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Criminal Procedure
South Texas College of Law Houston
Corn, Geoffrey S.

Criminal Procedure: Professor Corn
1. Criminal Procedure: Definition and Purpose
a. Guarantees that justice is the impetus behind the search for guilt
i. Ensures the satisfaction of the fundamental procedural protections guaranteed by the Constitution
ii. Injected into every aspect of the criminal process, that ensure legit by striking the right balance between liberty and governmental procedure
Powell v. Alabama- did not have counsel, inconsistent with fundamental notions of due process. This rule applies to states and federal government. When wrote bill of tights, written to limit the power of the federal government . In order to protect liberty we have the first 10 amendments. Reflection that the issues in this case are so fundamentally flawed guilt doesn’t matter, only process does. They did not have effective assistance of counsel. Meaningful representation equates to due process.
– Letting a guilty person go does not reflect an abuse of state power, but putting an innocent one in jail does, we embrace the notion of ordered liberty


1. Due Process- if you provide fair due process then justice will be served. The most fundamental presumption is that if you follow process you will get a fair result.
2. The 14th Amendment is the conduit by which the Bill of Rights applies to the states.
a. A state may not abrogate those rights that are “fundamental to our concept of ordered liberty” without due process of law. Duncan v. Louisiana- defendant seeks a jury trial, he is tried by a judge alone and convicted and confined for 60 days. Is trial by jury a component of due process? Does the 6th amendment right apply to the states? Court adopts selective incorporation- says we have decided that trial by jury is a fundamental component of due process to protect people from unfair judges.
– Exceptions to Incoprortiaon: States don’t have to use grand juries, prohibition against excessive bail, unanimous jury verdicts
b. States will ensure equal protection under the law
2. Incorporated rights:
a. 4th Amendment
i. Prohibition against unreasonable searches and seizures. Wolf v. Colorado(4th amendment applies but not he exclusionary rule)
ii. 1949 S.C. says exclusionary rule doesn’t apply, go ahead and sue the state but the evidence comes in, states are applying exclusionary rule unequally

Consequence to incorporation is you deprive the states from developing , state has to do what fed says, here you have the will of 9 justices not the will of the people

iv. Protects “the people” refers to members of our national society, does not protect people who have no meaningful connection to our society
ii. Exclusionary rule requiring that the result of a 4th Amendment violation not be used as evidence against the defendant. Mapp v. Ohio they did not seize the evidence from her person, here they revisit Wolf where they said the exclusionary rule does not apply to the states, majority in Mapp says yes the exclusionary rule will apply. Exclusionary rule now applies to the states.
b. 5th Amendment
i. No person shall be deprived
ii. Privilege against compulsory self-incrimination
ii. Prohibition against double jeopardy
iii. State is complying with the 5th amendment because it is incorporated through the 14th amendment
c. 6th Amendment
i. Right to a speedy, public trial
ii. Right to trial by jury. Duncan v. Louisiana
iii. Right to confront witnesses
iv. Right to assistance of counsel in felony cases or misdemeanor cases where imprisonment may be imposed. Gideon v. Wainwright
d. 8th Amendment
i. Prohibition against cruel and unusual punishment

The Exclusionary Rule
1. Defined
a. Evidence collected or analyzed in violation of the defendant’s 4th, 5th, or 6th Amendment rights is generally inadmissible for a criminal prosecution
2. Remedy:
a. Evidence seized by the police in violation of the 4th Amendment may not be introduced by the prosecution in a criminal trial of the victim of the unreasonable search or seizure.
3. Relationship between the Exclusionary Rule and the 4th Amendment:
a. Give meaning to the 4th Amendment
i. Exclusion of evidence obtained in violation of the Constitution gives teeth to the 4th Amendment
ii. Protection is meaningless unless it is enforced.
b. Deter police misconduct
i. So long as illegally obtained evidence is excluded, the police will be forced to follow the rules.
ii. This way, illegally obtained evidence will jeopardize the prosecution’s case and waste valuable police resources.
c. Preserve judicial integrity
i. When you allow a court to use evidence it seized in violation of the law, this damages legitimacy
ii. The tendency of those who execute the country’s criminal laws to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Constitution, find no sanction in the judgments of the courts which are charged with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. Weeks v. United States entered house w/o warrant and took letters and papers. Once there was federal action because of the 4th amendment the federal officers were banned from using the evidence – this is the EXCLUSIONARY RULE- because the federal government violated the 4th amendment they may not profit from it even if it means a guilty person goes free
iii. The underlying rationale for the exclusionary rule is deterrence, we want the police to comply with it, no search and seizures if we want them to comply then we have to give them a punishment for not following it, i.e. to deter the police from the temptation of violating the 4th amendment maliciously or negligently is to not allow them to bring that evidence into court
iv. Concurrence in Weeks: Justice Black says I’m not sure if exclusionary rule should apply to the states, so we already exclude confessions obtained under duress under the 5th amendment, so if we are allowed to exclude them why shouldn’t we be able to exclude this evidence, his logic is flawed. Rationale is the questionable probative value. Black equates both as analogous but they are not, 5th amendment violation effects the probative value of the evidence (making someone admit something is not trustworthy)
v. Dissent says: exclusionary rule is an advisory rule not a constitutional rule
4. Application and Scope
a. Application
i. Applies only and equally to constitutional violations
1. Not limited to the 4th Amendment.
2. Note: Be aware that violations of Miranda are not per se constitutional violations. For purposes of a fruit of the poisonous tree analysis, the 5th Amendment itself should be analyzed directly, not wholly under the structure of Miranda.
ii. Applies to both physical and verbal evidence
b. Fruit of the Poisonous Tree Doctrine:
i. Nutshell:
1. But for the constitutional violation, the government would never have obtained the evidence
ii. The government cannot violate the Constitution, and cannot use the direct or indirect fruits of such unlawful conduct to secure a conviction. Nor can the government cannot make indirect use of such evidence for its case. Further, a conviction may not be supported on evidence obtained through leads from the unlawfully obtained evidence.
iii. Attaches exclusively to the individual defendant’s constitutional rights
1. A defendant cannot assert another’s constitutional rights as the basis for invoking the fruit of the poisonous tree doctrine.
2. A separate defendant does not have standing benefit from government violations of another’s rights
iv. Structure of fruit of the poisonous tree analyses
1. Violation?
a. Identify the constitutional violation
2. Evidence?
a. Identify the evidence the government seeks to introduce
3. Causal Connection?
a. Determine whether there is a causal connection between the violation and the evidence
4. Exceptions?
a. Identify whether an exception applies
v. Exceptions to the Fruit of the Poisonous Tree Doctrine:
1. Think: If the government doesn’t benefit from the illegality, the illegality shouldn’t infect otherwise he

nt before a 4th Amendment violation can occur
a. “The People”
i. The 4th Amendment protects people, not places
1. “People” does not include the search of property located in a foreign country which is owned by a nonresident alien who is only briefly on U.S. soil even if the search is conducted by U.S. law enforcement agents
ii. Example: Alien members of crew of Panamanian freighter that was searched without warrant by Coast Guard.
b. Persons, houses, papers and effects
i. Police conduct that does not involve “persons, houses, papers, and effects does not fall within the scope of the 4th Amendment, and is hence not limited by the 4th Amendment requirements of reasonableness ”
ii. Persons
1. One’s body, as a whole, such as when he is arrested;
2. The exterior of one’s body (including his clothing), as when he is patted down for weapons or contents of his clothing are searched;
3. The interior of one’s body, such as when blood is extracted to test for alcohol content.
iii. Houses
1. Virtually all structures that people commonly use as a residence
2. Buildings attached to the residence, such as a garage
3. Buildings that are not physically connected to the house if they are used for intimate activities of the home.
4. The curtilage of the home, that is, “the area to which extends the intimate activity associated with the sanctity of a man’s home and privacies of life.”
5. Offices, stores, and other commercial buildings are afforded at least some constitutional protection, but not as much as the home
6. Note: Analyze knowing exposure and plain view when determining whether a search has occurred.
iv. Papers
1. Personal items such as letters, diaries, and business records
v. Effects
1. Residual component of the constitutional phrase, including automobiles, luggage, and other containers, etc.
a. This term is intended to be less inclusive then the term “property”
3. Unreasonable Searches and Seizures: Government intrusion or action that violates the people’s reasonable expectation of privacy
Prerequisites to a search:
a. Government intrusion or action
i. Either direct government action, or the action of a private individual that is imputed upon the government
1. Applies to a private citizen acting pursuant to government authorization
a. Private citizens acting independently of government authorization are not within the ambit of the 4th Amendment
ii. The examination or taking of physical property is not required
1. The interception of conversations reasonably intended to be private could constitute a search and seizure
iii. Note: The term search or seizure does not necessarily require a trespassory element
b. Reasonable expectation of privacy: 2 prong test from Justice Harlan’s concurrence in Katz v. United States
i. Defined: A person must have a subjective expectation of privacy with respect to the place searched or the thing seized that society is willing to recognize as objectively reasonable.
ii. Totality of the Circumstances: Factors considered in determining reasonableness of the expectation of privacy
1. Subjective expectation
a. Knowing exposure
There can be no intrusion upon a people’s reasonable expectation of privacy if the evidence in question was knowingly exposed to the public. Knowing exposure nullifies any expectation