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

FALL 2009
A.               Diversity in Legal Regulation
1.                 52 separate legal structures
a.                 each jurisdiction has own criminal code
b.                 federal is not superior, just separate
2.                 divergence: four factors that point toward states adopting own code of criminal procedure
a.                 no need for uniformity
b.                 must be shaped in light of each state’s administrative environment
c.                  issues tend to lead to lawmaking decisions
d.                 states have their own unique needs
3.                 the U.S. Constitution: incorporation; Bill of Rights applies to the states – code of criminal procedure
a.                 4th, 5th, 6th, 8th, – applies to the states through the 14th amd
b.                 7th does not
c.                  14th amd – selective incorporation approach – essential to due process
i.                   due process and equal protection historically has never meant anything more than face value
ii.                 privileges and immunities clause was meant to incorporate the Bill of Rights
d.                 can’t look at 4th amd as a whole – have to break down by parts – no overall theme that will give answer
e.                  Congress has a very limited ability to federalize crime – no federal police power
4.                 the common law heritage
a.                 continues to provide an element of commonality in the regulation of several aspects
b.                 provides a sense of core principals
5.                 models: where laws vary
a.                 federal constitutional regulation is not detailed and comprehensive
b.                 the particular procedure either was unknown at common law or was substantially modified as a result of institutional and process changes not anticipated
B.               Diversity in Administration
1.                 the significance of discretion
a.                 huge amount of discretion for police
b.                 basic bottom line is prosecutor has absolute discretion as to whether or not or charge person with a crime
c.                  no civil remedy available for nonprosecution
d.                 judge has channeled discretion in terms of evidentiary rulings
e.                  trier of fact has discretion in finding of guilty
f.                   has choice as to whether or not to plead guilty
g.                 personal values will factor into discretionary choices
2.                 localism
a.                 each office has own personality and procedural aspects
b.                 social groups develop
I.                   GENERALLY
A.               Statement of the Rule:evidence obtained by violating D’s constitutional rights may not be introduced by the prosecution at D’s criminal trial, at least for purposes of providing direct proof of D’s guilt.
B.               Test for Application: weigh the benefits of invoking the rule against the costs of invoking it
C.               Court-Made:rule is a judge-made, not statutory, rule. Over the years, the rule has been shaped by a long series of Supreme Court decisions. The rule is binding on both state and federal courts
1.                 not constitutionally required:
a.                 The Supreme Court has held that the exclusionary rule is not required by the Constitution.
b.                 Instead, the rule has been created by the Supreme Court as a means of deterring the police from violating the Fourth, Fifth and other Amendments.
2.                 dwindling application:In general, the scope of the exclusionary rule has been steadily cut back during the Burger and Rehnquist years.
D.               Standing to Invoke:
1.                 rule: a defendant cannot obtain exclusion of evidence unless his own personal Fourth Amendment rights are violated.
2.                 confession cases: in the case of an illegally-obtained confession, only the person who makes the confession may have it barred by the exclusionary rule
3.                 search and seizure cases: D may seek to exclude evidence derived from a search and seizure only if his own legitimate expectation of privacy in the area or thing searched was violated by the search, or had a legitimate possessory interest in the thing seized
a.                 burden on defendant: bears the burden of proving that he had a legitimate expectation that was violated by the challenged search and seizure
b.                 two-part test for privacy
i.                   manifestation: First, has the citizen manifested a subjective expectation of privacy?

t ultimately found to be unsupported by probable cause
B.               Reliance on Non-Existent Arrest Warrant:if the police reasonably believe that there is an outstanding warrant for the arrest of D, and search D while arresting him, the fruits will be admissible even if it turns out that the arrest warrant was not in fact outstanding
C.               Dimensions of the Rule
1.                 to determine reach: look at different settings – not to particular D on particular facts
2.                 balancing test: deterrent impact of invoking the rule in the setting v. the cost of invoking the rule in terms of lost prosecutions
3.                 application: does not apply to private individuals – there are no const’l restraints on private activity
4.                 used as a basis for questions to grand jury witnesses: a grand jury witness may not refuse to answer questions on the ground that they are based on evidence obtained from him in an earlier unlawful search
5.                 used in a criminal case after conviction:
a.                 no appreciable increment in deterrence would result from applying a second exclusion at sentencing after the rule ahs been applied at the trial itself
b.                 there is a general prevailing rule against application of the exclusionary rule at parole revocation hearings but there is an exception for cases in which the officer who conducted the search was aware of the person’s parole status
6.                 used in quasi-criminal or civil cases:
a.                 applies to forfeiture proceedings (quasi-criminal) because the object is to penalize for the commission of an offense against the law
b.                 doesn’t apply in general civil proceedings
7.                 evidence obtained by private persons, used in criminal proceedings: courts generally decline to exclude evidence not obtained by law enforcement officials