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Criminal Procedure
UMKC School of Law
O'Brien, Sean D.

Crim Pro Outline:

Focus on US Constitution: Many aspects of crim. Pro. Are regulated by the US constitution. Most federal constitutional provisions concerning crim pro are binding on state proceedings as well as federal ones.
Applicability of Bill of Rights: In deciding how the federal const. applies to state criminal prosecutions, the SC follows the selective incorporation approach. Under this approach if any aspect of a right is found to be so necessary to fundamental fairness that it applies to the states, then all aspects of the right apply.
Selective incorporation: “implicit in the concept of ordered liberty,” “fundamental to the American scheme of justice.”

Is it rooted in our history?
Does it shock the senses?

o Rochin v. California: “Shocks the Conscience”
o Facts: Having some information that Rochin was selling narcotics three deputy sheriffs forced open the door of his room and found him sitting partly dressed on the side of the bed upon which his wife was lying. The police saw two capsules on the night stand, Rochin put them in his mouth. Stomach was pumped to produce vomiting, capsules contained morphine.
o Rule: Convictions can not be brought about by methods that offend a “sense of justice

Is if fundamentally unfair?
Is it reliable? (Twining v. New Jersey)
All but two rights applicable to states: All bill of rights guarantees have been held applicable to the states, except for two:

Bail: eighth amendment guarantee against excessive bail.
Grand jury indictment: the fifth amendments right to a grand jury indictment ( so that a state may decide to being a prosecution by using an “information” prepared by the prosecutor rather than a grand jury).

Cases incorporating rights:

5th amendment self-incrimination clause

Twining v. New Jersey (1908): not incorporated
Malloy v. Hogan (1964): incorporated

5th Amendment Double Jeopardy Clause

Palko v. Connecticut: Not in incorporated
Benton v. Maryland: Incorporated

6th Amendment Jury Trial Clause

Duncan v. Louisiana (1968): Formally incorporated
The one exception to lock stock and barrel incorporation—lots of questions the court left up in the air (right to unanimous jury? 12 person jury?, etc)

6th amendment right to counsel

Powell v. Alabama (1932): Not incorporated, but finding the 14th amendment right to counsel under limited circumstances (complex case, special circumstances surrounding D)
Gideon v. Wainwright (1963): Incorporated for all felony cases

Court said this is such a fundamental right, that it applies retroactively. Thousands of cases had to be re-tried.

6th amendment right to a speedy trial
6th amendment compulsory process clause (the right to present a defense)

Washington v. Texas (1967)

6th amendment confrontation clause (right to cross-examine)

Pointer v. Texas

8th Amendment Cruel and Unusual Punishment

Robinson v. California (1962)

Const. Claims in fed. Court: A D in state criminal proceeding can of course raise in the proceeding itself the claim that his federal constitutional rights have been violated.

Federal habeas corpus: But the state criminal D has in some situations a second chance to argue that the state trial has violated his fed. Constitutional rights; he may bring a federal action for a writ of habeas corpus. The D may bring a habeas corpus proceeding only after he has been convicted and has exhausted his state appellate remedies. The petition for federal habeas corpus is heard by a federal district court judge. If the judge finds the conviction was obtained through a violate of the D’s const. rites, he can order the D released.

Limits: There are significant limits on the kinds of arguments a D can make in a federal habeas corpus proceeding. Here are two:

Search and Seizure cases: (Stone v. Powell): In search and seizure cases if the state has given D the opportunity for a “full and fair litigation” for his 4th amend. Claim, D may not make this argument in his habeas corpus petition, even if the federal court is convinced the state court reached the wrong constitutional conclusion
Mistakes of law: Under a 1996 federal statute, a federal court can’t give habeas relief for a state-court mistake of law unless the state decision was either “contrary to” or an “unreasonable application of” some clearly established principle of federal law as determined by the SC.


Arrest: Police make arrest when they have probable cause.
Booking: Entering information about suspect into police blotter, photographing, fingerprinting.
Filing Complaint: A prosecutor now decides whether there is enough evidence to file charges, if so he prepares a complaint.
First appearance: After complaint is filed, the suspect is brought before a magistrate. In MO associate circuit judge.
Bail is set
Preliminary Hearing

Is there probable cause to believe D is person who committed crime—is determined by magistrate
If no probable cause, charge is dismissed


Grand Jury

They make a determination of probable cause, if they find it, they issue and indictment.
If no probable cause they issue a No True Bill

Indictment/ Information

Information filed by prosecutor after preliminary hearing
Indictment comes from the grand jury

Arraignment (in Circuit/District Court)

Bail is reviewed
Counsel is addressed again
Plea is entered

Pre-trial proceedings

Defense investigation


1) Trial
2) Appeal
3) Certiorari
a. Once you get to this point, your conviction it final
b. If don’t file a petition for certiorari, becomes final on last day you could have filed (90 days from conclusion of state proceedings) or denial of cert.
4) State habeus corpus/collateral attack
a. I’m suing you to compel you to release me
b. Can use it, to raise a right that was newly created
c. Takes place in the trial court, but really a separate lawsuit attacking the first judgment in the trial court.
d. Can go through the whole process again, from here.
5) Appeal
6) Certiori
7) Habeus: If you have a federal claim you can file a petition for habeus corpus in the US District Court
8) Can appeal, but have to be issued a COA
9) Certiorari


Retroactivity becomes an issue anytime the SC interprets a case that creates a new rite or expands an existing rite.

Finality (settled expectations, reliance on superior law, Comity (the mutual respect for an independent sovereign)) v. Rights of Individual (enforcement of the constitution, remedy for violations of constitution)
What triggers retroactivity?

The SC hands down the case using a new r

trusion by the police, is implicit in the concept of ordered liberty and as such is enforceable against the State’s through the Due Process Clause.

Mapp v. Ohio

Facts: Three officers arrived at appellants house, pursuant to information that a person was hiding out in the home who was wanted for questioning in connection with a recent bombing. Appellant, refused to admit them without a search warrant. Officers sought entrance some three hours later, door was forcibly opened. House was searched and appellant was convicted based on this evidence. At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for.
Rule: All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in state court.

United States v. Leon

Facts: Large quantities of drugs were suppressed on the ground that the warrant had not been issued on probable cause, in that the affidavit reported only the allegation of an untested informant and limited corroboration by police surveillance of the events themselves.
Rule: The exclusionary rule does not bar evidence that was obtained by officers acting in reasonable reliance on a search warrant issued by a proper magistrate but ultimately found to be unsupported by probable cause.

The Good Faith Exception: Has been extended to one additional situation; if the police reasonably believe that there is an outstanding warrant for the arrest of D, and search D while arresting him, the fruits will be admissible even if it turns out the arrest warrant was not in fact outstanding. Arizona v. Evans
Exceptions to the Exception:

Franks v. Delaware:

Judge is misled by affidavit known to be false.

Lo-Ji Sales v. New York:

Issuing judge “wholly abandons judicial role.”

Brown v. Illinios:

Warrant is based on affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

Massachusetts v. Shepard:

Warrant facially deficient for failing to particularize the place to be searched or things to be seized.

Stone v. Powell:

Nothing to do with Leon, just has to do with nature of exclusionary rule. The exclusionary rule is a judicially created remedy rather than a personal constitutional right, and we emphasize the minimal utility of the rule when sought to be applied to 4th amendment claims in a habeas corpus proceeding.

Holding: we hold only that a federal court need not apply the exclusionary rule on habeas review of a 4th amendment claim absent a showing that he state prisoner