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Criminal Procedure
Temple University School of Law
Shellenberger, James A.

Criminal Procedure II Outline
Professor Shellenberger
Spring 2005

I. INTRODUCTION & BACKGROUND
a. Criminal Process
i. First day of class
b. What This Course is About:
i. Police practices: Contacts between law enforcement and criminal suspects, and how investigations affect individual rights.
1. Purposes of investigations:
a. Whether crime was committed + Who committed it à probable cause
b. Gather additional evidence for prosecution
ii. Constitutional protections: Governing law enforcement investigatory contacts are certain federal constitutional protections.
1. For suspects/ind à rights in interactions with police
2. For law enforcement à restriction on contacts with ind
3. Fourth Amendement
a. 2 clauses:
i. Basic protection against unreasonable searches and seizures: “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
ii. Warrants: “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.”
iii. NO reference to exclusion of evidence.
b. Values protected by 4A:
i. Privacy (“search” of your home, car or backpack)
ii. Liberty (“seizure” of persons, arrest, intrusion into freedom to go about your business)
iii. Possessory (“seizure” of things; NOT ownership interest of contraband)
4. Fifth Amendment
a. Privilege against self-incrimination: “No person…shall be compelled in any criminal case to be a witness against himself…”
i. Includes several criminal procedure protections, but our focus is SI.
ii. Protects against govn compulsion on ind to produce evidence against herself.
iii. Helps to find appropriate balance bet’n IND and STATE in criminal matters.
iv. Adversarial versus inquisitorial system = In adv., the govn has the burden of proof and suspect can’t be compelled to produc evidence.
5. Sixth Amendment
a. Right to counsel: “In all criminal prosecutions, the accussed shall enjoy the right…to have the Assistance of Counsel for his defense.”
i. Protects basic fairness of trial process.
ii. D has to have lawyer to protect D against the state AND to help D present a meaningful defense.

iii. SC Jurisprudence:
1. When SC speaks about the Constitution, it’s words are law, like statutes
2. Questions to ask:
a. Do we understand rule’s standards?
b. Do we understand the reasons for standards?
c. How they apply in different cases?
d.

arshall dissent in 70s.
ii. IMP: State can’t define 14A differently then federal does. ????
d. You can’t argue before PA bench that 14A is more flexible than 4A. Rather, you argue off that PA state constitutional provision provides greater protection.
e. Two sources of argument (fed & state const) gives defense lawyer more tools to fashion defense on constitutional procedure (not merits) as SC becomes more restrictive of ind. rights.
f. Examples of states interpreting state constitutions as going beyond federal guarantees – decline to adopt??
i. Leon (good faith exception to 4A exclusionary rule in search warrant cases);
ii. Illinois v. Gates (new approach to “probable cause”);
iii. Harris v. New York (permitting use of statements obtained in violation of Miranda for impeachment purposes)
iv. Moran v. Burbine (police need not a suspect that a lawyer retained by relatives or friends is trying to reach him)
g. Criticism of new federalism
i. Generates uncertainty and confusion among state officials