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

A.    Origins of Criminal Procedure, the Role of Constitutional Doctrine & Counsel
1.      The use of constitutional power
a.      to guide governmental investigation and adjudication
b.      to protect privacy and innocence
c.       to curb the seemingly inexorable tendencies of established governments to engage in lawlessness to curb lawbreaking.
2.      Johnson v. Tennessee (1906-1909) (in just 17 days young man arrested, indicted, tried, convicted and sentenced to be hanged)
a.      and U.S. v. Shipp (1909) (5-3) (federal criminal contempt by Sheriff and members of lynch mob): For first time the Court appeared to credit constitutional attack on state criminal process.
3.      Frank v. Mangum (1915) (7-2) (rejected due process violation based on threat of mob violence during trial) (Holmes dissented)
4.      Moore v. Dempsey (1923) (6-2) (Holmes opinion) (murder trial hurried under extreme mob domination violates due process)
5.      Powell v. Alabama (1932) (7-2): Capital case for rape of white woman with no counsel till date of trial. Lack of appointment of or time to secure counsel denied due process under 14th Amendment; no counsel in any real sense from date of arraignment until start of trial. Required for fair hearing.
6.      Brown v. Mississippi (1936) (9-0): Confession secured by torture or physical pain violates due process.
B.     Norms, Rules, Innocence, the 4th and 14th Amendments & the States
1.      14th Amendment is only amendment to limit state action through:
a.      Privileges and Immunities Clause
b.      Equal Protection Clause
c.       Due Process Clause
2.      As of now: all rights we possess today against the federal government that are fundamental are also rights against local and state police.
3.      Enumerated rights not incorporated against the states are just a few:
a.      to keep and bear arms (2nd Amendment) until McDonald v. City of Chicago (June 28, 2010
b.       to grand jury indictment (5th Amendment)
c.       civil jury trial (7th Amendment);
d.      ban on excessive bail (8th Amendment)
e.       Remember: Technically Accurate Rule: each of the Amendments we will study applies against the states through the 14th Amendment
4.      Case History
a.      Betts v. Brady (1942) (6-3) Robbery case. A 14th Amendment Due Process right to counsel exists only where the failure to appoint counsel results in a fundamentally unfair conviction. Court looks at whole proceeding and does not extend Powell.
b.      1884: Hurtado v. California, 14th Amendment applied to state criminal processes, but due process does not create right to a grand jury indictment
c.       1900: Maxwell v. Dow, 12 person jury not part of due process
i.        Duncan v. Louisiana (1968) (7-2) (state jury trials to be required as in federal court under 6th Amendment)
d.      1908: Twining v. N.J., due process does not bar negative inference from defendant’s 5th Amendment based failure to testify.
i.        Malloy v. Hogan (1964) (5-4) (5th Amendment privilege applicable to states, overrules Twining)
e.       Benton v. Maryland (1969) (6-2) (double jeopardy clause of 5th Amendment applicable to the states through 14th) (overruling Palko (1937)
5.      Retroactivity Doctrine
a.      At common law: all new rules of law retroactive, a simple straight forward answer, fully applicable and to everybody
b.      Linkletter v. Walker (1967): Does Mapp exclusionary rule apply retroactively. – Held: No. Rejected common law rule. Replaced with three factor test (purpose, reliance and effect). Result: some rules fully retroactive, some not at all, some only for a short period of time. Not very consistent. Difficult to predict.
c.       Teague v. Lang (1989): overrules Linkletter; – Held: a new rule is retroactive only if conviction is not final.
i.        Examples
(a)    Interrogation before Miranda? Yes
(b)   Trial before Miranda? Yes
(c)     Serving time after all appeals final? No
1.      Exceptions: 1) entire class of conduct beyond reach of criminal law: – E.g., possession of obscene literature in home; possession of birth control devices. 2) Watershed Rule: Focus is on something that guarantees fundamental fairness of criminal trail; not broad exception, must go to very essence of process (indigent defendant right to a lawyer, trial not fair nor even reliable, assures fundamental fairness of trial)
6.      Harmless Error Rule
a.      Non-constitutional error: Defendant has burden to prove error (e.g., hearsay) that it “more likely than not” led to conviction. Tough to do.
b.      Constitutional error standard: two types, different burdens on state
i.        Trial errors (evidence introduced or excluded that raises constitutional issue, e.g., coerced confession): government (as beneficiary) must prove “beyond a reasonable doubt” that conviction would have occurred, that error did not contribute to verdict, i.e., error harmless.
ii.      Structural Defect error: something that goes to core of trail that renders trial unreliable. E.g., judicial bias, denial of right to counsel. If a “structural defect” in trial, then a per se rule applies that error was prejudicial. Rationale: no way to measure effect of error.
7.      The Exclusionary Rule
a.      Weeks v. U.S. (1914) (Unanimous) evidence from unlawful (warrantless) search by federal agents yielding lottery tickets not admissible in federal prosecution
b.      Wolf v. Colorado (1949) (6-3) 4th amendment is binding on the states. There is no 14th amendment prohibition on admission of evidence obtained from unlawful search.
c.       Mapp v. Ohio (1961) (6-3) 4th amendment prohibits use of evidence found during warrantless search. our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. 
A.    TEXT: “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.”

ts in owner’s apt. for a few hours and had no previous relationship w/ owner and the sole purpose of their visit was for illegal purposes.
3.      Curtilage and Open Fields
a.      Curtilage: The land immediately surrounding and associated w/ the home is generally a protected area.
i.        Oliver v. U.S.(1984)(6-3) Reasonable expectation of privacy in “curtilage” area, but not open field. No search occurs when police view activities in open fields, regardless of illegality of trespass.
(a)   Open fields not included in 4th amendment text (houses, papers, effects)
(b)   No privacy expectation. People know signs are ignored also could see the field from the public air space.
ii.      U.S. v. Dunn: Barn not within curtilage, so warrantless observation not a search; observation from open field into open front of barn did not violate privacy. 4 factors to see if something is “curtilage”—
(a)   (1) its proximity to the home (the closer it is to the home the more likely it is cartilage);
(b)   (2) whether it is enclosed (e.g. a fence or gate around the house, will likely put areas outside it, out of curtilage);
(c)    (3) the nature of its uses (e.g. intimate areas associated with sanctity of the home); and
(d)   (4) the steps taken to protect it from observation.
b.      Open Fields
i.        Oliver v. U.S.: The area beyond the curtilage is exempt from 4th Amendment requirements and can be entered and searched w/o a warrant. Police presence on a person’s property that is an open field (i.e. beyond the curtilage) does not require compliance w/ 4th Amendment (even though it constitutes a trespass).
ii.      CA v. Ciraolo (1986) (5-4) Search of pot fields from public airspace that is not physically intrusive is not a search
4.      Trash
a.      CA v. Greenwood (1986) (7-2): Court held that a D had no reasonably expectation of privacy in garbage that was placed in opaque trash bags, left on curb, and searched by police who procured the bags from the garbage collector. D’s knowingly exposed a private item to the public.
i.        Things to consider: Is the trashcan closer to the home or the street? Is there a fence?
5.      Advanced Technology
a.      Carry-on luggage
i.        Bond v. U.S. (2002): A person has a reasonable expectation of privacy in carry-on luggage placed in an overhead bin by a bus passenger and squeezed by police. Physically invasive b/c the bus passenger did not expect that others would explore the bag. Court also looked to public custom (therefore the court did not apply Greenwood’s logic)