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

Crim Pro outline
I.                     History
a.      Const has criminal emphasis because founders were trying to avoid criminal prosecution for tax and crap that England had imposed.
b.      Due process
                                                              i.      Came into being after civil war.
                                                            ii.      Was a result of north’s attempt to gain control of the south
                                                          iii.      Slaughter house cases tore up privileges and immunities
II.                   Convincing court to apply due process
a.      Should argue fundamental fairness
                                                              i.      idea of FF changes over time
                                                            ii.      Fundamental fairness was violated when an event shocked the conscious
b.     Other argument is for total incorporation view of 14th
                                                              i.      Total incorporation never actually taken
                                                            ii.      7th amendment runs afoul to total incorporation
                                                          iii.      Partial incorporation
1.      Looks at particular case, decides if specific right it important and only holds that specific right to all states
                                                           iv.      Supremacy clause – makes const and laws from it supreme law of land
c.      Application of fed law to States
                                                              i.      State is free to provide further protections from state government
1.      In the event of a conflict between federal and state, the fed can still review such state law
2.      I.E Michigan v. long = if restriction is based on Federal law then Federal court can review it. The burden is on the state to prove that it is based upon state law.
a.      However the state court can always go back and change its opinion a bit to rely on state const instead.
                                                            ii.      State cant reduce applicable federal protection
d.       Procedure of appellate review
                                                              i.      If state case then start at circuit, then appeal to court of appeals, the may petition for state supreme court review.
1.      In death penalty cases, review will automatically defer to the supreme court.
                                                            ii.      If state supreme court appeal is denied then may file a pet for writ of certari.
                                                          iii.      Can also file a collateral attack post conviction if attorney was a drunk or something.. If the post conviction collateral attack is denied then may appeal it to court of appeals and sup court.
                                                           iv.      Finally, if Post conviction appeal fails then may file for habeus corpus.
1.      This is a civil suit where defendant is stating that he is being held unconstitutionally. Can also appeal this all the way up to the supreme court
2.      generally is a suit against warden or penal system.
3.      new law cant be made through a petition for habeus corpus.
III.        Right to counsel
a.      In England, you couldn’t even have counsel unless

berty in the 14th
                                                              i.      Gideon v. Wainright – Selective incorporation
1.      This was the warren court
2.      Justice black overrules betts one of the reasons of which was the misconception of amiscous briefs in Bets.
3.      Held that now anyone who Is accused with a felony who cant afford one is given appointed counsel Regardless of what person ultimately is convicted of.
g.      Argersinger v. Hamlin
                                                              i.      Charged with misdemeanor, state denied assistance of counsel
                                                            ii.      If possibility of imprisonment is a loss of liberty so if possibility of imprisonment for even one day then person is denied liberty when denied assistance of counsel.
h.      Scott v. Fl.
                                                              i.      Convicted of misdemeanor where there is a possibility of punishment but such punishment is never really implemented.
                                                            ii.      D argues that liberty is still at stake
                                                          iii.      State can deny assistance of counsel where there is a mere possibility of imprisonment however, such imprisonment may not be imposed of counsel is in fact denied.