Criminal Procedure – Phillips
cause – pay attention to the cause standard necessary for every type of s/s, etc.
cause standards
· beyond a reasonable doubt – 80%
· clear & convincing – 70%
· preponderance – 51%
· probable cause – 25% – (fair probability)
· reasonable suspicion – (possibility)
INTRO: Incorporation Doctrine
FOURTEENTH AMENDMENT, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
incorporation – fed rights from Bill of Rights made applicable to the state through 14th amend
· background – the rights in amend 4, 5, & 6 applied only to the federal courts
· due process – later (1860’s), 14th amendment said no state shall deprive any person of life, liberty, or property w/out due process
· incorporation – much later (1960’s) through case law (1 by 1) the supreme court started incorporating the 4, 5, & 6 federal-court rights into the 14th amend, thereby making them state-court rights as well
o reluctant application in criminal cases – prior to the 1960’s and incorporation, courts were reluctant to apply the BOR to criminal cases
o standard for incorporation – if the right that’s at issue (e.g., right to trial, counsel, etc.) is so fundamental to our system of justice that we acknowledge it as being essential to due process or a fair trial, it gets incorporated
§ not all rights – rights like right to trial and right to counsel were incorporated, but right to Grand Jury has not been incorporated
§ due process – violation of these incorporated rights is a violation of due process
o what gets incorporated?
§ 4th Amend
· right to be secure in your persons, houses, and effects
§ 5th Amend
· [right grand jury in fed system only, to decide probable cause]
o [states do not have to provide a grand jury (in KS, we have preliminary hearing where judge decides probable cause)]
· can’t be tried for same thing twice
· can’t be compelled to be a witness against oneself, self-incrimination
· can’t be deprived of life, liberty, and property w/out due process of law
§ 6th Amend – only applies once one has been charged with a crime
· right to speedy and public trial
· right to impartial jury
· right to go before a judge once you’ve been charged to hear charges – first appearance
· right to be confronted with witnesses – face-to-face confrontation
· right to have compulsory process for obtaining witnesses in one’s favor – court can force witness to show up if subpoenaed
· right to have assistance of counsel – to have an attorney w/you
FOURTH AMENDMENT: Search & Seizure
FOURTH AMENDMENT. T
r does not have a legit privacy interest in driver’s car, so if passenger leaves his backpack in car when cops ask them to get out, cops can search it
· passenger still has no privacy in trunk after being on road trip for couple days
§ Ex., borrowing car – depends on the facts, like the length of time A is borrowing the car, whether A was in exclusive possession of the car
§ Ex., drugs in purse – Δ confessed that he put his drugs in the friend’s purse – Δ does have a possessory interest in the drugs, but court said that’s not enough, in addition, the Δ has to have a legitimate expectation of privacy in the area/item (i.e., the purse)
· the expectation of privacy in the drugs is not legit because it’s contraband and he has no legit expectation of privacy in the purse
§ Ex., brief case / hotel room – ΔA had no legit privacy interest in B’s brief case or B’s hotel room, so A has no standing to contest papers copied out of brief case
§ Ex., abandonment – no legit privacy interest in item Δ abandoned (more below)
§ Ex., guest/visitor – overnight guest has standing, but temporary visitor does not (more below)
· other factors are the visitor’s relationship to the homeowner and whether the visit was for commercial purposes
