Criminal Procedure Outline
I. Chapter 1 – Introduction:
A. Federalism:
1. Constitutional minima
a. Floor below which the government may not go in prosecuting someone
b. States may go farther (Ex. 5 states allow for pre-trial depositions in criminal cases)
B. Posture:
1. Federal system:
U.S. Supreme Court (discretionary – writ of certiorari)
|
|
12 Circuit Courts (right to appeal)
|
|
94 U.S. District Courts
2. Florida system:
U.S. Supreme Court (writ of cert)
| |
| Florida Supreme Ct. (Death cases)
| |
5 D.C.A.’s (right to appeal)
| |
| |
Circuit Courts (County if misdemeanor)
Chapter 2 Nature And Scope Of 14th Amendment
SECT. 1 FUNDAMENTAL RIGHTS AND INCORPORATION THEORIES
I. Criminal Procedure Concentration of the Bill of Rights
a. Bill of Rights was created in 1791 after ratification of constitution in 1787 to restrict the powers of the federal government
b. 4th amendment search and seizure
i. security from unreasonable search/seizure
ii. no warrants issued unless probable cause, sworn etc.
iii. notice that it does not use the term privacy
c. 5th amendment
i. right not to be charged except upon indictment by grand jury to protect against overzealous prosecutor
ii. double jeopardy clause
iii. self incrimination
iv. right to due process of law (due process clause)
v. eminent domain (takings clause)
d. 6th amendment (pure criminal procedure)
i. right to speedy trial
ii. right to a public trial
iii. right to trial by jury
iv. the double V
1. the guaranteed right of venue (where crime was actually committed) and vicinage (have jury drawn from where crime was committed)
v. subpoena power-right to call people to testify (compulsory clause)
vi. right to counsel
e. 8th amendment
i. no excessive bail and no excessive fines
ii. no cruel or unusual punishments
II. The Nature and Scope of the 14th amendment due process; the applicability of the Bill of Rights to the states.
a. Palko- (double jeopardy)-Palko convicted of murder in second degree and retried for same murder. State appealed because of improper jury instructions and on appeal he was convicted of murder in the first degree with death penalty.
i. It would be double jeopardy if prosecuted by the US but with state of Connecticut Judge Cordoza says doesn’t automatically apply to the states.
ii. Bill of Rights will only be applied on a selective basis and the procedural safeguards will be taken when they are “implicit in the concept of ordered liberty” like the first amendment which is fundamental and so this is why the first amendment is imposed on the states and not the fifth. This is not one of the bill of rights that should be forced on the states to give.
1. 14th amendment says if you are born in US you are a natural US citizen which is entitled to privileges and immunities, due process of law, and equal protection
2. the 14th amendment due process clause prevents any state from depriving any person of life, liberty or property without the due process of law
iii. Palko looses but then later overruled 40 years later.
b. Adamson v. California no comment rule
i. Adamson convicted of murder in the first degree and sentenced to death challenged state proceedings as invalid claiming the 14th amm. so that 5th amm. right self incrimination which permits failure of the defendant to explain or deny evidence against him to be commented on by the court or other counsel. (if you have nothing to hide why don’t you testify is state’s reasoning)
ii. Holding-even though the D may not want to comment because then he opens the door to cross it is a choice he has to make and it does not violate the due process clause for the prosecution to comment on the D’s failure to deny or explain evidence brought against him since not a concept of ordered liberty i.e. fundamental right. Case was later overruled
III. the incorporation debate
a. Frankfurter vs. Black
b. Black wants TOTAL incorporation
i. says business about ordered liberty cannot be found in the constitution
ii. The only way to have certainty is to have amendments 4,5,6,8 be incorporated—total incorporation since the 14th amendment says- No state can deprive its citizens of the privileges and immunities of the United States and Ps & Is = Bill of Rights and Ps & Is Clause of the 14th Amendment “reaches into” the Bill of Rights and draws them down to make them applicable to the States
c. Subjective determination by Frankfurter as to what is “fundamental” and “shocks the conscience”
i. Judges aren’t in the business of making it up as they go along (natural law)
d. Frankfurter said due process stands on its own, it means fundamental fairness shouldn’t look at bill of rights as a checklist you ask as a whole was the trial unfair rather than looking at the individual bill of rights
e. In both cases (Adamson and Palko) answer was no
f. This Understanding held until 1961
SECT 2. THE MODERN APPROACH: THE SHIFT TO SELECTIVE INCORPORATION
I. Transitional point occurring in the 1950s
II. New blood on the SC (Warren & Brennan)
a. Selective Incorporation (Warren Court)
i. 1961-Mapp-incorporated search and seizure (4th) plus the exclusionary rule
ii. 1962-Robinson-incorporated cruel and unusual punishment from the 6th amendment (was busted for being a drug addict not a drug violation)
iii. 1963-Gidoen/Douglas-established 6th amendment right to counsel and Douglas extended this to right to counsel on appeal
iv. 1964-Malloy-incorporated the 5th amendment privilege against self-incrimination
v. 1965-Pointer- 6th amendment confrontation clause-right to confront witnesses, trial court unduly limits the right to ask witness questions then this violates the CC
vi. 1967-Griffin-extends Malloy case and includes prosecutory arguments about the D (overruling Adamson) (cant say D should be guilty in part for not commenting on his evidence)
vii. 1967- Kloper-6th amendment right to a speedy trial
viii. 1967-Washington-6th amendment right to subpoena a witness
ix. 1968-Duncan-6th amendment right to trial by jury
x. 1969-Benton-incorpoartes 5th amendment prohibition against double jeopardy (overruling Palko)
IV. Duncan v. Louisiana (1968)- Duncan was convicted of simple battery which is punishable by 2 years. He was tried without a jury b/c state only granted jury trials in cases which capital punishment or imprisonment where hard labor may be imposed.
a. ***the Supreme Court under Duncan in regards to the incorporation debate said portions of the BOR “fundamental to our concept or ordered liberty”
i. Trial by a jury of one’s peers is a fundamental right
b. Black (concur) said due process is an evolving process the constitution changes and grows with the times
c. Fortas (concur)-should be included about the ancillary rules requiring the # of jurors and whether or not the jury has to be unanimous should be incorporated
V. Apodaca v. Oregon(post Duncan)-said a 10-2 majority of the jury in the state court system was okay
a. Harlin (dissent)-the only thing that makes sense is to have case by case adjudicati
ed to was obtained through exploitation “or instead by means sufficiently distinguished to be purged of the primary taint” (independent evidence)
1. all evidence that has been illegally obtained must be excluded-plus other evidence that has been acquired directly or indirectly as a result of the illegal search or arrest a.k.a. tainted f.o.p.t. must be excluded unless the government can break a ling between the illegally obtained evidence and other evidence
a. prosecution can remove the taint
i. inevitable discovery-would have been found anyways
ii. independent source-like found it first with an invalid search but then found it again with valid search
iii. confessions-could be admissible during unreasonable 4th amendment seizure
iv. D’s free will
v. ID of D by victim during unreasonable seizure
vi. Unreasonable search to locate witness
ii. D has right to suppression hearing where judge, as matter of law, decides. D has burden of preponderance of evidence it should in excluded. Government must prove by a preponderance of evidence that it should not be excluded.
1. if illegally obtained then reversible error unless error is harmless meaning not contributed to D’s conviction where gov’t must be B.A.R.D to prove
iii. The remedy is the ER, not dismissal. (Typically, in a drug case one is charged with both possession and conspiracy, so that on retrial, the exclusion of the evidence can be supplemented by another saying that there was an agreement to possess.)
iv. violation of the 4th amendment leads to exclusion of the evidence not necessarily dismissal of the charge.
1. if evidence is indispensable, it usually means dismissal.
v. Evidence unlawfully obtained by federal officers is inadmissible in state as well as federal cases, similarly, evidence illegally seized by state officials is inadmissible in federal as well as state cases-Elkins v. US, 1960
vi. E.R. doesn’t apply to non-trial proceedings i.e. grand jury, preliminary and bail hearings and post trial hearings after a conviction has been entered (e.g. sentencing, parole hearing) US v. Calandra 1972
IV. A Mapp type search—Motions what-
a. In Mapp, the defense raised the motion to suppress since there was an illegal s/s because they did not have a warrant, and if granted then evidence will be excluded and without physical evidence cannot prove charge of possession
i. say charge was conspiracy to distribute then you do not need the physical evidence just need an agreement by 2 or more people to commit a crime
ii. bottom line-suppression kills the physical evidence which doesn’t necessarily take away the charge, but if charge is possession then it does
