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Criminal Procedure
South Texas College of Law Houston
Rutledge, Njeri Mathis

Criminal Procedure


Chapter 1: The Criminal Process: Failure and Legitimacy

Steps in a Criminal Proceeding

1. Arrest

2. Booking

3. Filing complaint

4. First appearance

a. Notice of charges

b. Right to counsel

c. Bail

5. Preliminary hearing

6. Filing of indictment or information

a. Nature of grand jury proceeding

b. Information

7. Arraignment

8. Pretrial motions

9. Trial

10. Sentencing

11. Appeals

12. Post-conviction remedies

Powell v. Alabama (1932)

· To deny D counsel, where counsel was appointed only moments before trial began, violates the 14: Right to Due Process and Equal Protection.

Brown v. Mississippi (1936)

· Forced confession is in violation of the 14: Right to Due Process (5th: self-incrimination)

Standards for Measuring “Due Process of Law”
Hurtado v. California (1884)

· 5th right to indictment by a grand jury for capital and infamous crimes, is not binding on the states. Many states do not use a grand juries as a regular part of the charging process. Where grand jury indictment is not used or the D waives the right to grand jury action, the state charges by information (a formal charging instrument drawn up by the prosecutor)

Twining v. New Jersey (1908)

· 5th: privilege against self-incrimination denied b/c it was not a fundamental right: case later overruled

Palko v. Connecticut (1937)

· Particular double-jeopardy found constitutionally admissible (where a D could be charged for the same crime twice) later overruled.

“Incorporation Debate”: 14th: Due Process Clause:

Black (Total Incorporation of the Bill of Right) v. Harland (Selective Incorporation)

**Current Law:

All rights incorporated except:

1. Hurtado (Grand Jury option to states) and

2. 8th Amendment protection against Excessive Bail.

3. Benton v. Maryland (1969) overruled Palko

4. Malloy v. Hogan (1964) overruled Twining

5. Modern Analysis of incorporating the Bill of Rights: Legitimizing the Criminal Process

– Accuracy, Truth, Fairness, Legitimacy, Efficiency, Limiting Government

Duncan v. Louisiana

· 14th: guaranteeing a right to trial by jury to those criminal cases that would fall under the 6th Amendment (right to jury trial).

Incorporated Rights under Bill of Rights to the States under 14th

4th Amendment

· The Prohibition against unreasonable searches and seizures (Wolf)

· Exlusionary Rule (Mapp)

5th Amendment

· Bar against double jeopardy (Benton v. Maryland)

· Privilege against forced self-incrimination (Malloy)

6th Amendment

· Right to a jury trial (Duncan)

· Right to a public trial (Oliver)

· Right to a speedy trial (Klopfer)

· Right to confront witnesses (Pointer v. Texas)

· Right to compulsory process to obtain witnesses (Washington v.Texas)

· Right to the assistance of an attorney in felony cases (Gideon)

· Right to the assistance of an attorney in misdemeanor cases in which a prison term is imposed (Argersinger)

8th Amendment

· The prohibition against cruel and unusual punishment (Robinson)

Not-Incorporated Rights

5th Amendment

· Many states do not use grand juries as a regular part of the charging process.

8th Amendment

· Prohibition against excessive bail

Chapter 2: 4th Amendment Overview

4th Amendment and the States
Wolf v. Colorado

· Frankfurter: The security of one’s privacy against arbitrary intrusion by the police – which is at the core of the 4th amendment – is basic to a free society. It is therefore implicit in “the concept of ordered liberty” and as such enforceable against the States through the Due Process Clause.

· 4th: police can not intrude in one’s privacy.

Limitations to the 4th
US v. Verdugo-Urquidez (1990)

· A search or seizure of property located in a foreign country, which is owned by a nonresident alien who is briefly on US soil, is not covered by the amendment, even if the search is conducted by a US law enforcement agent.
Budeau v. McDowell

· 4th: limits to governmental actions only, does not reach private searches or seizures made by a landlord, airline employee, or private company.

Birth of the Exclusionary Rule
Weeks v. US (1914)

· Exclusionary Rule applies to the government.

· Rochin v. California (1952) * Forced Stomach pumping found so excessive that it violated the 14th Amendment.

Mapp v. Ohio (1961)

· Exclusionary Rule applies to the states.

Exclusionary Rules

· Any 4th violation by the government excludes any evidence obtained.

Chapter 3: Passing the Threshold of the 4th Amendment

What is a Search?
Katz v. US (1967)

· Telephone Booth: 4th protects people not places.

· Two prong test: Katz Test by Harland

1. A subjective expectation of privacy and

2. Expected that society will recognize as reasonable.

· Reading lips: words exposed to public / no search

· Extent to personal conversation (as part of the person).

· Whispering at a public place

f privacy vs. the need to fight crime.

· It is not unusual or an unique object, it was just flying over.

· Dow Chemical Co. v. US

· Gov. using powerful cameras to take photographs from the air, at least as long as the cameras are generally available to the public, and the plane is in legitimate airspace, its ok.

· Precision aerial mapping camera not a search.

· Florida v. Riley:

· Helicopter case not a search

· Any member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse.

· California v. Greenwood

· Plastic garbage bags: not a search: person does not have a reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal. Readily accessible to animals, children, scavengers, snoops, and other members of the public.

· Shredding the documents, the subjective intent is stronger when you shred it at first, but it is still trash (so it is disputable).

Bond vs. US

· Physical Intrusion (trespass) / tactical v. visual observation. Physical invasive inspection is simply more intrusive than purely visual inspection.

· Greyhound bus: border patrol agent physical manipulation of petitioner’s bag violates the 4th amendment.

· D clearly expects that his bag may be handled, he does not expect that other passengers or bus employees will as a matter of course, feel the bag in an exploratory manner.

Kyllo v. US

· Thermal Imaging Device at private homes from a public street is a violation of the 4th amendment.

· Thermal-imaging observation of the intimate details of a home are impermissible.

· Resent Statute: due to the bombing Sep 11th valid.

What is a Seizure
US v. Karo

· a tracking devise in a can of ether and monitored Karo’s movements of the beeper over public roads but also in Karo’s home.

· A seizure: of property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.