Criminal Procedure Outline
Phillips Spring ‘07
I. Incorporation process
1. 2 step process
i. based on facts (Powell v. Alabama)
1. men were arrested with capital offense
a. Supreme Court rules that men HAD to be entitled to a lawyer
ii. Legal based (Warren Court era-1960’s)
1. based on the legal perspective is the right to counsel so fundamental that all people are required to have that right
2. Where in the process should this right be invoked?
i. Right to counsel begins when you are convicted
ii. Right to counsel begins when you are incarcerated when the act occurs
3. Right to Counsel for indigents
i. Governed by offense/punishment
1. right procured through GIDEONà Felonies
a. misdemeanors warrant counsel if incarcerated
ii. governed by where you are in the process
1. once charges are brought forthà investigation begins
a. once investigation begins you are entitled to an attorney during the critical stages
i. Preliminary Hearings
1. Counsel can try and get evidence thrown out
2. cross examinations provide for discovery
ii. Arraignment
iii. Sentencing
iv. Appeal
1. Counsel governed by quality of counsel (two prong test)
a. Performance
i. Was the performance reasonable?
ii. Was a problem created through improper strategy or deference?
b. Prejudice
i. Failure to investigate
ii. Counsel required to investigate until you have enough information to make a strategy call
iii. Prejudice requires a showing of a REASONABLE probability of a different outcome
c. READ KIMMLEMEN
4. Waiver of Rights
i. Two steps
1. must understand/know what you are doing
2. waiving must be voluntary
II. 4th Amendment
1. protects people from their own government
2. establishes rights not remedies
3. differs in that it deals with PEOPLE as opposed to the PERSON
4. protects the people from unreasonable searches and seizures
i. reasonable is the key word
ii. there are exceptions to a warrantless search
5. ONLY APPLIES TO STATE (police) ACTION
III. SEARCHES AND SEIZURE
1. Is it a search and seizure?
i. YESà Is there a warrant?
1. Yesà is there probable cause for the warrant
a. Officer must show probable cause when obtaining warrant
i. Getting a warrant
1. give signed oath to a judge or magistrate
2. judge or magistrate determines whether the officer is justified
3. warrant must be particular
a. describe where the search will take place
b. be specific as to item you are searching for
2. Noà does the State action m
, covers, opening cans
4. CURTILAGE (exception to open fields)
i. Case by case approach
1. there is no set definition for curtilage
ii. Included within an enclosure surrounding the house
iii. Nature of the uses to which the area is put
iv. Steps taken by the resident to protect the area from observation
v. Person standing outside of curtilage can look in
1. just can’t enter curtilage
5. Access to the public
i. Pen Registers
1. list of phone numbers you call is public (held at phone company)
ii. Pagers
1. when you page someone, you place your number out in the open
2. all pages are subject to search
3. police can not go through stored numbers on the pager
iii. Trash
1. Trash is a public good
2. no expectation interest with trash
3. trash is abandoned
a. anyone can go through your trash
iv. Public Facilities
1. homeless person in a public place is protected
a. it is his home
2. Bathrooms: no expectation interest
a. Anyone can look into a stall
Fly overs
