PROFESSOR EANG NGOV
CRIMINAL PROCEDURE
5206 SECTIONS LA & LB
SPRING 2022
Please see the course information, announcements, study aids, etc.
posted on the course Canvas page. You have automatic access if you are
enrolled in the course.
Office: Faculty Building
Phone: 321-206-5677
Email: ENgov@Barry.edu
Contact Information
Faculty Assistants:
Ms. Lucinda Machado, 321-206-5649
Ms. Katherine Sutcliffe-Lenart, 321-206-5665
Email: LMachado.barry.edu;
ksutcliffe-lenart@barry.edu
Class times:
Section LA: Wed. 12:30-2:00 p.m., Fri. 9:30-11:00 a.m.
Section LB: 11:30 a.m.-1:00p.m. Tues. & Thurs.
Midterm exam: To be determined by administration. (The midterm period is
February).
Final exam: To be determined by administration. (The final exam period is May).
Office hours: Tues. 1:00-2:00 p.m., Wed. 2:00-3:00 p.m.; Thurs. 1:00-4:00 p.m., Fri. 11:00
a.m.-12:00 p.m.
Depending on the development of COVID-19, office hours might be conducted
virtually.
Exam Prep: Students are encouraged to prepare for their final exam well in advance. I
will be available to meet for office hours up to the last day of class. I will be happy to
answer emails that I receive about the course material or exam if they are sent before 72
hours of the exam. Because I share the questions that are asked (senders’ names are
omitted) along with my answers to the entire class so that others may benefit from the
discussion, the 72-hour-deadline is set to allow sufficient time for all students to process
any new information that may arise.
Joint Make Up Classes for Both Sections:
Saturday, January 15, 2022, 11:00 a.m.-2:30 p.m. (We will take a lunch break in between)
Friday, January 28, 2022, 12:00-1:30 p.m.
Required Assignments over Winter Break: Must be completed before the spring
semester begins
1. Read Criminal Procedure in a Nutshell, by Jerold Israel and Wayne LaFave,
published by Thomson West, the newest edition (available for free through the
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law library’s electronic study aids) or the Short and Happy Guide to Criminal
Procedure. Read only the topics related to searches, seizures, interrogation,
identification, exclusionary rule, and 5th and 6th Amendment right to counsel.
(The 8th Amendment, Brady disclosure of exculpatory evidence, and effective
assistance of counsel will not be covered in the course). This will give you a
preview of the course and an advantage by getting the bird’s eye view.
2. Read the first 4 assignments listed in the syllabus.
3. Activate the feature on Canvas that enables you to receive your announcements
posted on Canvas via your email.
Office Hours
I am happy to stay after class to answer additional questions.
If you would like a private conversation, please reserve an appointment for office hours
through https://calendly.com/engov. When you are reserving your appointment, please
indicate how you would like to meet: via a virtual video meeting or by phone. A link to
the virtual office hours can be found when you log into Calendly.
Once an appointment has been reserved, the Calendly system only shows the remaining
available appointment times. Thus, if you do not see any appointment times for a
particular day, it is likely that all the appointments on that day have been reserved.
If you are having difficulty with any material we are covering, it is to your advantage to
meet with me sooner in the semester rather than later. I set aside twenty minutes for
each scheduled appointment, unless you indicate that more or less time is needed. You
are welcome to have joint appointments with others, such as your study group, or an
individual appointment.
Appointments are available 2 weeks in advance.
If you are unable to meet for your appointment, please cancel your appointment and
send me an email so that the appointment time can be made available for others to sign
up.
Office hours will be held throughout the semester, until the last day of class. Please
note that there is a blackout period during the 72 hours before the final exam, in which I
will decline to answer any questions via any medium. I encourage you to begin
studying as early as possible and avoid cramming.
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Canvas
My course management platform is Canvas. I have developed numerous learning tools
for you, and they are accessible on Canvas.
I will post the syllabus, handouts, and additional materials on Canvas. You are
automatically enrolled in Canvas if you are officially enrolled in the course and on the
course roster. Please check with the Registrar’s Office if you have any questions about
your enrollment. Please verify that you can access my Canvas course page as soon as
you can before the semester begins, so that there will be time to resolve any access
issues. Please be mindful that the school closes during the spring break, so you won’t be
able get the assistance needed for technical problems during that time if it an issue that
only the school, rather than Canvas customer support, can address.
Announcements via Canvas: Please modify your Canvas settings to enable you to
receive my announcements through your email. You should check your Clutter (Junk)
folder often in case those announcements that are sent through Canvas get
automatically sent to the Clutter folder by Outlook. If you do not enable Canvas to
email my announcements to you, then it is your responsibility to check the Canvas
course page frequently to look for my announcements. You will be presumed to have
knowledge of any information that I post on the announcements.
Please do not post responses to me via Canvas. If you would like to send me a message,
please email me.
Steps to enable Canvas to email announcements:
Users can set their Canvas profile to receive announcements via email. Log into
Canvas, click on “Account” (on the far left menu), then click on “Notifications.” There
should be a green box highlighting the checkmark next to “Announcements.” If you
need assistance, please contact Professor Louis Rosen at LRosen@barry.edu or Canvas
customer support.
Emails: If I send emails and attachments, I recommend that you save this information.
With the large number of students in my courses, it would be unwieldy for me to
resend documents or emails each time a student misplaces a piece of information. Also,
consider the impression you want to make by asking me to resend information,
especially since you can easily ask a classmate for the information.
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Course Text & Materials
Required Text: CRIMINAL PROCEDURE: INVESTIGATIONS, Erwin Chemerinsky & Laurie
Levenson, Third Edition, 2018, Aspen Publishers. (Substitute ISBN 9781454882992
given by publisher to the bookstore.)
I will not be using Connected Casebook or Connected Quizzing or any add-on features,
so you do NOT need to purchase anything extra other than the textbook itself.
It is expected that all students be prepared for the first day of class, which means
students are expected to have completed the assigned reading. Copies of the textbook
are available on reserve at the library. If you have not purchased your book in time for
the first day of class or forget your book at home during the semester, please make use
of the reserved textbook.
Study aids: There are numerous free study aids available through the law library’s
online resources. I highly encourage students to use these resources to practice taking
multiple choice questions and writing essays. Each product has its benefits, so there is
not one in particular that I would endorse over another. Try them out and see what you
like best—after all, they are free.
Course Description
This 3-credit course covers investigatory criminal procedure, focusing on the law
governing police conduct during the pre-trial investigation of criminal conduct. The
principal topics include search and seizure, interrogation, pretrial identification
procedures, and the exclusionary rule. Because the rules governing pre-trial
investigations derive from the Fourth, Fifth, and Sixth Amendments of the Constitution,
this course examines U.S. Supreme Court cases, which are complex.
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Course Objectives
Recognize and resolve problems involving the legal doctrines covered in this
course.
Analyze and evaluate the strengths and weaknesses of the government’s and
defendant’s position by effectively integrating rules with facts.
Recognize the exceptions to the doctrines and their relevant applications.
Demonstrate knowledge of the doctrines as applied to new facts using the
IRAC structure.
Think critically about the cases, questioning the policy rationale, consistency,
and other weaknesses of the court’s opinion.
Balance the competing interests between protecting individual rights against
protecting the public against criminal activity.
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Learning Outcomes and Assessment Plan
Substantive legal knowledge
By the end of the course, each student should master the skills listed in the course
objectives. Students’ knowledge will be assessed by exam(s), Socratic Method, practice
questions, and Criminal Procedure Jeopardy Games.
Analytical skills
Students must be able to read and analyze penal statutes, rules, and court opinions,
apply those sources of law to a fact pattern to decide the constitutionality of the
government’s action, and effectively communicate their reasoning in writing. Students
are also expected to learn how to orally communicate ideas and solutions to clients,
courts, and colleagues because persuasive speaking is a vital skill in professional
practice. These skills will be assessed by exam(s), the Socratic method, practice
questions, and Criminal Procedure Jeopardy Games.
Professional values
To serve the clients who entrust their money, happiness, and sometimes their lives to
our care, lawyers must act ethically, civilly, and professionally. I expect the same
standard of conduct from students, as attorneys-in-training, that I expect from members
of the bar. Please address and treat your colleagues and the law school staff
respectfully, even when you disagree strongly with their opinions or decisions. When
discussing court decisions, please speak about the court and the litigants respectfully,
even when you dislike or disagree with what they have done. These skills will be
assessed by in class discussions and group work.
Distance Learning: Access, Information, & Policies
Online Student Orientation:
All students are strongly encouraged to visit Barry University’s Online Orientation site
at http://www.barry.edu/online-orientation/.
Technical Assistance and Support:
Barry University has prepared a Student Support Resource Guide for Remote
Learning to assist you with issues that you might have regarding your online learning
experience.
Webex issues: Contact the Barry IT Support Desk at 305-899-3604 (Office Hours Monday – Friday 7:30 am – 6:30 pm) or submit a help desk ticket.
Student Support Line for Canvas Issues (not related to Passwords or Webex)
Student support for Canvas is available 24/7, 365 days a year by calling the Canvas toll
free number at 1-855-976-8669.
Contact Frank Walton Canvas/Technology Support Analyst (305) 981-5190,
fwalton@barry.edu
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Contact Na’arah Smith in the Office of Distance Education at Barry University.
Ms. Na’arah Smith can help you sort out any issues you might have. She is available MF (9:00 am – 5:00 pm), phone 305-899-7471, email nasmith@barry.edu.
Accessibility Resources:
The Office of Accessibility Services provides information, advocacy, and academic
accommodations to students with documented disabilities. To register, call 305-8993488. Students must request assistance first from Barry University’s Office of
Accessibility Services. http://www.barry.edu/disabilityservices/default.htm
Communication Policy:
Students are required to communicate through their Barry email. You should check
your email at least twice a day (depending on how often your other professors
communicate via email and the time of day they typically email). I will not be able to
check emails immediately before class or during office hours.
How to Find the Nutshell and Other Study Aids Through the Online Library
To find the online Nutshells, go to
Weblaw, http://weblaw.barry.edu.ezproxy.barry.edu/
then click the study aids link on the left hand
side, http://eguides.barry.edu/BarryLawLibraryHome
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Tips for the Course
Practice, practice, practice:
I highly encourage you to use study aids for practice questions and that you do practice
questions covering the week’s material at the end of the week--on a weekly basis. If
you wait until midterms to begin doing practice questions, you’re starting too late. You
should do at least 30-40 practice questions for this course at the end of the week and use
practice questions from several study aids so you can exhaust all available practice
questions for the week’s topics. I do not have a favorite study aid that I would
recommend over another for practice questions. The important thing is to practice,
practice, practice.
When you prepare for your midterm and final exams, you should redo those practice
questions so you can recognize the issues more quickly.
You should use each multiple-choice question as an opportunity to write a mini-essay
answer. When you read a multiple-choice question, cover up the answer choices. Then
write an essay answer using the IRAC format. Compare your IRAC essay answer with
the answer and explanations provided in the study aid. This will give you the
opportunity to practice essay writing and multiple-choice test taking skills with each
multiple-choice question.
I have posted on Canvas information for how you can access the free electronic study
aids via the law school’s electronic library.
General Tips on How to Thrive in Law School
You may have heard some of the following tips, but they are worth reiterating. I hope you
find them helpful.
Know Your Learning Style & Adapt to the Professor’s Teaching Style
Professors, as you may have observed from college, use varying styles of teaching. Some may
conduct a class without ever writing on the board, others may use PowerPoint, others may
write heavily on the board, and others use a combination of these techniques. If you are a
visual learner, you will need to adapt to a professor who makes no use of visual aids. You
should take the initiative to create your own flowcharts, tables, or whatever aid that will help
you synthesize the material.
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Relating the Present with Past Material Covered
As the semester progresses, the professor may ask how a specific topic or case relates to
another topic or case learned earlier in the semester. A professor may jump back and forth
between new material and old material. Do not mistake this for disorganization. The
purpose of this is to help students make connections between what was previously covered
with what they are now learning.
Stay Organized
Organization will save you time. Organization will help you learn the material as you go
along. If your professor provides handouts in class, collect them in a binder. If your
professor sends practice questions via email, print those emails and collect them in a binder,
or set up a folder in your email system to organize those messages. This tip may seem like
common sense, but as the semester continues, it may become a struggle to keep up with these
things. Have a system in place from the beginning of the semester.
Professionalism: Imagine Your Professor as a Judge
Law school is a training ground not just for learning the law but also for the practice of the
profession. A basic part of becoming a lawyer is practicing professionalism. If you have
misplaced a handout that was distributed in class, should you ask the professor to email a
copy of the handout to you? If you disagree with a professor’s policy, should you vehemently
object by writing a stinging email? If you disagree with a classmate’s point of view expressed
in class, should you shout insults or roll your eyes?
The answer to these questions is the answer to this question: what kind of impression do
you want to make? While asking a professor to email another copy of the handout to you is
not an obviously outrageous act, consider if a professor has a large class, and several of the
students have similarly asked for another copy of the handout. What effect would this have
on the professor’s time if s/he is responding to numerous emails requesting another copy?
Be considerate of the professor’s time like you would be for a judge’s time. Would you ask a
judge for a copy of an order that s/he has written, but you have lost?
When in doubt, imagine your professor as a judge and the classroom as a courtroom, and it
will guide you in practicing professionalism.
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Getting a Bird’s Eye View
When you begin a new course, you should try to get a sense of the big picture. You will learn
the minutiae and nuances of the law during the course, but if you do not have a bird’s eye
view of the course, it will be challenging to understand where and why the details matter.
For example, in your Criminal Law course, a bird’s eye view would focus on the main
components for determining a defendant’s criminal culpability: (1) the actus reus (the act)
needed for a conviction of each crime; (2) the mens rea (mental state) needed; (3) causation;
and (4) defenses to each crime.
For Criminal Procedure, the approach begins by identifying the type of police action
that is being contested, i.e. actions that might be argued as unconstitutional: search,
seizure, interrogation, or identification. After identifying the police action at issue,
apply the case law to determine if the action is valid. Consider any exceptions to the
rule. Finally, decide if the exclusionary rule applies to exclude any evidence. In some
instances, evidence from an invalid police act may not necessarily lead to exclusion of
the evidence.
If your professor does not introduce the bird’s eye view at the beginning of the semester,
visit your professor during office hours to inquire about the course’s overall structure and
big picture. Also, the textbook is likely to be a good clue of the big picture. You can find the
bird’s eye view through an introductory chapter in your textbook or through looking at the
chapter headings and subheadings in the table of contents.
Outlining
Creating an outline for your course will help you synthesize the material. Your organization
should not revolve around cases. Rather, use the bird’s eye view to set up your outline, with
the main concepts as your topic headings. The cases discussed in class should be integrated
under the appropriate heading. Cases represent doctrines or rules; therefore, use the case
as an illustration of the concept.
Doctrine versus Policy
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In your Criminal Procedure course, as in your other courses, you will discuss both doctrine
and policy. The doctrine is the statement of the existing rule or law while a discussion about
policy may include a discussion of whether the current law is sound, including the rationale
in favor of or against the law and suggested reform.
During the course, your classmates may voice their opinions supporting or criticizing a case
or doctrine. You should not automatically dismiss their comments as superfluous. Your
exam may ask you to provide a policy discussion with regards to a particular doctrine or case
and you may benefit from noting your classmates’ comments, as they are likely to be policy
related. The challenge that is unique to a law school classroom is to decide the amount of
weight you will accord to the comments of your classmates in terms of noting them and
incorporating them into your outline. Some of your classmates’ comments may be tangential
while others may be quite relevant. If you think the discussion is tangential, trust that your
professors will steer the discussion back on course.
Completing the Syllabus Assignments
Student-centered learning begins at minimum with an awareness of the class’s
understanding of the material. Your professors may adjust the syllabus to
accommodate the class’s particular interest in a topic or to enhance the class’s
comprehension. Do not mistake an omission of a previously scheduled assignment as
an inability on the part of the professor to complete the syllabus. A professor may
decide it is more important to slow down the pace and consequently, omit some
material on the syllabus rather than rush through to complete the syllabus.
Accountability for the Reading Assignments
In law school, you will have substantial reading assignments and written work that you
must juggle daily. For some classes, the reading assignments may be longer than those
given in other courses.
The law school experience is intended to prepare you for successfully managing concurrent
cases and projects and the demanding workload that can be expected in the practice of law.
You should be prepared for class by ensuring that you have read the assigned pages or
completed any other assigned work. As a professional, you need to anticipate the
unexpected—getting sick, a serious illness in the family, your computer crashing, etc.—and
not wait until the last minute to complete your work. If you procrastinate or have poor
time management skills, you will not have the flexibility to deal with an unexpected crisis.
Again, consider the classroom as the courtroom and your professor as the judge. If you had
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advance notice of an impending deadline, would you show up to court to ask the judge the
following request: “Your honor, I know that my deadline to submit my written brief was
set three weeks ago, but I got sick with a cold the last two days and am requesting an
extension”? Or would you state the following to the judge, “Your honor, I’m not prepared
today because I got behind on this case due to my other cases and workload”?
Also, be prepared to review the material if you have prepared in advance. If a professor
falls behind on the syllabus and you have read ahead, be sure to review the material. A
professor is unlikely to be satisfied with the explanation that you’re not prepared because
you read the material last week. Again, use the courtroom as a guide for your conduct.
Imagine if you are in court and state to the judge, “Your honor, I’m not prepared to argue
this motion because I prepared for it last week, before you rescheduled the hearing to this
week.” How do you think the judge would react?
Class Participation
Expectations:
I expect you to be well prepared for each class session. Well prepared means you are
prepared to discuss the material assigned for that day plus any preceding material and
any information posted by me via email. I expect you to participate in class, and please
do not be concerned about volunteering simply because you are unsure of your answer;
a good class session is an exercise in working through an issue.
Please be aware that I will be “cold calling” on students, which means that I will call on
students without advance notice to discuss and answer questions regarding the
assigned material. Please also be aware that you might be called on multiple times in a
class session. A student who is called on and who in my opinion is not sufficiently
prepared will be marked absent for that class.
Being unprepared can also affect your grade because I reserve the right to lower the course
grade 0.5 (e.g., B+ to B) for a student’s classroom performance during the course. Assessment
of a student’s contributions will take into consideration the degree to which the
student’s statements reflect a working knowledge of the assigned reading, whether the
student listened attentively to classmates or was merely reiterating previous
contributions, and the degree to which the student’s expression of views evinces respect
for classmates with whom he or she disagrees. The quality of the student’s comments is
more important than the frequency of participation.
Index cards:
I will generally use index cards and/or the seating chart to randomly call upon students
to participate in class. After a student’s index card is picked, the card is randomly
inserted into the stack of index cards. A student may be randomly selected again
through this method.
Raising your hand:
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If you would like to volunteer a response or make a comment, please raise your hand.
To avoid multiple people talking at one time, please refrain from responding without
my acknowledging you.
If your hand is raised and I do not call on you, please know that I see your hand and
appreciate your engagement, but I might call on other students to seek diverse
perspectives or might have to move the discussion along due to time limitations.
Professional Conduct
Law school introduces students to the expectations of professional conduct. If an act
would be considered unprofessional in a legal setting, I ask students not to do it in the
classroom. If I determine that a student is acting unprofessionally, I will ask that
student to leave class and will mark the student as absent for that day.
Please do not have side conversations with other students while someone else is talking.
This background noise is not only distracting but also makes it difficult to hear the
intended speaker. Be aware that some students have hearing impairments, making it
all the more challenging to hear when there are side conversations taking place.
At all times, students are expected to be respectful of differing viewpoints. Students
need not agree with another’s opinion but must conduct themselves with
professionalism. Students should feel free to contribute to the class discussion without
fear of judgment in this course because a robust discussion enhances the course.
Commercial outlines and case briefs are not permitted in class. Cell phones must be
turned off during class.
Laptop Policy
Use of laptops and tablets are not permitted in class. Please print whatever notes,
outlines, case briefs, etc. that you have prepared and that will aid you in the class
discussion. Forgetting to bring your materials to class will not excuse you from class
participation and will result in your being marked absent for the day if you are
unprepared.
Attendance
The Professor’s Role:
The professor is responsible for taking attendance and submitting attendance rosters to
the Registrar’s Office; any attendance issues beyond that are an administrative matter.
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If you have any questions concerning your attendance, please consult the Registrar’s
Office or administration.
ABA requirements:
The ABA and the law school require regular attendance of classes; students are also
expected to be in class on time.
Students should refer to the Student Handbook to determine the number of allowable
absences. Absences are recorded by the registrar’s office; therefore, it is not necessary for
students to inform me of reason for any absences. A student who is unprepared, late for
class, or leaves class early may be counted absent and/or dismissed from class for that
day.
Students are required to track their own absences.
Any questions regarding attendance may be directed to the registrar’s office and/or the
Dean for Academic Affairs. It is recommended that students retain documentation
supporting the reason for and length of their absences. Students who are absent should
obtain handouts and class notes from classmates.
Conflicting appointments:
Please do not schedule any conflicting appointments, personal or with other professors,
and ask that you be permitted to come to class late or leave early. Likewise, do not
schedule an appointment with me that would cause you to miss a portion of another
professor’s class.
Illness:
Students are expected to attend class in person per school policy, which requires that
anyone needing to attend class virtually be approved by administration. Per school
policy, faculty have been instructed to mark students absent who do not attend class in
person, unless they have been approved by administration for virtual attendance. This
course will use Zoom for any virtual attendance, but please ensure that you have access
to Zoom and WebEx, so we have the flexibility to pivot from one to the other in case of
connectivity issues.
Recordings
This course consists of the professor’s intellectual property; therefore, students may not
audio or video record any portion of the course. Any recordings available to students
registered for this class are intended to supplement the classroom experience. Students
are expected to follow appropriate University policies and maintain the security of
passwords used to access recorded lectures. Recordings may not be reproduced, shared
with those not in the class, or uploaded to other online environments.
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To maintain the integrity of the exams, no portion of the exam question, answer, or
explanation may be recorded in writing, or by audio, video, photograph, or other
means. This prohibition applies in all circumstances, even when the student is
conducting an exam review with the faculty assistant or during sessions when I review
the exam questions and answers with the class after an exam has been administered. A
violation of this prohibition will result in an Honor Code violation.
Waiver Notice: The instructor might use the video recording for other purposes.
Please do not reveal any personal or confidential information via audio, video, or chat
unless you feel comfortable with that information being shared. Due to resource and
time constraints, video recordings will not be redacted. Thus, students are on notice
that information conveyed during class in any form is considered a waiver of
confidentiality.
Extraneous Background Noise:
Students in the classroom should be mindful that any side conversations will cause
background noises that will make it difficult for others to hear. Please be courteous of
others.
Class Announcements
Students should check their emails and Canvas for any class announcements,
clarification of discussions, supplemental material, answers to students’ questions, and
cancellation of class. If I need to cancel class due to unforeseen circumstances, I will
endeavor to email the class.
ADA Policy
Students with documented disabilities may contact the Office of Disability Services to
arrange for reasonable accommodations. Voice/TDD: (305) 899-3488; Fax: (305) 8993959; Email: DisabilityServices@mail.barry.edu.
Accommodations for Exams
Students needing special accommodations should contact the Dean of Student Services.
Students are encouraged to ask for accommodations early in the semester to allow
enough time for requests to be reviewed.
If an emergency occurs and affects your ability to sit for an exam, or one of your exams
conflicts with another scheduled exam, please contact the Dean of Student Services. In
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order to maintain anonymity and the integrity of the exam process, please do not
disclose any information regarding your circumstances or accommodation to me.
Assessments
Students will be assessed through a midterm exam, second assessment, and final exam.
It is possible that students might be assessed additionally through quizzes or
assignments, but I will provide ample notice of them. All exams or other assessments
are cumulative.
On the midterm and final exams, students are graded anonymously. Please take the
time to accurately put your anonymous exam number for all parts of the exam.
Failure to enter the correct exam number for the exam causes unnecessary delay in the
grading process and extra work for the faculty assistants and the Registrar’s Office.
Please be mindful that you are expected to correctly enter your exam number for my
exam as you are expected to do so for your bar exam, and that the courtesy of trying to
figure out your correct exam number may not be extended to you by the bar examiners.
Therefore, entering an incorrect exam number will lead to a 10-point deduction from
the total score for that exam.
Any material assigned is subject to being tested on the exam. The final grade will
consist of a midterm exam (15-30%), second exam (5-10%), and final exam (55-80%).
The exams may contain multiple choice, short answer, and/or essay questions. The
essay portion will at a minimum include a question based on a hypothetical fact pattern
but may also include a policy question. To score the exam essay(s), I will use a grading
rubric. I will provide more detailed information about the exam(s) as the time draws
nearer.
Deadlines for assessments and assignments:
Administration and the Registrar’s Office will administer, schedule, and coordinate the
midterm and final exams. Administration will handle absences and accommodations
for the midterm and final exams.
I will provide ample notice if there are additional assessments or assignments beyond
the midterm and final exams. Students must complete the second exam, or additional
assessments/assignments within the specified deadline and according to all stated
directions and requirements. Because students will have ample notice, there will be no
exceptions made for late or incomplete assessments/assignments, including the
second exam, for any reason—regardless of whether you, a family member, or a pet
suffers an illness or accident; you experience technological difficulties; or experience
anything else that you think is a hardship. Midterm and final exam make ups are
handled by administration.
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How to Write an Essay Answer:
Students should spend at least 15 minutes outlining before they begin writing the essay
answer. No points will be awarded for portions of the essay that are in outline format
(words or phrases that stand alone); students will receive points only for statements
that convey complete thoughts. Students are encouraged to use headings and
subheadings and underline key words or phrases within their essay(s).
Students should structure their answers in IRAC format. I expect students to identify
the issues, state the appropriate rules, provide an analysis by applying the exam
hypothetical to the rules and (to the cases—if appropriate), and make a conclusion as to
the legal problem or issue presented. There should be a separate IRAC discussion for
each legal problem. You should not dump all the issues for the entire essay in one
paragraph, all the rules for the entire essay in another paragraph, and then all the
analyses for the entire essay in another paragraph. Each issue, rule, analysis, and
conclusion that relate to one particular legal problem should be organized in one
discussion before moving onto the next legal problem presented. The skills learned in
your LRW course are equally applicable to essay exams.
The only difference between a law school essay exam and your LRW memoranda or
briefs is that you should not include a statement of facts in your essay exam answer.
Rather than being presented in a separate statement of fact, your facts should be
incorporated in the analysis and should be used to argue whether a particular rule or
law has been violated or an exception is satisfied.
Issue: Your issue statement or question should include the law or doctrine you will be
analyzing and the specific facts that trigger the particular law or doctrine. The issue
statement or question should be detailed like those that you have written for your LRW
course. For example, “Was the officer’s search in the house valid under the 4th
Amendment without a warrant?”
Rule: To demonstrate your substantive knowledge of the law, students must include
accurate and complete statements of the rule in order to receive credit. Students will
receive credit for identifying the rules only if they are relevant to the issue(s). It is
important that rules be applied in the appropriate context. In other words, please do
not “brain dump” on the exam by setting forth all the rules at one time without
connecting them and organizing them under the appropriate issue—the exam does not
merely test your ability to memorize rules and cases; it is intended to evaluate your
analytical abilities, knowledge of the law, and issue spotting.
Analysis: Your analysis should apply the law or doctrine to the facts presented by the
exam hypothetical. Avoid making conclusory statements. Your analysis must include
arguments—e.g., explaining why a particular law or doctrine has or has not been
satisfied or explaining why or why not a government action is valid. Inclusion of
Ngov Criminal Procedure Syllabus
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counterarguments, if appropriate, will enhance the depth of your analysis. It is
unnecessary to include a counterargument for a straightforward issue that is not
debatable.
I do not expect you to cite to cases by name, but you must provide enough information
that I can identify to which case you are referring. You do not need to discuss any
cases, but if you do, it is helpful to include a brief discussion of the facts, holding, and
rationale of the case, and to analogize or distinguish the case from the exam fact pattern.
You need to explain the case’s relevancy to the fact pattern.
If there are multiple elements to a rule, you should analyze each element even if your
conclusion as to the first element would resolve the legal issue.
Like rules, the analysis must be applied in the appropriate context, connected to or
organized under the appropriate issue. Similarly, you should not brain dump to the
extent that you rattle off your analysis without discussing the issue that you are
analyzing.
Do not merely state facts without explaining their significance or relevancy. You need
to connect the facts with the rule and issue. Do not expect the reader to make the
necessary inferences about the facts. One way to formulate your analysis is to add an
essential fact connected with the inference about that fact (which is often accomplished
by using “because” followed with the explanation) and the rule or element that is being
discussed.
Conclusion: Sometimes, there is a right answer to the issue presented, for which you
will not receive credit if you reach the wrong conclusion. Other times, there is no right
answer to the question presented and any well supported conclusion will receive credit
because reasonable minds can differ. Also, your conclusion should provide a
conclusion not only as to each individual component of a rule, but also as to the overall
conclusion regarding whether the rule or law has been satisfied or violated or whether
the evidence should be excluded. For example, “The drugs found in the house will be
excluded because their discovery resulted from the officer’s illegal entry into the house
without a warrant or warrant exception.”
Word Limits on the Essay Exam:
Because students must write their essays succinctly to complete the bar exam, I want to
help students practice writing concisely. Therefore, each essay exam in my course has a
word limit. Please adhere to the word limit. I strongly encourage students to practice
writing essays during the semester and to practice using the exam software to
understand how the word counter works on the software.
Ngov Criminal Procedure Syllabus
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If a student exceeds the specified word or character limit on the essay, I will deduct 10
points from the exam score. Any writing beyond the word limit will not be considered.
These rules apply to any form of assessment. Students receiving accommodations are
NOT exempted from the word or character limit.
Exam Review:
I encourage students to review their exams after grades have been posted because I
believe this will facilitate learning. However, I will NOT entertain a grade dispute. The
law school’s policy allows grade changes only due to a calculation or clerical error; the
administration strictly enforces this policy. Errors will be corrected even if the
correction lowers the student’s grade.
Collaborating with Other Professors:
I reserve the right to collaborate with other professors in writing the exam. However,
rest assured that I will only test material that was assigned in my course and grade the
exams based on my own expectations.
Workload
Why is there so much assigned reading and work for a course? This course, as well as
the others at Barry, must comply with ABA rule 310(b), which states the following:
A “credit hour” is an amount of work that reasonably approximates: (1) not less than one
hour of classroom or direct faculty instruction and two hours of out-of-class student work
per week for fifteen weeks, or the equivalent amount of work over a different amount of
time.
For a 3 credit course over a 13-week semester, ABA rule 310(a) requires students to
devote a minimum of 90 hours throughout the semester on out-of-class course-related
work (any required reading, writing, or research, etc. to prepare for class ), 60 hours for
a 2 credit course; 120 hours for a 4 credit course; 150 hours for a 5 credit course; and, 180
hours for a 6 credit course.
Changes to the Syllabus
Due to the size of the class and amount of interest or confusion about the material,
adjustments to the reading assignment might be made, and the syllabus is subject to
change. I will adjust the assignments to meet the needs of the class as the course
progresses. I will provide notice of any changes by email.
Reading Assignments
A note about the reading assignments:
Ngov Criminal Procedure Syllabus
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Overall, the Criminal Procedure course involves more reading than some of your other
courses. Some assignments are long because the cases could not be logically broken up
or are better understood when read together.
Due to students’ interest or confusion in an area of law, I cannot perfectly predict
whether we will complete an assignment in one class session. Some assignments will
take 1-2 class sessions, so if the discussion of previously assigned reading carries over to
the next class session, be sure to review the material for the next class session. If you
want to read ahead, you can rely on the assignments being discussed in the order that
they appear in the reading assignments.
Assignment
Topic (If the page numbers do not coincide with the topics
listed, refer to the topics listed in this column as your
guide for the reading assignment).
1
(Although it may appear like a large amount of reading for the first class,
chapter 1 is introductory material that is light reading, which you can
complete quickly).
Chapter 1
Introduction to Criminal Procedure
A. The Participants in the Criminal Justice System
1 . Defendants
2. Defense Counsel
3 . Prosecutors
4. V i c t i m s
5. Police and Other Law Enforcement Officers
6 . Magistrates and Judges
7. J urors
8 . Corrections Officials
9 . Public
10. Media
B. Stages of the Criminal Justice Process
1. Step 1: Pre Arrest Investigation
2 . S tep 2 : A rr es t
3. Step 3: Filing the Complaint
4. Step 4: Gerstein Review
5. Step 5: First Appearance/Arraignment on Complaint
6. Step 6: Grand Jury or Preliminary Hearing
7. Step 7: Arraignment on Indictment or Information
8. Step 8: Discovery
9. Step 9: Pretrial Motions
10. Step 10: Plea Bargaining and Guilty Pleas
11. Step 11: Trial
12 . S tep 1 2: Sentencing
Pages
(Omissions
will be
indicated
here).
1-30 (skim
chapter 1we’ll come
back to these
concepts in
Ch. 4 & 5)
31-59 (focus
on Ch. 2)
Ngov Criminal Procedure Syllabus
19
13. Step 13: Appeals and Habeas Corpus
C. The Purpose of Procedural Rules
Powell v. Alabama
Patterson v. Former Chicago Police Lt. Jon Burge
D. Key Provisions of the Bill of Rights
E. The Application of the Bill of Rights to the States
1. The Provisions of the Bill of Rights and the Idea of
"Incorporation"
2. The Debate over Incorporation
3. The Current Law as to What's Incorporated
4. Duncan v. Louisiana
5. The Content of Incorporated Rights
F. Retroactivity
Chapter 2
Searches and Seizures
A. Introduction
B. What Is a Search?
Katz v. United States
United States v. Jones
1. Open Fields
Oliver v. United States
United States v. Dunn
2
2.
3.
4.
5.
3
6.
Aerial Searches
California v. Ciraolo
Florida v. Riley
Thermal Imaging of Homes
Kyllo v. United States
S ea rc he s of T ra s h
California v. Greenwood
Observation and Monitoring of Public Behavior
United States v. Knotts
Smith v. Maryland
59-89
Use of Dogs to Sniff for Contraband
Illinois v. Caballes
Rodriguez v. United States
Florida v. Jardins
Florida v. Harris
89-120
C. The Requirement for Probable Cause
1. What Is Sufficient Belief to Meet the Standard for Probable
Cause?
Illinois v. Gates
Maryland v. Pringle
4
2.
[Continue Illinois v. Gates
Maryland v. Pringle, if needed.]
Is It an Objective or a Subjective Standard?
120-153
Ngov Criminal Procedure Syllabus
20
Whren v. United States
Heien v. North Carolina
D. The Warrant Requirement
1. What Information Must Be Included in the Application for a
Warrant?
2. What Form Must the Warrant Take?
Andresen v. Maryland
Groh v. Ramirez
3. What Are the Requirements in Executing Warrants?
a. How May Police Treat Those Who Are Present When a
Warrant Is Being Executed?
Muehler v. Mena
b. Do Police Have to Knock and Announce Before Searching
a Dwelling?
Wilson v. Arkansas
Richards v. Wisconsin
[continue Wilson v. Arkansas &
Richards v. Wisconsin, if needed]
5
153-175
c.
What If There Are Unforeseen Circumstances or Mistakes While
Executing a Warrant?
Maryland v. Garrison
Los Angeles County, California v. Rettle
E. Exceptions to the Warrant Requirement
1. Exigent Circumstances
a. Hot Pursuit
Warden, Maryland Penitentiary v. Hayden Payton v. New York.
b. Safety
Brigham City, Utah v. Stuart
c. Preventing Destruction of Evidence
Kentucky v. King
6
2.
3.
7
4.
d. Limits on Exigent Circumstances
Missouri v. McNeeley
Birfield v. North Dakota
Plain View
a. Coolidge v. New Hampshire
b. Minnesota v. Dickerson
The Automobile Exception
a. The Exception and as Rationale
California v. Carney
b. Searches of Containers in. Automobiles
California v. Acevedo
c. Searching Automobiles Incident to Arrest
175-210
Searches Incident to Arrest
Chimel v. California
Knowles v. Iowa
Riley v. California
Arizona v. Gant
210-242
Ngov Criminal Procedure Syllabus
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8
5.
Inventory Searches
South Dakota v. Opperman
Illinois v. Lafayette
6.
Protective Sweeps
Maryland v. Buie
242-275
7. Consent
Schneckloth v. Bustamonte
Georgia v. Randolph
Fernandez v. California
8. Searches When There. Are "Special Needs"
a. Administrative Searches
Camara v. Municipal Court of San Francisco
New York v. Burger
9
City of Los Angeles v. Patel
b. Border Crossing
United States v. Flores-Montano
c. Checkpoints
Michigan Department of State Police v. Sitz
d. Schools
Safford Unified School District #1 v. Redding
e. Government Employment Context
City of Ontario v. Quon
275-286
294-318
Omit US v.
Ramsey, US
v. Montorya Hernandez
10
f.
319,
327-340, 348361, 367-380
Drug Testing
Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls
Ferguson v. City of Charleston
h. DNA testing
Maryland v. King
F. Seizures and Arrests
1. Is a Warrant Needed for Arrests?
United States v. Watson
2. When Is a Person Seized?
United States v. Mendenhall
11
California v. Hodari D.
Omit Veronia
School
District v.
Acton,
Florence v.
County of
Burlington,
US v.
Knights,
Samson v.
California
380-409
Ngov Criminal Procedure Syllabus
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3.
For What Crimes May a Person Be Arrested?
Atwater v. City of Lago Vista
G. Stop and Frisk
12
1.
The Authority for Police to Stop and Frisk
Terry v. Ohio
2.
3.
The Distinction Between Stops and Arrests
What May Police Do When They Stop an Individual?
Hiibel v. Sixth Judicial District Court of Nevada
4.
What Is Sufficient for Reasonable Suspicion?
a. Reasonable Suspicion: General Principles
United States v. Arvizu
a. Reasonable Suspicion Based on Informants' Tips
Alabama v. White
Florida v. J.L.
Navarette v. California
b. Reasonable Suspicion Based on a Person's Trying to Avoid a
Police Officer
Illinois v. Wardlow
c. Reasonable Suspicion Based on Profiles
United States v. Sokolow
H. Electronic Surveillance
1. 1. Is Electronic Eavesdropping a Search?
13
Chapter 3
The Exclusionary Rule
B. The Origins of the Exclusionary Rule
Weeks v. United States
Mapp v. Ohio
D. Who Can Object to the Introduction of Evidence and Raise the
Exclusionary Rule?
Rakas v. Illinois
Minnesota v. Carter
Brendlin v. California
14
E. Exceptions to the Exclusionary Rule
1. Independent Source
Murray v. United States
2. Inevitable Discovery
Nix v. Williams
3. Inadequate Causal Connection—Attenuation of the Taint
Brown v. Illinois
Utah v. Streiff
15
4.
The Good Faith Exception to the Exclusionary Rule
United States v. Leon
C. When Does the Exclusionary Rule Apply?
Herring v. United States
409-437
Omit US v.
US Dist. Ct.
for E. Dist.
Michigan
456-465, 480495
495-524
524-543,
465-480,
451-456
Ngov Criminal Procedure Syllabus
23
Davis v. United States
5.
The Exception for Violations of the Requirement for
"Knocking and Announcing"
A. Is the Exclusionary Rule a Desirable Remedy for
Unconstitutional Police Behavior?
Hudson v. Michigan
16
17
Chapter 4
Police Interrogation and the Privilege Against Self-Incrimination
A. Due Process and the Requirement for Voluntariness
1. The Requirement for Voluntariness
Brown v. Mississippi (skim this case)
2. Determining Whether a Confession Is Voluntary
a. The Length of the Interrogation and Whether the Defendant
Was Deprived of Basic Bodily Needs
b. The Use of Force and Threats of Force
Arizona v. Fulminante (skim this case)
c. Psychological Pressure Tactics
Spano v. New York
d. Deception
e. The Age, Level of Education, and Mental Condition of
a Suspect
Colorado v. Connelly
3. Is the Voluntariness Test Desirable?
4. Coercive Questioning, Torture, and the War on
Terrorism
B. Fifth Amendment Limits on In-Custodial Interrogation: Miranda
v. Arizona
1. Miranda v. Arizona and Its Affirmation by the Supreme
Court
Miranda v. Arizona
Dickerson v. United States
2.
3.
18
547-565
566-602
Is Miranda Desirable?
What Are the Requirements for Miranda to Apply?
a. When Is a Person "in Custody"?
Oregon v. Mathiason
J.D.B. v. North Carolina
Berkemer v. McCarty
b.
What Is an "Interrogation"?
Rhode Island v. Innis
Illinois v. Perkins
c.
What Is Required of the Police?
California v. Prysock
602-634
Ngov Criminal Procedure Syllabus
24
4.
19
Waiver of Miranda Rights
a. What Is Sufficient to Constitute a Waiver?
North Carolina v. Butler
Berghuis v. Thompkins
Salinas v. Texas
b. How Is a Waiver After the Assertion of Rights
Treated?
Michigan v. Mosley
Edwards v. Arizona
[continue Edwards v. Arizona if needed]
20
6.
3.
4.
662-690
Minnick v. Mississippi
Maryland v. Shatzer
Davis v. United States
What Are the Exceptions to Miranda?
a. Impeachment
Harris v. New York
b. Emergencies
New York v. Quarles
c. Booking Exception
C. The Sixth Amendment Right to Counsel and Police
Interrogations
1. The Sixth Amendment Right to Counsel During
Interrogations
Massiah v. United States
2.
22
634-662
United States v. Patane
5.
21
Duckworth v. Eagan
What Are the Consequences of a Violation of Miranda?
Oregon v. Elstad
Missouri v. Seibert
690-717
Brewer v. Williams
The Sixth Amendment Right to Counsel Is Offense
Specific
Texas v. Cobb
Waivers
Montejo v. Louisiana
What Is Impermissible Police Eliciting of Statements?
United States v. Henry
Kuhlmann v. Wilson
717-751
D. The Privilege Against Self-Incrimination in Other Contexts
1. What Are the Requirements for the Privilege Against SelfIncrimination to Apply?
a. Only Individuals May Invoke the Privilege
Ngov Criminal Procedure Syllabus
25
b. The Privilege Applies Only to That Which Is
Testimonial
Schmerber v. California
c. There Must Be Compulsion
d. There Must Be the Possibility of Incrimination
2.
3.
When May the Government Require the Production of
Documents and Other Things?
Fisher v. United States
May the Government Require Testimony If It Provides
Immunity?
Kastigar v. United States
United States v. Hubbell
23
751-779
Chapter 5
Identification Procedures
A. The Right to Counsel
1. The Right to Counsel in Lineups
United States v. Wade
2.
Limits on the Right to Counsel in Identification
Procedures
Kirby v. Illinois
United States v. Ash
B. Due Process Protection for Identification Procedures
1. Unnecessarily Suggestive Identification Procedures by Police
Violate Due Process
Foster v. California
[continue with Foster v. California, if needed]
24
2.
3.
779-809
Limits on the Ability of Courts to Find That Identification
Procedures Violate Due Process
Simmons v. United States
Neil v. Biggers
Manson v. Brathwaite
Requirement That Police Be Involved in Creating the
Suggestive Identification Procedure
Perry v. New Hampshire
Chapter 6
Right to Counsel
A. Introduction
B. Appointment of Counsel
Ngov Criminal Procedure Syllabus
26
Gideon v. Wainwright
C. When the Right to Counsel Applies
Argersinger v. Hamlin
25
26
Continue prior assignments
Review
Ngov Criminal Procedure Syllabus
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