Criminal Procedure
Spring 2012
Michael Rich
I. THE FOURTEENTH AMENDMENT
a. Its Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.
II. THE FOURTH AMENDMENT
a. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
OVERVIEW
b. Powell v Alabama, p.13
i. Court must assign counsel in:
1. Capital case
2. Incapable of mounting an adequate defense on his own
3. Unable to employ counsel
ii. Why could 1 attorney not represent all D’s?
1. Conflict of interest because two D’s admitted to sexual relations
2. Was appointed the day before
c. Note 2, p. 34
i. Rules – clear cut requirements that demand an answer (If X, then Y)
ii. Norms – standard underlying the rule
1. What is the norm that animates the rule from Powell (what is the standard they are trying to enforce)?
a. If we are going to have a trial, we need the trial to be real
b. Due process
c. Access to legal counsel is necessary for a fair trial
d. The harsher the punishment, the more procedural fairness we need
d. Note 1, p. 33
i. Under Powell, does Powell demand reversal of his conviction?
1. No b/c not a capital case and not incapable of adequately defending himself
ii. What argument would you make, however. That even though it doesn’t follow under the strict rule of Powell, it falls under the norm of
1. Just because he isn’t illiterate or feeble minded, doesn’t mean he is incapable of an adequate defense
2. A robbery is a felony which is a substantial loss of liberty so when a substantial loss of liberty is at steak, the rule from Powell should apply
3. The norm is how you argue for the expansion/contraction of rights
iii. **Don’t be bound by the rule of Powell. Don’t be thinking what is the strict rule, but rather what are the norms animating that rule.
e. Brown v. Mississippi, p. 25
i. Was this a 5th amendment case? No b/c at this time states could compel witnesses to testify against themselves
ii. Rule: The due process clause requires that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institution. . . the coercion of a confession violates due process requirement of 14th Amendment
iii. Judges work with tension:
1. Security vs. individual liberty
a. Security – see police action as ok
b. Individual liberty – see police action as not ok
2. Federalism v. States rights
f. Standard – the Bill of Rights only apply to the Federal Power and don’t apply to states unless we can find a way. 14th Amendment was passed and applied 4, 5th, 6th rights to the states.
g. Duncan v. LA, p.39
i. Issue – whether trial by jury was a right that the states must recognize
ii. THE STANDARD – Whether it was a fundamental principal of liberty and justice that lie at the basis of all our civil institutions:
1. Basic in our system of jurisprudence
2. Whether it is a fundamental right, essential to a fair trial
h. Norms (See Notes Pg.6 for Examples)
i. Accuracy – making sure judgments are right (convict guilty and not innocent)
ii. Fairness – equality along what variable (i.e. all equal based on race or equal based on if committed crime)
iii. Limited government – Constitution has been put in place to a substantial extent to minimize gov’t intrusion on individual lives
1. 4th amendment
2. 5th amendment
iv. Efficiency – too many crimes in this country to prosecute everyone in a long drawn out trial
v. Legitimacy
i. Krone, p.67
i. Why not have a statute that requires DNA testing wherever it would be probative?
ii. Norms?
1. Accuracy
2. Fairness
3. Limited Government
4. Efficiency
5. Legitimacy
INCORPORATION OF 4th TO STATES THRU 14th
j. Weeks, p.67
i. Fed & S
Was it violated
1. Unreasonable
2. Probable Cause
iii. What Remedy
1. Usually Exclusionary Rule
WHAT IS A “SEARCH”?
a. Olmstead/Goldman Approach – search is a physical intrusion into tangible property; surveillance involving a trespass (rejected in Katz)
b. Katz v. US, p. 84 (wire tapping)
i. Police wire tapped a phone call at a phone booth. The court found that there was a search.
ii. Surveillance was outside the phone booth
iii. RULE: 4th amendment protects people, not places
iv. RULE: What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. (p. 86)
v. Harlan concurrence:
2. RULE: There is a search if the
a. 1) actual subjective expectation of privacy? and
b. 2) is expectation of privacy reasonable/legitimate
vi. Triggs – CA court – court found that the manner the police used wasn’t expected. The men had a reasonable expectation of privacy even though anyone could have walked and found them b/c there were no doors on the stalls
vii. HA – when police video taped a break room for public employees, that was a search, even though anyone could have gone in
c. Hoffa v. U.S. p. 93 (informants)
viii. Informant would have conversations and appeared to be a friend
ix. Court held there was no search
d. Lopez, p.94 (informant)
x. Informant was wearing a recorder and turning in the tapes to the police
xi. Court held no search
e. On Lee, p.94 (informant)
xii. Informant used a mini phone which transmitted the conversation in real time
xiii. Court held there was no search
