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

The 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
à 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
–          Vehicle to determine what evidence is admissible and inadmissible at trial.
o   File written motion, why acted unconstitutionally, right to bring on witnesses, etc…, no jury, just judge.
o   State has a right to appeal at that moment since it may destroy their case.
o   But if you lose, and evidence goes in, the ∆ does not have the right to immediately appeal, you have to go to trial, either be convicted or acquitted and then appeal.
–          Exclusionary Rules (if not for these rules, we wouldn’t be here)
o   Confession obtained illegally
o   Identification
o   Etc
–          Danny Kilo growing weed
o   Cops don’t have anything so they use a thermal imager. They w/o going into the house, they had no probable cause, no warrant…so violation of privacy and therefore violation of 4th amendment.
o   The government argued no search at all b/c gov. stood outside and measuring heat outside the house.
§ O’Neill’s job is to give us the parameters of the current court and what’s out there so we can craft the best argument that we can craft,
Themes of this course:
– Federal constitutional law (always have the Bill of Rights in front of you) – 4th, 5th, 6th Amendments specifically, and 14th Amendments.
– Anything before 1960 is not relevant (last 50 years) – however in the 1960s the Supreme Court decided a lot of criminal law cases. All begins in 60s. Why very little criminal law before then. Congress didn’t give US Supreme Court federal jurisdiction to review criminal cases until 1891 (may be wrong on date).
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 – “The Burger Court”Warren Burger becomes Chief Justice – if you see a decision from the 70s or early 80s, the government probably wins.
1986 – 2005 – “The Rehnquist Court” becomes Chief Justice – if you see a decision from this period, the government will probably win again.
Pro-Prosecution. It is always for the government (about 18 to 1)
2005-Present: “The Roberts Court”: He’s really not interested in criminal issues. 
From 1970 to now most cases will be Pro-Prosecution.
The two lose cannons are Kennedy and O’Connor.
– 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. CONSERVATIVE.
– K (Kegan) G (Ginsburg) B (Breyer) S (Souter) – these 4 justices will probably side with the defense; they are very pro-defense. KGBS. LIBERAL. Kegan is most likely going to be voting this way.
                        **right now a lot of the cases hinge on Kennedy – swing voter**
–          The one word that influences the Supreme Court’s decisions on criminal procedure is race.
o   The underlying theme/issue that we return to again and again is RACE.
o   Scottsbourough case for next week.
            à 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.)
–          Court stumped so ordered re-argument, during summer Vincent dies and Warren comes in, Warren gets all 9 to stand behind separate but equal was unconstitutional. He was a republican.   Frankfurter—the death of Chief Justice Vincent is when he believed there was a God.
–          But not wildly successful, the pro-∆ Justices, began seeing outrageous criminal cases and then turn attention to criminal justice.
– Federalism – allocation of power between the central government and the states; a certain faith that we have that allows us to join a federation (comes from the origins of the word – faith). The concept of federalism can be confusing. The U.S. Sup. Court is important in the system…??
            ▪ 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.
–          Here is the rule
            Normative – how the world should be. A judgment of value. Could it have been better? Is this right? Is there a more just way? This is what we will be discussing.
– Two Revolutions
            Procedural Revolution (this course) – the Warren Court began extending federal Constitutional       rights to state ∆s.
Before the civil war we have a state oriented country, after the war we had a nation-oriented.
Gettysburg Address: Nation stated 4 times
            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
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…                à US Supreme Court case says that if that happens, it’s automatic reversible error, no necessarily objections (pretty much automatic win)…. Is this right?
            Is this based on the Constitution?
            Is it s federal trial, because it may not be binding on IL.
            The Federal Rules of Evidence are not applicable to IL.
            If you see a case w/ the federal rules of evidence, it may be persuasive, and interesting, but not binding, same thing w/ Federal Rules of Civil Procedure. The case came from 1927 and it was a federal criminal trial, and did not know if it was based on a Constitution b/c language so vaugue.
            When they decide cases, they interpret constitution do the US Sup Ct have a final say? Yes, but not everything they say has applicability in IL.
Another hat they wear, can make federal rules for the top federal courts and doesn’t necessarily have to be based on anything necessarily Supervisory Power is this type of power.
– 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 t

Amendment is in the Federal Bill of Rights – think of this as a Bill of                   Restrictions….. to restrict the new federal government… not the states
                                    — So it has nothing to do with restricting the state governments
Barron v. Baltimore (Marshall)
–          Bill of Rights applies only to the federal government
–          Bill of Rights functions as a limitation on the federal government, not the state government.
1812 Case
– could a federal court go in and prosecute people for common law crimes (crimes that had not been codified)
– The Supreme Court says no (John Marshall) common law crimes
– There are very few criminal federal prosecutions, so there isn’t much to construe these Amendments
            ▪ 13th, 14th, 15th Amendments
-Bill of Rights had no power over states.
-Biggest change is the Civil War and then the Post-Civil War Amendments Of Course
Reconstruction, Post Civil-War Amendments
-13th: Abolishes slavery
-15th: Voting Rights
-14th: Due Process, Equal Protection, etc.
14th Amendment
·    When concerned about the 14th Amendment we
·    4, 6, 8th, are the incorpotation
“All persons born or naturalized in the United States and subject to jurisdiction thereof are citizens of the United States and the State wherein they reside”
            à This overrules Dred Scott
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any 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
If judge back in 1875 told you that he is going to try the case and no trial by jury. What’s you’re argument? You are taking away my P&I. 
Privileges and Immunities
The Slaughterhouse Cases (1873)
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 à So now it has very little relevance, and it has NO relevance in the criminal law arena. Rights that you have because we are a nation.
John Cambell is the only person who resigned from US Supreme Court during Civil War in 1860s because wanted to join the Confederacy.
Argument was “P&I violated by taking
Wrongly decided case, but cannot argue P&I anymore.
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
–          Put meat on the bones of DUE PROCESS—INCORPORATION.