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Criminal Procedure
University of Cincinnati School of Law
Lassiter, Christo

Part II: Constitutional Rule Making
·         Paradigms of Criminal Procedure
·         Crime Control Court
·         Crime Control Court (Rehnquist Court Paradigm)
·         Suppression of crime is the prime goal of the government and therefore our criminal justice system should promote efficient investigation, prosecution, and sentencing of law violators
·         Efficiency precept
1.  Processes should be as informal as possible
·         Let cops be cops
2.  Uniform processing
·         Treat every case the same
                                                            3.  Presumption of guilt of criminal suspects
·         Due process court
·         Due process court (Warren Court Paradigm)
·         Brought in this notion of using constitutional provisions in effect to write the rules of evidence and the rules of civil procedure to shift the balance towards individual liberty
·         Key proposition is to maximize human freedom/liberty rights against the government
·         Doesn't discount the harm of crime or the need to suppress it; believes that the purpose of the criminal justice system is to suppress crime and maintain human freedom
·         All about formality
·         Don't trust any informal process
·         See police officers as humans who have biases and make mistakes
·         Key precepts
1.  Focus on the process of legal guilt versus factual guilt
·         View one as innocent before proven guilty
2.  Focus on the importance of economic inequality
·         Reality is that a well-to-do defendant can buy a better form of justice then a poor defendant and thus the rule of the justice system should work to equalize the inequality
3.  Greater role for judicial activism
·         It is the judiciary that should expand its role to police the police
·         The difference between the two courts is the manner in which efficiency is viewed
·         Goals and Approaches
·         Goals
·         Domestic government is preoccupied with the repression of crime
·         The most important goals of domestic government are:
1.  Efficient investigation
2.  Prosecution
3.  Sentencing of law violators
·         Approaches
·         Differing approaches of domestic government are:
1.  Truth v. justice in the criminal justice system
2.  Accusatorial v. inquisitorial system of justice
·         Criminal Investigation — A Problem of Constitutional Dimension
·         4th Amendment Exclusionary Rule
A legal requirement mandating exclusion of evidence because of the illegal manner in which it was obtained
·         Remedy of unlawful searches and seizures was left to states to fashion themselves
·         Colorado v. Wolf is the case that cements this premise for the states
·         One of the court's main reasons for its holding is that the exclusionary rule of Boyd v. Weeks is too harsh and too lenient
·         Too harsh because it lets a guilty man go free
Too lenient in that it does not apply to state actors and thus the federal courts could send a case to the state in order to try it and get around the exclusionary rule (silver platter doctrine)
·         The five questions that you must ask in any fourth amendment case
1.  What evidence is subject to exclusion in the government's case at hand
·         In answering that question you must look at:
1.  Whether the violation is the proximate cause for the discovery of the evidence,
      be it direct or indirect products
·         Exceptions to the exclusionary rule
1.  Fruit of the Poisonous tree (Wong Sun v. United States)
2.  Inevitable Discovery (Nix v. Williams)
3.  Independent Source (Murray)
2.  Who is doing the violation
·         Exceptions to the exclusionary rule
1.  Good Faith Exception (United States v. Leon)
2.  Forum (Pennsylvania Board of Probation and Parole v. Scott)
3.  Private Actors (Burdeau v. McDowell and Coolidge v. New
2.  Did the evidence come from a protected area
·         The protected areas are persons, houses, papers, and effects (Katz v. United States)
·         This means that the evidence subject to exclusion must have been acquired by an unreasonable search and seizure and must fall into one of the above 4 categories
3.  Did the search or seizure violate a protected area
·         Exceptions to the exclusionary rule
1.  Open fields doctrine (Oliver v. United States)
2.  Curtilage (United States v. Dunn pg. 85)
4.  Was the search or seizure reasonable
·         Basis for reasonable searches and seizures
1.  Warrants
2.  Probable cause
·         This is key to whether a search or seizure was reasonable
·         Any type of seizure must be preceded by probable cause when there is a meaningful interference with property or personal liberty
3.  Plain view
4.  Search incident to arrest
5.  Exigency searches
6.  Stop and frisk
7.  Automobile searches
8.  Consent searches
9.  International border searches
10.  Administrative searches
11.  Special government needs
12.  Pretext
5.  Absent fourth amendment protection, might the government practices or procedure be
     challenged as being outrageous or violative of fundamental rights
·         Mapp v. Ohio
·         Facts:
Appellant was convicted of possession of lascivious books, pictures, and photographs pursuant to an Ohio statute
Three officers arrived at the appellant's resident pursuant to information that a person was hiding out in the home, whom was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home
Upon arriving at the house, the officers knocked on the appellant's door and demanded entrance but the appellant refused them entry without a search warrant
The officers again tried to enter the home and when the appellant did not immediately open the door the officers forcibly opened the door
When the appellant's lawyer arrived the police refused to allow him entry into the house or to see the appellant
When the appellant demanded to see a search warrant the officers handed her a piece of paper which could not be produced at trial and when the appellant placed the piece of paper in her bosom and refused to return it to the officers, the officers handcuffed her for belligerence
The officers searched the appellant's room, her daughter's room, the living room, kitchen, and the basement; during the course of the search the officers found the obscene materials
·         Issue:
Can evidence seized during an unconstitutional search and seizure be introduced at trial when there was no authority for the unreasonable search
Evidence seized during an unconstitutional search and seizure cannot be introduced at trial when there is no authority for the unreasonable search because the 4th amendment applies to the states byway of the 14th amendment 
·         Justices Clark, Brennan and Warren plurality opinion
·         The court believes that as a rule of due process the courts should not countenance violation of the constitution by government actors
·         “You cannot have a right without a remedy, otherwise the right would be a mere form of words” (Justice Holmes)
·         Court argues that the exclusionary rule is a constitutional must that comes from the 4th amendment and is the only remedy because it is seen as a deterrent that removes the incentive to violate a suspects rights
·         Civil remedies such as bringing criminal charges against police officers and judges just won't work
·         Less than half of the states have any criminal provisions related directly to unreasonable searches and seizures
·         Mapp did away with all other remedies, and many argue that Mapp did away with remedies that the innocent should have against overzealous law enforcement officers
·         Basic premise of the holding is that the states cannot interpret the federal constitution in a manner contrary to the federal courts
·         Justice Douglass's concurring opinion
·         Believes that this case “shows the casual arrogance of those who have the untrammeled power to invade one's home and seize one's person”
·         Believes that the exclusionary rule is a part of the constitution; exclusionary rule is a judicial imperative as well as a deterrence mechanism
·         Justice Stewart's concurring opinion
·         Believes that this is a first amendment case and feels that the lower court's ruling should be overturned on those grounds
·         Justice Black's concurring opinion  (Lassiter thinks his reasoning is wrong)
·         Believes the exclusionary rule is a rule of evidence and not one of due process
·         Believes that the exclusionary rule comes from both the 4th and 5th amendment and not just the 4th amendment
·         Because the 14th amendment makes the bill of rights applicable to the states, the exclusionary rule should also apply to the states
·         Justices Harlan, Frankfurter, and Whittaker's dissenting opinion
·         Believes this case is all about the 1st amendment and thus the case should be decided on 1st amendment grounds
·         Believes that the majority opinion is the epitome of judicial activism because the exclusionary rule is not a part of the 4th amendment
·         Believes that under stare decisis Wolf should stand
·         Constitutional interpretation should not change whenever there is a change in the court's personnel
·         Ordered liberty (also known as fundamental rights)
When the constitution was written and amended and re-amended, by virtue of the limitations of language, whatever is said cannot encompass all that is meant to be said
·         Hurtado v. California is the case that states that if the applicability of a provision of the bill of rights is called into question and the provision appears to be a part of our ordered liberty then it applies to the states byway of the 14th amendment (piecemeal fashion of incorporating each provision of the bill of rights)
·         Has never been a 5-4 decision stating that all the provisions of the bill of rights is incorporated into the 14th amendment
·         There are still provisions of the bill of rights that do not apply to the states because of this piecemeal approach to incorporation
·         Alternatives to the Exclusionary Rule
·         3 Alternatives to the exclusionary rule
1.  Judicial relief from police misconduct
2.  Legislative relief from police misconduct
3.  Executive relief from police misconduct
·         Application of the Federal Bill of Rights to the Administration of State Criminal Justice Systems
·         Constitutional Rule Making: Theories of Interpretation
·         3 theories of constitutional interpretation are
1.  Judicial Restraint
2.  Textualism
3.  Original Intent
·         Fundamental Rights
·         Rochin v. California
·         Facts:
Officers lacking probable cause forced themselves into Rochins home through an open door and found him partially dressed while sitting on the bed with his wife
The officers asked about two capsules that were lying on the night stand next to the bed prompting Rochin to grab them and swallow them despite efforts from the police to prevent this
The officers took Rochin to the hospital where an enemic solution was forced into Rochin's stomach through a tube, causing him to vomit thereby producing the capsules
The capsules were used as evidence in prosecuting him for possession of morphine
·         Issue:
Did the lower court err in allowing the capsules to be used as evidence against Rochin
The lower court erred in allowing the capsules to be used as evidence against Rochin
·         The court viewed the conduct of the officers as a violation of due process
·         Court states that “this is conduct that shocks the conscience” and “would offend even hardened sensibilities”
·         This is what becomes the test for determining whether a right is a fundamental right
·         Breithaupt v. Abram
·         Facts:
Officers had blood withdrawn from an unconscious driver who was involved in an automobile accident for which the officers had ample justification for concluding that the driver was under the influence of alcohol at the time of the accident
The blood was extracted by a licensed physician in a medically accepted manner in a hospital environment
·         Issue:
Did the lower court err in allowing the results from the blood test to be used as evidence against the driver
The lower court did not err in allowing the results from the blood test to be used as evidence against the driver
·         The court held that under the circumstances of the case, the extraction of blood did not “offend the sense of justice” spoken about in Rochin
·         Incorporation
·         2 ways to view incorporation of provisions of the bill of rights
1.  Total Incorporation
2.  Selective Incorporation
·         Duncan v. Louisiana
·         Facts:
Duncan was convicted by a judge of simple battery under LA law which classifies simple battery as a misdemeanor punishable by a maximum of two years imprisonment and a $200 fine
·         Alleged battery occurred when Duncan was trying to encourage his black cousins to break off a potentially violent encounter with white students and enter his car so that they could leave
A white witness testified that Duncan slapped one of the white students on the arm while his cousins allege that he merely touched the student on the arm
Duncan requested a jury trial but under LA law jury trials are only available in capital punishment trials and for charges where imprisonment at hard labor may be imposed
Duncan argues that the 6th and 14th amendment of the federal constitution secure the right to jury trial in state criminal prosecutions where a sentence as long as two years may be imposed
·         Issue:

agent, but both refused to sign them
The heroine obtained from Johnny Yee, and the two unsigned pretrial statements were used as evidence against both Toy and Wong Sun
·         Issue:
Did the lower court err in allowing the statements made orally by Toy in his bedroom at the time of his arrest to serve as evidence against Toy
The lower court did err in allowing the statements made orally by Toy in his bedroom at the time of his arrest to serve as evidence against Toy
·         The exclusionary rule traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion
·         This encompasses indirect evidence obtained, namely verbal statements as well as paper and effects, and testimony as to observations made during the unlawful invasion
·         Statements made by free will are not considered “fruit of the poisonous tree” however, when the individuals door to his home is broken down by seven officers, he is followed to his bedroom where is wife and child are sleeping and is handcuffed almost immediately, like Toy, the circumstances do not warrant a reasonable inference that statements were made at free will
Did the lower court err in allowing the heroine surrendered to agents by Johnny Yee to serve as evidence against Toy when the heroine was obtained byway of Toy's statements made in his bedroom
The lower court erred in allowing the heroine surrendered to agents by Johnny Yee to serve as evidence against Toy when the heroine was obtained byway of Toy's statements made in his bedroom
·         Question that must be asked is “whether, granting establishment of the primary illegality, the evidenced to which instant objection is made had been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purges of the primary taint”
·         The prosecutor admitted that the drugs would not have been found if it weren't for Toy's statements
·         Court believes that it is clear that the narcotics came by the exploitation of that illegality and thus should not have been used as evidence against Toy
Did the lower court err in allowing Toy and Wong Sun's pretrial unsigned statement as evidence against Toy
The lower court did err in allowing Toy and Wong Sun's pretrial unsigned statement as evidence against Toy
·         Criminal confessions and admissions of guilt require extrinsic corroboration
·         A conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused
·         Only proof remaining to sustain Toy's conviction after throwing out the heroine and statements made in his bedroom is the uncorroborated admissions and confessions, therefore the unsigned pretrial statement is inadmissible
·         Out-of-court declarations made after arrest may not be used at trial against one of the declarant's partners in crime
·         Such statements are admissible against the others where it is in furtherance of the criminal undertaking (namely conspiracy) but all such responsibility ends when the conspiracy ends
·         Wong Sun's statements  made after the supposed conspiracy falls into this category of inadmissible statements and thus cannot be used to corroborate Toy's unsigned pretrial statement
Did the lower court err in allowing the narcotics obtained from Johnny Yee, and the pretrial unsigned statements made by Toy and Wong Sun as evidence against Wong Sun
The lower court partially erred in allowing the narcotics obtained from Johnny Yee and the pretrial unsigned statements made by Toy and Wong Sun as evidence against Wong Sun
·         Court held that the heroine was admissible evidence because Wong Sun's rights of privacy of person or premises were not invaded
·         The result for Toy does not compel a court to find a like result for Wong Sun
·         The reasoning for which Wong Sun and Toy's pretrial unsigned statements were inadmissible against Toy, there are also inadmissible against Wong Sun
·         Attenuation
·         Attenuation
Events intervening between the unlawful detention and the making of the statement determine whether the statement was sufficient act of free will to purge the taint
·         Everything that occurs after attenuation becomes admissible, the attenuation breaks the causal connection
·         Factors to be considered are:
1.  The temporal proximity of the arrest and the confession,
2.  The presence of intervening circumstances, and
3.  The purpose and flagrancy of the official misconduct
·         Penalties, including exclusion of evidence, must bear some relation to the purpose of the legal requirement violated
·         i.e. statements made by a defendant after being illegally arrested in the home would not be suppressed because the purpose of requiring a warrant for arrest in the home is to protect the physical integrity of the home, thus statements made outside the home, on premises where the police have probable cause to arrest the suspect for committing a crime, are admissible
·         Silverthorne Lumber Co. v. United States
·         Facts:
An indictment upon a single specific charge was brought against father and son and both were arrested at their homes and detained in custody for several hours
While they were detained the Department of Justice and the U.S. Marshalls went to the office of the father and son's company and seized books, papers and documents found there; all the employees, along with the documents seized, were taken to the District Attorney's office