Select Page

Criminal Procedure
Stetson University School of Law
Scully, Judith AM


95% of Crim. Pro. cases deal with 1 of 5 constitutional amendments:

4th –arrest, search, and seizure.
5th –grand jury requirement doesn’t apply to the states, but the state’s Constitution may require it.
6th –right to trial, right to a public trial, right to an impartial jury, venue requirement (where crime occurred), notice of charges, Confrontation clause (criminal D has the right to cross all of prosecution’s witnesses).
8th –prohibition of excessive bail and fines; most 8th amendment matters involve cruel and unusual punishment.
14th –most important aspect of this is the due process clause for this course; also have the equal protection clause (can apply in criminal cases where race is used in prosecution of a case or jury selection).

I. The Nature and Scope of 14th Amendment Due Process and BOR Applicability to States
A. Fundamental Rights and Incorporation Theories
1. Fundamental Rights Theory—Palko v. Connecticut pg. 34
a. Facts. Palko gets a life sentence for 2nd degree murder. The state appealed, got to retry the case and he was convicted on 1st degree murder and was sentenced to death. Palko argues that this is double jeopardy. It could not have been tried again in a federal court, so Palko argues that the 14th Amendment incorporates the BOR.
b. Holding. The Court rejects this theory and states that if the D can appeal the case, then the state should be able to appeal for errors.
c. Fundamental fairness or ordered liberty gives justices an ad hoc way of deciding cases. Some are in, some are out.
d. Overruled. This case was overruled in 1961. Now, double jeopardy applies to the states through the 14th Amendment.
2. Incorporation Theory—Adamson v. California pg. 36
a. Facts. Adamson challenged the law in CA that prosecutors could comment on the D’s decision to stay silent. He said this violated his 5th Amendment right to avoid self-incrimination.
b. Holding. The Court could not see why a comment could not be made on his silence and said that it was not fundamentally unfair for D to choose between being impeached on the stand or not taking the stand and having the prosecutor comment on it.
c. J. Black’s Dissent set forth the Total Incorporation Plus. This doctrine states that all of the BOR apply to state proceedings plus those rights that are fundamentally fair. This is a distinct minority view.
d. Overruled. Griffin Rule—overruled Adamson and stated that no comment can be made regarding the D’s failure to testify b/c it violates the 5th Amendment. It can be harmless error but it also can be irreversible error.
3. Neo-Incorporation—even though a specific guarantee does apply to the states through the BOR, not all of the federal procedures are binding on the states.
B. Selective Incorporation (The Modern Approach)—Duncan v. Louisiana
i. Facts. Duncan was tried on a misdemeanor w/out a grand jury. The punishment for the crime (up to 2 yrs. in jail and/or $500 fine) resembles a felony punishment in almost all other states. Because it was not a felony trial, he didn’t get a grand jury indictment. Duncan argued that this was a violation of his 6th Amendment right to a jury trial.
ii. Holding. Selective incorporation applies, meaning that only some of the BOR apply to state proceedings. The court said that if it is a serious offense (possible to get more than 6 months in jail) then the 6th Amendment right to a jury trial applies.
iii. TEST—Is the right “fundamental to the American scheme of justice?” If it is, then the 14th Amendment makes it applicable to the states through selective incorporation.
1. 20 out of 25 (80%) of the BOR are incorporated.
2. BOR that do not apply to the states include 2nd (right to bear arms), 3rd (quartering soldiers during wartime), 5th (indictment clause and due process clause), 7th (right to a jury trial in civil cases), and 8th (excessive fines) Amendments.

II. 4th Amendment Overview/Background
A. There are more opinions written on the 4th Amendment than any other amendment in the BOR.
B. The S. Ct. looks at the 4th Amendment in two separate clauses: the reasonableness clause and the

nore the warrant clause and said that the touchstone of the 4th Amendment is reasonableness.
2. There are many exceptions (over 20) that have been carved out for warrantless searches.
3. The litmus test for warrantless searches revolves around reasonableness. To determine if a particular search/seizure is reasonable, a judge uses a balancing test.
4. When using the balancing test, the judge compares the degree of intrusion on the privacy interest of the D against the gov’t reasons/need for the search and/or seizure, i.e., what is their justification?
E. Factors of Reasonableness
1. History of the 4th Amendment (intent of the framers). S. Ct. is very inconsistent here.
2. Place of the search and the interest protected. Some examples are having more of a security interest in your house than your car in a public lot or at the border.
3. Who the “victim” of the search is. For example, inmates do not have a very strong 4th Amendment right b/c it is reasonable to search a criminal’s cell. Another example is schools with regard to students.
F. Recognized Reasonable Warrantless Searches
1. Probable cause—ex. Get pulled over and pot is in plain view in your car.
2. Reasonable suspicion—ex. Investigatory stops of a person, like white vans during sniper killing spree.
3. No suspicion required—ex. Searches at the border, random drug tests of employees or school children, searches of inmates and/or their cells.
G. “New Federalism”—When the S. Ct. hands down a decision, the states at a minimum have to follow what the court said. The S. Ct. sets down the minimum standard of rights. Then, state courts can give greater rights as a matter of law.