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Criminal Procedure
South Texas College of Law Houston
Burnett, Catherine Greene

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

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

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

Standards for Measuring “Due Process of Law”

· 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)

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

· 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

· 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

· 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

· A search or seizure of property located in a foreign country, which is owned by a nonresident alien who is

k to use a tracking device to monitor suspect on public roads.

· Open fields were not in violation.

· Open fields doctrine, areas outside the curtilage are held out to the public and are subject to the police search without violating the 4th.

· US v. Dunn: the barn was not within the curtilage of the farmhouse, D was found to have no justifiable expectation for privacy with respect to the barn, and no violation of 4th.

· Factors for helping determine curtilages (an unique extension of the home):

1. The proximity of the area claimed to be curtilage to the home (how close it is to home)

2. Whether the area is included within an enclosure surrounding the home,

3. The nature of the uses to which the area is put, and

4. The steps taken by the resident to protect the area from observation by people passing by.

· The officer was in an open field.


· Curtilage: all buildings in close proximity to a dwelling, which are continually used for carrying on domestic employment, or such place as is necessary and convenient to a dwelling, and is habitually used for family purposes.

· open fields,

· Curtilage

· Garages, barns, and other outbuildings may be found within the curtilage.

· Aerial Observation is not in violation of the 4th amendment.

· Concentrated on the person knowingly exposing to public.

· Any member of the public flying in the airspace who glanced down could have seen everything that these officers observed.