Select Page

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
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.
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.