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

Criminal Procedure Outline
a. Approach – Read the problem and come up with an appropriate approach
i. Example:
1. Search and seizure -problem
a. Analyze and decide which facts are relevant
b. Flow charts-
c. Analysis-
I. Introduction
a. Pre-Trial Process [THIS IS OUR FOCUS]- Focusing on a number of early moments in the process-this has a dramatic impact of what comes later


a. The number of criminal jury trials in the US is around 1%
b. We have a very strange system that are resolved before there is a trial
c. The cases we’ll look at will balance civil liberties with law
d. Every system case causes you to say what impact does this have on the person’s civil liberties-and you it comes down to what is more important between the two
i. Crime-Cases begin when an alleged crime is committed

The case usually starts with the a crime being committed -usually not in front of the police

ii. Police Enforcement- Police have discretion to pursue a charge against the alleged criminal

Police have to decide if they should believe the witnesses and investigate the alleged crime
If the police observes the crime-and doesn’t pursue it-can do so

If police exercises their discretion to pursue it

There has to be some rationale and some review of that by a judge
There must be Probable Cause

Whether the arrest was good or not
Whether the search was appropriate
Whether the seizure was proper

Exclusionary Rule- The remedy for search a seizure is -exclusionary rule-if a police officer violates your rights-the evidence may get excluded from trial.

2. Justice Cardozo however -said why should criminal go free because the constable has blundered
iv. If police does an illegal interrogation
1. It usually gets suppressed
b. Prosecution and Trial
i. Post Arrest Formalities-
1. Bail is designed to make sure a person shows up to court-not set so high so that to intentionally keep the person in jail
ii. Trial- Prosecutor has Broad Discretion [Lots of Power] 1. Once the police gathers evidence and brings it to the prosecutor he/she has absolute discretion in deciding whether to prosecute a alleged criminal in the court of law
a. e.g. if there is a lot of good evidence of a crime the prosecutor can decline to prosecute
2. The only remedy to deal with a shady prosecutor is to vote the prosecutor out of office-
iii. Jury Selection
1. Some say most critical stage-to determine innocence or guilt or what the person is found guilty of
iv. Sentencing
1. There is a separate trial on sentencing after verdict
v. Our focus is on Pre-trial
1. Focusing on a number of early moments in the process-this has a dramatic impact of what comes later
2. Prevailing opposing views in criminal trials

Crime Control Model –(Conservative view)

1. Conveyor belt-repressing crime as the top value of the particular system-it is the most important function failure to do so leads to breakdown of civilization and system
2. The way to achieve that-most efficient way of processing suspects

What does that mean-want to cut down on the possibilities of appeals-does not lead to short and efficient justice -because feed and finality- very little tolerance for procedural obstacles from getting to arrest to incarceration/ conviction

3. Will tolerate things that may not always be necessarily always tolerated-e.g. slight violation of rights
ii. Due Process Model (Liberal)
1. Focus on strong quality control-want guilty people convicted but not at the expense of possibly convicting innocent people
2. Don’t like violating constitution in getting from arrest to incarceration – they don’t think it should not be done at all costs
3. Apply what the framers of the constitution said is the way to process alleged criminals

Better one guilty person go free than one innocent person get convicted

4. Most people there should be some limits
5. Most people also believe in the adversarial system
6. Most people believe that there should be some modicum of civil process
7. Everyone should have their day in court

Incorporation Doctrine (Application of Bill of Rights)

Prior to 1868-before enacting the amendments (applied to states)-bill of rights only applied to federal cases –
Due process clause within bill of rights-no one can be deprived of this by the states, Question: Is the Bill of Rights now incorporated by the Due Process Clause in the Amendments?

Fundamental Rights Approach- took position due process clause does not incorporate all bill rights -its done on a case by case basis

Total Incorporation- never commanded a majority- that the fourteenth Amendment made all the provisions to the federal Bill of Rights applicable to the states

Selective Incorporation view-we will decide on amendment at a time if that amendment is incorporated-once it is decided everything that goes along in federal applies to state

Not an issue anymore-cause in criminal automatically incorporated with few exceptions

e.g. Standard of arrest is the same for federal and state arrests

Take away-minimal standard of due process –

II. FOURTH AMENDMENT(Searches & Seizures): – to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. The amendment specifically also requires search and arrest warrants be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and arrest should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it. (Need Probable Cause + Search Warrant)
i. Protects us from unlawful searches & Seizures: Of:
1. Pe

der to be a reasonable expectation of privacy.


Phone Calls

Curtilages get 4th Am protection

No reasonable expectation of privacy in trash that was put out b/c private persons can easily search it (CA v. Greenwood)

Reasonable expectation of privacy in phone booth convo (Katz

Curtilage is determined by (Dunn) 1)closeness to home
3) nature of use
4) measure taken to make it inaccessible

Even if measures are taken to make sure trash isn’t rummaged through or shredded (Scott)

No privacy interest in your phone call log b/c it is open to the phone company (Smith v. MD)

ii. No privacy interest against helicopter view of backyard (Ciraolo)
1. Even if greenhouse is partially covered, b/c private person can legally fly this low to see in (Riley)
iii. No 4th Am protections for open-fields (Oliver)
iv. Business premises get 4th Am protections (See)
v. No 4th Am protections in prison cells (Hudson)
vi. Reasonable expectation of privacy in public bathroom stall (Bryant).
vii. Reasonable privacy interest against having your luggage squeezed for drugs (Bond).
9. If there is 4th Amendment activity, was there probable cause to support it?
10. There must be probable cause
a. What is probable cause?
i. PC = a reasonable belief that criminal activity is afoot. No PC or warrant needed if there is consent to search.
b. To test whether a tip creates PC:
i. Consider the totality of the circumstances of the tip (Gates)
1. Veracity, credibility and basis of knowledge are important in considering the value of a tip.
ii. Warrant was constitutional b/c anonymous call saying couple is selling drugs and cops observed the tip fulfill itself gave probable cause.
iii. Warrant based on anonymous tip (D’s vengeful ex) that stolen property was in a motor home was constitutional b/c tip gave PC. (Mass v. Upton)
iv. No reliability based on prior statements is needed for citizen witnesses (Paszek)
v. CI has to show reliability as an informant.
c. No PC to search all tavern customers when warrant permitted searching the bartender and the tavern. (Ybarra)
d. When 3 passengers in a car, there is PC to arrest all 3 of them b/c all 3 had “knowledge of and dominion over” the drugs (Pringle)
e. When CI singles out a single person, there is no PC to arrest others (Di Re)
f. There can still be PC when the same facts implicate multiple persons. (Thomas)
i. Investigation of a sex-assault murder, cops use same evidence to show PC to arrest 2 different suspects
g. There was PC to arrest D even though he was wearing diff clothes and D was 2 inches taller than description. (Brown)
11. If there is probable cause, is it a situation where a warrant is required?
a. Issuance of the Warrant
i. Issuer of the warrant (Shadwick):
1. Must be: