CRIMINAL PROCEDURE FEENEY SPRING 2015
CONSTITUTIONAL FRAMEWORK
· Focus: police behavior, arrest, search and seizure, interrogations, use of eyewitness evidence
CONSTITUTIONAL PROTECTIONS:
4TH AMENDMENT: Arrest, search and seizure
5TH AMENDMENT: Interrogations and confessions
6TH AMENDMENT: Right to counsel
How USSC dealt w/ Crim Pro Issues:
· 1960s: Many revolutionary cases came out, especially in crim pro. Began to apply the bill of rights in much stricter and complete ways than before.
· Due process revolution under Earl Warren).
· Crime was a hot issue: Nixon was elected on a “tough-on-crime” platform.
· 1970s-1980s: 15-20 out of 150-200 cases per year
· 1990s: court cut back on overall caseload. 80-85 cases/year
· Since 2000: String of blockbuster cases; SCOTUS brought crim pro back into the forefront
APPLYING FEDERAL CONSTITUTION (BILL OF RIGHTS) TO STATES
6TH 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.
14TH AMENDMENT
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I. Prosecutions to which Right Applies
Duncan v. LA SELECTIVE INCORPORATION à RIGHT TO JURY TRIAL APPLIED TO STATES (D charged with assault (petty battery); D-19 year old AA man driving along country road in LA, saw two younger cousins talking with four white teenagers, thinks racial trouble and told cousins to get in car and leave, in processàtouched or hit one of white boys on elbow)
· Trial: Only eye-witness testimony offered. Trial judge found guilty of assault BARD.
· Issue at SCOTUS: Does D have right to trial by jury
o LA says: Only get it if imprisonment or hard labor (basically felony cases). Based on old law, only felony gets jury trials
o LA SC: denied review in case
· Holding: D is entitled to trial by jury
o Decision based on C-al provisions à 6th and 14th Amendment
o 6th A: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by a jury…”
o In part of original Bill of Rights, and old law states that Bill of Rights (1-10) only apply to the federal govt, not the states…
o 14th A: D argues SCOTUS should apply Due Process here because of the 14th A: “…no state shall deprive…of life, liberty, or property, w/o due process of law…”
· 2 Reasons for Jury Trials
1. Check on oppressive government
· An independent jury provides added protection against govt oppression
2. Fundamental to common law system
· When looking at Due Process and BoR, court talked about looking at things in a fundamental way
· Asked, is it necessary to have a jury to have a fair trial?
o à Yes, it would seem a jury is fundamental to fairness.
o But the Duncan went further: jury trial is embedded in the Constitution itself – fairness isn’t the only issue. It is the job of the crim justice system to adopt the system inherited by the English system.
o ISSUE 2: Where is the line between petty crime vs. a serious crime.
o 6th Amendment: Due process is compliance w/ 6th Amendment (…right to impartial jury).
· Federal courts have consistently said that there is no right to jury trial in “petty cases” for reasons of administrative efficiency
· Common Law Rule: Minor cases à D does not have right to jury trial.
o Is a crime petty à Look at possible penalty, not actual penalty.
o Possible penalty greater than 6 months à Not petty à Right to jury trial in both federal and state
· Simple battery in LA could have resulted in 2 years imprisonment.
· Court refuses to draw the line in Duncan
· Later draws the line at 6 mo.
Can you have fair trial without jury?
· à SCOTUS: Jury trial NOT necessary to have fair fact-finding
· BUT required in trials conducted by states in US b/c:
o Gives additional protection
· Judges could have political pressures and can’t be 100% objective
o USSC not writing on clean slate and country operates on context of English common law system
· Jury trial virtually universal
Relationship between Bill of Rights and 14th Amendment: Can we apply BoR (which are sections of the federal constitution) to states via 14th Amendment?
o USSC has twice said that BoR does not apply to the states.
o However, via at least one of these theories (particularly selective incorporation) + 14th A = The majority of BoR has been applied to states.
· 4 THEORIES:
· Fundamental Rights Theory: 14th Amendment (1868) required states to provide minimum standard of fairness to citizens. Standard not based on BoR, but on more natural considerations. Court could include parts of BoR,
1. Powell: Due process requires states to afford fundamental rights of liberty and justice that lie at the base of our institutions.
· Total Incorporation: One of principal purposes of 14th A à BoR applies to states
1. Unsuccessful: This view has twice commanded four of nine USSC votes (in 1870s and 1944)
2. Never been held as law BUT tremendous influence on evolution of law
· Selective Incorporation: (“Crazy theory”) Rejects total incorp concept but makes major use of BoR in defining due process.
1. Examines provisions of BoR one by one and determines whether that particular provision should be incorporated in due process law (Warren Court used this to bring most concepts under due process – of note, the 5th amendment indictment rules were NOT included in due process)
2. Relation to Duncan case:
o Specifically chose the 6th Amend. (Jury trial) was incorporated to the States.
o Not a lot left to decide in this area
§ Court has not decided 3rd A (quartering soldiers in private homes); 7th A (right to jury in civil trial)
o Most other provisions have been incorporated.
§ Most recent incorporation: 2nd A (right to bear arms).
· Incorporation Plus: now that most provisions of BoR held to apply to states, is that all due process means or is there an independent meaning?
1. JUSTICE BLACK: 14th Amendment should NOT be interpreted to go beyond the Bill of Rights. One of the major purposes for having a written constitution is to make very clear what powers courts have and do not have.
1. This view HASN’T PREVAILED
o Court found substantive rights in due process beyond BoR.
§ Contraception and abortion cases in which court read 4th, 5th, and 9th A as creating zone of privacy which extends beyond confines of individual amendment (penumbras).
· Does it Matter Which Theory is Used? YES à if you apply the fundamental rights theory, there are a lot of countries that don’t use jury trials. Justice White says we don’t write on a clean slate and that since it’s derived from the English justice system, which says the right to a jury trial is fundamental.
FEDERAL CONSTITUTIONAL EXCLUSIONARY SANCTIONS
· 4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unre
Yes à Probably not attenuated à Evidence excluded under FoPT
o Is it just an incidental consequence of a past mistake the cop made?
§ Yes à Usually, attenuated à Evidence admitted.
o Is the usage of that evidence foreseeable?
§ Pic taken illegally in Case 1; photo used to ID the suspect in Case 1 in a totally different Case 2 à it was unforeseeable that a cop would use an illegally taken photo to ID the suspect in Case 2 à Attenuated; evidence is not excluded.
o MIRANDA WARNINGS given?
3. Voluntary Act: If D did something voluntary that, in addition to the taint, led to the finding of the evidence à Probably inadmissible.
1. Look at the context of the voluntary act.
4. Identification (not just objects) can be fruit of poisonous tree
· Inevitable Discovery: Related to independent source so evidence possibly admissible à Cops were going to find it anyways
1. DIFFERENCE b/w independent source & inevitable discovery: In inevitable discovery, there need not have been another different independent source for discovering the evidence at all.
1. ASK:
o How “inevitable” is the discovery going to be?
o How do we know that is really is inevitable?
· D’S BODY à CAN NEVER BE EXCLUDED UNDER FoPT
1. If D wrongfully arrested, D can’t say he himself is fruit of poisonous tree and that can’t be tried. That argument will not fly. à D must stand trial
· Wong Sun v. US (Police arrest HOM WAY. HOM WAY leads them to “Blackie Toy”, and the police illegally arrest JAMES TOY (who may not have been “Blackie”). TOY did not have any heroin on him. JAMES TOY leads police to JOHNNY YEE, TOY says he smoked heroin w/ YEE the night before. Police find heroin in YEE’s residence. YEE tells police that he got the heroin from TOY and “Sea Dog.” TOY reveals that “Sea Dog” is WONG SUN. Police illegally arrest WONG SUN. TOY, WONG SUN and YEE. Cops had statements prepared, but they refused to sign. They had difficulty understanding the statements in English, and there was no attorney present. At trial, YEE repudiated his testimony on grounds of self-incrimination)
1. HOM WAY à TOY à YEE (heroin found) à Toy and WONG SUN
· EVIDENCE:
1. Statements made by TOY in his bedroom at the time of his arrest
· TOY’s arrest was illegal.
· à Therefore, TOY’s statement in his bedroom INADMISSIBLE b/c “fruits” of the cops’ illegal arrest.
o BLL: the exclusionary rule extends to direct AND INDIRECT products of an illegal police action.
o However, if evidence is gained from an independent source, then the evidence can be admitted.
§ Cops claim the testimony is an independent event, an act of free will.
§ HOLDING: Inadmissible; but considering that it was a result of 7 cops illegally entering his apt, argument is discarded.
2. Heroin found in YEE’s apartment
· If TOY’s statement is excluded, can the evidence at YEE’s house be admitted against TOY?
§ HOLDING: No; inadmissible.
§ “Fruit of the poisonous tree” test is NOT a “but for” test, but whether or not the evidence gathered was gathered by the exploitation of the illegality, OR by means sufficiently distinguishable from the illegality.
