Criminal Procedure – Feld Fall 2011
A. Policy
I. Models and Effects of Crime Procedure
a. Efficiency v. Reliability
i. Maximum reliability, fairly inefficient.
ii. Tension between law and order. Rules v. discretion. Very high levels of discretion – police and prosecutorial
iii. Adversarial process – participants don’t have stake in making process work well.
iv. Inherited tradition of English common law. Our crim. proc. reflects that, and also incorporation of the bill of rights.
b. Crime Control Model – Proactive, inquisitorial, front-loaded, many-cases, few resources
i. Based on proposition that the repression of criminal conduct is the most important function to be performed by the criminal process.
1. Criminal process is a positive guarantor of social freedom.
ii. Model must produce a high rate of apprehension and conviction with limited resources (Efficiency)
1. Routine stereotyped procedures essential
2. Presumption of guilt (reliable screening process / probable guilt)
a. Allows highly summary process w/o loss of efficiency
iii. Consists of two essential elements:
1. Administrative fact-finding process leading to exoneration of the suspect, or
2. The entry of a plea of guilty
c. Due Process Values
i. Designed to present formidable impediments to carrying the accused along in the process
ii. Reject information (fact-finding) process. Require impartial tribunal to public, w/ opportunity to cross and confront. Concern for reliability.
1. Demand for finality very low
2. Insists on the prevention and elimination of mistakes to the extent possible (punishes if it happens). Can’t rely on informality and discretion.
3. Criminal must be subjected to controls and safeguards that prevent maximum efficiency b/c of coercive power of the state.
iii. Aim of process is to protect the factually innocent as much as convict the factually guilty.
iv. Cannot be found guilty if the evidence wasn’t procured in the correct fashion (opposite of crime control model)
1. Need to protect the various rules designed to safguard the integrity of the process.
d. Overall:
i. 2 problems: what the rules shall be; and how implemented
ii. Crime control – executive
iii. Due process – judicial
iv. In crime control, defense attorneys are the only checks
v. Due process gives you checks at each step.
II. Incorporation – Federal Control of Constitutional Values
a. Total Incorporation:
i. Has never commanded a majority
b. Selective:
i. Applies some of the personal rights safeguarded by the first 8 Amendments
ii. Allows the “due process clause” of the 14th to pick up the slack.
iii. B/Rs safeguards were said to be applicable to the states if they were “implicit in the concept of ordered liberty.”
iv. Mapp – Incorporated Exclusionary Rule. Gave the ruling teeth.
1. Seminal incorporation case. Beginning w/ this case, the ct. selectively incorporated nearly all the B/Rs, and by 1968 had incorporated nearly all except grand jury.
c. Race Question: Three possible routes:
i. Incorporation of the B/Rs
ii. Reinterpretation of the clauses of the B/Rs.
iii. Ruling on informal police practices. EASIER FOR THE CT.
d. Central Question:
i. Whether, given our system of law, that procedure or right is necessary to an Anglo-American regime of ordered liberty.
1. Jury trial yes, unanimity no, grand jury no.
a. Jury is the only thing mentioned in 3 places in the Constitution. Fundamental. 12 bodies analyzing the fact and applying common sense.
ii. Is a particular right fundamental? – open to argument and interpretation.
1. Look at history
2. Text
3. Interpretation.
iii. Focus of incorporation of amendments is the fundamentality of that element in Am. Juris. Harlan’s dissent in Duncan, p. 33.
iv. Examples:
1. Jury trial in state crim. cases guaranteed if 6th Amend. would apply in fed. court. Duncan. Right to jury trial upheld.
a. Upheld in the same degree.
b. Exception: “Petty” offenses. Guideline is 6 mos. or less. Baldwin
c. Cannot sum up petty offenses to go over 6 mos. Lewis
e. Test of due process violation whether it offends a sense of “justice” or “fair play & decency.” Rochin (stomach pumping for contents)
i. Shocks the conscience standard.
ii. Rochin limited to situations involving coercion, violence or brutality to the person. Irvine (wanted to install secret microphone in his bedroom)
iii. Schmerber – taking blood w/o consent was ok because didn’t offend sense of justice. Not compulsion to testify.
III. Due Process Stick v. Incorporation
a. Where an Amend. provides protection, the specific Amend., not 14th D.P., is analysis guide. Graham
i. Applies in same degree as applied to federal courts.
b. S.Ct. jurisprudence is a floor on state crim. proc., not a ceiling. note, p. 56
i. e.g., “good faith” exception to 4th excl. rule (Leon);
ii. Miranda viol. OK for impeachment(Harris);
iii. police not req’d to tell detained suspect he has a lawyer (Moran v. Burbine).
iv. If independence of state from fed. law not apparent, will inter. w/fed law. Long, p. 58.
c. Free standing DP
i. Applies independent content of DP that exists apart from selectively incorporated guarantees.
1. Standard: Offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.
a. Free-standing is the dominant source of constitutional regulation of the pre-trial and post-trial stages.
b. A major source of constitutional regulation of trial
c. Lesser but still significant source of regulation of police practices.
IV. Retroactivity:
a. Criteria to judge if ruling should be retroactive:
i. Examining the purpose of the exclusionary rule
ii. The reliance of states on prior law
iii. Effect on the administration of justice of making decision retroactive. Linkletter
1. If designed to deter police conduct, should only be prospective, because priors would not have known.
2. If goes to the fundamental truth finding process, willing to give broader application.
3. Also, if clean break or not. Could be flood gate.
iv. Full retroactiveness when decision went to the fairness of the trial – the very integrity of the fact-finding process.
b. Collateral Attacks
i. Direct v. Collateral? Desist Court said no, but modern rule is Harlan’s dissent.
1. All ‘new’ rules of constitutional law must, at a minimum, be applied to all those cases which are still subject to direct review by this Court at the time the ‘new’ decision is handed down. Precludes collateral attack.
2. Edwards – only retroactive for cases on direct review, must close the curtain somewhere
3. Teague – Plurality said new ruling should be applied retroactively to collateral attacks only if:
a. It places certain kinds of primary, private individual conduct beyond the power of the criminal law-makig authority to proscribe or
b. If it mandates “new procedures without which the likelihood of an accurate conviction is seriously di
the question: Is this something the person has knowingly exposed to the public? Lots of surveillance not subject to the 4th.
d. Technology
i. Flying Over Exception: Florida v. Riley – cops go over in ‘copter.
1. Allows looking down into the curtilage as long as general disinterested people will look down from time to time.
a. Fly-over cannot interview with normal use of curtilage, and
b. In this case did not reveal intimate details connected with home or curtilage
2. “To the extent accessible” – knowingly exposes to the public even in a private place as long as an officer is lawfully located (copter).
ii. Sense Enhancement (tech.):
1. Kyllo v. U.S. – thermal heat imaging. Kyllo test: Ready criterion is that minimal expectation of privacy exists in common law, and is acknowledged as reasonable.
a. “Sense-enhancing technology that obtains info. that could not have been otherwise obtained w/o a physical intrusion into the constitutionally protected area is a search:
i. At least where the technology in question is not in general public use.
1. Walmart test, if at walmart, then can use.
ii. Crucial – gov’t is focusing on the inside of the house (even though argues that it is just the heat outside).
b. Katz test too circular, subjective and unpredictable.
2. United States v. Karo – beeper placed in containers OK.
a. Beepers can be used to track things, but not if the things enter a private resident and the gov’t is gaining knowledge that would not have been otherwise able to gain w/o warrant.
3. Why worry about this kind of technology:
a. Lends itself to arbitrariness as nobody knows they are being searched
b. More expensive kinds of intrusion
c. Intrusion into areas where police shouldn’t be, and no limiting factors.
d. In the home, all details are intimate details. Never tied to measurement of quality or quantity of info. obtained.
i. Firm bright line at entrance of house – requires warrant so that no “significant compromise’ of homeowner’s privacy has occurred.
4. Feld’s Thoughts:
a. Erosion of the scope of privacy because of two things:
i. Privacy protects intangible values and they are hard to weigh, and
ii. Only cases that get to court are cases in which police have found evidence and D convicted on basis of that evidence.
b. Court has exploited Katz’s language of “knowingly exposes to the public”
i. If there is even a possibility that there is exposure, tantamount to an invitation of disclosure.
iii. Sense Enhancement (nature): United States v. Place – dog sniff of luggage in airport.
1. Person has privacy interest in luggage that is protected by the 4th
a. However, dog sniff is less intrusive than typical search and only discloses the presence or absence of narcotics (we hope)
b. Information obtainable is very limited.
2. Courts generally allow use of dogs against juveniles.
