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Criminal Procedure
University of Cincinnati School of Law
Hanley, Patrick J.

Criminal Procedure I: Spring 2014 Outline
Professor Hanley
Chapter 1- The Criminal Process: Failures, Choices, and Legitimacy
·         Enforce our laws to create deterrence and to punish
·         Two major concepts at work:
o   Govt’s duty to maintain order in society; to prosecute and resolve crime; to punish/rehabilitate wrongdoers; to deter criminal activity; effective law enforcement
o   Due process model that considers respect for the individual; fairness
·         Brown v. Mississippi
o   Defendants falsely confessed after being tortured and all the evidence against them was obtained by coercion and brutality, which was known to the court.  However, defendants denied counsel.
o   Sentences reversed because deprivation of counsel was violation of DPC
o   Federal law comes into state proceedings:
§  “The state is free to regulate the procedure of its courts in accordance with its own conceptions of policy unless in doing so it offends some principle of justice so rooted in the traditional and conscience of our people as to be ranked as fundamental”
·         Powell v. Alabama (Scottsboro Boys)
o   Black boys accused of raping a white woman; not given reasonable time and opportunity to secure counsel in their defense
o   Court ordered right to counsel; violation of right to due process
o   Holding: “in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested  or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case”
Norms of the Criminal Process
·         Accuracy
o   Want to discover the “truth”
o   Two elements of finding out the truth:
§  (1) uncovering the crimes
§  (2) determination of who did the crime
·         Fairness
o   Due process model (as opposed to crime control model)
§  Looks not only on objective oath of the prosecution but also looks upon the dignity/rights of individual.  Also want to look at areas in system to improve
§  Goal: make sure innocent people are not convicted
§  EX: Warren Court
·         Rule-oriented – i.e. would use a case to create a rule that would apply across the board
·         Basic mistrust of state govt and police
·         Efficiency
o   Crime control model
§  Goal: make the whole system efficient
§  Presumption of guilt in this system; knowledge that there will be people who are convicted even if they are innocent
§  This model causes you to look at role of prosecutor closer – should prosecutor attempt to bring about justice more than anything or just try to win?
§  Plea deals = efficiency
·         Debate on fairness of plea deals
§  EX: Burger Court
·         Relying on facts and circumstances of case – not much precedential value
·         More interested in guilt/innocence and not in fairness
·         Total incorporation rejected; selective incorporation instead
·         Due Process = fundamental fairness
·         Hurtado v. California
o   Ds argued that the absence of a grand jury indictment for a serious crime (first degree murder) violated 14A DPC
o   14A DPC applied to state criminal processes, though the Court held that the right to a grand jury indictment is not part of due process; if the drafters intended to create this right, they would have specifically said so.
o   First time DPC was seen as applicable to states
o   This right, however, is one of the few not applicable to states now.
·         Maxwell v. Dow
o   Court held that the right to a jury of 12 in a criminal case is not part of due process
·         Twining v. NJ
o   Court held that due process did not prohibit an instruction to the jury that it could draw a negative inference from the defendant’s failure to testify.
·         Duncan v. Louisiana
o   Sixth Amendment right to trial by jury applicable to states because it was seen as a fundamental right
o   Due process right: “whether a right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, whether it is basic in our system of jurisprudence, and whether it is a fundamental right, essential to a fair trial”
o   Concurring opinion (Justice Fortas)
§  Certain aspects of jury trial ≠ fundamental
o   Dissent (Justice Harlan)
§  This right isn’t fundamental; court’s reasoning equates the term “fundamental” with old, much praised, and found in the Bill of Rights
§  States vary and have local traditions – we shouldn’t impose blanket rule on everyone.
Chapter 2 – Fourth Amendment: An Overview
CHECKLIST for 4A Issue:
1.      Does criminal D have the standing to raise 4A challenge to specific piece of evidence in question?
a.       Easily satisfied
2.      Is D among “the people” covered by 4A?
a.       Typically not a factor because 4A covers all legal American citizens
b.      US v. Verdugo-Urquidez
                                                              i.      Issue: whether 4A applied to S&S by US agents of property owned by non-resident alien and located in foreign country
                                                            ii.      Holding: NO
1.      D could not object to DEA actions on 4A grounds because he was not among “the people” the Framers intended to protect from unreasonable S&S
3.      Did activity in question implicate a person, house, paper, or effect?
a.       BROAD
                                                              i.      Persons:
1.      Not much of an issue
                                                            ii.      House
1.      Can include many things à building, ll structures that a person may use as a residence (temporarily or permanently), curtilage of house, commercial structures…
                                                          iii.      Papers and Effects
1.      Papers – personal items like letters, diaries, etc.
2.      Effects – residual component of 4A
a.       Can include things like cars, weapons, etc.
4.      Did police activity constitute a search and/or seizure?
a.       If no, then no 4A issue!
5.      Was the search and/or seizure unreasonable?
6.      Did police have probable cause?
7.      If police had probable cause, did they obtain a search warrant?
8.      Did police execute the warrant properly?
9.      Does exclusionary rule app

o   Dissent:
§  State laws can take care of illegal police conduct
Chapter 3 – Passing the Threshold of the Fourth Amendment
Important Question: What governmental conduct constitutes a search or seizure of a person, house, paper, or effect, and, therefore, triggers the 4A protection?
What is a Search?
·         Olmstead v. United States (1928)
o   Trespass approach to 4A; closely tied to property law concepts
o   If no physical intrusion, then no 4A protection
·         Katz v. US
o   Facts:
§  Federal agents suggested D of bookmaking and place a listening device against the outside wall of a public phone booth.  There was no penetration of the booth and thus no trespass.
o   Holding:
§  4A “protects people, not places,” and its reach cannot turn solely upon whether a physical intrusion occurred.  Instead, applicability of 4A derives from the concept of privacy
o   Concurring Opinion (Harlan)
§  Two part test to determine if there has been a 4A violation:
·         (1) SUBJECTIVE PRONG – the person exhibited an actual (subjective) expectation of privacy, and
·         (2) OBJECTIVE PRONG – the expectation is one that society is prepared to recognize as “reasonable”
§  Stated that Katz (1) had a reasonable expectation of privacy – the phone booth was a temporary private space, and (2) his expectation was reasonable
§  Harlan believed the second prong should have more importance.  But how to determine reasonableness?
·         Factors to consider:
o   Site, nature of property inspected
o   Extent to which person has taken measures to keep property and activity private
o   Degree of intrusion experienced
o   This case made clear that the 4A isn’t limited to search/seizure of tangible property and applied to more than just surveillance involving physical penetration of protected spaces.
·         United States v. White
·         Facts:
o   D was convicted for narcotics charges.  Govt agents were monitoring conversations between D and an informant by radio transmitter.  The convos overheard were in the informant’s home and car, as well as in D’s home. 
·         Holding:
o   No 4A violation where govt agents listened in on conversations transmitted by radio device worn by informant.
·         Why?
o   We should not be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable
o   If you knowingly expose something, it’s not protected by 4A
o   Practical rationale – recognition that certain crimes can’t be investigated effectively without using covert agents and that the warrant and probable cause requirements would unduly frustrate their use.