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Criminal Procedure
Rutgers University, Newark School of Law
Mitchell, T. Gary

Criminal Procedure
1.     Powell v. Alabama (1932) (7-2 decision) (LANDMARK CASE)
a.       Several blacks were charged with the rape of 2 white girls. Defendants were all young, ignorant and illiterate. They came from other states and had no family or friends in immediate area. 6 days after an indictment and arraignment at which they were not represented by counsel, the boys were tried. Until morning of trial, no lawyer had been named to represent them.
b.       This was the first case to recognize the constitutional right of an indigent defendant to the assistance of court-appointed counsel. The court found this to be a clear violation of Due Process in that the trial court failed to give the defendants any reasonable time in preparation of their case. They were hurried to trial. There was no thorough investigation into the charges they were assessed with and the counsel who stepped in at the last second to aid the defendants did not know anything about the case nor was he a member of that state’s bar. Defendants were not given the opportunity to secure counsel. (although limited to capital cases)  It is the duty of the court, whether requested or not to assign counsel to the defendants for it is a necessary requisite of due process under the 14th Amendment.
c.       NOTE: a violation arose here because the defendants were put in peril of their lives within a few moments after counsel with any degree of responsibility began representing them.  Thus, they had no opportunity for a thoroughgoing investigation, which undermined a fair hearing.  (The Court may have been concerned with the fairness of the proceeding).
Brown v. Mississippi (1936) (9-0 decision) – the defendants were arrested, tortured, indicted, tried, convicted, and thus sentenced to death in a 6 day proceeding.  The Court held “the freedom of the State is limited by the requirement of Due Process of Law.”  A confession here that was secured by torture violates Due Process.  “Because a State may dispense with a jury trial, it does not follow that it may substitute trial by ordeal.  The rack and torture chamber may not be substituted for the witness stand. The State may not permit an accused to be hurried to conviction under mob domination where the whole proceeding is but a mask without supplying a corrective process.”
Betts v. Brady (1942) (6-3 decision) – The majority here limits Powell.  Betts was charged with robbery. Defendant was indigent and could not afford an attorney and thus defendant asked the court to appoint one. The state asserted it was not their general practice to appoint counsel for indigent defendants with exception to murder and rape cases. Defendant was found guilty. This Court affirmed holding that “a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the due process clause. The denial of such right must be appraised by the totalities of the circumstances. “A 14th Amendment Due Process right to counsel violation exists only where the failure to appoint counsel results in a fundamentally unfair conviction.” Thus the facts and circumstances in Betts were not so offensive to the common and fundamental ideas of fairness as to amount to a denial of due process. NOTE: this case was overruled by Gideon v. Wainwright (1963) (9-0 decision).
Barron v. Baltimore (1833) (9-0 decision) – “none of the bill of rights’ guarantees binds the several states.”
Slaughter-House Cases (1873) (5-4 decision) – “the privileges and immunities clause of the 14th amendment exist by virtue of national citizenship which cannot allow for the incorporation of the Bill of rights against the several states.”
Hurtado v. California (1884) – “the 14th amendment due process clause applied to state criminal processes though the right to a grand jury indictment is not part of due process.”
Maxwell v. Dow (1900) – The Court held “the right to a jury of twelve in a criminal case is not part of due process.” The state constitution required a jury of eight here.
Twining v. New Jersey (1908) (OVERRULED by Malloy v. Hogan (1964) (5-4 decision)) – the Court held that “due process did not prohibit an instruction to the jury that it could draw a negative inference from the defendant’s failure to testify.”
Palko v. Connecticut (1937) OVERRULED by Benton v. Maryland (1969) (6-2 decision))– Justices Cardozo and Frankfutter favored “selective incorporation” of the Bill of Rights against the several states through the Due Process Clause of the 14th amendment.  Under this test, the issue asserted must be whether the lack of that right subjected the defendant to a hardship so acute and shocking that our polity will not endure it.  Nor would many rights qualify as fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.  What constitutes incorporation? “A principle of justice so rooted in the traditions and consciences of our people that it must be ranked as fundamental;” “if it was the very essence of a scheme of ordered liberty;” and “if a fair and enlightened system of justice was impossible without it.” The Palko ruling was disfavored because it asserted that constitutional rights can be denied by the several States as long as the totality of the circumstances does not disclose a denial of fundamental fairness.
Adamson v. California (1947) (5-4 decision) & Rochin v. California (1952) (8-0 decision) – in both cases, Justice Black, dissenting in Adamson and concurring in Rochin, favored total incorporation.  “The Due Process Clause implicitly incorporates all limits on federal government against the states.” The clause creates no rights other than those found in the Bill of Rights – no less, but also no more.
2.     Duncan v. Louisiana (1968) (7-2 decision) (LANDMARK CASE)
a.       Defendant, black kid, was convicted of simple battery and sentenced to 60 days imprisonment and $150 fine. Before trial, he requested a jury trial but was denied. Under Louisiana law, a jury trial is guaranteed only in cases where capital punishment or imprisonment at hard labor may be imposed. Simple battery is misdemeanor. Defendant appealed conviction on the basis that denial of a jury trial violated his 6th and 14th amendment rights.
b.       Issue: does the Constitution impose a duty on state to give a jury trial in any criminal case, regardless of the seriousness of the crime or the punishment imposed? YES
c.       The Court held “a right to a jury trial is granted to criminal defendants in order to prevent oppression by the government. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.  The deep commitment of the Nation to the right of a jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the 14th amendment and must therefore be respected by the several States.” The Judgment of the Louisiana Supreme Court is reversed.
Benton v. Maryland (1969) (6-2 decision) – The Court held the double jeopardy clause of the 5th amendment to be applicable against the several states through the 14th amendment.
Apodaca v. Oregon (1972) (5-4 decision) – The Court held that unanimous verdicts are required by the 6th amendment but NOT by the 14th amendment.  The States are not required to have unanimous jury verdicts.
1.    The text and its mysteries
a.       The 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
b.       RATIONALE: The 4th amendment seemingly extends to four areas as described above.  Anything outside that is thus outside the scope of protection.  The amendment bars unreasonable searches and seizures and further asserts that no warrant shall be issued (for a search or seizure) without Probable Cause.  Finally, the places to be searched and the persons or things to be seized must be described with specificity and particularity in order to prevent the issuance of broad and general warrants and pre

for questioning regarding a bombing was hiding in the Mapp home. The police then forcibly entered, waived a piece of paper they claimed was a warrant and proceeded to search extensively the 2nd floor and basement where the found obscene material. Ohio supreme court agreed that the search was unlawful but upheld conviction on the basis that materials had not been taken from Mapp’s “person by the use of brutal or offensive physical force against” her.  Ohio Supreme Court applied both Wolf and Rochin.
                                                             ii.      The U.S. Supreme Court granted certiorari and reversed the conviction. “It appears that the factual considerations supporting the failure of the Wolf Court to include the Weeks exclusionary rule when it recognized the enforceability of the right to privacy against the States in 1949, while not basically relevant to the constitutional consideration could not, in any analysis, now be deemed controlling.” In overruling Wolf, this Court now holds “that all evidence obtained by searches and seizures in violation of the Constitution are, by that same authority, inadmissible in a state court.” Also this Court put an end to the “silver patter” doctrine.
1.    What is a search?
a.    Prior to the Katz Ruling
Boyd v. United States (1886) – the 4th amendment does not apply absent a physical intrusion or trespass of a constitutionally protected area, commonly a house.
Hester v. United States (1924) (9-0 decision) – entry of an open field does not implicate a 4th amendment violation.  (Distinction of open fields vs. curtilage)
Olmstead v. United States (1928) (5-4 decision) – interception of conversations from home fell outside of the 4th amendment.  The Court held that conversations are not persons, houses, papers, or effects. Words are not tangible objects.  Furthermore, wiretapping took place outside the cartilage of the house.  The telephone wires were on public streets.  There was no trespass, no intrusion. See also Goldman v. United States (1942).
Silverman v. United States (1961) – this Court held that eavesdropping accomplished by means of an electronic device that penetrated the premises occupied by petitioner was a violation of the 4th amendment.  This was the first case that established that interception of conversations reasonably intended to be private could constitute a search and seizure.
Hoffa v. United States (1966) (4-1 decision) – there was conversation in a hotel suite between a wired long time friend and the defendant.  The friend aided the government in obtaining information from the defendant. The Court found no violation where the defendant voluntarily spoke to another person.  The 4th amendment protects privacy not betrayals.  No search occurs if informant or agent reports on statements made by defendant.  “However strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the 4th amendment when it turns out that the colleague is a government agent regularly communicating with the authorities.  In these circumstances, no interest legitimately protected by the 4th amendment is involved for that amendment affords no protection to a wrongdoer’s misplaced belief that a person whom he