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Criminal Procedure
UMKC School of Law
Lafond, John Q.

Prof. LaFond

There are 52 jurisdictions in the U.S. who can define criminal law for themselves (autonomous) BUT if it involves a constitutional issue, then the jurisdiction MUST follow the U.S. Supreme Court on the ruling on that issue.

Any society, to be a society, must have some sort of constitution.

constitutional ideas

1. Composition v. Decomposition of a Country

2. Norman Conquest

(William of Normandy v. Harold of England (1066))
Led to the idea of a modern centralized form of government.

Recognized that both the government and the people have rights and responsibilities.
Development of English common law (law created by individual judges in the provinces).
Domesday Book (census record, cataloguing of land and possessions) indicated that land issues were now a governmental, centralized concern

3. Development of Common Law

4. The Magna Carta

5. The Mayflower Compact

6. The French & Indian Wars

7. The Declaration of Independence

8. The Articles of Confederation

9. The Constitutional Convention

(The Federalists v. Confederalists (1775-1789))

Convention called to redraft the Articles of Confederation to provide for a stronger, more centralized government.
Anti-Federalists were worried about having a strong central government, so Federalists assured the people that they would have strong amendments to protect their rights…

10. The Bill of Rights

11. The 14th Amendment

Designed to restrain any substantive abuses by the states.

Unique because applied to the states; addressed what states are supposed to do to protect the due process of any person (not just citizen!).
Life, liberty and property = three fundamental rights; the deprivation of one will lessen the value of the others.
Does not explicity refer to the Bill of Rights, only conceptually references it.

Nor deny to any person…the equal protection of the law.

12. Judicial Review/Judicial Restraint/Judicial Activism

(U.S. Supreme Court Interpreting the Constitution)

Marbury v. Madison
said that the U.S. Supreme Court has the power to declare acts of the executive and legislative branches to be unconstitutional.
judicial review

The power of judicial review is a reserved right and responsibility of EVERY court! (BUT it is historical reserved for the highest court.)

judicial restraint

Purpose is to make judges deal only with the issues necessary to decide the case before them.
Prevents the judiciary from legislating and evolving the law more than is necessary.

judicial activism

Virtually all of the protections granted under the Bill of Rights are granted in equal measure against the states through the 14th Amendment’s Due Process Clause.
Problem with incorporation: How does the notion of Due Process in the 14th Amendment incorporate the states? To what extent does the 14th Amendment require the same due processes be followed by the states? (How much incorporation?)
Three views have been espoused by various members of the Court on the incorporation question:


Palko v. Connecticut

Predominant way of looking at the 14th A up until the 1960s: deference to state determination and discrimination.
Views the 14th A as prohibiting only those practices which are inconsistent with the concept of ordered liberty.

fundamental fairness
DP Clause requires a case-by-case, totality of circumstances approach to determine whether a particular state practice so shocks the conscience that it is unacceptable in the American legal system.
The Bill of Rights protections are relevant indicators of fundamental rights, but they do not necessarily apply to the states. An action may be prohibited by the Bill of Rights and yet not shock the conscience.


This view, originally espoused by Justice Brennan, is a hybrid of the fundamental rights and total incorporation theory. Selective incorporation theorists agree that the Due Process Clause encompasses rights that are necessary to ordered liberty and that the Bill of Rights protections are neither the required nor the exclusive fundamental protections. However, they reject the totality of circumstances, case-by-case analysis of the fundamental rights approach as impressibly subjective, formless and inefficient.
To determine whether a Bill of Rights protection is fundamental, this approach requires that the Court look at the total right guaranteed by the Bill of Rights provision, not just a single aspect of that right, and not as applied to particular factual circumstances. If a particular Bill of Rights provision is fundamental to the Anglo-American system of jurisprudence, it is incorporated into the 14th A in its entirety. (Ex. If the right to a jury trial is fundamental (as it is), then it must be applied in every state case to the same extent that it applies to the federal government under the Bill of Rights.)

Duncan v. Louisiana
The selective incorporation approach has been predominant since the 1960s and is unlikely to be rejected by a majority of the Court at this point. Using selective incorporation, the Court has held that the following Bill of Rights protections are applicable to the states to the same extent as they are applicable to the federal government:
4th A right to be free from unreasonable searches and seizures. Mapp v. Ohio.
5th A privilege against compelled self-incrimination. Malloy v. Hogan
5th A protection against double jeopardy. Benton v. Maryland.
6th A right to counsel. Gideon v. Wainwright.
6th A right to confrontation. Pointer v. Texas
6th A right to a speedy trial. Klopfer v. North Carolina.
6th A right of compulsory process for obtaining favorable witnesses. Washington v. Texas
6th A rights to a public trial and to notice of the nature and cause of the accusation. Gannett Co., Inc. v. DePasquale.
6th A right to jury trial. Duncan v. Louisiana.
8th A prohibition against cruel and unusual punishment. Robinson v. California

This view, primarily espoused by Justice Black, holds that the 14th A incorporates the entire Bill of Rights, and makes all Bill of Rights protections applicable to the states. Under this view, the terms privileges and immunities and due process are convenient shorthand devices used in the 14th A as substitutes for an entire restatement of the Bill of Rights.

Adamson v. California


Rochin v. California
The Supreme Court held that the capsules must be excluded because the conduct of the officers was so egregious that the DFZ right of due process was violated.
The Court held that the Exclusionary Rule is a constitutionally required remedy for evidence obtained in violation of the DP Clause, but not for violations of the 4th A only.
The application of the Exclusionary Rule is only aimed at the expulsion of that particular evidence. It does nothing to affect the charge itself!


Linkletter standard
Changed to affect cases in which trial began after the date of those decisions, then changed to whether police conduct had begun causing more d

explicitly stated in the Constitution.) (No State shall…) (United States v. States Rights (1864))
(The People v. Worry About Government Limits (1789-1791))

Attempt to clarify and limit the actions of government (analogous to the Magna Carta).
(We the People…)
(The New States v. Centralization (1775-1798))

First constitution of the United States that established a central government, controlled trade, established paper money, and established English as the national language (but did not provide for executive or judicial branches).
Example of weak, decentralized government.

(The American Colonists v. England (1776))

Polemic document (a refutation of or attach on a particular opinion, doctrine, theory) that interpreted the British method of rule as a violation of Due Process.

(English Colonists v. French & Allied Indians (1754-1763))

British fought the French & Indians over boundaries in the New World and forced the American Colonists to pay for the protection they got from the British during the war through taxes.
America began objecting to excessive taxation (Patrick Henry: taxation without representation is tyranny.); set the stage for the Declaration of Independence.

(Mayflower Passengers v. A Few Non-Cooperatists (1620)

Example of a social group contract to form a civil government (as distinct from anarchy, despotism).
General statement of mutual protection that implied majority rule, stated the rights and responsibilities of the participants.
Example of the exportation of constitutional philosophy to the New World.

(King John v. The Barons (1215))

Document limiting the sovereign in which the King agreed to recognize certain rights of the nobility (emerging Due Process).

Some clauses in it where the foundation for Due Process rights.

(Manorial and Local Law v. The Common Law of the Realm)

Land law became common law (law common among peoples).
Law determined by judges on a case-by-case basis, developed based on experience in order to achieve what is believed to be right and just.

Flexible system designed to change with the beliefs of society.

Uncodified law that included procedural and substantive issues and doctrines (incl. the idea of the jury system).

(200 B.C. – 2000 A.D.)

Why have a society or government at all? There is a need for authority, direction, a managerial center known as a government, then allowing it to have power (sovereignty).

What ideas are followed in society and what practices are followed to implement those ideas (interaction between philosophical and active components).: A collection of ideas and principles that a particular culture, society or group follows to form a government, society or culture (does not have to be written).