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Criminal Procedure
Temple University School of Law
Sonenshein, David A.

Criminal Procedure
Spring 2017
Sources of Criminal Procedure
Exclusionary rule is independent of the Constitution, but rather is derived from the Court’s supervisory powers. Importantly, the rule does not apply to state prosecutions because the Court’s power to overturn state convictions is limited to due process violations under the Fourteenth Amendment.
Rules of evidence in federal court are formulated based on court’s supervisory authority
A confession obtained while the suspect is illegally detained is inadmissible in federal cases.
Illegally prolonged detention before hearing in front of magistrate
A court’s supervisory powers do not permit the court to exclude evidence at the request of a party who was not the victim of the challenged practice.
Only the direct victim of an illegal search or seizure has standing to challenge admission of evidence obtained from the search. And a court may not use its supervisory powers to effectively extend standing to a non-victim third party.
Bahama bank case
The harmless error doctrine may not be avoided by an assertion of supervisory power.
charged with kidnapping and transporting women across state lines for immoral purposes. Each of the defendants invoked his Fifth Amendment right against self-incrimination. During the trial, the prosecutor commented on the defendants’ decisions to invoke this right.
Supervisory powers of courts are in place in order to achieve one of three purposes: (1) to remedy a violation of rights; (2) to ensure a conviction was proper; and (3) as a deterrent for illegal conduct.
However, if any alleged error is harmless, supervisory powers are not necessary to achieve any of these goals. The harmless error doctrine cannot be avoided
Harmless error- a ruling by a trial judge, which is later held to be mistaken by a higher court, but is not so prejudicial to the defendant as to warrant the reversal of a conviction
Michigan v Long
A state court providing a defendant with broader procedural protection than is guaranteed in the Constitution must explicitly indicate that its ruling is based on separate, adequate, and independent state grounds. Such a ruling that is based on independent and adequate state grounds is not reviewable by the Supreme Court.
If a court’s state-law basis is not explicitly stated, the state court’s decision will be reviewed under the assumption that the state court’s ruling was based on federal law grounds. This rule will ensure consistency and will alleviate the need to delve into state law to make the determination or burden state courts by asking for clarification.
Michigan supreme court ruling was entirely based on Terry, so is reviewable by SCOTUS
Dissent- SCOTUS should not be interfering when states provide additional rights because federalism
Right to counsel
Powell v. Alabama
In capital cases, where a defendant is unable to employ his own counsel and cannot adequately represent himself, a trial judge must appoint counsel, whether requested or not by the defendant
Due process requires that criminal defendants have the right to counsel both at trial and in the time leading up to trial when consultation and preparation take place.
“the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process.”
Under the Due Process Clause of the Fourteenth Amendment, states are not required to appoint counsel for a criminal defendant unable to secure her own in all cases, provided that the trial is fundamentally fair.
The Due Process Clause of the Fourteenth Amendment does not specifically incorporate every right in the Sixth Amendment against the states
the right to have court-appointed counsel has not attained the status of a fundamental right. Thus, the Fourteenth Amendment’s Due Process Clause does not incorporate the right to appointed counsel against the states.
the totality of the circumstances must be judged to determine whether due process was violated
It does not appear that Betts was at a serious disadvantage due to his lack of counsel or that his trial offended “fundamental ideas of fairness and right.” Accordingly, Betts was afforded due process, even without appointment of counsel.
Distinguished from Powell because that case involved a state’s refusal to appoint counsel, which was required by its own statute, to “ignorant and friendless” black youths for a capital offense
The Fourteenth Amendment incorporates the Sixth Amendment right to counsel to the states.
Overruled Betts- even when it was decided it was not consistent with precedent because Powell held that the right to counsel was fundamental, but was limited to its facts at the time, but not anymore!
 Defendants have the constitutional right to a fair trial and this requires having an advocate present who knows the intricacies of the legal system.
The right to counsel attaches at a criminal defendant’s initial appearance before a judicial officer where he is told the charges against him and his liberty is subject to restriction.
The Sixth Amendment provides that a criminal defendant has the right to counsel when adversarial proceedings are brought against him.
Once the right to counsel has attached, counsel must be present at each critical stage of the proceedings against the defendant.
Counsel must be appointed within a “reasonable time”
US v Gouveia
Prosecution has commenced at the initiation of adversary judicial criminal proceedings- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment
Estelle v Smith
Sixth Amendment guarantees defendant opportunity to consult with counsel before deciding whether to submit to a pre-trial psych eval
Performance of Counsel
Cuyler v Sullivan
A trial court is not required to investigate whether there is a conflict of interest when a lawyer represents multiple parties in a case and no party objects to the multiple representation.
Holloway v. Arkansas, 435 U.S. 475 (1978), we held that state trial courts are required to investigate whether a conflict of interest exists where there is multiple representation and a party makes a timely objection to it.
Trial courts may assume that

ible in state criminal proceedings.
Overrules Wolf
When the government invades a person’s privacy in violation of the Fourth and Fifth Amendments to the Constitution, any evidence obtained by that invasion is unconstitutional.
More states have adopted exclusionary rule as state law, eroding factual basis
Growing understanding that only the exclusion of illegally obtained evidence provides the necessary incentive to state officials to refrain from unreasonable searches and seizures; other remedies are simply ineffective at securing compliance
Protected Areas and Interests
The Fourth Amendment prohibition against unreasonable searches and seizures of physical items extends to recordings of oral statements.
Prosecution admitted recordings which were obtained after the FBI placed a wire-tap on the outside of the public phone booth where Katz placed the call
Even when there is no physical invasion, wire-tapping a public phone booth is a Fourth Amendment search and seizure.
The Fourth Amendment protects a person against unlawful government intrusion; it is not intended to provide constitutional protection to a specific place. Katz was justified in assuming that his phone conversation would remain private, even though the phone booth is at all other times for public use.
Court deviated from that exclusively property-based approach and began to hold that the Fourth Amendment “protects people, not places.”
Therefore, Katz was protected under the Fourth Amendment when he entered the phone booth and shut the door
Dissent- Wire-tapping does not constitute a Fourth Amendment search and seizure. A plain meaning understanding of the language in the amendment clearly shows that the founders intended the amendment to apply only to tangible things currently in existence. A conversation is not tangible and wire-tapping involves future conversations not yet in existence. Also, wire-tapping is essentially a modern form of eavesdropping and the founders did not prohibit this practice when they drafted the Fourth Amendment.
Bond v US
The physical manipulation of a bag on a public bus is a type of search that violates the Fourth Amendment.
Fourth Amendment analysis requires that we answer two separate questions.
First, has the individual exhibited an actual expectation of privacy, or, in other words, do the individual’s actions indicate that he attempted to preserve the privacy of the object?
The second question asks whether the individual has what society would recognize as a reasonable expectation of privacy.