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


I. 14th Amendment Due Process Clause-Incorporation

A. Old View – “Fundamental Rights/Ordered Liberty” & Incorporation Theory

Palko v. Connecticut (1937) – 5th Amendment Double Jeopardy prohibition not incorporated
Facts—Palko was indicted for murder in 1st degree. Jury found him guilty of murder in 2nd degree. The sentenced him to life in prison. Connecticut appealed because of a jury instruction error. He was found guilty of murder in the 1st degree on appeal.
Palko’s Argument—He said that the appeal constituted a violation of 5th Amendment Double Jeopardy Clause. Even though this was a state offense, he thought that 14th Amendment Due Process should incorporate Amendments 1-8.
Held—Judgment affirmed. Rights to jury and immunity from double prosecution are not fundamental. 5th Amendment protections aren’t fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.
Rule—The 14th Amendment only incorporates Constitutional guarantees that are at the “very essence of a scheme of ordered liberty.”
Test—Does a violation of an Amendment done on the state level shock the conscience? The Court basically bows to our Anglo-American heritage to determine what values are fundamental.
Overruled By—Benton v. Maryland, held Double Jeopardy prohibition was fundamental and must be incorporated.

Adamson v. California (1947) – 5th Amendment privilege against self incrimination not incorporated
Facts—Adamson was convicted of murder in 1st degree. He refused to testify. California’s Constitution permitted a prosecutor to comment on a D’s decision not to testify and allowed a jury to make inferences based on D’s silence when reaching a verdict.
Adamson’s Argument—He first argued for total incorporation of Amendments 1-8. He then argued that privilege against self-incrimination is fundamental to a fair trial.
Held—Judgment affirmed.
Rule—5th Amendment protection against self-incrimination is fundamental, but, in this case he was not required to testify, and the right to be immune from comment is not part of the fundamental protection.
Concurrence—FRANKFURTER hates the idea of total incorporation.
Dissent—BLACK made his trademark total incorporation plug. MURPHY & RUTLEDGE agreed.
Overruled by—Malloy v. Hogan

B. Modern Approach – “Selective Incorporation” – 14th A. protects fundamental rights whether in 1-8 Amd’s or not.

Duncan v. Louisiana (1968) – 6th Amendment right to jury trial incorporated “jot for jot”
Facts—Duncan convicted of battery. Duncan was facing up to two years in a work house. He got 60 days in jail and a 150 dollar fine. The question is, in this category of crime, since he would have had a right to a jury trial in the federal system, should he have a right to a jury in the state court?
Held—right to a jury trial in criminal cases is “fundamental to American scheme of justice…and necessary in the contest of the criminal process maintained by the states.” The 14th Amendment therefore incorporates it. This test is distinguishable from a broader “ordered liberty/fundamental right” approach.
Rule—When a right stemming from the Constitution is deemed fundamental, it is incorporated “jot for jot” with all case law and federal judicial interpretation coming with it.
Concurrence—BLACK, DOUGLAS want total incorporation.

Gideon v. Wainwright (1963)
Held—6th Amendment right to Counsel incorporated

Robinson v. California (1962)
Held—8th Amendment prohibition against cruel and unusual punishment incorporated

Mapp v. Ohio (1961)
Held—4th Amendment Exclusionary Rule incorporated

Pointer v. Texas (1965)
Held—6th Amendment right to cross examine a witness incorporated

Klopfer v. N.C. (1967)
Held—6th Amendment right to speedy trial incorporated

Was v. Texas (1967)
Held—6th Amendment right to compulsory process incorporated

Malloy v. Hogan (1964)
Held—5th Amendment privilege against self incrimination incorporated

Walton v. Arizona (1990)
Held—decided historically, sentencing is the purview

ck with a warrant I’m calling my attorney. They came back three hours later, banged down the door, waved a paper they claimed was a warrant, she grabbed it, shoved it down her blouse, they wrestled the fake warrant back from her. Then they found a lot of porno in her house.
State Argument—Said that Wolf permitted use of the obscene evidence found by way of unlawful search because Wolf didn’t incorporate exclusionary rule.
Held—The Court concludes that evidence obtained by searches and seizures in violation of the Constitution is by the same authority inadmissible in a state court (Exclusionary Rule). Follows MURPHY’s dissent in Wolf v. CO. As part of Rationale, Court cites recent overturning of “Silver Platter Doctrine” that allowed illegally acquired evidence in state investigation to be turned over to Feds for Federal prosecution.
Concurrence—BLACK thinks that it emanates as much from the Fifth Amendment right against self incrimination as it does from the Fourth.
Dissent—HARLAN, FRANKFURTER, WHITAKER say its not the job of the federal government to tell the states how to regulate and police their own officers.

U.S. v. Leon (1984) – Cop good faith reliance on invalid warrant doesn’t invoke exclusionary rule
Facts—Police had a defective warrant, though it was not determined to be so until after the search had been done and the warrant served. They found drugs pursuant to the unlawful search. Search was definitely a 4th Amendment violation.
Issue—When a police officer makes seizures during a search authorized by an invalid warrant that the cop believes to be good, should the exclusionary rule apply?