Criminal Procedure Outline
I. Introduction
a. Defined: regulation of police practices which deal with investigation of crimes
b. Rules only apply to police and sometimes prosecutors
i. Consequences of violating rules is that evidence cannot be used at trial
ii. So state has to proceed in constitutionally-approved manner
c. The American criminal justice system is conspicuous for fragmentation
i. Federal government does 2-3% of prosecutions
ii. Each state has its own body of criminal laws
iii. Almost all prosecutions are initiated by county prosecutors, there are thousands of them, and they are each completely independent from other offices
iv. Also, the police forces are all independent, no central authority
v. Popular elections for sheriffs, prosecutors, and judges
d. Supreme Court started taking on criminal procedure cases in the 1950s, and this is mainly because of race
II. Incorporation
a. Introduction
i. The first eight amendments were enacted as limitations on the federal government
ii. Some argued that the Fourteenth Amendment totally incorporated all the provisions of the Bill of Rights and made them fully applicable against the states (TOTAL INCORPORATION THEORY: Justice Black liked this)
iii. Another theory is FUNDAMENTAL RIGHTS, which prevailed through the 1960s
1. Thinks the due process clause incorporates all the principles of justice implicit in the concept of ordered liberty or so rooted in conscience and traditions that they rank as fundamental
2. Also, a specific practice may violate fundamental fairness even though it is not prohibited under the Bill of Rights
iv. Current regime is SELECTIVE INCORPORATION
1. Most, but not all, provisions in the Bill of Rights have been incorporated by the Due Process Clause
v. Reasons for having these rights
1. Preserve privacy, freedom, and autonomy
2. Credibility of courts
3. System that runs predictably and smoothly
4. Protect the adversary system
5. Protect citizens against government misconduct
6. Increase accuracy
b. The Modern Approach
i. Through the 1960s, Court selectively incorporated or absorbed more of the specific provisions of the Bill of Rights against the states
1. Rejects the fundamental rights interpretation when it emphasizes the totality of the circumstances approach in a particular case
2. Recognizes that not all rights in the Bill of Rights are necessarily fundamental and other outside rights may be
ii. What has been selectively incorporated
1. Freedom from unreasonable searches and seizures (Mapp)
2. Right to have excluded from criminal trials any evidence obtained in violation thereof (Ker)
3. Prohibition against cruel and unusual punishment (Robinson)
4. Right to assistance of counsel (Gideon)
5. Privilege against compelled self-incrimination (Malloy)
6. Right to confront opposing witnesses (Pointer)
7. Right to a speedy trial (Klopfer)
8. Right to compulsory process for obtaining witnesses (Washington)
iii. What has not been selectively incorporated
1. Prohibition against excessive bail
2. Requirement of prosecution of infamous crimes by grand jury indictment
iv. What does selective incorporation actually mean for the states?
1. People whose rights have been violated by state practice or statute are entitled to sue civilly
2. States can’t affirmatively permit illegal, unconstitutional acts
3. Introduces “shocks the conscience” test
c. Case Law
i. Palko v. Connecticut (1937, Cardozo)
1. Double jeopardy clause of Fifth Amendment
2. This didn’t violate the fundamental principles of liberty and justice, so not incorporated by the Fourteenth Amendment
3. This was overruled in Benton v. Maryland, which found that double jeopardy prohibition represents a fundamental ideal and should apply to the states
ii. Adamson v. California (1947)
1. Privilege against self-incrimination clause of Fifth Amendment (limited comment about D’s refusal to testify)
2. Isn’t applied against the states by the Fourtee
ed a reduced sentence if D would plead guilty, or mandatory life sentence if he did not. D chose not to.
2. This conduct did not violate the Due Process Clause because pleas are meant to be negotiated and D had proper notice of the prosecutor’s intentions from the outset, assumes prosecution and D to be on roughly equal footing
3. Dissent thought the Due Process Clause was intended to protect against prosecutorial vindictiveness. (Prosecutor can’t punish someone for exercising a right.) Majority distinguishes prior case law on this point, arguing this is what the system runs on.
ii. Santobello v. New York (1971)
1. D pleaded guilty after negotiations with prosecutor, who had agreed not to recommend a sentence. New prosecutor recommended the maximum sentence.
2. When a plea rests on the agreement with a prosecutor, the promise must be fulfilled
iii. Mabry v. Johnson (1984)
1. D and prosecutor negotiated for guilty plea. But then prosecutor realized he had made a mistake, and D would have to serve more time. DPC not code of ethics for prosecutors, but rather concerned with deprivation of liberty.
2. The only time a plea can be attacked is when its consensual character is called into question, and there is no question of consent here
iv. United States v. Benchimol (1985)
1. Prosecutor recommended probation as terms of plea bargain, but court disregarded and sentenced D
2. There is no requirement for a judge to take the recommendation bargained for by the prosecutor
3. And prosecutor is not obligated to act enthusiastically about the plea so judge believes it is a good idea
c. Hypos
