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Criminal Procedure
John Marshall Law School, Chicago
O'Neill, Timothy P.

 Criminal Procedure I Spring 2014 O’Neill
exclusionary rule is what drives this course
– 4th Amendment – doesn't explicitly say improperly discovered evidence should be excluded but in 1961 the Supreme Court said it had to stay out
→ key word in the 4th Amendment – “unreasonable” – what makes something unreasonable? – there is no one thing
– motions to suppress – often will determine what the next step in the case will be; whether the case goes to trial, whether it gets pled out
Themes of this course:
– federal constitutional law (always have the Bill of Rights in front of you) – 4th, 5th, 6th Amendments specifically
– anything before 1960 is not relevant (last 50 years) – however in the 1960s the Supreme Court decided a lot of criminal law cases
1953-1970 – the (Earl) Warren Court – really started extending criminal procedure rights throughout the country (Miranda, suppression of evidence, Gideon); if you see a decision from the 50s or 60s, the defense probably wins
1970-1986 – Warren Burger becomes Chief Justice – if you see a decision from the 70s or early 80s, the government probably wins
1986 – 2005 – Rehnquist becomes Chief Justice – if you see a decision from this period, the government will probably win again
– know the individual justices – have to know because justices tend to be very predictable
S (Scalia) T (Thomas) A (Alito) R (Roberts) K (Kennedy) – if you're a defense attorney, you have a stark chance of winning because 5 justices are very pro-government
S (Souter) G (Ginsburg) B (Breyer) S (Stevens) – these 4 justices will probably side with the defense; they are very pro-defense
**right now a lot of the cases hinge on Kennedy – swing voter**
– the one word that influences the Supreme Courts decisions on criminal procedure is race
→ the Warren Court – 1953
— Brown v. Board of Education
— in the 1960's the Warren Court moved from school issues to another area they felt there was too much racial discrimination – criminal procedure (lynch mobs, segregated juries, etc.)
– federalism – allocation of power to the states; a certain faith that we have that allows us to join a federation (comes from the origins of the word – faith)
▪ federalist system – we have 52 criminal justice systems (50 states; D.C.; Federal System)
— up until the 1950s the state criminal justice systems could do pretty much anything they wanted
— then the Warren Court began expanding the applicability of the federal Constitution to the state criminal justice systems and procedures
– descriptive v. normative
descriptive – how the world is; isn't necessarily how the world should be or that the law can't be changed; whether to disagree or agree is a decision we have to make
normative – how the world should be
– 2 Revolutions
Procedural Revolution (this course) – the Warren Court began extending federal Constitutional rights to state ∆s
Guilt/Innocence Revolution (not this course) – new forensic technologies, false confessions, identification procedures
— Ryan Commission Report – 85 recommendations on how to change the system in IL
legal websites to be aware of:
Illinois Courts Website (
U.S. Supreme Court Website (
Slate Magazine
Jeffery Rosin – New Republic Magazine
An Overview of the Criminal Justice Process
Constitutional Issues:
e.g. State case, jury deliberating, judge brings head juror in to see what their numbers are… → US Supreme Court case says that if that happens, it's automatic reversible error, no necessarily objections (pretty much automatic win)…. Is this right?
– This is the federal rules of civil procedure…. Which have 0% effect on state court criminal procedural rules unless it's based on a federal constitutional issue that is binding on the states
▪ So this ruling might not be binding
– Sometimes the Supreme Court exercises supervisory power and hears a case that is not specifically within their jurisdiction
▪ this is the Federal System – system of justice in states and federal
– There are state systems of justice and the federal system of justice…. Supreme Court is the highest court, but its decision may not have an effect on IL → only if they are deciding a constitutional provision that is binding on the state of IL
How do they decide who writes a Supreme Court opinion?
– most senior member of the majority decides
– if the chief justice is in the majority, he always trumps and gets to decide
How did we get to this system?
– Articles of Confederation weren't working
– Constitution created
▪ Ratification (need 9 of 13)
– Groups in favor of and against the constitution….
▪ The Federalist Papers argued for

ny State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
Privileges and Immunities
1873: The Slaughterhouse Cases
FACTS: Slaughterhouses in New Orleans were being shut down because of laws that put them out of business…
ISSUE: is this a violation of the P&I clause?
– Court held that P&I only applies to citizens of the US – P&I are like having a passport, right to travel, habeus corpus
-They read the P&I clause very narrowly → So now it has very little relevance, and it has NO relevance in the criminal law arena
Due Process Clause
e.g. 1875, arguing that 14th Due Process Clause should apply against IL against double jeopardy
What is due process of law?
– Constitution and bill of rights lays out those rights… they are restrictions on what the government can't do
Total Incorporation:
 ▪ definition – the 14th Amendment made all of the provisions of the federal Bill of Rights fully applicable to the states
▪ Justice Black
• The law is what it says (he was a
• Due Process of law means something
very specific… the guarantees laid out in
the Bill of Rights
▪ This theory NEVER gained a majority of the court (never got 5 votes)
• Douglas and Murphy would have bought into total incorporation though
So what theory did they use to interpret what the 14th Amendment Due Process of Law meant?
Fundamental Fairness Theory of the Due Process Clause (FF):
▪ Implicit in the concept of ordered liberty; a fair and
enlightened system of justice would be impossible without
them (Cardozo)
▪ amorphous definition
▪ Frankfurter – big believer in FF theory of DP….
• Total incorporation never intended
▪ Look at the Anglo-American tradition of law and the
present day to find due process of law
Adamson v. California (1947)