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

Stages of Crime (fluid – subject to change)
·        Crime
·        Pre-arrest Investigation
·        Arrest
·        Booking
·        Post-arrest Investigation/Interrogation
·        Charging decision (affidavit of probable cause)
·        Complaint filed
·        Magistrate review of the complaint/arrest
·        Initial appearance in front of magistrate
o         Presentment
o         Counsel appointed
o         Bail is formally set
·        Preliminary hearing
o         None if grand-jury indictment
o         None if waived by defendant
·        Grand Jury review – indictment or information
·        Arraignment
o         Counsel appointed if not already
o         Bail reviewed
o         Docket for trial
·        Pretrial motions
·        Plea negotiation (possible)
·        Trial
·        Sentencing
·        Appeal
·        Collateral Remedies- Post Conviction Remedy, prisoner is P, challenges presumption of fair trial, etc.
 
STATE REMEDIES for STATE PRISONERS: Trial, appeal, certiorari, collateral review, appeal; certiorari; FEDERAL REMEDIES for STATE PRISONERS:  habeas corpus, appeal, certiorari
SELECTIVE INCORPORATION
 
Due Process: Notice and opportunity to be heard
 
Palko v. Conn. (U.S. 1937), rev’d by Benton v. Maryland (1969)
Issue: Is right against double jeopardy “implicit in concept of ordered liberty” and applicable to states?
Rule: Right against double jeopardy not applicable to states because it wasn’t fundamental right.
Holding:  At second trial Palko was able to put on more evidence, so he had a fairer hearing – the outcome was no less reliable due to double jeopardy.
-Bill of Rights procedural safeguards are applicable to the states if they are “implicit in the concept of ordered liberty”
 
Factors for implicit in the concept of ordered liberty/fundamental fairness:
·        Rooted in Anglo-American tradition/history?
·        Violates fundamental fairness?
·        Critical to reliability of outcome?
·        Does the violation shock the conscience?
Twining v. New Jersey (U.S. 1908), rev’d by Malloy v. Hogan (1964)
Issue: Whether 5th Amd right against self-incrimination applies to states through 14th Amd. DP clause?
Holding: right against self-incrimination not applicable to states- not critical to reliability of outcome.
 
Frank v. Mangum (1917)
Rule: For state prison

ect’s spine to obtain conviction “shocks the conscience”; exceeds the scope of search incident to arrest-dangerous, not medically necessary
·        United States ex rel. Guy (E.D. Wisc. 1974) – vaginal search for heroin “shocks the conscience.”
 
What Does Not Shock the Conscience
·        Breithaupt v. Abram (U.S. 1957) – drawing blood for BAC doesn’t shock the conscience
·        Schmerber v. California (U.S. 1966) – drawing blood of objecting injured person to determine BAC in an auto accident doesn’t shock the conscience.
 
Hints:
Rochin and Lee deal more with violent intrusion whereas Breithaupt and Schmerber don’t.
 
Tests for Substantive Due Process
·        Implicit in the concept of ordered liberty OR
·        Conduct which shocks the conscience
 
Changes in Interpretation of Substantive Due Process
-1950’s – Brennan and Warren appointed to S.Ct.
-Court begins to view 14th Amd differently w/ Civil Rights movement.