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Criminal Procedure
University of Dayton School of Law
Brenner, Susan W.


I. Introduction

1. Criminal procedure process is inherently coercive, so it can come close to violating dignitary rts (many of which are found in the Bill of Rights & state constitutions).

2. Dual fn of courts:
 Assist in determining a Δ’s guilt or innocence.
‚ Courts decide when law enforcement procedures are constitutional / legitimate (When Δ was placed in criminal process, were his rights violated?).

3. States may have their own criminal process, but must act w/in the limits of the Constitution. [Many procedures are the same between the states].

4. A state criminal Δ with a constitutional challenge may be able to rely on both the U.S. Constitution and the constitution of the State prosecuting him. States are free to give greater procedural protection to criminal Δs than that conferred by the U.S. Constitution, but may not give less.

II. CH 2: Defining “Due Process”

A. Various Theories of Due Process

1. BoR only applies to fed’l gov, but certain Amendments apply to the States thru the Due Process Clause of the 14th A (which mentions “states” specifically).

2. What exactly is “due process?” Theories:
 Incorporation: the BoR is incorporated into the Constitution thru the Due Process Cl. of the 14th A.
‚ Anti-incorporationism: Notions of fundamental fairness implicit in the concept of ordered liberty dictate the enforcement of due process rts.
ƒ Incorporation plus: BoR + other rights.

B. Bodily Extraction

1. If a bodily extraction “shocks the conscience” of the court, the evidence gained therefrom will be excluded.

2. Examples:
a. Pumping of a suspect’s stomach shocked the conscience (Rochin).
b. Drawing of an unconscious person’s blood did not (Briethaupt).
C. Federal Courts’ “Supervisory Power”

1. Fed’l cts rely on their supervisory authority as a court to formulate rules pertaining to rights not enumerated in the Constitution or by statute.

2. However, this supervisory power does not allow fed’l cts to expand an established rule of law.

D. The “New Federalism” in Criminal Procedure

1. S.Ct. decisions do not control issues regarding rights guaranteed by counterpart provisions of state law.

2. If a state court dsn was decided on “adequate & indepe

particular Δ’s rights under the 4th A.”):

a. There is no automatic standing.

b. Only the person whose constitutional rights have been violated can assert a 4th A. claim!! Third parties, co-conspirators, etc. CAN’T.

i. Standing depends on whether the police action sought to be challenged is a search w/respect to the person challenging the intrusion (i.e. did that person have a reasonable expectation of privacy?).

¶ Sum: Standing REP

c. A 3P who is “legitimately on the premises” (e.g. invitee, overnight guest) has standing to bring a 4th A. claim.

i. BUT … Mere presence in another’s home w/their permission, without more, does NOT constitute sufficient contact w/the home to confer 4th A. standing.

d. Business premises – A corporate Δ or an individual may have standing if  exclusive use of work area searched, or ‚ demonstrated nexus between the area searched & the work space of the Δ.