Process: Investigation and Arrest

  The question of your innocence or guilt, the level of seriousness of the charges that may be brought against you, or whether or not you will spend time in prison, is in all practicality determined during the investigation and arresting process. All the players, at every further step of legal procedure: prosecutor, judge, even your defense counsel (if you have one) presume that if you have reached the point of arrest, you are likely guilty, if not of the specific charge, then of something else that brought you to the attention of the police. All the rest is just process and conflict resolution, a war between lawyers, the spoils of which are salary, prestige, and careers, and in which you have become an unwilling pawn. Law enforcement is a numbers game: to justify their existence, they do not have to show that they are actually making streets safer, they just have to show that they are getting convictions and putting people in jail. Those are two very different things, analogous to the body counts that were being touted during the Viet Nam war: the numbers didn't show that we were achieving our objectives, only that we were inflicting plenty of collateral damage.

   And that is why it is so important to understand what goes on during the investigation and arrest procedure, to understand what police can and can't do, and, to whatever degree possible, to control your responses and actions to minimize the damage at the point of arrest, rather than trying to clean up the mess later.

Overview

   The founding fathers, when designing the constitution, and laying out the basis for the new nation made no mention of a police force, nor any mention of law enforcement at all, save the presidents power to prosecute treason and sedition. Although the legislature is charged with drafting laws and codes, you will find no bill or article establishing a working professional police force. The police are an executive creation, put into place by governors, mayors, or town councils,  by order and decree, not representative consent. I will get into the history and development of the police in a later chapter, but the short form is that the police are a relatively new phenomenon, developed in the mid 1800's, mostly as a method of controlling large scale urban and ethnic riots in New York, Boston and Philidelphia. With the spread of labor and union actions in the early 20th century, police forces, as well as their powers, were expanded, with few checks and balances (that didn't come until the 1960s). Since most of the early rioting involved immigrant minorities, or working class laborers, police were, (and remain), a mechanism for the preservation of the white, protestant (Irish Catholics were knee-deep among the rioters)  elite and business interests. Though the effect is more subtle today, and the monied classes have broadened somewhat ethnically, the basic mission has changed little: protect the interests of the haves against the aspirations of the have-nots. While police roles have expanded to include crime-fighting and code enforcement, their core function overall has remained the same.

   Rules and policies governing police procedures are not  developed by federal or state legislatures. They are only promulgated through the court system, through a series of test case rulings and constitutional challenges, and even then, until the advent of the Warren Court, the judiciary was reluctant to interfere with state police powers (with a few exceptions). And until the 60s,, the guarantees enshrined in the Constitution were not extended to state procedure. That's right, the bill of rights, adopted in 1797, didn't apply to what happened in the states for nearly 200 years. And since most crimes are prosecuted by the states, nearly all criminal procedure in the United States of America was determined by the dictates of the ruling class and it's representatives: big city bosses, governors, good-ol'-boy sheriffs, and local potentates.

   Before the mid 19th century, there were, in effect, no organized police. Communities depended on volunteer constables, town criers, and in a few places, a sheriff and a magistrate, serving part time. When becoming aware of a crime, volunteers were expected to raise a "hue and cry", to which citizens were expected to respond. If a criminal needed to be apprehended, a 'posse' was formed, and f a citizen wished to prosecute a person who had wronged him, he bore the responsibility of investigating and developing the case, as well as all expenses involved in  pressing his charge.

   This is not a history book, but it is impossible to understand the climate we live in today without a basic understanding of the evolution of rulings regarding police procedure. Until the Warren court, there were few attempts to rain in the abuses of police forces, which functioned like private armies, appointed by patronage and beholden to the big city bosses that formed them. The

Wickersham Committee, appointed by Herbert Hoover originally to gauge the success of prohibition, was so appalled by what it learned about police abuse that it expanded it's inquiry to include an examination of tactics and procedures, and and issued a scathing report on law enforcement excesses, describing them as "legitimized torture". The American Bar Association, conducting a concurrent investigation, reached the same conclusions. Such abuses, they said were not isolated incidents, but were systemic, encouraged and employed  ..."everywhere in the United States". Police Departments and their overlords across the country yawned.

   Then, on the heels of major civil rights decisions such as Brown v. Board of Education ( 1954) and Boynton v. Virginia (1960),  the Supreme Court, under the leadership of Chief Justice Earl Warren, had had enough. Warren, a republican former prosecutor and no stranger to police procedure, orchestrated a series of rulings that encoded standards for the protection of rights guarenteed in the constitution, clearly defined what does and does not constitute evidence, and more importantly, under the aegis of the 14th amendment, extended them to encompass the staes, eliminating their claimed immunity from federal constitutional scrutiny..

   By what method, Warren asked, is the public to be protected from the excesses and injustices resulting from police abuse. Warren and the court determined that the best way to reign in the police was to take from them the 'profit' gained from their actions, by 'excluding' in court any evidence, testimony, or conclusions obtained by unconstitutional methods, the "fruit of the poisoned tree". By referring to protections enshrined in the Bill of Rights, particularly the 4rth, 5th, 6th, and 14th amendments, the court issued a series of rulings that together established what came to be known as the "Exclusionary Rule", If police couldn't establish guilt by constitutional means and proper development of evidence, they would not be allowed to use the 'tainted' results during prosecution. The court did not invent exclusion. As early as 1914, in Weeks v. USA, the court struck down evidence produced by a US Marshalls search that turned up evidence that Weeks had participated in an illegal lottery.  But this was a federal case, and even then the court later ruled that states were free to ignore Weeks (Wolf v Colorado, 1949).  Other Court decisions hinted at exclusion, (Turning v. New Jersey, 1908, Powell v. Alabama, 1932), but it wasn't until 45 years later that the Court overcame it's reluctance to inject itself into stae business.

   Then the court set in to outline the details, broadening and expanding the scope of constitutional protections and extending such federal protections to the states. These rulings eventually evolved into the standards of police conduct that, theoretically, we are supposed to be operating under today. 

   Some key Warren Court decisions:

   Mapp v. Ohio (1961) 367 US 643 : In this seminal case, three Cleveland policemen burst into the home of Dolly Mapp and conducted a thorough but warrantless search that produced "obscene" materials. The Warren Court used this case to disallow evidence obtained without a proper search warrant, but more importantly, to establish that constitutional protections applied across the nation; that states could not over-ride protections guaranteed in the bill of rights, and that exclusion would be the price paid for violating citizens rights.

   Griffen v. California (1965) 380 US 609 : Griffen was charged with murder, and the strategic decision was made for him not to take the witness stand. The prosecutor and the judge used his reluctance to testify against himself to draw inferences of guilt for the jury. Although the 5th Amendment clearly states that a person is not required to testify against himself, several states had encoded into law that  such a refusal could be used as a presumption of guilt. In Griffen, the court banned the process nationwide.

   Miranda v. Arizona (1966) 384 US 436 : In possibly the most famous court decision of all time, Ernest Miranda was arrested and convicted of rape. Judges found that police used a battery of coercive techniques and tricks to extract a confession from him, all specifically prescribed in police manuals, which Warren liberally quoted from during the proceedings. The court had had enough, and determined that the only way that a suspect could be protected from such tactics was by having a lawyer in the room with him: "It is just as important for a person to receive legal counsel during pre-trial activity, as it is during the trial itself". This led to the ubiquitous Miranda rights that police are required to read to a suspect before he is interviewed and that everybody is so familiar with: "You have the right to remain silent, if you give up the right to remain silent, anything you say can and will be held against you in a court of law. You have the right to have an attorney present during questioning, if you cannot afford an attorney, one will be provided for you..." The passing of Miranda was met with howls of disapproval from police and law enforcement types, saying it would end confessions and police questioning entirely. Curiously, confession rates did not change markedly from before Miranda. Police (and later courts) have found numerous ways of getting around Miranda, as we shall see later on. In an ironic sidebar, Miranda was killed in 1974 in a bar fight. Police dutifully read the killer his Miranda rights as they were hauling him away.

   Gideon v. Wainwright (1963) 372 US 335 - another very famous and important case, the inspiring story is immortalized in the book and movie, "Gideon's Trumpet", by  Anthony Lewis. Gideon was an indigent pauper who was accused of breaking and entering a pool hall. When he asked for counsel, the State of Florida, citing it's statutes, told him he had no such right. Gideon, loudly proclaiming his innocence, was convicted, and filed his own appeal, hand written on  jailhouse stationary, utilizing the meager resources of the prison library. His rag-tag appeal eventually reached the Supreme  Court, where future justice Abe Fortas took up his case, and his conviction was overturned. More importantly, the Court overturned it's own precedent and ruled that "Lawyers are not luxuries, but necessities...that a fair trial cannot be realized if a poor man has to face his accusers without counsel to assist him". This ruling extended nationwide the right to counsel, and led to the establishment of  the office of the Public Defender to provide counsel to indigent defendants.

   Katz v. US, (1967) 389 US 347 -  Explaining that "the 4th Amendment protects people, not places", the Court ruled that law enforcement could not intrude where a person had "a reasonable expectation of privacy", and thus established limits to wiretapping and electronic eavesdropping. Police had placed a microphone in a public phone booth that Katz was using.

    Mallory v. United States (1957) The Court reaffirmed the earlier McNabb v. United States (1943) ruling that barred confessions obtained after lengthy interrogation sessions. In McNabb, several men had confessed to a klling after three days of questioning without food,:in Mallory, the same situation involved an eighteen hour detention. The court affirmed the right to a speedy arraignment and extended this requirement to the states.

   Massiah v. US (1964) 377 US 201 -  Massiah was convicted on evidence obtained by an undercover informant after he had engaged a lawyer. The Court ruled that this violated his right to counsel. Later cases affirmed the principle that the right to counsel applied even during questioning by an undercover agent, or hearsay from jailhouse snitches. Massiah was severely limited in 1990 (Illinois v. Perkins) when the Court ruled that such protections applied only after indictment.

   Malloy v. Hogan (1967) 378 US - Malloy, on probation after serving three months on a gamblin charge, was asked to testify at in inquiry into illegal gambling operations. He refused, saying that such testimony might incriminate him in other crimes. He was thrown back into prison, even though no new charge had been brought against him, or any violation of probation occurred. Judges reaffirmed his 5th amendment rights, but extended these protections to the states, under th 14th amendment.

   Aguilar v. Texas (1964), strengthened the probable cause doctrine. The Court ruled that a warrant could not be issued based on a tip from an unnamed source, and required police to provide specific information and independent verification of the information before a warrant could be issued. This was re-affirmed in Spinelli v. US (1969), but the standard was later struck down in Illinois v. Gates (1983) which allowed warrants to be issued on reasonable suspicion based on the polices' expertise and experience.
   Duncan v. Louisiana (1968), Until this decision, a trial by jury was not a guarenteed right in state criminal proceedings. As a matter of fact, the court had ruled, in Maxwell v. Dowd, (1900), that "Trial by jury has never been affirmed to be a necessary requisite of due process of law". Duncan was convicted of battery and sentenced to two years without a jury trial. The Warren Court, stating that a trial by jury was "fundamental to the American scheme of justice", overturned his conviction. The principle of trial by jury has been steadily whittled away in subsequent rulings, and by the process of plea bargaining (See "The Incredible Shrinking Jury).

   Unfortunately, court decisions have proven surprisingly ineffective in managing police behavior. Beginning with the presidency of Richard Nixon, who ran on a "law and order" campaign, and his Supreme Court appointments,and continuing through the Reagan and Bush I and II regimes, the Court has been steadily chipping away at the Warren reforms, devising exceptions and expanding police powers, as well as systematically protecting police behavior from penalty and scrutiny. In Arizona v. Fulmanante (1991), the court appeared to say that some coerced confessions can be admitted, and in Mack v. Burbine (1987)  the court allowed police to prevent the accused from having his lawyer present during questioning. In todays climate of manufactured fear, and the success of election tactics that call for "law and order, police are essentially free to  do what they please, confident in the protection of the courts, the support of the frightened public, and the manipulation of legalese developed to get around mandated protections. Court decisions and orders are, in the words of author David Swan "like a referee introducing a barroom brawl: the stern warnings about hitting above the waist and taking no cheap shots have nothing to do with the mayhem that follows."

   Though sometimes cases are dismissed because of tainted evidence, this only happens about .5% to 2% of the time. There are several inherent flaws with the idea that exclusion prevents police abuses. One is that most cases are settled by plea bargain, before a hearing on the evidence and how it was obtained even enters the picture. Another is that Judges, often elected on "tough on crime" credentials are extremely reluctant to exclude evidence and subvert police work, often finding technical work-arounds, based on exceptions outlined in post-Warren Court rulings. Excluding evidence doesn't really punish police, it punishes prosecutors, and police are also comfortable in knowing that in any litigation, their version of events is automatically given much more credence then the suspects by juries. Finally, exclusion does not occur until an arrest is actually made, and charges are filed- it does nothing to hinder procedures such as "stop - and - frisk", or tainted evidence included in warrant applications.

   There are other methods of controlling police misbehavior, but these have proved ineffective or impractical. Damage suits against police or prosecutors have little chance of success because jurors tend to favor law enforcement, and courts have repeatedly ruled in favor of immunity from prosecution for those involved in prosecuting crimes. This immunity has expanded over the years. (See the "Du Page Five" case, http://www.nytimes.com/1999/06/05/us/prosecutor-4-sheriff-s-deputies-are-acquitted-wrongfully-accusing-man-murder.html ). Police administrators, facing powerful unions, are unlikely to discipline individual officers, even in the most egregious cases. Grand Juries, a direct arm of the prosecutors office, will, in the venacular, "indict a ham sandwich", but not in cases involving law enforcement, where procedures are changed so drastically that an indictment is rarely obtained, as recent events in Ferguson, Miss, Cleveland, Ohio, and New York city attest. (See Chapter 4, Indictment and Prosecution.)

   Although we will likely never go back to the day when beatings and torture were a routine part of police procedure, it would be a mistake to conclude that they have disappeared altogether. The Area 2 precinct of Chicago  under Jon Burge, was shown to have engaged in systematic torture and abuse of arrestees over a period of twenty-some years, including the use of car batteries attached to genitals, the holding of body parts against a hot radiator, waterboarding, and beatings with, among other things, a typewriter and batons. Hundreds of suspects were unjustly locked up as a result, and Illinois is still paying reparations and releasing inmates, often after long periods of incarceration. And the accused often seem to suffer from extreme clumsiness while in custody: falling down stairs, banging into doors, and the like. Often, within a locked cell, or deep in the heart of a city or county lock-up, they "attempt to escape". At least that is invariably the explanation given for the bruises, lacerations, and broken bones visible on suspects persons.

   Investigation

  Police investigative procedures can be divided roughly into four areas, each with it's own methods and techniques, and each with it's own inherent problems and issues. Their use is carefully orchestrated according to procedures outlined in police manuals, so that exclusionary rules and official administrative policies can be circumvented.

   Search and Seizure: The Fourth Amendment specifically and unequivocally states that "...the right of the people to be secure in their homes, persons, papers and effects from unreasonable searches and seizures shall not be violated". Early Americans and the drafters of the constitution were particularly concerned with the practice of executing "general" warrants: unregulated searches and seizures performed under the license of government sovereignty . In the real world, only about 5% of searches and seizures are performed with the benefit of a "specific" warrant. We are drifting once again ever closer to the practice of the general warrant.

   The Warren Court encoded three requirements on the issuance of warrants: that it be issued by an impartial judge, that it be based on "probable cause", and that it be specific as to what is being searched for, and where the search may be conducted, the "particularity" requirement.  So many exceptions have been carved out of the law by the ensuing Berger and Rehnquist courts, and continuing into the Roberts era, that the constitutional wording has become almost meaningless. Requests for warrants are rarely denied, and even after their issuance, there are numerous exemptions to their required specificity. Evidence encountered outside the warrants guidelines can still be entered into evidence if the police say they were operating "in good faith" and that they "believed" their search was proper. (US v. Leon, 1984) . Needless to say, all officers believe that their searches are proper, or will at least say so in court. Police may enter a house if they reasonably believe that a crime is in the process of being committed, or if they believe that evidence is being destroyed, or that a person inside may be in danger. It doesn't matter afterwards that none of these things may have proven to be the case, it is determined by what the police believed at the time, a subjective and malleable proposition.

   Almost all searches of persons or property outside your home, your car (US v. Chadwick, 1977, California v. Avecedo, 1991, Whren v. US,1996), your luggage (Bostick v. Florida), 1991, your private papers and records (US v. Miller, 1976, Andresen v. Maryland, 1976,) your pockets and person (Terry v. Ohio, 1968, ), even the fluids inside your body (Schmerber v. California, 1966, Skinner v. RLEA,1989, and NTEU v. Von Raab, 1989), are acceptable without a warrant. New Yorks "stop-and-frisk" practice (authorized in Terry v. Ohio, (1968, et al) dispenses entirely with the idea of probable cause and replaces it with mere suspicion, a very open ended license, indeed. Terry, ironically decided by the Warren Court, says that "...where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot" he is entitled to conduct a "reasonable" search. This subjective language opens up wide areas of rationalization, and grants police virtual carte blanche. Police may stop and ask you to present your ID if you are a black man in a white neighborhood (or vice versa), if you are dressed oddly, or are unkempt, or don't appear to be engaged in a productive endeavor, or if you're Hispanic, and in a large group in one car. All these examples have been used and held up in court as legitimate reasons for detention. Since most people don't understand their right to refuse, or more likely, are frightened and intimidated by police authority, they usually comply easily. Technically, unless you are actually placed under arrest, you are free to leave, but few people are aware of this, and even fewer will walk away from an intimidating display from a uniformed police officer. Cops know to make this request in a "tone of command" and this is usually enough to ensure cooperation. This acquiescence encourages law enforcement to continue and even expand this behavior, and every time they do, it further erodes our right to be secure "in our person or effects". Refusal to consent, even a calm assertion of your rights will label you as a "wise guy" or an "asshole" in cop parlance. Police take this as a sign that you feel superior to them, and will single you out for "special" treatment": a more intrusive search, a detention, an arrest, handcuffing, your car towed, a trip to the station and lock-up for "investigation", or in extreme cases, even a beating. Although they will inevitably call it "resisting arrest", you have actually committed a "crime" against police culture: the questioning of authority, the most serious offense of all, and one that is guaranteed to lead to more trouble for you.

   A particularly egregious example: in Florida, armed police boarded a bus leaving the airport and walked up and down the aisles requesting IDs and travel information, as well as to search luggage. and belongings. Since supposedly people are still "free to leave", or free to decline the request,  the Supreme Court ruled that this action did not constitute an unreasonable search.  Few can deny that this is an unconstitutional action: it is a blanket search, executed without probable cause or even reasonable suspicion. Yet how many people would be willing to stand up to armed, intimidating, police officers and draw unwanted attention (and possible retaliation) to themselves  by asserting their constitutional rights in such a situation.

   Roadblocks, purportedly to screen for drunk drivers or drug traffic, do not even require suspicion: they are merely a blanket search of any individual who happens to wander into a designated area. The courts have allowed this (Michigan State Police v. Sitz,1990) and have expanded it in recent years as a method of keeping "undesireables" out of a neighborhood. In actuality, it is nothing more than a fishing expedition, and a method of keeping people aware of police authority: in other words, harassment.

   Since there are so many traffic laws, regulations, and vehicle codes, traffic stops can be effected for any reason whatsoever, (fitting a profile, driving while black, a beater car designating a poor person, or cops just establishing a "presence" in a neighborhood. A warrant less search can then be conducted under an ever-growing list of probable cause rationalizations..

   Wiretapping, and it's modern equivalent, electronic eavesdropping are certainly a form of search and seizure. Although there were many restrictions on the practice at one time (Katz v. US, Berger v. US, 1967), prosecutors merely rewrote the statutes to circumvent these prohibitions. And the anti-terrorism legislation passed in the wake of 9-11, the so called "Patriot Act" completely blew a hole in them. Since cell phones utilize the public airwaves, people can have "no real expectation of privacy" by using them. And the communications companies, beholden to the government for their licenses and permissions, have few qualms about collecting and storing your data on the off chance that you may be a future target of a criminal investigation. All the service providers store cell tower records, text message detail, text message content, IP session information, IP destination information and billing copies for varying lengths of tim. Although they are private companies, and your search and seizure protections don't apply to them, those protections are jeopardized when law enforcement demands access, and using Miller and Andresen as a basis, they are allowed to demand such access. More recent cases such asACLU v. NSA (2006), Clapper v. Amnesty (2013) have upheld, for various reasons, the constitutionality of the gathering and access to private personal communication without a warrant.  Although there has been some blowback from the public and civil rights organizations, the courts have been somewhat ambiguous so far as this area of law has evolved. In the breach, law enforcement is probing and testing to see what can be gotten away with.

   Your phone or laptop., of course, is a portable tracking and eavesdropping device, and it is monitoring you all the time, even if you shut it off. Only by removing the battery can you disable this "feature". And in many phones, the battery cannot be removed.  Edward Snowden exposed that under the NSA's "Boundless Information" program the US government had collected and stored the phone records of several billion United States citizens, with the full co-operation of Verizon. When a copy of the secret court order allowing such collection was exposed and published for all to see, any pretense of checks and balances, and proper procedure and over sight became ludicrous.  Snowden also revealed the existence of the PRISM program: the massive collection of user data through Apple, Google, Microsoft and others that have monitored private internet activity since 2007. "Private emails, cell phone calls, and Internet searches, as well as all types of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital 'pocket litter' is stored on massive servers at the Utah Data Center, or as it is known in government speak, the "Intelilgence Community Comprehensive National Cybersecurity Initiative Data Center" at Camp Williems, near Bluffdale, Utah. In documents exposed by my son, Jeremy Hammond, working for the Antisec arm of the hacker group Anonymous, it was revealed that government contractors such as Strategic Forecasting engages in more targeted investigation of groups and individuals of interest to the government. In these cases, material is seized and stored on the chance that it may someday prove to be evidence. All without a warrant, probable cause, or even suspicion.

 Most of us have seen what Mapquest and Google Maps can do. Satellite imaging can look right in your bedroom window, and there is no court ruling as of yet that can prevent law enforcement from doing so. There is no real need for the police to physically walk down your street and peek in windows when it can be done digitally from outer space. Ariel surveillance, drones, can fly over property to gather evidence: the courts have specifically said that a homeowner can have no expectation of privacy beneath public airspace. (Florida v. Reilly, 1989).  And again, there has been some backlash since the Snowden/Hammond/Manning revelations, but the idea that these practices will stop just because there is a public outcry can only be embraced by someone who has no grasp of the history of governments.  If it can be done, they will do it, they just will be more circumspect in how it's done..

   In Maryland v. King (2013), the court ratified the practice of the collection of DNA and blood samples from those who have been merely arrested, as opposed to those who have been convicted. Most states now allow the practice, indeed, such testing is expanding further into workplace environments, schools, and hospitals, with the intent being to establish a national DNA data base. 

   Interrogation: Court rulings as early as 1884 ruled that confessions must be voluntary, and that requirement was extended to the states in 1936. But it wasn't until 1966 that Court tired of dealing with cases of coerced confession and decreed that a suspect had the right to have an attorney present to protect suspects from abuse, and to ensure that proper interrogation practices are followed. The fabled Miranda decision (Miranda v. Arizona, 1966) as well as other decisions (Malloy v. Hogan, Escobedo v. Illinois, and Massiah v. US, all in 1964) spawned dire predictions about end of police interrogation entirely, but in reality, it has merely made police refine their psychological interrogative techniques, and create carefully framed methods that would be acceptable to the increasingly friendly courts. These rulings have actually done little to curtail abusive, coercive, and deceptive methods of questioning. Many of the methods specifically criticized in Miranda still appear in police training manuals today: exaggeration and falsification of evidence, fabricating witness testimony, long periods of detention, tag -team interviews, (where defendants face a rotating series of interviewers of a period of hours), withholding of food, water and bathroom breaks, confinement in extremely cold, or extremely hot rooms, in short, psychological abuse and trickery has replaced physical abuse (During the Miranda proceedings, Warren took the unusual step of actually reading excerpts from police manuals and textbooks into the record). In a previous post, I described the well-known case of Henry Lee Lucas, arguably Americas most famous "serial killer". Through a combination of psychological pressure, suggestion, and enticements, police soon had Lucas confessing to anything that put in front of him. He eventually confessed to over 3,000 killings, even though it was physically impossible for him to have committed the crimes. By all appearances, Lucas likely didn't kill anybody. But Texas police were able to (temporarily) clear their books of hundreds of cases. This shows where priorities lie: in numbers, conviction rates, and body counts, not in justice or public safety. A coerced confession deals society a double blow: not only is an innocent person put in jail, a guilty, and possibly dangerous person remains free. And if police are to fabricate evidence and testimony to secure confessions, what is to prevent that evidence from being inserted into the official record, (accidentally or intentionally), or to prevent police from falsifying evidence in a trial. If anything is allowed in the name putting bad guys away during pre-trial procedure, why should the same rationale not apply during court proceedings?

  The use of a polygraph machine is so unreliable that it's results can't even be allowed in court. Curiously, it's use was banned because the government didn't want a defendants exculpatory test to be admitted.  (US v. Scheffer,1998). Yet that does not seem to prevent it's extensive use as a device to trick a suspect into a false confession during the investigativephase by misrepresenting results to the suspect.

   Identification: Like polygraph tests, eyewitness testimony likewise has been repeatedly shown to be unreliable, yet because an eyewitness identification in a trial has such a persuasive effect on jurors,( often outweighing overwhelming evidence of innocence presented by the defense) police will go to extraordinary lengths to obtain corroboration from a person who may have been at the scene of the crime. Memories are notoriously corruptible by data absorbed between the witnessing of an event, and the describing of it, especially if the original experience was during a time of stress. This is well documented. Hundreds of studies have been done using simple tests that document this fact (Bekerian, D.A.. and Bowers, J.M., Journal of Experimental Psychology, Jan. 1983, Wells, G.L., and Olsen, E.A., Annual Review of Psychology, 2003, to name just two) Facial recognition begins to deteriorate at as little as 10 feet. (Loftus,Psychonomic Bulleten and Review, Vol. 12, #1). Length of time between incident and identification can blur memories, and ethnic and cultural differences often play a role in identifying  differences in individuals: people have trouble identifying individual characteristics in members of a different race. In the very first 130 cases where DNA evidence exonerated wrongfully convicted suspects, 78 were originally convicted by erroneous eyewitness testimony. (NY Innocence Project). 

   If a witnesses identification of a suspect in a line up can be shown to have been "suggested" by police (for example, by ensuring that the suspect stands out like a "sore thumb" from the other participants, hinting or directing attention to the suspect, or utilizing a "show-up"- a one man line-up) than the court may apply the exclusionary rule and disallow the witness' appearance in court. (Neal v. Biggers, 1972). But if an eyewitness can get past this barrier and directly point out a suspect, often that's all a prosecutor needs.

   Although the Warren Court ruled in Wade v. US (1967) that a suspect had the right to have an attorney present during identification procedures, to insure this type of suggestion doesn't occur, this right was substantially scaled back five years later in Kirby v. Illinois (1972). Now an attorney may only be present after charges are formally entered. Witness IDs rarely occur except during the investigative phase.

   DNA evidence, or any other forensic identification procedures using bodily fluids, markers are sometimes tainted by chain of custody and expert interpretation issues. While inherently more reliable than eyewitness testimony, they run into constitutional search and seizure, as well as privacy, concerns, though none of these arguments have proven very successful in court. DNA evidence is extremely problematic for law enforcement, as it highlights the unreliability of other forms of identification, as the Supreme Court has noted in Daubert v. Merrel Dow Pharmaceuticals (1993), so body tissue collection can be a two-edged sword. They'd like to have it because it's pretty conclusive, but if they don't have it, their other evidence is suspect.

   Undercover Operations: Unlike search and seizure, interrogation, and identification procedures, there are little to no restrictions on evidence obtained via clandestine or undercover operations. The courts have said that citizens assume the risk that their activities may be reported by their fellow citizens. This includes the use of informants or prison snitches, a process that is rife with possibilities for corruption and perjured testimony. Often the person who is offering information to the police is accepting something in trade for his testimony: favorable treatment, a lessening of charges he may be facing, even straight cash. Because such informants are confidential, judges have a hard time determining if they are reliable, or even if they exist at all: police will sometimes manufacture such a person, especially during the investigative stage,or during interrogation proceedings, where they will tell a suspect that they have a witness who will testify against them, so they may as well come clean. It is difficult for the courts to make an exclusionary decision in these cases, and so they will usually err on the side of the police.

   Efforts to claim that admissions of guilt obtained by police disguised as civilians are violations of 5th amendment rights against self-incrimination, or 6th amendment rights prescribing the presence of counsel during questioning, or a violation of the Miranda requirements, get hung up on the stricter interpretation of the Massiah ruling that such questioning is only proscribed after charges have been filed, (Illinois v. Perkins, 1990) and have gone nowhere in recent court challenges.

   Claims that undercover police enticed a suspect into committing a crime that he was not pre-disposed to commit, or "entrapment" , while technically not admissible under Sherman v. US, (1958), often fail on the evidence of a previous criminal record, or an association with others involved in similar criminal activities, circumstances that show pre-disposition. In one case, agents set up an entire meth lab, furnished the equipment, provided the materials, and instructed the suspect in every aspect of manufacturing and distributing the drug, and his conviction was still upheld. In another, an agent offered sex in order to persuade a suspect to obtain drugs for her, in still another, a suspect was asked to make purchases with stolen credit cards, instructed in the use of the cards, provided with the cards, and arrested when he used the cards. Upheld every one.

   Other, newer approaches to crime prevention each have their own issues. Community policing, that is, engaging the citizenry in co-operation with police operations, encourages the settling of personal vendettas by utilizing anonymous and unverifiable reports, as well as circumventing the right of facing your accuser. An anonymous phone call is enough to clear the benchmark of suspicion, and trigger investigations, searches, and even detention. New, carefully crafted loitering laws make it a violation to be just hanging out - as if one must always be engaged in productive activity just to be outside, or in a neighborhood. These and all the myriad of laws, statutes and regulations that clutter the criminal codes give police a predicate to detain or arrest someone if they choose, and to establish the legal backing and protection that enables their actions. 

    While the police are going through all their machinations to get you put away, their good friends at the States Attorneys office are working in harmony with them to figure out the most effective way to ensure that you become another notch in their gun. In the next chapter, I will describe the process and problems of bringing an indictment.

   Next: Process: Indictment and Prosecution