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CRIME INVESTIGATION 1
WITH LEGAL MEDICINE
CHAPTER 1
PRELIMINARY CONSIDERATIONS
Introduction
As crime continues to be a major problem to society, the criminal justice system struggles
to maintain its effectiveness. Special crime investigation, although but a partial solution to the
elimination of crime, is a highly important function. The other major elements of the criminal
justice system, namely, prosecutions, courts, corrections, and community, are largely dependent
upon successful investigations.
CHAPTER 2
LEGAL SAFEGUARDS OF PERSON UNDER CUSTODIAL INVESTIGATION
Classes of Rights
1. Natural Rights – those possessed by every citizen without being granted by the State
for they are given to man by God as a human being created to his image that he may
live a happy life.
2. Constitutional Rights – conferred and protected by the Constitution.
3. Statutory Rights – provided by law, promulgated by the law-making body and
consequently may be abolished by the same body.
Section 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
Search Warrant
- An order in writing, issued in the name of the People of the Philippines, signed by a
judge and directed to a peace officer, commanding him to search for a certain
personal property and bring it before the court.
Warrant of Arrest
- A written order to arrest a person designated to take him in custody in order that he
may be bound to answer for the commission of an offense.
Section 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise, as
prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for redress
of grievances.
Freedom of Speech, and Expression, and the Press – the rights to freely utter and published
whatever one pleases without previous restraint, and to be protected against any responsibility
for so doing as long as it does violate the law, or injure someone’s character, reputation, or
business.
Scope of Freedom of expression – the rights of assembly and petition, the right to form
associations or societies not contrary to the law, and the right to religious freedom.
Meaning of Religious Freedom - The right of a man to worship God, and to entertain such
religious views as appeal to his individual conscience, without dictation or interference by any
person or power, civil or ecclesiastical.
Meaning of Religion – all forms of belief in the existence of superior beings exercising power
over human beings and imposing rules of conduct with future state of rewards or punishments.
Reason for Provision – Without such prohibition, religious freedom becomes meaningless. The
State without such a bar, notwithstanding the doctrine of its separation from the Church, could in
fact accord preference to a religious organization.
Section 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law.
Meaning of Liberty of Abode and Travel – It is the right of a person to have his home in
whatever place chosen by him and thereafter to change it at will, and to go where he pleases,
without interference of any source.
Section 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.
Section 8. The right of the people, including those employed in the public and private sectors,
to form unions, associations, or societies for purposes not contrary to law shall not be
abridged.
Section 9. Private property shall not be taken for public use without just compensation.
Purpose of Guarantee
1. Undoubtedly, the purpose of the constitutional guarantee is to encourage the formation of
voluntary associations so that through the cooperative activities of individuals, the
welfare of the nation may be advance and the government may there by receive
assistance in its ever-increasing public service activities.
2. By enabling individuals to unite in the performance of tasks, which singly they would be
unable to accomplish, such associations relieve the government of a vast burden.
Meaning of Eminent Domain - is the right or power of the State or of those to whom the power
has been lawfully delegated to take private property for public use upon paying to the owner a
just compensation to be ascertained according to law.
Meaning of “taking”
1. Actual physical seizure not essential.
2. The “taking” must be direct.
Meaning of Police Power - has been referred to as the power of the State to enact such laws or
regulations in relation to persons and property as my promote public health, public morals,
public safety, and the general welfare and convince of the people.
Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance
shall not be denied to any person by reason of poverty.
Section 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their
families.
Section 13. All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or
be released on recognizance as may be provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be
required.
Meaning of Bail - is the security required by a court and given for the provisional or temporary
release of a person who is in the custody of the law conditioned upon his appearance before any
court as required under the conditions specified.
Meaning of Capital Offense - for purposes of the above provision, is an offense which, under
the law existing at the time of its commissions, and at the time f the application to be admitted to
bail, may be punished with reclusion perpetua, life imprisonment, or death
Section 14. (1) No person shall be held to answer for a criminal offense without due process of
law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been duly notified
and his failure to appear is unjustifiable.
Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion or rebellion when the public safety requires it.
Writ of Amparo
The writ of habeas corpus is not to be confused with the writ of Amparo. Now, families
of victims of extrajudicial killings and enforced disappearances (or any qualified person or
entity) can invoke the writ when the right to life, liberty, or security of a person is violated or
threatened with violation by an unlawful act or omission of a public official or employee or of a
private individual or entity.
Section 16. All persons shall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.
Right to speedy disposition of cases
(1) The above provision upholds the time-honored tradition of speedy justice for as
stated in the old dictum - "Justice delayed is justice denied." Its express inclusion
was in response to the common charge against the perennial delay in the
administration of justice which in the past has plagued our judicial system.
(2) The right to a speedy disposition of cases can be invoked only after the
termination of the trial or hearing of case.
(3) Under the present Constitution, the Supreme Court, all lowers delegate courts, and
all other lower courts are required to decide or resolve cases within a certain
period of time.
(4) The provision contemplates the disposition of cases involving private interests not
only before judicial bodies, but also before quasi-judicial.
Scope of Guarantee
The right against self-incrimination applies in criminal cases as well as in civil,
administrative, and legislative proceeding where the fact asked for is a criminal one. It protects
one whether he is a party or a witness.
Section 18. (1) No person shall be detained solely by reason of his political beliefs and
aspirations.
(2) No involuntary servitude in any form shall exist except as a punishment for a crime
whereof the party shall have been duly convicted.
Exceptions of Prohibitions
1. When the involuntary servitude is imposed as a punishment for a crime.
2. When personal military or civil service is required of citizens.
3. To injunctions requiring striking laborers to return to work.
4. To exceptional service.
5. To exercise by parents of their authority.
6. When there is a proper exercise of the police power of the State.
Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall the death penalty be imposed, unless, for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion perpetua.
(2) The employment of physical, psychological, or degrading punishment against any prisoner
or detainee or the use of substandard or inadequate penal facilities under subhuman
conditions shall be dealt with by law.
Section 20. No person shall be imprisoned for debt or non-payment of a poll tax.
Meaning of Debt - as intended to be covered by the constitutional guarantee, means any liability
to pay money arising out of a contract, express or implied.
Meaning of Poll Taxes - is a tax of a fixed amount imposed on individuals residing within a
specified territory, whether citizens or not, without regard to their property or the occupation in
which they may be engaged.
Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall constitute
a bar to another prosecution for the same act.
Meaning of Rights Against Double Jeopardy - means that when a person is charged with an
offense and the case is terminated either by acquittal or conviction or in any other manner
without the express consent of the accused, the latter cannot again be charged with the same or
identical offense.
Meaning of Bill of Attainder - is a legislative act which inflicts punishment without judicial
trial.
Rights of the Arrested, Detained, and Person Under Custodial Investigation (R.A. 7438)
If an individual got himself into a situation that leads to his arrest, it is important for
persons of authority such as the public officers, to educate the arrested person about his/her
rights. The arrested person must be informed of the offense he/she committed. There are cases
when public officers violate the law. For an individual who does not have any idea about his
rights, unlawful arrest may seem normal. The Republic Act No. 7438 or an "Act defining certain
rights of person arrested, detained or under custodial investigation as well as the duties of the
arresting, detaining and investigating officers, and providing penalties for violation thereof"
provides a comprehensive explanation about the rights of an arrested person and the penalties for
public officers who violate the law.
Sec. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public
Officers. - (a) Any person arrested detained or under custodial investigation shall at all times be
assisted by counsel.
(b) Any public officer or employee, or anyone acting under his order or his place, who arrests,
detains or investigates any person for the commission of an offense shall inform the latter, in a
language known to and understood by him, of his rights to remain silent and to have competent
and independent counsel, preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under custodial investigation. If such
person cannot afford the services of his own counsel, he must be provided with a competent and
independent counsel by the investigating officer.
(c) The custodial investigation report shall be reduced to writing by the investigating officer,
provided that before such report is signed, or thumbmarked if the person arrested or detained
does not know how to read and write, it shall be read and adequately explained to him by his
counsel or by the assisting counsel provided by the investigating officer in the language or
dialect known to such arrested or detained person, otherwise, such investigation report shall be
null and void and of no effect whatsoever.
(d) Any extrajudicial confession made by a person arrested, detained or under custodial
investigation shall be in writing and signed by such person in the presence of his counsel or in
the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers
and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or
priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall
be inadmissible as evidence in any proceeding.
(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the
Revised Penal Code, or under custodial investigation, shall be in writing and signed by such
person in the presence of his counsel; otherwise the waiver shall be null and void and of no
effect.
(f) Any person arrested or detained or under custodial investigation shall be allowed visits by or
conferences with any member of his immediate family, or any medical doctor or priest or
religious minister chosen by him or by any member of his immediate family or by his counsel, or
by any national non-governmental organization duly accredited by the Commission on Human
Rights of by any international non-governmental organization duly accredited by the Office of
the President. The person's "immediate family" shall include his or her spouse, fiance or fiancee,
parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and
guardian or ward.
As used this Act, "custodial investigation" shall include the practice of issuing an
"invitation" to a person who is investigated in connection with an offense he is suspected to have
committed, without prejudice to the liability of the "inviting" officer for any violation of law.
Sec. 3. Assisting Counsel. - Assisting counsel is any lawyer, except those directly affected by the
case, those charged with conducting preliminary investigation or those charged with the
prosecution of crimes.
The assisting counsel other than the government lawyers shall be entitled to the following
fees:
(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with
light felonies;
(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with
less grave of grave felonies;
(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable
with a capital offense.
The fee for the assisting counsel shall be paid by the city or municipality where the
custodial investigation is conducted, provided that if the municipality of city cannot pay such fee,
the province comprising such municipality or city shall pay the fee: Provided, That the
Municipal of City Treasurer must certify that no funds are available to pay the fees of assisting
counsel before the province pays said fees.
In the absence of any lawyer, no custodial investigation shall be conducted and the suspected
person can only be detained by the investigating officer in accordance with the provisions of
Article 125 of the Revised Penal Code.
Sec. 4. Penalty Clause. - (a) Any arresting public officer of employee, or any investigating
officer, who fails to inform any person arrested, detained or under custodial investigation of his
right to remain silent and to have competent and independent counsel preferably of his own
choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not
less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual
absolute disqualification shall also be imposed upon the investigating officer who has been
previously convicted of a similar offense.
The same penalties shall be imposed upon a officer or employee or anyone acting upon
orders of such investigating officer or in his place, who fails to provide a competent and
independent counsel to a person arrested, detained or under custodial investigation for the
commission of an offense if the latter cannot afford the services of his own counsel.
(b) Any person who obstruct, persons or prohibits any lawyer, any member of the immediate
family of a person arrested, detained or under custodial investigation, or any medical doctor or
priest or religious minister chosen by him or by any member of his immediate family or by his
counsel, from visiting and conferring privately with him, of from examining and treating him, or
from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night
shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6)
years, and a fine of four thousand pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security officer with custodial
responsibility over any detainee or prisoner may undertake such reasonable measures as may be
necessary to secure his safety and prevent his escape.
Miranda Warning
“You have the right to remain silent. Anything you say or do can be used against you in a
court of law. You have the right to an attorney. If you cannot afford an attorney one will be
appointed to you.”
These are Miranda rights guaranteed by the Constitution and afforded to those taken into
police custody in the U.S. Thanks to television shows, many people can recite them from
memory. But more than just knowing the words, it's important to understand their significance
and how to properly exercise these rights.
Miranda rights (collectively called the Miranda warning) are a practical adaptation of the
right against self-incrimination in the Fifth Amendment and the right to counsel in the Sixth
Amendment. In order to have a more fair system of justice, Miranda rights were created so
individuals without knowledge of the legal system could have a fair chance and would not be
improperly coerced by the police.
Miranda rights were established in 1966 to safeguard constitutional protections for people
arrested or detained and interrogated by the police. They come from a Supreme Court case,
Miranda v. Arizona, where the court found that individuals in police custody must be informed
of their right to remain silent and their right to an attorney prior to a police interrogation.
In this case, petitioner Ernesto Miranda was questioned by police officers in connection
to a rape and kidnapping. Miranda made a written confession to the crime to the police after two
hours of interrogation. The confession was entered into evidence at Miranda's trial, and he was
found guilty by a jury. However, Miranda's defense attorney argued that because police had not
informed Miranda of his right to have an attorney present, the confession should not be
admissible in court. Miranda and his attorney appealed, and eventually the Supreme Court heard
the case and decided that because Miranda was not advised of his right to an attorney, the
confession was inadmissible.
In the Supreme Court decision, Chief Justice Earl Warren wrote, “It is not sufficient to do
justice by obtaining a proper result by irregular or improper means.” Even if someone is guilty of
a crime, forcing them to speak to the police without knowledge of their basic rights is wrong.
Today, if you are in police custody and the police interrogate you, they must read you
your Miranda rights first. If they do not, a judge could deem anything you say or do while in
police custody and during an interrogation to be excluded as evidence in a case against you.
(There are exceptions, including when public safety is at risk and there is an urgency in
questioning a suspect to protect the public.) Generally, police custody means being formally
under arrest. However, it also could apply to situations in which the average person does “not
feel free to leave,” like when they are handcuffed by police, or if the police have weapons drawn
on them. However, the term “not free to leave” is frequently the subject of debate in courtrooms
today. Interrogations do not include initial investigatory questions asked by the police to assess
the situation.
In Miranda v. Arizona (1966), the Supreme Court ruled that detained criminal suspects,
prior to police questioning, must be informed of their constitutional right to an attorney and
against self-incrimination. The case began with the 1963 arrest of Phoenix resident Ernesto
Miranda, who was charged with rape, kidnapping, and robbery. Miranda was not informed of his
rights prior to the police interrogation. During the two-hour interrogation, Miranda allegedly
confessed to committing the crimes, which the police apparently recorded. Miranda, who had not
finished ninth grade and had a history of mental instability, had no counsel present. At trial, the
prosecution's case consisted solely of his confession. Miranda was convicted of both rape and
kidnapping and sentenced to 20 to 30 years in prison. He appealed to the Arizona Supreme
Court, claiming that the police had unconstitutionally obtained his confession. The court
disagreed, however, and upheld the conviction. Miranda appealed to the U.S. Supreme Court,
which reviewed the case in 1966.
The Supreme Court, in a 5-4 decision written by Chief Justice Earl Warren, ruled that the
prosecution could not introduce Miranda's confession as evidence in a criminal trial because the
police had failed to first inform Miranda of his right to an attorney and against self-incrimination.
The police duty to give these warnings is compelled by the Constitution's Fifth Amendment,
which gives a criminal suspect the right to refuse "to be a witness against himself," and Sixth
Amendment, which guarantees criminal defendants the right to an attorney.
The Court maintained that the defendant's right against self-incrimination has long been
part of Anglo-American law as a means to equalize the vulnerability inherent in being detained.
Such a position, unchecked, can often lead to government abuse. For example, the Court cited
the continued high incidence of police violence designed to compel confessions from a suspect.
This and other forms of intimidation, maintained the Court, deprive criminal suspects of their
basic liberties and can lead to false confessions. The defendant's right to an attorney is an equally
fundamental right, because the presence of an attorney in interrogations, according to Chief
Justice Warren, enables "the defendant under otherwise compelling circumstances to tell his
story without fear, effectively, and in a way that eliminates the evils in the interrogations
process."
Without these two fundamental rights, both of which, the Court ruled, "dispel the
compulsion inherent in custodial surroundings," "no statement obtained from the defendant can
truly be the product of his free choice."
Thus, to protect these rights in the face of widespread ignorance of the law, the Court
devised statements that the police are required to tell a defendant who is being detained and
interrogated. These mandatory "Miranda Rights" begin with "the right to remain silent," and
continue with the statement that "anything said can and will be used against [the defendant] in a
court of law." The police are further compelled to inform the suspect of his or her right to an
attorney and allow for (or, if necessary, provide for) a defendant's attorney who can accompany
him during interrogations. Because none of these rights was afforded to Ernesto Miranda and his
"confession" was thus unconstitutionally admitted at trial, his conviction was reversed. Miranda
was later retried and convicted without the admission of his confession.
Miranda v. Arizona, in creating the "Miranda Rights" we take for granted today,
reconciled the increasing police powers of the state with the basic rights of individuals. Miranda
remains good law today.
Brown v. Mississippi
Brown v. Illinois, 422 U.S. 590 (1975), was a case in which the Supreme Court of the
United States held that the Fourth Amendment's protection against the introduction of evidence
obtained in an illegal arrest is not attenuated by reading the defendant their Miranda Rights.
On May 13, 1968, Richard Brown was arrested outside of his Chicago, IL. apartment by
two members of the Chicago Police. The two officers, William Nolan and William Lenz, entered
Mr. Brown's apartment without probable cause later testifying that they had entered to question
Brown concerning the death of Roger Corpus, who had been killed a week prior.
Following his arrest, Mr. Brown was taken to a police station for interrogation; prior to
beginning his interrogation, Mr. Brown was read his Miranda Rights. During interrogation Mr.
Brown produced a two-page written document acknowledging his role in the killing of Roger
Corpus. Mr. Brown would later give another statement to the Assistant State's Attorney assigned
to the case again acknowledging his role in Mr. Corpus' death but also containing a number of
factual inaccuracies. Both statements would later be introduced at trial, ultimately resulting in
Mr. Brown's conviction for the murder of Roger Corpus.
On review, the Illinois Supreme Court held that by giving Mr. Brown Miranda Warnings,
the causal chain between the illegal arrest and statements obtained had been broken, and the
statements were thus the result of free will.
In the case syllabus, the Court sums up its holding in three parts:
1. "The Illinois courts erred in adopting a per se rule that Miranda warnings in
and of themselves broke the causal chain so that any subsequent statement,
even one induced by the continuing effects of unconstitutional custody, was
admissible so long as, in the traditional sense, it was voluntary and not
coerced in violation of the Fifth and Fourteenth Amendments."
2. "The question whether a confession is voluntary under Wong Sun must be
answered on the facts of each case."
3. "The State failed to sustain its burden in this case of showing that petitioner's
statements were admissible under Wong Sun."
Writing for a unanimous court, Justice Blackmun held that reading a defendant their
Miranda Rights does not remove the taint of an illegal arrest. The Court acknowledges that under
Wong Sun statements and evidence obtained from an illegal search can be admissible if the
connection between the search and the evidence is so attenuated that the taint is dissipated.
However, the Supreme Court held that attenuation under Wong Sun requires a showing on the
facts of the individual case. Allowing Miranda Rights to automatically attenuate an illegal search
would dilute the exclusionary rule.
Under the attenuation doctrine, evidence obtained through government misconduct is
admissible if "the connection between the misconduct and the discovery of the evidence is
attenuated —weakened— so as to make the evidence untainted by the government's conduct."
Because there was no intervening event in the two hours between Mr. Brown's illegal arrest and
the first statement that he made, the trial court erred in admitting it. Similarly, as the second
statement was a direct result of the first statement, it too is inadmissible.
Escobedo v. Illinois
Escobedo v. Illinois, 378 U.S. 478 (1964), was a United States Supreme Court case
holding that criminal suspects have a right to counsel during police interrogations under the Sixth
Amendment. The case was decided a year after the court had held in Gideon v. Wainwright that
indigent criminal defendants had a right to be provided counsel at trial.
Danny Escobedo's brother-in-law, Manuel Valtierra, was shot and killed on the night of
January 19, 1960. Escobedo was arrested without a warrant early the next morning and
interrogated. However, Escobedo made no statement to the police and was released that
afternoon.
Subsequently, Benedict DiGerlando, who was in custody and considered another suspect,
told the police that indeed Escobedo fired the fatal shots because the victim had mistreated
Escobedo's sister. On January 30, again, the police arrested Escobedo and his sister, Grace.
While transporting them to the police station, the police explained that DiGerlando had
implicated Escobedo and urged him and Grace to confess. Escobedo again declined. Escobedo
asked to speak to his attorney, but the police refused, explaining that although he was not
formally charged yet, he was in custody and could not leave. His attorney went to the police
station and repeatedly asked to see his client but was repeatedly refused access.
Escobedo appealed to the Illinois Supreme Court, which initially held the confession
inadmissible and reversed the conviction. Illinois petitioned for rehearing, and the court then
affirmed the conviction. Escobedo appealed to the US Supreme Court. The ACLU argued before
the Court as amicus curiae favoring Escobedo in a 5-4 decision.
This holding was later implicitly overruled by Miranda v. Arizona in 1966, and the
Supreme Court held that pre-indictment interrogations violate the Fifth
Amendment, not the Sixth Amendment. As Escobedo was questioned during a custodial
interrogation, the result for the appellant would have been the same.
Terry Doctrine
Terry v. Ohio, 392 U.S. 1 (1968), was a landmark decision of the Supreme Court of the
United States in which the Court ruled that the Fourth Amendment's prohibition on unreasonable
searches and seizures is not violated when a police officer stops a suspect on the street and frisks
him or her without probable cause to arrest, if the police officer has a reasonable suspicion that
the person has committed, is committing, or is about to commit a crime and has a reasonable
belief that the person "may be armed and presently dangerous."
For their own protection, after a person has been stopped, police may perform a quick
surface search of the person's outer clothing for weapons if they have reasonable suspicion that
the person stopped is armed. This reasonable suspicion must be based on "specific and
articulable facts" and not merely upon an officer's hunch. These permitted police action has
subsequently been referred to in short as a "stop and frisk," or simply a "Terry frisk". The Terry
standard was later extended to temporary detentions of persons in vehicles, known as traffic
stops; see Terry stop for a summary of subsequent jurisprudence.
The rationale behind the Supreme Court decision revolves around the understanding that,
as the opinion notes, "the exclusionary rule has its limitations." The meaning of the rule is to
protect persons from unreasonable searches and seizures aimed at gathering evidence, not
searches and seizures for other purposes (like prevention of crime or personal protection of
police officers).
However, in the early 1960s, several major changes in American criminal law raised the
issue's importance. First, in 1961, the Supreme Court ruled in Mapp v. Ohio that the Fourth
Amendment's exclusionary rule applied to the U.S. states as well as the federal government.
Then, in 1966, the Supreme Court ruled in Miranda v. Arizona that the Fifth Amendment
requires courts to exclude confessions that law enforcement obtains without first giving legal
warnings. The "stop-and-frisk" practice became a popular topic in law reviews, and a number of
prominent articles were written on the subject. Several cases forced state supreme courts to
address the practice more directly, such as the Supreme Court of California's 1963 decision in
People v. Mickelson. Finally, in 1968, the U.S. Supreme Court addressed the issue in Terry.
The Terry case involved an incident that occurred on October 31, 1963, in Cleveland,
Ohio. Policeman Martin
McFadden was on duty in downtown Cleveland and noticed two men standing on a street
corner. He watched one of the men, John W. Terry, walk down the street, stop in front of a
certain store, look through its window, then briefly continue on before turning around and
returning to the original street corner, stopping to look in the store window again on his way
back. The other man, Richard Chilton, then did the same route. McFadden watched the pair
repeat this routine about a dozen times, then a third man joined them and the three walked up the
street together toward the store. McFadden suspected that the men were "casing" the store in
preparation for robbing it, so he followed and confronted them. He asked the men's names, then
patted down Terry's and Chilton's exterior clothing and discovered that they both had pistols in
their jacket pockets.
After discovering the pistols, McFadden arrested Terry and Chilton, and they were both
charged with illegally carrying concealed weapons. At trial, Terry's lawyer made a motion to
suppress the evidence of the discovered pistol, arguing that the "frisk" by which McFadden had
discovered it was a violation of the Fourth
Amendment, and so per the exclusionary rule the pistol should be excluded from
evidence. The trial judge denied his motion on the basis that the "stop-and-frisk" was generally
presumed legal, and Terry was convicted. He appealed to the Ohio District Court of Appeals,
which affirmed his conviction, then appealed to the Supreme
Court of Ohio, which dismissed his appeal. He then appealed to the U.S. Supreme Court,
which agreed to hear his case and granted certiorari.
On June 10, 1968, the Supreme Court issued an 8–1 decision against Terry that upheld
the constitutionality of the "stop and-frisk" procedure as long as the police officer performing it
has a "reasonable suspicion" that the targeted person is about to commit a crime, has committed a
crime, or is committing a crime, and may be "armed and presently dangerous". Suspicion in itself
is not a crime.
Eight justices formed the majority and joined an opinion written by Chief Justice Earl
Warren. The Court began by stating that, contrary to Ohio's arguments, policeman McFadden's
stopping, questioning, and frisking of Terry and Chilton constituted actual "searches" and
"seizures" under the Fourth Amendment. However, in a major move, the Court ruled that the
Fourth Amendment "searches" and "seizures" that occurred during a "stop-and-frisk" were so
"limited" and "brief" that they did not require the police to have probable cause beforehand.[9]
Reasoning that police officers' need to protect themselves outweighed the limited intrusions
involved, the Court ruled that officers could "stop and frisk" a person if they had "reasonable
suspicion" that crime was afoot, and did not need the higher level of "probable cause".[10] The
Court defined this new, lesser standard of "reasonable suspicion" as being less than
"probable cause" but more than just a hunch, stating that "the police officer must be able
to point to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant [the] intrusion.
The Court stated that this "reasonable suspicion" standard must apply to both the initial
stop and the frisk. First, it stated that a police officer must have reasonable suspicion to stop a
suspect in the first place. Second, it held that an officer could then "frisk" a stopped suspect if he
or she had reasonable suspicion that the suspect was armed and dangerous, or if, in the officer's
experience, the suspected criminal activity was of a type that was
"likely" to involve weapons. The officer's "frisk" could only be for the sole purpose of
ensuring the suspect was not armed, and so had to be limited to a pat-down of the suspect's outer
clothing.
The Court then applied these legal principles to McFadden's actions with Terry and found
that they comported with the "reasonable suspicion" standard. McFadden had years of experience
as a policeman, and was able to articulate the observations that led him to suspect that Terry and
the other men were preparing to rob the store. Since McFadden reasonably suspected that the
men were preparing for armed robbery, he reasonably suspected that Terry was armed, and so his
frisk of Terry's clothing was permissible and did not violate Terry's Fourth Amendment rights.
The Court ended its opinion by framing the issue very narrowly, saying the question it
was answering was "whether it is always unreasonable for a policeman to seize a person and
subject him to a limited search for weapons unless there is probable cause for an arrest."[14] In
answer to this limited question, the Court said it was not. It ruled that when an American
policeman observes "unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is dealing may
be armed and presently dangerous", it is not a violation of the
Daubert Case
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), is a United States
Supreme Court case determining the standard for admitting expert testimony in federal courts.
The Daubert Court held that the enactment of the Federal Rules of Evidence implicitly
overturned the Frye standard; the standard that the Court articulated is referred to as the Daubert
standard.
Jason Daubert and Eric Schuller had been born with serious birth defects. They and their
parents sued Merrell Dow Pharmaceuticals Inc., a subsidiary of Dow Chemical Company, in a
California District Court, claiming that the drug Bendectin had caused the birth defects. Merrell
Dow moved the case to federal court, and then moved for summary judgment because their
expert submitted documents showing that no published scientific study demonstrated a link
between Bendectin and birth defects. Daubert and Schuller submitted expert evidence of their
own that suggested that Bendectin could cause birth defects. Daubert and Schuller's evidence,
however, was based on in vitro and in vivo animal studies, pharmacological studies, and
reanalysis of other published studies, and these methodologies had not yet gained acceptance
within the general scientific community.
The district court granted summary judgment for Merrell Dow, and Daubert and Schuller
appealed to the Ninth Circuit. The Ninth Circuit found the district court correctly granted
summary judgment because the plaintiffs' proffered evidence had not yet been accepted as a
reliable technique by scientists who had had an opportunity to scrutinize and verify the methods
used by those scientists. Furthermore, the Ninth Circuit was skeptical of the fact that the
plaintiffs' evidence appeared to be generated in preparation for litigation. Without their proffered
evidence, the Ninth Circuit doubted that the plaintiffs could prove at a trial that the Bendectin
had, in fact, caused the birth defects about which they were complaining.
Frye Case
On November 25, 1920, almost a year after John Larson had joined the Berkeley Police
Department and a few months before he had read William Marston's article on lie detection, a
young black man named James Frye shot and killed a wealthy physician, also black, in
Washington, D.C. The victim, Dr. Robert W. Brown, was murdered in his office at about 8:45 in
the evening. Another physician was in the office and witnessed the shooting. Frye ran out of the
office with the eyewitness running after him. The chase ended abruptly however when Frye took
a couple of shots at his pursuer. Since the witness didn't know Frye, the police had no idea who
had committed the crime.
Seven months later, Frye committed an armed robbery which led to his arrest on August
21, 1921. The police questioned him about the robbery and he confessed to it and to the murder
of Doctor Brown.
From this point on, the facts of the Frye Case, as evolved over the years, have become
more myth than reality. In 1981, a law professor at George Washington University named James
E. Starrs set the record straight when he presented a paper about the Frye Case at the annual
meeting of the American Academy of Forensic Sciences.2 According to the Frye myth, and the
popularly accepted version of the case, Frye confessed on the advice of a friend who told him he
would get part of the reward put up by the victim's family if he took the blame for the killing.
Frye later repudiated his confession, as the story goes, when he learned that he had been duped.
It was at this point his attorney brought William Marston into the case to test his honesty.
Continuing with the popular version of the case, the results of Marston's lie detection test
indicated Frye had told the truth when he denied killing the doctor. But the trial court refused to
admit Marston's lie detection evidence, so Frye was convicted and sentenced to life in prison.
According to the myth, the friend who had talked Frye into confessing later admitted killing the
physician. As a result, Frye was freed after living three years behind bars.
The above account not only makes a good story, it sheds favorable light on scientific lie
detection. If the trial judge had been more open minded, an innocent man would not have been
convicted.
According to Professor Starrs, however, the above version of the Frye Case is grossly
inaccurate. What really happened was that Frye took back his confession when his court
appointed attorney, Richard V. Mattingly, told him to. By the time the case went to trial, Frye
had come up with an alibi. He said he'd been visiting a woman named Essie Watson.
In his book, The Lie Detector Test, Marston states that he was called into the case by
Mattingly a few weeks before the trial because the attorney couldn't find any witnesses to
support Frye's alibi. Marston went to the jail on June 10, 1922 to give Frye his systolic blood
pressure test, a primitive method that involved nothing more than a standard medical blood
pressure cuff and a physician's stethoscope. After each question put to Frye, Marston simply took
his blood pressure. Compared to Larson's polygraph that at the time was a year old, Marston's
test was crude and unreliable.
After Marston had administered his test, he was convinced of Frye's innocence. He wrote:
“No one could have been more surprised than myself to find that Frye's final story of innocence
was entirely truthful! His confession to the Brown Murder was a lie from start to finish.”3
The murder trial began on July 17, 1922 in a Washington, D.C. court before Judge
William McCoy. The defense was based upon Frye's alibi witnesses and Marston's lie detection
test. When the defense attorney tried to put Marston on the stand so he could explain his lie
detection test results, Judge McCoy objected. The judge also denied the lawyer's request to allow
Marston to give an open court demonstration.
The trial lasted four days, and without the lie detection evidence, Frye didn't have much
of a defense. According to Marston, someone had frightened off his alibi witnesses. Frye
therefore had no choice but to take the stand and testify on his own behalf.
Despite the fact Judge McCoy had made a decision that would become an important and
historical legal precedent, his ruling did not affect Frye as one would expect. Since the argument
over the admissibility of Marston's test was conducted in front of the jury, the jurors knew that
Marston's procedure had corroborated Frye's claim of innocence.
The jury deliberated three hours then returned with a verdict of guilty. But instead of
finding Frye guilty of first degree murder, a crime that called for the death penalty, they found
him guilty of murder in the second degree, an offense that brought a life sentence. As Marston
put it: “As far as James Frye was concerned, the test undoubtedly saved his life. No jury could
help being influenced by the knowledge that Frye’s story had been proved truthful by the lie
detector.”
The irony of the Frye Case can be summed up as follows: A guilty man's life was saved
by the erroneous results of a lie detector test that had been ruled inadmissible because of its
scientific unreliability.
The influence the lie detector had on the Frye jury was exactly the type of thing Judge
McCoy was trying to avoid. If lie detection results were offered by the prosecution as evidence
of an innocent man's guilt, the results could be disastrous.
Richard Mattingly appealed Fry's conviction on the grounds Judge McCoy had erred in
excluding Marston's test. Marston, himself a lawyer, followed the case closely. In a letter to John
Larson he mentioned that he had read in the newspaper that Larson had gotten the polygraph
evidence into court. “If this is so,” he wrote, “will you not give me details and citation, if
possible, to help us in the Frye Case? We are after a Supreme Court precedent in that case, and
are carrying it up, after conviction of second-degree murder, squarely on the deception test
exception, as you may have noted.”
Larson replied a few weeks later: “I wish to say that the papers were mistaken, for no
attempt has yet been made to introduce our deception records into court. I might add that the
chief reason has been that we have not been invited to do so.” Later in his letter, Larson made a
statement that must have unsettled Marston a bit: “Whenever I can find time to write up the
cases, I will send copies of the records of all types of cases and of individuals who have lied
without any appreciable change of blood pressure, as well as those who have shown extreme
changes.”6
In 1923, the Circuit Court of Appeals in the District of Columbia upheld Judge McCoy's
exclusion of Marston's lie detection results. Judge Van Orsdel wrote the appellate court's opinion
which established a test for the admission of expert testimony based upon new scientific
principles, a standard that is used by the courts today. The portion of the Frye opinion most
courts cite when denying the introduction of evidence, they don't like, including polygraph
evidence, is:
Just when a scientific principle or discovery crosses the line between the experimental
and demonstrative stages is difficult to define. Somewhere in this twilight zone the evidential
force of the principle must be reorganized, and while courts will go a long way in admitting
expert testimony deduced from a well-recognized scientific principle or discovery, the thing
from which the deduction is made must be sufficiently established to have general acceptance in
the particular field in which it belongs.
We think the systolic blood pressure deception test has not gained such standing and
scientific recognition among physiological and psychological authorities as would justify the
courts in admitting expert testimony deduced from the discovery, development, and experiments
thus far made.
Although Judge Van Orsdel set a general standard for the admission of new scientific
evidence, his opinion doesn't indicate exactly what he objected to in Marston's lie detection
procedure. It is not clear whether the judge questioned the principle that lying causing changes in
a person's blood pressure or if he objected to Marston's systolic blood pressure test as a method
of gathering and recording data for interpretation. He may have rejected both the scientific
principle behind Marston’s test and the technique itself.
If the Frye court's rejection primarily involved the lie detection technique rather than the
scientific principle behind it, then it was Marston's systolic blood pressure evidence, not Larson's
polygraph that was being ruled inadmissible in the Frye Case. If so, it could be argued that the
Frye decision has been inappropriately cited all of these years as precedent for the exclusion of
polygraph evidence.
It's interesting to speculate on what would have happened if Judge McCoy had been
confronted with the polygraph instead of Marston's procedure. In all probability the result would
have been the same. In Larson's case, however, the defense may not have pushed to get the
results into court since Larson's results probably would have shown that Frye was lying.
At any rate, it is clear that Marston, in attempting to get his evidence into court, had
jumped the gun, and in so doing, had forced the court to reject scientific lie detection. As a result,
a legal precedent was established that has haunted the polygraph field for over sixty years.
As for James Frye, he was paroled from the District of Columbia Prison at Lorton,
Virginia on June 17, 1939. He had served eighteen years in prison. Frye died in 1953 at the age
of fifty-eight. If it hadn't been for William Marston, he may have died a lot sooner.
CHAPTER 3
SCENE OF THE CRIME OPERATION