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Criminal Procedure
University of Kentucky School of Law
Lawson, Robert G.

I. Introduction
A. Outline of Course
1. Fourth Amendment- Search and Seizure
2. Fifth Amendment- Statement
3. Sixth Amendment- Attorney
4. Exclusionary Rule
B. Steps of Trial
1. Begin with Arrest (usually without charging instrument)
2. Charging Instrument Comes into Play
a. Complaint® given to magistrate detailing person and the crime
b. Indictment® product of the Grand Jury after the complaint and the formal charge in a felony in Indictment State
c. Information® Prosecutor formally charges without Grand Jury based on complaint in Information State
3. Initial Appearance
a. Must be done within 24-48 hours of the arrest
b. Purpose
1) Inform D of crime to charge with
2) Get out of hands of police
i. Get attorney
ii. Set bail
4. Preliminary Hearing
a. Decide to formally charge
b. Bindover
1) Grand Jury® Ind. State
2) Trial Ct.® Info. State
c. Attorneys Present
1) Prosecution
i. Call witnesses
ii. Prove probable cause to charge
2) Defense does very little
d. Discovery limited by 5th Amendment
1) Prosecution must turn over exculpatory evidence
2) Difference from civil® no depositions, so must rely on subpoena to get statement on the stand
3) Know very little at this point
5. Grand Jury
a. Secret Proceeding® behind closed doors
b. Prosecution only
1) Present Evidence
2) Prove probable cause
c. Defense is helpless
1) No rights
2) May ask to have witnesses called or to testify for self
d. Checks on D’s rights
1) Prosecution’s ethics
2) Prosecution won’t charge with what they can’t subsequently prove
6. File Indictment and Arraignment
a. Read indictment
b. D’s plea is entered
1) In front of trial judge
2) Usually “Not Guilty”
c. Plea bargaining later
7. The Trial (Different from Civil)
a. D can’t be called as witness, but may wait to testify till end of trial
b. Presumption of Innocence
1) Check on gov’t to take away liberty
2) High burden on proof on prosecution
8. Court System
State Federal
District Trial District
Circuit Level
↓ ↓

Appeals Appeals
↓ ↓

St. Sup. Ct. US Sup. Ct
Can get to US Sup. Ct on appeal or Federal District on writ of Habeas Corpus
II. Arrest, Search and Seizure (Ch. 5)
A. The Exclusionary Rule
1. The Rule Itself
a. If information obtained in violation of the 4th Amendment, exclude from the case
b. Consequently, incriminating evidence left out and criminal might go free
2. Wolf v. Colorado-1949 police unreasonably searched a man’s car and found the dead body
a. Bill of rights only applies to the federal government and to touch the states must be in the 14th amendment Due Process clause
b. Selective Incorporation- some of the Bill of Rights included into the 14th amendment as a fundamental right to protect liberty
c. Weeks v. US- states must follow the 4th amendment requiring a warrant for search, but in Federal court, all info found in violation there of is excluded from the case
d. Although 4th applies to states where officers have to follow, state courts are left to decide on exclusionary
e. Dissent® No remedy to party for violation of the liberty unless there was a tort, thus no way to punish and deter violation


Exclusionary Rule Constitutionalized
(Applies to States)

Mapp v. Ohio- 1961 police forced their way into woman’s home in a brutal manner and searched the entire house claiming there was a warrant to look for info. on a bombing, found porn and arrested her, only later having no warrant to show at court

a. Brutal police forced distinguished from Wolf
b. No warrant at trial
c. Ohio had no exclusionary rule and thus didn’t care if no warrant
d. Supreme Court composition had changed by the 60’s
e. Court overruled Wolf ® Exclusionary rule now applicable to the states as a constitutional issue rather than state judicial rule® Federal Issue now
f. Other remedies won’t work to punish
g. Must throw out good evidence to deter police behaving badly (bring deterrence to foreground)


Carved Out Exception to Exclusionary Rule

US v. Leon –

rantless searches where officer acted in good faith?
a) Lopez- Mendoza® Leon exception doesn’t apply
b) O’Neal® Leon can’t save evidence taken in illegal warrantless search to support probable cause for actual warrant
2) Sheppard® allowed warrant form for drug seizure in homicide search b/c officer didn’t have access to the right one and informed judge of problem, judge just forgot to fix, but searching officer knew what area was applied for (what if searched the wrong thing b/c of wrong form?)
3) Officers Relying on Statutes Allowing Warrantless Search
a) Deffillippo- held exclusionary rule applied and state statutes as such were unconstitutional (Supremacy Clause)
b) Krull
i. Majority
a. Same as reasonable reliance on invalid warrant
b. No need to deter legislators, just officers
ii. Dissent (O’Connor)
a. Legislators affect too many people and should be deterred from passing unconstitutional laws® only slap on the wrist is having to rewrite b/c unconstitutional
b. Where do you draw the line in forcing an officer to know how constitutional his actions are if take warrant out of picture?
4) Excluding person is not consequence of illegal search and seizure (person themselves is not a “suppressible fruit”)
a) Ker
b) Gerstein
c) Frisbie
d) US v. Crews
5. Dimensions of Exclusionary Rule
a. Grand Jury Trials (US v. Calandra)
1) Don’t Apply® Majority
a) Still applies at trial and that is enough deterrence b/c can’t use to prove guilt® prosecution won’t seek charges can’t prove other ways
b) No more deterrence would prevail if excluded also from Grand Jury Trial
c) Since no judge in such proceeding, no one to determine 4th Amendment violation
2) Should Apply® Dissent