Criminal Procedure
Professor Lea
Spring 2017
INTRODUCTION
The Constitution
Incorporation and the 14th Amendment
Before 14th, BoR ONLY applied to fed. court, not states. Since there weren’t many federal crimes, BoR had limited impact.
Framers feared the union would fall apart otherwise, trusted states.
Incorporation process
Court was slow to incorporate until Jim Crow south
1884 – Due process applies to state criminal proceedings
1884 – Right to grand jury indictment is not part of DP (still good law)
Hurtado v. California
1900 – Right to 12 person jury is not part of due process
Maxwell v. Dow
1907 – Court refused to view a claim that a “sweat box” confession was involuntary
Barrington v. Missouri
Rejected idea that 14th provided protections beyond state protections, holding that if ∆’s rights under Missouri law were not violated, his due process rights under 14th were also not violated
1908 – Due process doesn’t prohibit an instruction to the jury that they can draw a negative inference from ∆ not testifying (overruled)
Twining v. New Jersey
1930-70s incorporation continued, along w/ debate over what std should be used
1968 – Due process incorporates 6th in its entirety
Duncan v. Louisiana
Standard debate à What test should SCOTUS use in determining if a state has violated DP?
Importance of the debate
Debate still matters today b/c if you follow Black’s approach from his concurrence in Duncan, there is no room to incorporate new rights
Brown v. Mississippi (1936) à 14th requires state action be consistent with fundamental principles of liberty and justice
Severe beatings to coerce a confession violate fundamental principles of justice and due process
Palko v. Connecticut
Cardozo
Does it subject ∆ to a hardship so acute and shocking that our polity will not endure it?
Does it violate fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?
Wanted standard for incorporation to be hard to meet, giving states much freedom
Duncan v. Louisiana
No clear test given
Black’s concurrence
Advocates for total incorporation approach
The entire BoR, but only the BoR is incorporated by the 14th
Harlan’s dissent
“Fundamentally fair” test – only incorporate a right if it is necessary for fundamental fairness
Difference meanings/interpretations
Minimum = once states have a process, they have to follow it.
Under this view, the 14th simply prohibits states from changing their procedure because they don’t like a particular defendant.
Or, it means certain protections cannot be dismissed with
Privileges and immunities clause as an argument for incorporation?
Provides best arg for incorporation b/c if you believe BoR is a right given to citizens, it seems as though it should apply to the states.
However, Slaughter-House cases in 1873 held that this clause only protected the privileges and immunities by virtue of natural citizenship, which didn’t include BoR
The Criminal Process
Values that influence how our CJ system operates
Accuracy
Reliability
We want the system do be designed so that it is more likely to spit out correct results
Fairness
Forbid govt. behavior that pre-determines outcomes (ex: coerced confessions)
Fairness and accuracy are interlinked but do not overlap perfectly – not the same thing
Efficiency
Process cases quickly
Often cuts against fairness, accuracy, reliability
Limiting govt. power
Personal liberty
Control govt. and protect autonomy
Tension between this value and accuracy, reliability
Ex: limits on what evidence can be used makes outcomes less accurate, but limits govt. power
4th and 5th cut against accuracy, but prevent the govt. from interfering into our lives w/o good cause
Federalism
These values and their relative weight can be influenced by outside events
Ex: 9/11 changed norms
THE FOURTH AMENDMENT
Overview
Introduction
4th: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
How does 4th relate to the values of our CJ system?
Most clearly aimed at limiting govt. power
Not efficient
Arguably not fair
What Is a Search?
EXAM TIPS!
ALWAYS connect your answer to Katz and pay attention to the mode of intrusion!
Separate out whether a search or seizure occurred from the rest of your analysis
If either traditional trespass test OR Katz test are satisfied, a search has occurred:
1) Traditional Trespass Rule
If police both:
a) Trespass, and
b) Do so for the purpose of obtaining information, a search has occurred.
Note: Prof. Lea is skeptical the court will actually stand by the “purpose of obtaining information” part of the rule, but that’s the BLL.
Traditionally, a trespass was required to violate 4th.
Today, physical intrusion is not necessary, but may be relevant b/c in Jones court said Katz did NOT replace traditional test.
Application
GPS
Warrantless placement of GPS tracker on undercarriage of suspect’s vehicle to track his movements on a public street is a search in violation of 4th.
United States v. Jones (2012)
Court applies both Katz tests AND property-based, traditional trespass test to hold that a search occurred when police attached a GPS to the undercarriage of a suspect’s vehicle.
Ankle bracelet on sex offenders
Trespass to person and constitutes a search.
Grady v. North Carolina
If police exceed the scope of their express (warrant) or implied (based on custom) license to be somewhere, a search occurs.
Dog sniff on suspect’s porch
Florida v. Jardines (2013)
Use of a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a 4th search.
Police exceeded scope of their implied license to be on porch
Court notes that you could get the same result under Katz test
HYPO: Police sniff instead of dog à plain view (or “smell”) doctrine applies, not a search
