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Criminal Procedure: Investigation
Rutgers University, Newark School of Law
Green, Stuart

Question of how to balance safety with personal autonomy is at the heart of criminal procedure:      
(1) liberty, (2) privacy, (3) who may violate these.
** The Constitution provides the floor of protection for criminal defendants. States are free to grant greater protection, and many do. (EX: State providing 24 jurors)
               Judges cloak foundational views in the language of:

               (1) the accuracy of verdicts,

               (2) the fairness of the procedure,

               (3) honoring the presence of certain limitations on the power of government to find
                      or use evidence, and
               (4) efficiency.
            NOTE: These interests all intersect and sometimes conflict with one another
            1. Accuracy  (An Innocence-Weighted Criminal Procedure)
                             The right to confront and call a witness, right to a speedy trial, right to an attorney all serve to enhance accuracy and are guaranteed by the Sixth Amendment.
(1) Current Rule: if evidence is seized illegally, it cannot be used at trial.
       (a)  Seeks to prevent a mistake in the future and protect the privacy of citizens who                   
              do deserve the protection of the law. 

                             (b)  Provides disincentive by excluding illegally seized evidence; police must obtain             
                                    evidence through “good behavior.” 

                NOTE: Professor said right to counsel is the keystone to basically all other rights.
                             EX: Right against Double Jeopardy Meaningless W/O Effective Counsel
            2. Fairness
The Fifth Amendment gives criminals the right to refuse to answer questions, but most suspects are not aware of their right. Fairness implicates equality. Miranda
** The law derives its legitimacy from fair and equal application.
            3. Limited Government AKA “Federalism”
Defendants are not required to testify at trial.
(1) Fourth Amendment: recognizes the right to be secure, establishes strict standards for issuing warrants; part of the overall theme separating “people” from the government.
(2) Fifth Amendment: forbids double jeopardy, government compulsion to testify, grand jury indictment, certain actions without due process of the law, etc.
            4. Efficiency
                            The need for efficiency has lead scholars to question suppression of evidence seized in violation of the Fourth Amendment; Miranda principle, etc.
                            ** Plea bargains are more efficient than trial. 90% of felony charges are bargained to guilty pleas.
Conflicts: Limited Government Notion oftentimes conflicts with efficiency. Specifically, low clearance rate has urged some to remove limited government provisions.
            5. Post 9/11
                How much civil liberty should be surrendered to ensure the security of American citizens?
            6. Certainty
                Professor stated this was another norm. In essence, how certain must the government be that the
                individual committed the crime? Should it be 100%?
            B.        INCORPORATION: “Bill of Rights and 14th Amendment”
               Part One: “Up Through The Mid 20th Century”
           1) 1787à Constitution
           2) 1791à Bill of Rights
                 3) 1833à Barron v. Baltimore – Marshall says Bill of Rights does not apply to the states – if the  
                                 Constitution wanted to bind the states, it would have said so explicitly in the Bill of Rights
           4) 1868à Passage of the 14th Amendment
Three Parts of Section One:
  1) Privileges and Immunities Clause, 2) Due Process Clause, and 3) Equal Protection Clause
           5) 1873à Slaughterhouse Cases  – SCOTUS held that Privileges and Immunities Clause protected only the privileges and immunities that exist by virtue of national citizenship, which did not include the rights guaranteed in the Bill of Rights
           6) 1884à Hurtado  – 14th Amend. Due Process Clause applies to state criminal proceedings
BUT right of grand jury indictment is not part of Due Process
Never overturned, today there is NO Federal Right to Grand Jury
                 7) 1908à Twining v. NJ  – Ct. says that the privilege against self-incrimination is not binding on the states. Specifically, DP clause did not prohibit instruction to jury that it could draw negative inference from ∆’s failure to testify
OVERULED by Malloy in 1960’s
                 8) 1937à Palko v. Connecticut  – Cardozo Due Process Incorporation Test. He says something is binding on the states if it is “implicit in the concept of ordered liberty”. It was a restrictive test and only a few rights would qualify. EX: Double Jeopardy DID NOT
             Part Two: “Modern Incorporation”
Duncan v. Louisiana (1968)  
        ∆s’ were charged with simple assault and thus afforded no right to jury under LA constitution.
       Right to jury was only reserved for capital cases and those that could result in hard labor.
MAJORITY: There is a right to jury trial in all criminal cases, which were they to be tried in federal court would come with Sixth Amendment guarantee. Holds the right to jury trial is fundamental and relies on the Fourteenth Amendment Due Process Clause to find its basis. Jury provides protection against treasonous judge or prosecutor.
Test Set Out for Incorporation à you incorporate a right if it “is fundamental to the American scheme of justice” → must be necessary in order to lock in adversarial procedure
Basically “Jot for Jot” Incorporationà the court. will look to the Bill of Rights provision by provision – once it is determined that a provision will be incorporated, all aspects of that provision (jot for jot) will be applied to the states
CONCURRENCE (Black): Prefers Total Incorporation. Says Fourteenth Amendment made all of the Bill of Rights applicable to the States. (However, many see as TOO BROAD because then states must follow everything on fed level)
CONCURRENCE (Fortas): “Laboratory of the States”à Agrees with Majority that Fourteenth Amendment guarantees right to jury for non-petty offenses, but says ancillary rights (that are NOT necessarily fundamental) such as unanimous jury or number of jurors should not be incorporated.
DISSENT (Harlan): “Federalism”à In essence, let the states sort it out and if they get off track then let SCOTUS figure it out. Also, says that no one knows which rights are fundamental, EX: is number of jurors fundamental?
                            2)    The Cases that Incorporated Fundamental Constitutional Rights
The Right
Wolff v. Colorado (1949)
Mapp v. Ohio (1961)
Malloy v. Hogan (1964).
Double Jeopardy
Benton v. Maryland (1969)
(NOTE: Overruled Palko)
Reasonable Doubt
In Re Winship (1970)
Right to Jury
Duncan v. Louisiana (1968)
Speedy Trial
Klopfer v. North Carolina (1967)
Appointment of Counsel
Gideon v. Wainwright (1963)
Pointer v. Texas (1965)
Compulsory Process
(I.E: Right to Call Witnesses)
Washington v. Texas (1967)
Public Trial
In Re Oliver (1948)
Cruel and Unusual Punishment
Robinson v. California (1962)
C.        FAILURES — Prior to Incorporation
               Powell v. Alabama (1932)à Finds Violation under DP Clause, Not 6th Amend.
                     ∆s’ were not given counsel until arraignment. Judge had appointed the whole bar, but no one really wanted to represent the ∆s’ leading to no counsel officially being designated until the morning of trial. Therefore ∆s’ were left without counsel during most critical time: time of their arraignment until beginning of trial (Preparation is Key)
MAJORITY: Court mentions that Right to Counsel under 6th Amendment was violated, but holds that the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear violation of Due Process under 14th Amendment
RULE: “IN A CAPITAL CASE, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court…to assign counsel for him as a necessary requisite of due process of law, but this duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case”
  REASONING: Found on the narrower grounds of DP reasonable time as they did not want to open the flood gates. In essence, did not want every case to end up in federal court. ∆s’ here were illiterate, under close surveillance by community, and lives in deadly peril thus no proper time to effectively prepare.
Fourth Amendment
The Amend. tells us nothing about what to do when it is violated. No real mention of remedies in BOR. The Fifth Amendment mentions “just compensation.”
SEARCH: conduct in question must 
be governmental, not private. It must also constitute a “search,” defined with reference to privacy concepts.
A search is presumptively “unreasonable” when conducted without a warrant
The Fourth Amendment reads:
The right of the people to be secure

; private security guards are not government agents unless deputized as officers of the public police. 

Reasonable Expectation of Privacy: (2nd Period-Present) 
To have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. 
First illustrated in Katz.  This is a less tangible kind of interest!
            ** During 1st Period a search was initially seen as a property based analysis. See Boyd.
Expectation of Privacy
Fourth Amendment applies only where (1) the citizen has manifested a subjective expectation of privacy; and (2) that expectation is one that society accepts as objectively reasonable.
NOTE: Supreme Court decisions have tended to take a restrictive view of what society considers a justifiable privacy expectation.
** Over time Katz will shift from reasonable expectation of privacy to legitimate expectation of privacy**
Katz : important distinction in that not only had Katz manifested a subjective expectation of privacy, but everyone else would expect the same privacy in this situation.
Katz v. US (1967)à Overrules Olmstead & Goldman
∆ objects to evidence collected from FBI agents who had attached an electronic listening and recording device to the outside of a public telephone booth (w/o a warrant)
The 4th Amend. “protects people, not places”, and its reach cannot turn solely on whether a physical intrusion occurred. (Hence moving away from property-based to privacy based)
S.Ct says ∆’s expt. of privacy was violated and was privacy that everyone else would expect at booth. (Was a search!)
Justice Harlan Two-Step Search Requirement
Person must have exhibited an actual (subjective) expectation of privacy AND
That expectation must be one that society is prepared to recognize as “reasonable” (objective)
Special Problems w/ Wiretaps : How to Particularize. Area to Be Searched
Berger v. NYà S.Ct declared NY wiretapping law unconst.
Congress overhauled wiretapping w/ Omnibus Crime Ctl.+Safe Street. Act
            e) Gov. argued no search b/c device was outside booth in public
1.  False Friends “Assuming the Risk” (Private Conversations)
a.   US v. White (1971) → Fails Objective Expectation of Privacy Prong
Gov. agents had written down conversation that wired informant had with ∆
S.Ct says no 4th Amend. Protection b/c it does not meet objective standard of expectation of privacy
No expectation of privacy for conversations that are relayed “directly face to face”
Says you are basically assuming the risk by talking to 3rd person.
Dissent (Harlan): Says difference btwn. wire recording and informant testimony is the degree of accuracy. It is much harder to dispute, you are in essence having a conversation word for word. Therefore, this is a greater intrusion into expectation of privacy. Should require a warrant.
b.   Cases reference by US v. White:
Hoffa v. US (1966): Informant gives evidence to gov. without wearing a wire→ No 4th Amend. expectation of privacy. (No warrant to search and seizure required!)
No legitimate expectation of privacy for person who confides his wrongdoings to his trusted confidant
Lewis v. US (1966): Controlled narcotics purchase by federal agent (no wire) at ∆’s home→ No 4th Amend. expectation of privacy.
Lopez v. US (1963): Agent wears wire and conversation is recorded→ No 4th Amend. expectation of privacy. (No warrant to search and seizure required!)
On Lee v. US (1952):  Agent carrying radio equipment which simultaneously transmits the conversations either to recording equipment or other agents listening to frequency→ No 4th Amend. expectation of privacy. (No warrant to search and seizure required!)