntary); Mays v. State, 469 N.E. 2d 1161, 1164-65 (Ind. 1984) (although the defendant was confronted with illegally obtained evidence prior to confessing, his confession was admissible where the unlawful evidence was not so psychologically coercive as to have caused the defendant to confess against his free will); People v. Pierce, 88 Ill. App. 3d 1095, 411 N.E. 2d 295, 307 (5th Dist. 1980) (any taint from the unlawful search conducted without a valid warrant was removed from the defendant’s confession where the defendant was given Miranda warnings and his confession was voluntary); and State v. Rocheleau, 131 Vt. 563, 313 A. 2d 33, 38-40 (1973) (even though the initial search was illegal, the subsequent confession was properly admitted where it was voluntary).
On the other hand, a number of courts have utilized an analysis similar to the approach employed by the Appellate Court of Illinois in this case. For example, in State v. Pau’u, 824 P. 2d 833, 835-37 (Hawaii 1992), the court held that even though the defendant’s confession was voluntary in that the defendant understood his right to remain silent and was not coerced into waiving that right, the confession was still inadmissible where it was induced by a prior illegal search. Other relevant cases include Hart v. Commonwealth, 269 S.E. 2d 806, 809-10 (Va. 1980) (despite the voluntariness of a confession, it should have been excluded where there was an uninterrupted causal connection between the unlawful seizure of evidence and the confession); People v. Hines, 575 P. 2d 414, 416 (Colo. 1978) (confession which followed an unlawful search was inadmissible under the “fruit of the poisonous tree” doctrine where the recitation of Miranda warnings was insufficient to dissipate the taint of the illegality); and State v. Verhagen, 86 Wis. 2d 262, 272 N.W. 2d 105, 109 (1978) (although the confession was voluntary, the confession should have been suppressed where it was an exploitation of a prior illegal search).
A conflict exists among state courts and a decision by this Court would provide much-needed guidance on this issue. This Court has never decided a case in which a defendant sought to suppress a confession and the record showed that the defendant had been confronted with illegally seized evidence before he confessed. Lafave and Israel, Criminal Procedure, sec. 9.4(a), p. 747 (1984). Nothing is more common than for a suspect to confess after the police have confronted that suspect with the evidence against him. Defense attorneys, A sample petition for a writ of certiorari (continued). [formtop] [frtxf]prosecutors and trial judges would benefit from knowing whether a defendant may seek to have his confession suppressed on the theory that the evidence used during questioning was illegally seized. Certiorari should be granted to decide this important and unresolved issue.
Petitioner, the State of Illinois, respectfully requests that a writ of certiorari issue to review the decision of the Appellate Court of Illinois, First Judicial District. Respectfully submitted, ROLAND W. BURRIS Attorney General of Illinois ARLEEN C. ANDERSON Assistant Attorney General 100 W. Randolph St., Suite 1200 Chicago, Illinois 60601 Attorneys for Petitioner JACK O’MALLEY Cook County State’s Attorney 309 Richard J. Daley Center Chicago, Illinois 60602 RENEE G. GOLDFARB Counsel of Record KEVIN SWEENEY JAMES P. NAVARRE Assistant State’s Attorneys Of Counsel A sample petition for a writ of certiorari (continued).
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