I. Why do we study due process
a. Cannot deprive a person of life, liberty, without due process
b. One of the results of criminal conviction is the loss of life or liberty
c. The bill of rights now apply to state criminal proceedings through the 14th amendment and due process
II. Idea of Due Process
a. What is it? Possible definitions
i. Fundamental fairness
1. Almost impossible to define
2. Judicial intuition
ii. Ensure an accurate outcome
iii. Rule of law
1. Avoids arbitrariness
2. Vagueness-substantive tilt
iv. Bill of Rights (Incorporation)
1. What the individual right means
b. Hurtado case- Policies enacted by appropriate authority like legislative body duly constitutes that applies generally is not arbitrary and is a general rule
i. Hurtado says- The failure to indict him by grand jury was a violation of due process
1. Comes from the 5th amendment (which is applicable to the federal government, applies to the state of California through due process)
ii. How does the court decide that?
1. Majority-Due process is a general rule of law enacted by legislature
2. Court says the amendments are separate (5th amendment has due process and grand jury, and 14th only has due process)
3. The fact that grand juries were used in early history does not mean that the court is stuck with that process
4. Court shouldn’t be deciding this, because the legislature has already decided this
iii. Harlan dissent
1. Full incorporation- by the enactment of the 14th amendment and states’ ratification of it, the phrase due process of law was intended to incorporate the bill of rights
a. Due Process means the Bill of Rights
c. Duncan v. Lousiana (1968)
i. Criminal cases that would be tried in federal court have a right to jury (hinting (adopted later) that if penalty is greater than 6 months, then accused has a right to jury)
ii. Idea of Selective incorporation
iii. Courts in several of cases incorporated parts of the Bill of Rights (Right to counsel, no tortured confessions, no mob dominated trials)
d. Hamdi v. Rumsfeld
i. What idea of due process should apply
1. Rule: entitled to notice of the factual basis for his classification and a fair opportunity to rebut the government’s factual assertions before a neutral decision maker
ii. Scalia- Charge him with a crime or suspend the habeas corpus
1. Bill of rights would then apply
iii. This is not a criminal case, it is about someone being in jail
1. Government’s argument-Enemy combatant means that you can be detained until the end of hostilities, which could last an infinite time
e. Residual Due Process
i. Medina v. California (competence to stand trial case)
1. Incompetency addresses whether the state/government can conduct a trial
2. History says you cannot try someone who is incompetent
3. Issue: When there is a claim of incompetency, where does the burden lie?
a. On defendant by preponderance of evidence
b. What does Medina say about the due process clause? Takes Harlan’s view from Hurtado
i. Court has taken an approach which says that criminal due process involves the bill of rights
4. References Mathews balancing Test but rejects it
a. first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail
b. test is used in civil administrative proceedings
5. Chooses to use approach from Patterson
a. Preventing and dealing with crime is much more the business of the states than it is the federal government. The state’s decision in this regard is not subject to proscription under the Due Process Clause unless ‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental’
III. The Rise and Fall of Boyd v. United States
a. Boyd probably represents the apex/maximum protections of the Fourth and Fifth Amendments
i. Cases after Boyd move away from this for many reasons
b. Boyd v. United States (1886)
i. Forfeiture case in which Boyds’ did not pay the taxes that was owed for importing glass to U.S.
ii. Statute authorized government to make Boyd turn over materials (papers) (big issue was the price of the glass) Boyd objected based on the fourth and fifth amendment
1. Boyd alleged it was an unauthorized search and seizure
2. Also alleged that it forced him to testify against himself
3. The compulsion was that if Boyd did not turn over the documents the allegations would be deemed to be confessed
4. Statute is not a search in the traditional sense, but does require party who is served to come to court with the documents and those documents are examined and could be used against them
a. Court was satisfied that what the statute was asking was for a search
b. Search is for papers
iii. Key Point-
1. Fourth amendment does not prevent searches and seizures, it prevents unreasonable searches and seizures
a. Reasonable for searches for stolen goods, contraband
iv. Court says the particular statute had never been authorized by any court
v. Rules it is unreasonable
1. It is an invasion of privacy (using fifth amendment that evidence would be used to testify against oneself)
vi. Treats fourth and fifth amendment claims as functional (even though it really is not a search or a criminal case)
1. the two amendments come together according to the court
vii. What does Boyd protect (the two amendments together protect)
1. Property
2. Privacy
c. Gouled case
i. Mere Evidence Rule- held that search warrants could not issue to seize mere evidence of crime.
d. Fall of Boyd and Gouled
i. Recognized that there was some societal interest as opposed to personal interests that undercut Boyd
ii. There comes a point when the government wants to regulate property, so it needed information
iii. Hale v. Hinkel
1. Corporations do not have fifth amendment protection/privilege
a. Because records belong to the corporation, a person cannot say those records incriminate them and thus illegal
iv. Shapiro v. U.S.
1. Required records document- provisions said that you could not hide behind the protections of Boyd
a. Required documents- a homeowner has to keep certain documents
v. Marron v. U.S.
1. Government can seize any instrumentality of a crime
a. This could include papers and books if they were involved
vi. Schmerber v. California (1966)
1.
ge on individual’s behalf, not the corporation
4. Cannot say Braswell turned over the documents, but can say corporation turned over the documents
xiii. United States v. Hubbell (second prosecution based on documents that were produced in response to a grant of immunity, subpoenaed)
1. Seems to give a little more protection
2. Court strikes down subpoena
3. Government made derivative use of the immunity which should not be allowed
4. Could be two things happening
a. Maybe adopting Marshall’s concurrence of the fruit/derivative use of the documents (the contents), the government cannot use the contents
i. If it takes us essentially back to Boyd, what do we do about the information that the government needs and societal needs?
b. Or it turns on the use of the person’s mind, an extensive use of a person’s mind would violate it
i. Do we really want courts engaging in this type of analysis?
IV. The Fourth Amendment
a. Two clauses
i. Prohibits unreasonable searches and seizures
ii. Warrants upon probable clause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized
b. The fourth amendment only applies to the federal government (NJ Constitution Article 1 § 7 is exactly the same)
i. The fourth amendment creates the floor beneath which the government cannot go. States under their constitutional provisions can give greater protections to a person
c. There is no remedy for violation of the Fourth Amendment stated in it
d. In 1949, Wolf v. Colorado, the fourth amendment applied to the states
i. But it did not impose the exclusionary rule against the states for violation of the fourth amendment
1. Exclusionary rule 1914 Weeks v. United States
a. Suppresses incriminating evidence that was seized in violation of the fourth amendment (federal government)
b. Achilles’ heel of the rule is that there is exclusion of evidence that you know the person had (you know he did the crime), isn’t this another problem
e. Mapp v. Ohio (1961)(police looking for person wanted in connection to recent bombing, police forcibly entered house and found lewd books and photographs)
i. Was originally a First Amendment case
ii. Imposed exclusionary rule to the states
iii. Silver platter doctrine-federal authorities or state authorities would violate someone’s rights then turn the evidence over to the other authorities to use
1. Discarded by Elkins v. United States
iv. Judicial Integrity
1. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence
