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

Criminal Procedure Outline
Fall 2013
Professor Thomas
a.     Start with the presumption that a certain procedure is justified by a warrant
                                                             i.      NEXT: ask if there is an Exception
                                                          ii.      THOMAS SAYS: the problem is there now 23 exceptions.. and a rule with these exceptions is not much of a rule is it?
                                                       iii.      Therefore about the only place a warrant is required is when you search a home.
Investigation Failures:
1. Brown v. Mississippi (1936)
Brief Fact Summary. Two individuals were convicted of murder, the only evidence of which was their own confessions that were procured after violent interrogation.
Rule: State violates due process of law if action ―offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental
IMPACT:Brown v. Mississippi established the jurisdiction of the federal judiciary to regulate state criminal law procedures when these violate constitutional guarantees of due process. The case was one of the first in a long line that gradually restricted the means available to law enforcement authorities seeking to obtain confessions and evidentiary statements from criminal suspects.
, “[t]he state is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” However, “the freedom of the state in establishing its policy is the freedom of constitutional government and is limited by the requirement of due process of law.”
Here, “the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence.” Accordingly, “[t]he due process clause requires ‘that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” Moreover, “[i]t would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.”
trial failures:
The Right to Effective Assistance of Counsel:
·         ∆ has a right to effective assistance of counsel (Powell v. Alabama, 1932—1301)
2. POWELL V. ALABAMA(Supreme court of the US)(1932)
Class Notes:
a.       HOLDING: pg 27: Duty of court to appoint counsel
b.      Today we have Gideon: every def. chargd with felony is entitled to counsel; if you cant afford counsel it must be appointed to you.
A.      Petitioner Powell was one of several black defendants convicted of raping two white women in Alabama.  During the course of riding a freight train, the defendants found themselves with the victims after a fight resulted in all of the white men aboard being removed from the train. 
B.      At trial, Powell and the other defendants were not provided with an opportunity to confer with their attorneys until immediately before the proceedings began. 
C.       In a series of trials that each lasted a single day, all of the defendants were convicted and sentenced to death. 
D.     Powell and the other defendants argued that the State of Alabama had denied them due process and the right to counsel through failure to furnish legal counsel in a timely manner for the purposes of mounting a defense.
Issue:  Does failure to provide an attorney to a criminal defendant in a capital case in time to properly plan a defense and allow the defendant to confer with his attorney violate due process guarantees?
Holding:  Yes, due process demands that defendants have adequate access to counsel and sufficient time to prepare their defense.  Similarly, the 6th Amdnt. guarantee of the right to counsel demands that defendants have more than an attorney with them at trial, instead requiring that they have the opportunity to make use of effective assistance from that counsel.  The Court held that the Sixth Amendment was applicable to the States by virtue of the due process guarantees of the Fourteenth Amendment.
Conclusion:  Criminal defendants are guaranteed the right to counsel by virtue of the due process rights guaranteed by the Fourteenth Amendment.  The right to counsel requires that defendants have a meaningful opportunity to confer with their attorneys and prepare their defense aided by their appointed counsel.
NORMS, 34-43; 57-63
B. The norms of the Criminal Process: 34- 43
Class Notes:
1.     Federalism biggest point in Criminal procedure for guiding court decisions
a.       Defendants had right under habeas corpus that people had a right to get those convictions relooked at
2.     Narrow Holdings: pg 42
a.      Powell narrow holding: capital cases def. needs to have opportunity to counsel; illiterate, ignorant, young
b.     Note 1: court held powell didn’t apply:
                                                               i.      If you plead guilty to larceny than you should know about crim pro and are therefore competent to represent yourself. LOL this is ridiculous
c.      Note 2: Norms v. Rules
                                                              i.      Perjury is a rule; so if you testify in course; it’s a rule to tell the truth
                                                           ii.      Outside of that it is a norm
d.     Note 3a: yes unreasonable searches
e.      Limited government: you have to have a reason
1.     Judicial choices: two camps
a.      Seeks to understand choices by drawing on different areas of knowledge
b.     Focuses on what it considers illegitimate factors and can loosely be referred to as “critical” scholarship
                                                              i.      Seeks to show that judges shut the door on those who are not in the political majority
c.      Judges need to balance security and individual rights
2.     Federalism also affects Crim. Pro.
3.     Racism
4.     Judgments
a.      Accuracy:

.       No congress or judges issuing: They were worried about general writs and warrants; for routine search and seizure we have tort law; they would not have thought of a general exclusion
A. The text and its Mysteries
B. The reach of the 4th Amendment… pg 65
1.     Two issues in 4th amendment
a.      Who is being searched
b.     The nature of the persons who do the searching and seizing
2.     Who are “the people” described in the constitution?
a.      US v. Verdugo-Urquidez: “refer to a class of persons who are part of a national community or who otherwise developed sufficient connection with this country to be considered a part of the
b.     community.”…….pg 66
C. The birth of the exclusionary rule… pg 67
·         4th amendment limits federal agents; state agents if at all, are limited by the due process clause
Exclusionary Rule explained:
The principle based on federal Constitutional Law that evidence illegally seized by law enforcement officers in violation of a suspect's right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution.
The exclusionary rule is designed to exclude evidence obtained in violation of a criminal defendant'sFourth Amendment rights. The Fourth Amendment protects against unreasonable searches and seizures by law enforcement personnel. If the search of a criminal suspect is unreasonable, the evidence obtained in the search will be excluded from trial.
WEEKS v. US(1914) Established exclusionary rule for 4A violations in federal cases.
Facts of the Case 
Police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions.
Did the search and seizure of Weeks' home violate the Fourth Amendment?
In a unanimous decision, the Court held that the seizure of items from Weeks' residence directly violated his constitutional rights. The Court also held that the government's refusal to return Weeks' possessions violated the Fourth Amendment. To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the “exclusionary rule.