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Criminal Procedure
Southern Illinois University School of Law
Schroeder, WIlliam A.

Criminal Procedure Outline
ormatI. The Idea of Due Process
II. The Right to Counsel
III. Rise & Fall of Boyd
IV. The Fourth Amendment
V. The Fifth Amendment

I. The Idea of Due Process
A. Supreme Court as the Ultimate Regulator of Police Power
1. Piecemeal decisions
a. Very limited number of criminal cases heard per year (i.e. limited docket)
(1) Plus, criminal justice process after Δ is arrested—some cases never go to trial, some don’t make it to appeal, etc.
b. Each local entity must interpret the opinion as they see fit
2. Problem of enforcement: The S.Ct must rule w/in particular social constraints such that the lower courts and police will actually follow their rules
3. Is the Supreme Court really in touch with what the police do on a day-to-day basis? Are they in touch with social reality?
B. Stages of Due Process
1. Founding—Nothing for the first 100 years
2. Warren Court (1960’s)
3. Present-day jurisprudence
a. Incorporation Doctrine
(1) Hurtado v. CA (1884): Δ charged and convicted of 1st degree murder. Δ charged by information, not grand jury indictment. Δ arguing that due process requires indictment by a grand jury for a serious crime in state court via 14A (much like the process in federal court as guaranteed by the 5th A).
(a) Historical argument (i.e. that the Magna Carta would’ve guaranteed a grand jury) is rejected by the majority b/c the system or process will change and be molded into new forms.
(b) Textual argument: That 14 A is meant to mean the same thing as the 5th A.
i) Majority: No b/c 5th says, “grand jury indictment…due process of law,” and 14th says, “No state shall deprive any person of due process of law.”
ii) Cannot read 5th A DP into the 14th A b/c would render the other words superfluous.
iii) Thus, 5th and 14A are not exactly the same thing.
iv) Thus, a grand jury indictment is not inherently included in the notion of “due process”
(c) Majority: Fundamental fairness (i.e. due process ≠ Bill of Rights, due process is its own concept)
i) Accuracy or prevent race-based treatment
ii) Rule of law: Govt will not use arbitrary action against you
iii) Based on a “shocking the conscience” standard — unpredictable
(d) Justice Harlan, Dissent: Due process incorporates ALL of the bill of rights. 14A’s DPC is meant to take in all 10 amendments into its concept of DPC.
i) Is much more predictable
(2) Duncan v. Louisiana: Δ convicted of simple battery. Duncan, an African-American, accused of touching or hitting an elbow of a white boy. Δ arguing that DP entitles him to a trial by jury.
(a) Test: Is a jury trial a right “fundamental principle of liberty and justice which lie at the base of all our civil and political institutions?”
(b) Holding: 14th A incorporates the 6th A right to a jury trial in state court for all criminal cases which would require a right to a jury trial in federal court. RIGHT TO JURY = MATTER OF FUNDAMENTAL FAIRNESS
i) Ct does not draw a BLR as to what does or does not get a jury trial.
a) Today, 6 months is the dividing line b/t petty and non-petty
ii) Ct moving from a fundame

demeanors any less complex than in felony cases?
(c) Justice Powell (concurs w/ result, but disagrees w/ the breadth): Should have a case by case determination of whether counsel is required—whether or not imprisonment is involved.
i) Fears pre-judgment of the case to ensure compliance w/ Arbersinger, and the pressure not to appoint counsel in every case.
b. Scott v. Illinois (1979): Δ convicted of theft (i.e. misdemeanor) and fined $50 after a bench trial. The statute set maximum penalty for the offense as $500 or one year in jail, or both. Scott arguing that where imprisonment is authorized, he should be entitled to a right to counsel.
(1) Held: Potential sentence does not matter. Actual sentence to imprisonment is the factor that will trigger the right to counsel.
(2) Brennan dissent:
(a) Authorized imprisonment is more faithful to Gideon.
(b) Inherent problem b/c won’t actually know the sentence until after the trial is over.
c. Collateral consequences
(1) Nickels v. US (1994): Misdemeanor conviction w/o counsel. Repeats the offense. The 1st conviction enhances 2nd conviction’s sentence. Violation of Scott?
(a) Held: No. Uncounseled convictions may be used to enhance a sentence for subsequent charges.