CRIM PRO OUTLINE
Goldman Spring ‘11
Introduction
4th Amendment: prohibits unreasonable search & seizure
5th Amendment: privilege against self-incrimination & prohibits double jeopardy
6th Amendment: speedy trial, trial by jury, right to counsel, right to confront witnesses
8th Amendment: prohibits cruel & unusual punishment
Incorporation doctrine
A Constitutionally-based decision ordinarily will bind both the states and the Federal Government
Do the Bill of Rights apply to the states under the 14th Amendment?
3 Incorporation Tests
Shocks the Conscience: rare, state behavior must shock the conscience
Fundamental Fairness: is the state behavior offensive to Anglo-American fundamental justice?
Used when there is a specific right (Amendment) in question
Selective Incorporation: Is the state behavior prohibited by a specific Bill of Rights Amendment that the court considers fundamental to Anglo-American scheme of justice.
This is current preferred approach.
Barron v. Baltimore: the Court held that the Bill of Rights does not apply against the State. The question then arose whether the 14th Amendment incorporated the Bill of Rights
Adamson v. California:
FF approach: (Frankfurter) Look at whether the state procedure is fundamentally fair, ignoring the Bill of Rights
Total Incorporation: (Black) Due process= 1-8 in the Bill of Rights
Combination: (Murphy and Rutledge) covers not only the Bill of Rights , but also if procedure is not fundamentally fair it covers that too
Rochin v. California: shocks the conscience test. Stuck a hose down his throat to pump out morphine. Due process requires evidence to be obtained in a manner that does not offend one’s sense of justice.
Never been overruled, but never expanded either.
Duncan v. Louisiana: selective incorporation: fundamental rights are incorporated from the Bill of Rights. Virtually all of the Bill of Rights have now been incorporated into state law since Duncan.
State Constitutional Protections
Most of state constitutions are worded just like the US Constitution. Sometimes it is different, and in that case it is more appropriate to rely on the state constitution. Most of the time, state constitutions are interpreted more pro-D than US.
Court usually declines to review when state const. wording is same but has been interpreted differently because it is not a federal question.
Retroactivity
Whether the Court’s decision will have any effect on official activity occurring before the date of the decision.
Teague v. Lane: New rules are generally inapplicable to those whose convictions have been finalized (certiorari denied), including those who bring it up on collateral review (habeaus corpus), unless it is either:
Private, individual, primary conduct that shouldn’t have been criminalized, OR
A procedure that changes the likelihood of an accurate conviction.
Danforth v. Minnesota: distinguished from Teague.
Teague rule does not constrain the authority of state courts to give broader effect to new rules of crim pro than is required by the Teague opinion.
States are free to grant relief for violations of new rules of constitutional law when reviewing its own State’s convictions. Vice-versa is not ture. If law is applied retroactively by SC, state court is bound. Cannot decide to not apply the law retroactively.
Searches and Seizures
4th Amendment
· The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized.
· “The people” does not apply to a search of property that is owned by a non-resident alien and located in a foreign country.
What is a Search?
· If government activity isn’t a search or seizure, not regulated by 4th A and does not have to be reasonable.
· Must be governmental conduct to trigger 4th A
o Government actors:
§ Publically paid police officers (on or off duty)
§ Any private individual acting at direction of government
§ Privately-paid police (campus, subdivision) are NOT UNLESS they are deputized with the power to arrest
o Private activity rule: a search or seizure conduct by a private citizen is NOT a s
factors
o Extent of Intrusion
§ Use of technology to enhance inspection: where the gov’t uses a device that is not in general public use to explore details of the home that previously would have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant. Kyllo.
§ NOT searches:
· Canine sniff: not a search b/c luggage is not opened.
o Can’t detain luggage detained to wait for dog—illegal seizure
o If dog sniffs drugs, must take as PC to magistrate to get warrant to open the luggage. (Magistrate can decide whether it is PC or not)
· Chemical test: testing of white powder not a search.
o If powder tested is destroyed, it is a seizure
· Electronic beepers to track movement:
o Can be used to track public movements (movements visible to the public, like driving on road)
o Can be put in government property to track public movements
o Can be used to track where something is inside a private residence. Karo.
§ Searches:
· Thermal imaging: thermal detection devices used to detect drug growing operations constitute a search because the device is not in general public use
o Third party access
§ If an aspect of a person’s life is subject to scrutiny by society, then that person has no legitimate expectation denying equivalent access to police.
· Would public have had access to the item? If so, police do too and it is not a “search”
§ NOT searches:
· Consensual electronic surveillance: if one person involved agrees to surveillance, it does not constitute a search (ex: wearing a wire)
· Financial Records: banks must maintain records of their clients’ identities and microfilm certain checks and transactions
