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


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’t 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 bring a prosecution by using “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)

14th Amendment Due Process Clause – Incorporation

History of the Bill of Rights and 14th Amendment

BOR was enacted to prevent the Federal govt. from becoming to the states what England was to the colonies (Superpower)
Habeas corpus – Prisoner petitions to get released because their imprisonment is in violation of the Constitution
In 1789 the habeas corpus act didn’t apply to state prisons except where a federal employee was in state custody
This changed with the adoption of the 13th and 14th Amendments (1867 & 1868)
Habeas Corpus Act was amended in 1867 to apply to state prisons

Process of incorporation

Intention was to prevent states from defining two classes of citizens
In civil rights due process is thought of as notice plus opportunity to be heard
Defining due process

Could be

irst splash was in Brown v. Bd. of Educ. Which was a unanimous overruling of Plessy v. Ferguson
The court reasoned in terms of what is ordered liberty and fundamental fairness

It was no longer what would produce a reliable outcome
It looked at the offensiveness of the conduct
It shifted towards things still used in the Supreme Court today

If the trial is fair and conducted according to the BOR it will produce reliable results

Modern approach – Selective incorporation

Duncan v. Louisiana:

Court concluded that Duncan had a right to a jury trial
The court’s approach to incorporation was to describe it not just as bringing in the BOR, you bring in all federal case law into the doctrine being applied to the states

If it would be so in federal court, then it is so in state court
Bring in not just the right to jury trial from the federal courts but also bring in the right to 12 jurors, unanimous verdict, and whatever else is included in federal courts

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

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.