Criminal Procedure
Professor Wefing
I. The Criminal Process: Failure, Choices, and Legitimacy
a. US Supreme Court
i. Breyer, Thomas, Kennedy, Stevens, ROBERTS, Scalia, Souter, Ginsburg, Alito.
ii. Liberals
1. Stevens, Souter, Ginsburg, Breyer
iii. Kennedy is the swing voter
b. Failures
i. State systems were not ensuring justice to people (primarily minorities).
ii. Evolution towards SC beginning to get involved in what the states were doing in their justice system.
iii. Bill of Rights was only intended to apply on a federal level and the states were “separate sovereigns.”
iv. Powell v. Alabama
1. Black men accused of raping white women.
2. Alabama law… punishment for rape is to be fixed by the jury and in its discretion may be from 10 years of imprisonment to death.
a. Juries found Ds guilty and imposed death penalty.
3. Defendants were denied due process of law and equal protection. Was the Constitution contravened?
a. They were not given a fair, impartial and deliberate trial
b. They were denied the right of counsel, with the accustomed incidents of consultation and opportunity of preparation for trial
c. They were tried before juries from which qualified members of their own race were systematically excluded
4. A defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense à denial of due process.
v. Gideon v. Wainwright
1. SC held that 6th Amendment right to counsel is incorporated through the 14th amendment DPC and is applicable to all state courts or all defendants who are indigent.
c. Seeking Legitimacy in the 14th Amendment
i. How to get the Bill of Rights to be applicable on the state level.
ii. Incorporation Doctrine
1. Total Incorporation
a. Justice Black was the main proponent.
2. Selective Incorporation
a. Select by whether or not they considered it to be a fundamental/essential part of due process.
b. Whether the justices believed that it was a fundamental right/protection.
c. Selections from the Bill of Rights NOT incorporated by the 14th Amendment:
i. Grand Jury Indictment (23 people to protect D from overzealous prosecution).
ii. Right to jury of 12 in criminal cases
1. For acquittal or conviction, jury has to be unanimous. This is true of federal system and majority of states.
2. Anything but unanimous jury is hung jury
3. Hung jury – D may be retried for the same crime, and this is not a violation of double jeopardy.
d. Doesn’t prohibit jury instruction that D’s failure to testify may create negative inference (this one is bad law now).
3. Slowly began applying various parts of the Constitution to the states.
iii. “No state shall [1] make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; [2] nor shall any State deprive any person of life, liberty, or property, without due process of law; [3] nor deny to any person within its jurisdiction the equal protection of the laws.”
iv. Duncan v. Louisiana
1. Is the 6th Amendment right to trial by jury a fundamental right?
2. “we hold that the 14th 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 6th amendment’s guarantee.”
3. Held: Right to trial by jury in criminal cases if fundamental to American scheme of justice, and therefore 14th Amendment guarantees this right in all MAJOR criminal cases. Part of 6th is incorporated by the 14th.
4. The Sixth Amendment:
a. (1) In all criminal prosecutions,
b. (2) accused shall enjoy right to speedy
c. (3) and fair trial
d. (4) by an impartial jury
e. (5) of the State and district where the crime was committed.
5. Rationale:
a. Prevent oppression from the government
b. Independent judiciary
c. Protection against arbitrary action
d. Protection from both prosecution and judge.
e. Summary: Reluctance to entrust power to ONE.
6. Take-away: ALL states must provide jury trials for crimes where penalties exceed 6 months (where crime is serious).
a. The Other Side of the Coin: There is no constitutional right to a non-jury trial.
i. The court may order a jury even over objection of D.
7. Concurring [Black, Douglas]
a. the Bill of Rights should apply to states.
8. Concurring [Fortas]
a. Although in agreement with the conclusion, does not agree that all of the rules in federal court should apply to states.
b. Drafters of the 14th amendment intended what they said, not more or less.
9. Dissenting [Harlan, Stewart]
a. LA is not prohibited by the Constitution from trying charges of battery to the court alone.
b. 14th amendment does not impose on the states the rules that may be in force in the federal courts except where such rules are also found to be essential to basic fairness.
c. Denial of trial by jury is not fundamentally unfair.
i. It has been held in past cases.
ii. Trial by jury is not the only fair means f resolving issues of fact.
v. There is no constitutional right to a non-jury trial although courts are generally happy to comply with this wish.
vi. Apodaca v. Oregon
1. Court held that unanimous jury verdicts are required by the 6th (as to the fed system) but not required by the 14th (as to the state system).
d. SELECTIVE INCORPORATION
i. Whether a right extended by the 5th or 6th amendments with respect to federal criminal proceedings is also protected against state action by the 14th amendment must demonstrate
1. Whether a right is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?”
2. Whether it is basic in our system of jurisprudence and
3. Whether it is fundament right essential to a fair trial.
e. The Norms Of the Criminal Process
i. Factors that move judges to choose outcomes
1. How the judge balances security and individual rights (legitimate)
2. How the judge views the balance between imposition of federal supervision and granting the states autonomy in their criminal justice processes.
3. Racism (illegitimate)
ii. Accuracy of Verdicts
1. “innocence-weighted” protects innocent defendants.
a. Better that 10 guilty people escape than one innocent suffer.
2. Proof beyond a reasonable doubt.
3. The right to confront and to call witnesses
4. The right to a speedy trial
iii. Fairness of the Procedure
1. Equality
2. Rights involving witnesses.
iv. Honoring the presence of certain limitations of the power of government to find or use evidence
1. The 4th amendment and the privilege against self incrimination are accuracy impeding provisions that impair the accuracy enhancing trial provisions of the 6th amendment.
2. “the people” are separate from the government.
a. The government must not interfere with our daily lives.
3. 5th amendment contains general rights against government.
v. Efficiency
1. Plea bargains are more efficient than trial and over 90% of felony charges are bargained to guilty pleas.
2. Plea bargains are the grease that permits the wheels of justice to turn smoothly.
vi. Norms pos
rugs swallowed two pills when police broke into his house. At direction of officer, doctor forced stomach pump into petitioner which produced vomiting of pills.
1. Held: Although state police conducted warrantless search/seizure, the 14th Amendment due process clause prohibited admission of the pills b/c POs illegally broke into home (privacy) and forcibly extracted the contents of his stomach which were then used against him.
iv. Mapp v. Ohio
1. Appellant had under her control certain lewd and lascivious books, pictures, and photographs in violation of state law.
2. No search warrant but police officers were chasing the story about this woman.
3. Even if the search were made without authority, or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence at trial.
a. Wolf v. Colorado decided that the Weeks exclusionary rule would not then be imposed upon the states as an essential ingredient of the right of privacy.
i. Without a remedy there is no right but the remedy is a constitutional privilege within the right itself.
4. Rationale: Three rationales from the court:
a. The exclusion doctrine is essential part of right to privacy—admission of new constitutional right under WOLF makes exclusionary rule part and parcel of 4th Amendment.
i. Sum: Without a remedy, there is no right (But court has basically rejected this prong later).
b. Deterrence
i. Without rule, there is no deterrence of police misconduct
ii. Goal of 4th Amendment is to STOP government from interfering w/ individuals inappropriately.
1. Later distinction between police officer’s mistake and JUDGE’S mistake in issuing a warrant.
a. Police officer: Exclusion.
b. Judge: Not necessarily.
c. Judicial Integrity
i. How can a court permit use of illegally received evidence?
ii. If the government violates the law, how can we tell others that they can’t violate the law.
5. Concurring [Black]
a. 4th amendment does not itself contain or imply any provision expressly precluding the use of such evidence.
b. Close interrelationship between the 4th and 5th amendments…unable to justify the seizure of private papers in the Boyd case (in the context of seizure of non illegal things).
6. Dissenting [Harlan, Frankfurter, Wittaker]
a. Disparity of views among the states lies simply in the fact that the judgment involved is a debatable one.
b. The evidence found is Constitutionally significant to a trial.
c. Judicial Restraint
i. Should recognize the state court’s integrity. States are primarily in charge of the justice system and the federal government should not regularly interpose their views.
ii. However, the court at this point thought that without their integrity, the states would not be willing to protect their people from the overzealousness of the police.
d. Criticism of not applying stare decisis
