Criminal Procedure Reitz Fall 2016
U.S. Const. Amendments IV, V, VI, and XIV
Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment XIV:
Section 1. 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 Doctrine
Three Approaches Taken
Total incorporation (Black)
: totally incorporated all the provisions of the Bill of Rights, fully applicable to states.
:
Evolving due process too problematic because it allows for too much judge-made law — too much discretion given to judges
Privileges and immunities and due process of 14th amendment constituted Bill of Rights
: Federalism concerns — takes away from state discretion or innovation
Fundamental rights/Ordered liberty (Harlan)
:
No necessary relationship between 14th and Bill of Rights.
Due process clause incorporates all principles of justices “implicit in the concept of ordered liberty” or “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
Case-by-case (v. selective incorporation), evolving.
Selective incorporation (White) – Current affirmed in Ducan v. Louisiana (1968) (pp. 1)
:
Due process clause fully incorporates particular rights contained in the first eight amendments.
Inquires whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice (right-by-right, permanently incorporated). Not all BOR are fundamental, and not all fundamental rights are enumerated in BOR.
Applies to the states to the same extend it applies to federal government.
: virtually all of Bill of Rights being incorporated (more than fundamental fairness)
Exceptions: grand jury indictment (5th) – rejected; prohibition on excessive fines and bail (8th) – not considered.
Favors uniformity and makes federal courts ultimate repository of baseline rules for police (federalism concerns)
Goldilocks approach — compromise between competing approaches. Essentially the same result as total incorporation, but closer in methodology to fundamental fairness
“Free Standing” Due Process
: Due process has independent content apart from selective incorporation of BOR.
:
Dominant source of constitutional regulation of pre-trial and post-trial stages of process.
Major source of c
t the affiant knew was false or would have known except for his reckless disregard of truth (Frank exception) – Frank v. Delaware (1978) (pp. 5)
D must show 2 things:
a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit; AND
the allegedly false statement is necessary to the finding of PC
D may challenge the veracity of affiant, not that of informant.
Magistrate wholly abandoned his judicial role (Lo-Ji Sales)
Warrant facially deficient (i.e. no particularity) that officer cannot reasonably presume valid.
An affidavit so lacking in indicia of PC that no reasonable officer should rely on it (i.e. wholly conclusory affidavit).
Other warrant mistake exceptions
Error in warrant execution – knock-and-announce – Hudson v. Michigan (2006) (pp. 6)
Violation of KAA does not warrant ER.
Interested protected by KAA (avoid destruction of property, opportunity to comply with law) has nothing to do with seizure of the evidence.
Social costs outweigh the deterrence benefits.
Error in warrant database – Herring v. United States (2009) (pp. 7)
Test of extent of deterrence: culpability of the officer – objective standard
ER applicable if deliberate, gross negligence, reckless, intentional, or recurring or systemic negligence
NO ER if: negligence or innocent mistake (this case, not officer himself making mistake)
Exception: unanimous jury verdict in criminal trials required in federal not state proceedings.
