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

Criminal Procedure II Outline
Professor Shellenberger

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. What do we think about them?
3. Change in SC values
a. Warren – commitment to protection of criminal suspect
b. Burger
c. Renquist
iv. New Federalism
1. Federal standards provide the minimal element of protection — BUT they are NOT the only law that apply to criminal procedure.
2. States (and Congress) can go beyond them. State supreme court may provide accused greater protection than required by federal constitution by interpreting state provision more expansively.
a. EX PA: Rejects Place and holds dog sniff is a search. PA also reject Belton. PA also makes filing of criminal complaint an “initiation of criminal proceedings” for 6A purposes.
b. Rule: State supreme court may insulate decision from SC review if indicates clearly and expressly that its decision rests on “adequate and independent state grounds” If state decision seems to rest of federal law or that possible state grounds are not clear, then SC will presume federal law. Michigan v. Long (SC, 1983) (54)
i. EX: PA SC holds that police need search warrant to search vehicles, thus conviction gets reversed and my client goes free. Prosecutors file writ to SC. Language must be clear that PA SC has relied on PA state law.
ii. “As a matter of PA state law, police are required to have warrants in searching cars. We are not deciding this as a matter of federal law. “
c. If State const lang same as federal provisionà State court may still construe state constitutional provision more expansively than SC interprets Bill of Rights.
i. Encouraged by Brennan/Marshall 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
ii. Reaction in FL and CA against state courts creating more protections so that they provide greater protection than that require by SC interpretation of BR
iii. Ballot initiatives passed by votes to prevent state SC from doing this.
iv. Contra PA/NJ – very strong in protecting individual rights.
3. Discretion and deviance on part of actors in system (police/judges/prosecutors)
4. Be aware that the law of the books ain’t necessarily the law on the street.
v. Exclusionary Rule:
1. Federal Const restrictions & rights are enforced in criminal case context in ONLY one way: the exclusion of evidence at trial that was obtained violating fed rights/restrictions so that it can’t be used against the suspect at trial.
2. If NO evidence is obtained by police, there is no enforcement mechanism.
a. EX: If police trash your place & leave w/o evidence, you have no remedy in context of criminal case. You can bring civil action against PO for violating federal civil rights. BUT a violation of federal civil rights is NOT a defense to a criminal charge.
3. Motion to suppress evidence – primary mechanism of enforcing rights/restriction
4. Fruit of the poisonous tree doctrine – determines how widely the exclusion applies.
c. Values & Themes
i. Get from intro
ii. Racial problems
iii. Wealth v. poverty
iv. Funding of criminal defense.
v. Civil Rights revolution
1. To some extent, Warren court was Civil Rights revolution, providing criminal procedures to protect the poor (who tend to be more involved in the criminal justice system).
d. Incorporation Doctrine
i. Timeline for incorporated doctrine & general due process cases





4A protection against unr s/s but NOT exclusionary remedy applies to state via 14A



Violation of 14A general due process but 5A not incorporated

Rochin v. California


(1) Violation of 4/14 unr s/s protection but no exclusion. (2) No general DP violation

Irvine v. California


No general DP violation, balancing of ind rights and societal interests



5A privilege against self incrimination made applicable to state via 14A

Malloy v. Higgins


4A exclusionary rules applies to state via 14A

Mapp v. Ohio, overruling #2 of Wolf


(1) N

is 14A general DP NOT incorporated ER: Police’s obtaining evidence by means offending fair sense of decency AND using it to convict violate DP. DP prohibition of life, liberty and property touches on police conduct + what is gathered.
v. Maj does not apply 5A b/c not incorporated in 1952. Black & Douglas would find that 5A protection against self-incrimination applied to the states.
vi. Black concurrence: Criticizes 14A protections are too nebulous. BR gives more specific guarantees of protection of personal liberty.
vii. Douglas dissent. His problem with majority “decencies of civilized conduct” approach as too subjective. 14A rule turns not on Constituion but on “idiosyncracies of judges who sit here.”
iii. Rule: Merely breaking into home and using private conversations as evidence does not offend general due process notions of fair play and decency.
1. Irvine v. California (SC, 1954) (Secret microphones installed by police in D’s bedroom in order to listen to conversation). Held: This activity & use of overheard conversation does not violate general DP BUT DOES violate 4/14 s/s.
a. Wolf still law: no ER for s/s violation
b. Rochin limited to coercion, violence or brutality.
c. Critique = You would think with a search/seizuire violation there would also be a violation of life, liberty, etc.!
iv. Rule: Even though the body of accused is “invaded,” a blood sample taken under the protective eye of physician by a test that is routine in everyday life does not “shock the conscience.”
1. Breithaupt v. Abram (SC, 1957) (Police took blood sample from unconscious accident victim). Held: manslaughter conviction confirmed. No general DP violation.
a. Rationale: General due process balancing test = individual rights versus society’s interests. “The interests of society in the scientific determination of intoxication outweighed so slight an intrusion of person’s body.
i. ***Similar balancing to determine reasonable s/s (level of intrusion on individual versus strength of social interest).
b. Wolf still law: Even court found unr s/s, there is no exclusion.
c. Critique – Two bodily invasions with different results. Pumping stomach (Rochin) shocks the conscience but pumping veins does not.
d. Dissent/Douglas/Warren:Discusses 5A, but it hasn’t been incorporated either. (Schmerber)
v. Rule: 1) Extraction of blood does not offend sense of justice (reaffirming Rochin; Breithaupt) 2) The withdrawal of blood & use of analysis did not compel accused to testify against himself or provide State with testimonial or communicative evidence 3) Protection against unr s/s satisified b/c there was probable cause; officer believed he was confronted with emergency which threatened destruction of evidence; test chosen was reasonable one
1. Schmerber v. California (SC, 1966) (Extraction of blood against will of D by physician, at police direction)
a. Mappnow binding on states (1961) = ER
b. Malloy v. Higginsnow binding on states (1964) = 5A. 5A only applies to compelled “testimonial evidence.” This isn’t testimonial.
c. 4A – Reasonable S/S – PC; Emergency; Reasonable test.
d. DP – extraction did not offend sense of justice (Rochin; Breithaupt)
e. Emergency doctrine – no search warrant required b/c exception is “exigency”
f. Dissent/DouglasDiscusses strange hierarchy of values; why compelling giving blood is not compelling self-incrimination.