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Criminal Procedure
Stetson University School of Law
Batey, Robert D.

Criminal Procedure – Batey – Fall 2011

I. Overview

Constitutional Criminal Procedure

Search and Seizure

i. 4th Amendment governance

1. “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure, 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 the persons or things to be seized.”

2. Applies only to searches and seizures conducted by government actors.

Compelled or involuntary confessions and other fundamentally unfair procedures

i. 5th Amendment governance

1. “No person… Shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law”

Right to Counsel

i. Sixth amendment governance

1. “The accused shall…have the assistance of counsel for his defense.”

Application of the bill of rights and of principles of fundamental fairness to the states

i. 14th amendment governance

1. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state a thriving each person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Themes- Philosophy of Constitutional Criminal Procedure

Constitutional Law promoted in a way to control discretion

i. Whose discretion are we trying to control?

1. Police

a. 4th amendment- searches and seizures of property or persons – trying to control unreasonable ones; conducting investigations, line ups, bring you in front of victims – identifications

b. 5th amendment – interrogations – method of questioning, controlling ability to coerce someone in being a witness against himself, was the defendant forced or coerced into making a false confession; due process – have the police followed proper procedure in that jurisdiction on that issue they are investigating; arraigning them, preliminary hearings, etc. where these processes followed?

2. Prosecutors

a. charges they may bring, who against, what evidence you may use/admissibility, bail (releasing you on bail or restricting your freedom from pre trial or sentencing, whether incarceration is appropriate or some other form)

3. Defense counsel

a. Decisions they make can affect the quality of justice – as to whether to talk to a witness before trial, preparing a client to testify, and negotiating a plea with prosecution.

ii. Balance

1. Make sure balance between individual defendant’s rights (not just to defendant’s but to any individual who is being investigated – individual rights in general) / citizens rights are protected and police rights

2. State rights v. federal rights (Balance of these powers)

a. State rights v. federal power

b. Constitution provides guidance but individual states do not mirror requirements of the 4th, 5th, 6th amendments exclusively. There are small changes and variances in different states

c. Balancing rights of prosecutor v. defense counsel

i. Who has the responsibility to raise issues, respond and produce?

iii. Evidence

1. Exclusion of evidence issue – in connection with police officer’s discretion

2. Why do we exclude evidence?

a. Punishment and as an encouraging tool – we want police to be professional and be aware of constitutional law and comply with it. Encourages via penalties- excluding evidence that violates the rules.

b. Protects jury from unreliable information such as coerced confessions, planted evidence and suggestive lineups and photospreads. Protects the integrity of the jury system.

iv. Race and Ethnicity and Income

1. 14th Amendment – enacted with racial balance in mind

2. Balance rights between whites and blacks

3. “equal protection of the laws” – Equal Protection Provision

4. Relates to criminal procedure because…

a. People have biases

b. Right to counsel – 6th amendment —- income has a hand in this

c. Stereotypes and suspicion

i. In news reporting – effects everyone, including judges

ii. Characterization of criminal events

iii. Blacks get punished longer for same crimes white commit and get prosecuted harsher.

iv. Police are influenced by stereotypes and biases as well – does it have any impact in why and what they were charged for.

v. Prison system is disproportionately composed of African American and Latino men.

v. Roles

1. Lawyers

2. Defense counsels

a. Line ups – in an adversarial role to protect or what? What is my role?

3. Prosecutorial roles

vi. Social Science and other disciplines

1. Connected to race and income

2. Criminal law- defining defenses and when an individual can be charges — not here in criminal procedure

3. Police process

Deductive Briefing

a. Evidence that can be relied on for premises

i. The text of the constitution

1. Strict textualist- rely solely on the words of the text to support a premise

2. Moderate textualist- might turn to other sources for the text is ambiguous but questions would remain

3. Noninterpretivists- argue for results that are not confined to the text and the sometimes are even in conflict with the text

a. They draw on extra textual sources such as a moral philosophy, social desirability, and perceived need to fit fundamental law to evolving social patterns

b. According to them the constitution is more than a text

ii. Evidence of the intent of the framers and drafters of the constitution

1. Often called originalism

2. Some follow the original intent even if it contradicts apparently clear meaning, others just look to original intent for ambiguous words

3. Federalist papers, anti federalist papers

iii. Implicit premises are a tacit postulates of the constitution which order the relationship among the branches of the Federal gov’t in the states

b. However- They said Wolf is no longer applicable to this question of the exclusionary rule – Wolf was overturned by Weeks v. US.

2. Weeks v. United States

a. Use of the seized evidence involved “A denial of the constitutional rights of the accused”

b. Weeks ruled that “in a federal prosecution the 4th amendment barred the use of evidence secured through an illegal search and seizure”

c. Policy

i. Encouraged compliance with constitution – no loopholes for federal and state prosecutors to work together.

ii. Judicial integrity mandates it

d. States applied Weeks on their own already

e. Practicality and prudence- for consistency

f. Right without a remedy is meaningless – if we say you should not be subjected, then we have to support that.

Overarching legal issue

i. Whether or not the exclusionary rule should be applied to states?

1. Yes. All evidence obtained by searches and seizures in violation of the 4th amendment will be inadmissible in both state and federal court.

Concurring Opinion

i. 4th & 5th combined requires an exclusionary rule

1. Proof- text – 5th bans compelled self incrimination

2. Proof- precedent- court in Boyd v. US was unable to perceive that seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself”

Review of Mapp –

i. Police office must have a warrant to enter a home (does not mean warrants are always required)

ii. The warrant must be supported by probable cause to believe that there are instruments of criminality or illegal contraband in the home (if there is a warrant issued)

iii. To conduct a warrantless search, the circumstances must fall into a recognized exception for a warrantless search

iv. Under the 4th A evidence that is obtained without a warrant and was not obtained as a result of a “warrantless search” exception will be excluded from evidence in federal court.

v. The 4th is applicable to the states through the 14 A due process clause

vi. The exclusionary rule of evidence is also incorporated into the 14A (this rule is an option available to the court)

1. Not every instance will you find an exclusionary rule for a 4th A violation

vii. Therefore all evidence obtained by searches and seizures in violation of the 4th A will be inadmissible in state court as well.