Burying the Lede: Why Teaching the Due Process Cases Is Critical to Investigations in Criminal Procedure

Abstract

When teaching the basic criminal procedure class on police practices-the course that covers the Fourth, Fifth, and small portions of the Sixth Amendments-the conventional wisdom is that one should address Mapp v. Ohio at or near the beginning of the course. The reason is not particularly mysterious. Mapp held that the exclusionary rule is an essential part of the Fourth and Fourteenth Amendments. By requiring states to exclude evidence obtained in violation of the Fourth Amendment at a criminal defendant's trial, Mapp insured both that the exclusionary rule would play a central role in regulating police and also that the rule would play a central role in our understanding of the appropriate way to regulate police. The goal of this Article is to trouble the ease to which students and professors come to the conclusions regarding the propriety of using the exclusionary rule as a best or even good way to regulate the police. By making an argument about the order in which topics in the criminal procedure course on investigations is typically taught, I intend to upend the conventional wisdom of Mapp's place in the course in two parts. First, I will lay out an argument for starting the police practices course with confessions rather than searches. This approach emphasizes the importance of the Due Process Clause of the Fourteenth Amendment rather than incorporation of the exclusionary rule. Second, I will offer an argument about why it makes sense to highlight Miranda as opposed to highlighting Mapp. In short, I'm suggesting that teachers bury Mapp. Before readers become too alarmed, let me hasten to say that I do not mean that Mapp should be buried because it is incorrect and unimportant. Neither of these things is true. Rather, I simply mean to suggest that Mapp might be buried in the sense that one might "bury the lede."