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Criminal Procedure
Rutgers University, Newark School of Law
Thomas, George C.

Criminal Procedure Outline – Spring 2012
Professor George Thomas
I.                    The Criminal Process
a.       Failures
                                                              i.      Powell v. Alabama: Defendants were African American boys accused of raping two white women.  All of the defendants were found guilty by the jury in Alabama and sentenced to death. Brought to the Supreme Court on the grounds that these boys were denied their right to effective counsel.  This was held to be a denial of due process because although the boys were given counsel, they were not able to consult with them, one of them did not even know the local rules, and denied them a fair trial. Considering the youths were uneducated, they were isolated from friends and family, and were in deadly peril for their lives, court HELD that the failure of the trial court to give them reasonable time and opportunity to secure counsel is a clear denial of due process.  Failure to make an effective appointment of counsel is a violation of the due process clause of the 14th Amendment.
1.       Court believed that they had accomplished something- fact that the boys were not lynched but even had a trial was an accomplishment in these days.
2.       Women later admitted they had lied about abuse.
                                                            ii.      Brown v. Mississippi: Whether convictions, which rest solely upon confessions shown to have been extorted by officers of the State by brutality and violence, are consistent with due process of the law required by the 14th amendment of the Constitution of the United States?  It was held that it is a violation of the Due Process Clause of the 14th Amendment and the 5th Amendment right against self-incrimination to use a confession that was elicited through torture to convict.
1.       This case illustrates how federal constitutional rights also often times apply to the states through the Fourteenth Amendment Due Process Clause. 
 
b.      Seeking Legitimacy in the 14th Amendment
                                                              i.      Fourteenth Amendment:
1.       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.
 
                                                            ii.      Duncan v. Louisiana: Whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings (trial by jury) is also protected against state action by the 14th amendment.  The court considered whether this is a basic, fundamental right or aspect in the American justice scheme.  The Court held that it is a fundamental right guaranteed by the 14th amendment to a jury trial in all criminal cases.
1.       Holding:  Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which- were they to be tried in a federal court- would come within the Sixth Amendment’s guarantee.
2.       Theories of Incorporation: 1) Total Incorporation 2) Fundamental Rights 3) Selective Incorporation
3.       Fourteenth Amendment now protects the right to compensation for property taken by the State, rights of speech, press, and religion covered by the First Amendment, the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized, right guaranteed by the Fifth Amendment to be free of compelled self-incrimination, and the Sixth Amendment to counsel, to a speedy and public trial, to confrontation of opposing witnesses and to compulsory process for obtaining witnesses. 
4.       Only grand jury, lack of bail are not incorporated out of all the rights in Bill of Rights.
5.       Very narrow holding in the majority.  Only get jury trial in very small instances- capital offenses only.
6.       What was the REAL dividing line?
a.       Only grants jury trials in felonies and not in misdemeanors.
7.       Current Rule for LA:  If the D is facing six months or more of jail time, then the D is entitled to a jury trial!
 
c.       The Norms of the Criminal Process
                                                              i.      Accuracy – “innocence weighted” procedural approach – standard = beyond a reasonable doubt (criminal) and preponderance of the evidence (civil)- important to have a lawyer, be able to call witnesses, speedy and public trial and an impartial jury (6th Amendment)
1.       Benefits to having a high standard of proof:
a.       More innocent defendants will stand trial rather than plea bargain.
b.      It should be more difficult to convict innocent D’s than guilty ones.
c.       Does the standard which gives more acquittals actually work in favor of innocent D’s or does it evenly disperse those acquittals among guilty and innocent?
                                                            ii.      Fairness –What constitutes fairness? How much/when should suspects be specifically told their rights?
1.       Fairness implicates equality- rich/poor, knowledgeable/ignorant, etc.
2.       Another view is that so long as the police do not coerce a confession, one could argue that it is fair to question suspects who are under arrest, and even to take advantage of suspects who do not know of the privilege against self-incrimination. 
3.       This is a very controversial legitimacy factor.
                                                          iii.      Limited Government Provisions- Many provisions of criminal procedure are based on the idea of restricting government interference with our autonomy
1.       Fourth Amendment is part of an overall theme in the Bill of Rights that establishes “the people” as a separate entity from the government.
2.       First Amendment forbids a state religion and creates the right to worship freely.
3.       Second Amendment provides for a militia to exist separately from government.
4.       Ninth and Tenth Amendments retain power in the people and the states.
5.       Fourth Amendment is viewed as saying that the government must not interfere with our daily lives absent good cause.
a.       This includes making sure there is a warrant for evidence or that evidence will not be allowed to be admitted.
6.       Fifth Amendment- prevents double jeopardy, grand jury indictment, prevents the government from denying life, liberty, or property without due process, protects against self-incrimination.
                                                           iv.      Efficiency – Must be balanced with fairness
1.       The political and pragmatic legitimacy of the criminal

ction based on evidence that would have been inadmissible in a federal context apply to the states through the Due Process Clause of the 14th amendment?  In this case, the evidence was obtained in a way which would have violated the 4th amendment according to Weeks. It was held that prosecution in a State court for a State crime the 14th amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.
                                                           iv.      Rochin v. California (1952) – In cases where the search or seizure “shocks the conscience” (here, pumping suspect’s stomach to produce vomiting), the court was willing to step in and impose the exclusionary rule to the states.
                                                             v.      Mapp v. Ohio (1961): Therefore, the Court holds that evidence obtained by searches and seizures in violation of the Constitution is inadmissible in a state court. The 4th amendment applies to the states through the due process clause of the 14th amendment. Allowing the state to take away freedoms that would be prohibited by the federal government is counterintuitive and doesn’t make sense.  Overturns Wolf v. Colorado. 
 
III.                Passing the Threshold of the Fourth Amendment
a.       What is a “Search”?
                                                              i.      Katz v. United States: Whether a phone booth counts as a constitutionally protected area pursuant to the protection of the 4th Amendment. The Court holds that the 4th Amendment protects people, not places, and defendant did not shed his right to privacy just because he was in a place where he could be seen. In his concurrence, Justice Harlan articulated the test: Was this an area where a person has a constitutionally protected reasonable expectation of privacy? Also- invasion of privacy does not have to be physical
1.       Person exhibited an actual (subjective) expectation of privacy and;
2.       The expectation of privacy is one that society is prepared to recognize as legitimate.
a.       Berger v. New York (1967) – NY wiretapping statute unconstitutional b/c it permitted law enforcement officers to obtain a judicial order for electronic surveillance w/o particularizing the expected crime/conversations
                                                            ii.      United States v. White (1971): Whether conversations overheard between a gov’t informant and D through the use of radio equipment were permissible under the 4th Amendment.  The Court held that Katz does not apply here, since this case involves the D’s misplaced trust in a gov’t informant, and the 4th Amendment does not protect a D against the possibility that his conversations may be repeated to the police.