Criminal Procedure Outline
Boalt Hall – prof. Weisselberg – Fall ‘10
Structure and overview
Overview: Arrest – Gerstein hearing (if warrantless arrest not based on indictment) – First appearance (appointment of counsel, charges read, setting bail) (w/in 48 hrs) Riverside– Preliminary hearing (another chance for magistrate to screen, but in an adversary setting. Government presents witnesses, and defense cross examines.) – Grand Jury (indictment jx) or straight to trial (information jx) – indictment / arraignment.
Role of prosecutor
Prosecutorial discretion
Justification
Over-criminalization
Limited resources
Individualized justice
Scope: Discretion is important, and strong enough to overcome a statutory language “requiring” of prosecution given a certain violation. Attica.
When there are overlapping statutes one of which carries a great penalty, the prosecution may legitimately prosecute the crime that carries a higher penalty. Batchelder.
Impermissible grounds: discrimination in violation of due process / equal protection clauses.
Challenging the discretion: defendant must present clear evidence on all the elements of the claim. To succeed, the defendant must show the following [ and show evidence tending to show the following in order to compel discovery][very high hurdle] (Armstrong):
discriminatory effect [through “similarly situated” evidence] AND
Discriminatory purpose
Incorporation of Bill of Rights
Total incorporation – justice Black – never takes hold.
the “fundamental Fairness test” prevails in the mid 20th century.
Asks whether the right was “fundamental”
If provision is incorporated, it may not be interpreted identically in federal and state contexts.
Looks for special circumstances
E.g. Betts v. Brady (6th amendment right to counsel) and Powell.
Selective Incorporation test
Current test:
If provision is incorporated, it is interpreted in the same way as the federal (except for unanimity of jury decisions)
Focus on the value of the constitutional guarantee in context of our common law system of justice.
Incorporated Crim Pro Provisions
Unreasonable searches and seizures, warrants (4th)
Self-incrimination (5th)
Double jeopardy (5th)
Counsel (6th)
Jury trial (6th)
Speedy and public trial (6th)
Confrontation (6th)
Compulsory process (6th)
Cruel and unusual punishments (8th)
Excessive bail (8th)
NOT incorporated
Right to indictment by grand jury (6th)
Not Yet Decided
Excessive fines (8th)
Jury from district where crime is committed. (6th)
Due Process violations
Substantive
Independently prohibits conduct that “shocks the conscience” and “offends a sense of justice.” This includes Stomach pumping to retrieve evidence. Rochin.
BUT, this a reasoning has been limited in application. Does NOT apply to blood sample drawn from unconscious defendant. Breithaupt.
Nor does it apply to taking of blood sample of injured person over his objections.
Procedural
Boumediene – debate over what it means to satisfy the procedural due process guaranteed by the 14th amendment. Roberts dissent says that the majority does not flesh out the criteria that it seems to suggest are necessary to satisfy the standard. This case highlights that there are other forms of detention for which the rights we will discuss this semester may not apply.
Supervisory power
Extends to federal cases, but not states. McNabb(exclusionary rule in some cases on the basis of supervisory power)
Limitations:
Supervisory power is NOT an independent means to exclude evidence. Payner(Briefcase Caper)
Harmless Error doctrine may not be avoided by an assertion of supervisory power, simply to justify a reversal of these criminal convictions. Hasting.
4th amendment Search and seizure
4thAmendment protects the “people” whereas the 5thprotects “persons.”
Remedy: Not in the text, but imported into it.
Exclusionary rule applies to the federal government. Weeks: applies the exclusionary rule against the federal government
Wolf: [not good law] The exclusionary rule is not part of the Amendment itself; instead, it stems from the court’s supervisory powers and could be applied via the due process fundamental fairness test, but states can devise their own remedies for the violation
Exclusionary rule applies to the states. Mapp v. Ohiooverrules Wolf – ruling that the exclusionary remedy is part of the Fourth Amendment itself and should be incorporated to the states through the 14thamendment. The deterrent effect of the exclusionary remedy is necessary to preserve the 4thamendment and judicial integrity in general.
Limiting Mapp
Good Faith Exception. US v. Leon, 1984: the 4thamendment violation is complete after the illegal search/seizure. So, the exclusionary rule is rooted in deterrence. The harm of excluding the evidence outweighs the deterrent effect when there is good faith.
But the good faith belief must be “objectively reasonable.” The door is still open to suppression where the officer a) lacks good faith basis for relying on the warrant or b) executes the warrant improperly.
Groh v. Ramirez– preparer of the warrant / affidavit confused the “place” and “items” sections and thus failed the particularity requirement of the amendment.
Leon does NOT apply to warrantless searches (lopez v. Mendoza), but this may be changing.
Herring: Office
ge is certainly an “effect” protected by the 4thA. A physical manipulation or exploratory feel violates a reasonable expectation of privacy and is therefore prohibited.
Enhancing the Senses–Mankani: As a general rule, it is not a search when an officer, lawfully present in a certain place detects something by one of his natural senses. This legality usually extends to commonly used sense-enhancers (binoculars, flashlight, etc.) but may not extend to more sophisticated methods. B
Kyllo(Scalia, 2001 (thermal imaging): information about the interior of the home that could not be obtained without physical intrusion into a constitutionally protected area cannot legally be obtained through sense-enhancing device.
Limitations focused on intimacy of details revealed would be unworkable
This holding may rely partly on the special status of the home.
Dissent: heat waves, like garbage, are being sent into the public domain and should not be protected.
Canine Nose– Dog sniff ≠Search. US v. Place: though the sniff reveals something about the contents of luggage, the information is limited to contraband, in which the people do not have a legitimate expectation of privacy.
Legality of dog sniff affirmed in traffic stop context. Illinois v. Caballes: Souter, Dissent notes that drug dogs are not infallible and can sometimes signal lawful items, thus undermining the rationale of Place. But, as in US v. Jacobsen(on the spot chemical test of white powder suspected to be cocaine) the majority responds, the likelihood that the conduct will actually compromise any legitimate interest in privacy is too remote.
Weapons detector – what would the court do with a machine that only detected weapons?
Electronic tracking –
US v. Knotts(1983): Police use beeper tracker, along with visual surveillance, to track the movement of a container of chloroform suspected to be used in drug manufacture. “Nothing in the 4thamendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth.”
BUT, US v. Karo– When used to reveal information that could not have been obtained through lawful visual surveillance, beeper use is a 4A search.
Photographic Magnification – Dow Chemical v. US– aerial photography of company’s industrial complex was not a search for two reasons: 1) the level of detail revealed was not very intimate and 2) the open areas of the plant were more akin to open fields than curtilage.
New technology
