ALWAYS ANALYZE THE PROBLEM CHRONOLOGICALLY
CRIMINAL PROCEDURE
I. REMEDIES FOR 4TH A VIOLATIONS – THE EXCLUSIONARY RULE 3
II. SEARCHES COVERED BY THE FOURTH AMENDMENT 5
III. 4TH AMENDMENT SEIZURES 6
IV. PROBABLE CAUSE (+ WARRANT) MAY JUSTIFY THE INTRUSIONS 6
V. SEARCH WARRANTS 7
VI. ARRESTS WITHOUT WARRANTS (THE WAY MOST TRADITIONALLY OCCUR) 7
VII. SEARCH INCIDENT TO ARREST 8
VIII. WARRANTLESS AUTOMOBILE SEARCHES 9
IX. WARRANTLESS SEARCHES OF CONTAINERS AND THE AUTOMOBILE EXCEPTION 10
X. AFTER THE ARREST 11
XI. STOP AND FRISK 11
XII. SPECIAL NEEDS STOPS AND SEARCHES 12
XIII. RACE PROFILING 13
XIV. CONSENT SEARCHES 14
XV. PRE-TRIAL INTERROGATION/PRIVILEGE AGAINST SELF-INCRIMINATION – THE 5TH AMENDMENT (MEETS 6TH) 15
XVI. SCOPE OF THE EXCLUSIONARY RULES 18
The fourth amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The fifth amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The sixth amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
The fourteenth amendment
No state may “deprive any person of life, liberty, or property, without due process of law…”
I. Nature and Scope of Due Process
a. Fourteenth Amendment does not guarantees the Bill of rights applies to the states
b. Three principle views
i. Fundamental rights approach- requires states apply those procedures which are “implicit in the concept of ordered liberty’ Palko v. Connecticut or which are “fundamental to the American scheme of justice” Duncan v. Louisiana. Examines each case on its facts, rather than applying a particular right to all situations.
ii. Total incorporation approach- argues that all guarantees given in the Bill of Rights are “incorporated into the Fourteenth Amendment.
iii. Selective incorporation approach- holds that not all right enumerated in the Bill of Rights are applicable to the states, but that if any aspect of a right is so necessary to fundamental fairness that it applies to the states, then all aspects of that right apply.
c. Bill of Rights held applicable to the states:
i. Fourth Amendment right to be free from unreasonable search and seizures and to have any illegally seized evidence excluded from criminal trials. Mapp v. Ohio
ii. Fifth Amendment privilege against self incrimination. Malloy v. Hogan
1. Guarantee against Double Jeopardy. Benton v. MD.
iii. Sixth Amendment right to counsel. Gideon v. Wainwright
1. Right to speedy trial- Kopfer v. N.C.
2. Right to impartial Jury- Duncan v. La.
3. Not fully applicable to the states because the Sixth Amendment’s guarantee of counsel is not completely incorporated by the Fourteenth Amendment, but the failure to appoint counsel is a violation of due process, if, under the circumstances of the case, it results in a conviction that is lacking in fundamental fairness. Betts v. Brady
iv. Only two Bill of Rights guarantees have not been extended to the states
1. The guarantee to excessive bail
2. Right to a grand jury trial
3. Hurtado v. Cal.
v. Bill of Right protects only against Governmental, not private conduct (a security guard)
d. Federal Habeas Corpus
i. Can only petition that the state violated his constitutional right after conviction
ii. Search and Seizure limitation- “Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the grounds that evidence obtained in an unconstitutional search and seizure was introduced at his trial.” Stone v. Powell.
1. Confession- illegal lineup, confessions, deprivation of counsel, the SC has not imposed a similar limitation. Withrow v. Williams
iii. SC will not review reversal of conviction when the State affords more protection
1. Lack of independent state grounds presumed. When a state court appears to rest on primarily federal law SC will accept as the most reasonable explanation that the state court decided the way it did because it believed that federal law required it to do so. Long v. Michigan.
II. Constitutional Limitations on Process
a. Grand Jury- 5th Amendment provides that “no person shall be held to answer for a capital… unless on a presentment or indictment of a Grand Jury.
i. Not required by States (19 use)
ii. Target never has the right to be present through proceedings.
iii. Illegally obtained evidence may be heard by GJ. US v Calandra
iv. Hearsay is admissible Costello v. US
v. No right to Counsel- US v. Manujano
b. Decision to Prosecute
i. A criminal defendant bringing a selective-prosecution claim must make a credible showing of different treatment of similarly situated persons in order to obtain discovery in support of the claim. US v. Armstrong
c. Pretrial Release
i. 8th Amendment provides “excessive bail shall not be required.”
1. Stack v. Boyle- unduly high to be determined by a number of factors including “nature and circumstances of the offense”, weight of the evidence against D, the financial ability of the D to give bail, and the character of the D.
2. Preventive Detention-
a. Bail Reform Act- makes ensuring “the safety of any other person or the community” relevant (detention hearing in violent crimes)
b. US v. Salerno upheld as constitutional
i. Facial challenge- (if you can show that it can’t be upheld constitutionally)
ii. Ct. doesn’t feel 8th provides affirmative right to bail only excessive
ccused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good or bad faith of the prosecution. B v. M
iii. Evidence is material and must be disclosed to the defense if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. US v Bagley
iv. Materiality is cumulative, look at totality Kyles v. Whitley
v. A court may forbid a defense witness from testifying as a sanction for the defendant’s failure to conduct pretrial discovery in good faith. Taylor v. Ill
vi. The constitutional privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses. William v. Florida
h. Plea Bargaining-
i. A prosecutor can attempt to gain a defendant’s assent to a plea bargain by informing the defendant that more severe charges will be brought if no bargain is struck. Bordenkircher v. Hayes (Kentucky Habitual Criminal Act if he did not plead guilty to the charge of uttering a forged instrument)
ii. When the prosecution makes a promise regarding sentencing recommendations as an inducement to a guilty plea, the prosecutor may not renege. Santobello v. NY
i. Right to Counsel
i. Right to be represented by retained lawyer is unqualified. Chandler v. Fretag.
ii. Ability to pay could be blocked- forfeiture- Chartered v. US
iii. Equal Protection
1. State must provide free transcript of trial when submission of it is a prerequisite of an appeal. Griffin v. Ill
2. Require counsel to assist indigents in preparing for 1st appeal when it is a matter of right to D. Douglas v. Cal.
a. Indigent does NOT have a right to counsel for a discretionary review. Ross v. Moffitt
b. When have right must be effective counsel. Evvitts v. Lucey
3. Recovery by states for counsel
a. Discrimination- D is sentenced can’t force repayment. Rinaldi v. Yeager
b. NO recoupment. James v. Strange
c. Condition of probation is allowed. Fuller v. Oregon.
4. Misdemeanor- have right when D faces potential jail sentence. Argensinger v. Hamlin.
a. If D not sentenced, state not required. Scott v. Ill
b. Uncounseled misdemeanor may be used to increase a subsequent conviction. Nichols v. US
iv. D has a right to proceed pro se. Faretta v. Cal.
1. Must do so knowingly and intelligently
j. Effective assistance of counsel
i. D must show that 1) counsel’s performance was deficient 2) that the deficiencies were prejudicial. Strickland v. Washington
Objective standard- strong presumption
