4th amendment addresses physical intrusion by the govt.
5th amendment: self incriminating clause.
6th amendment: right to counsel.
14th amendment: due process clause. Applied to states, as well as to federal govt.
*Make a list of all available arguments under prosecution, and under defense
As a defense counsel, what would you need to show in suppression hearing in order to suppress the evidence? And how would you show it? So 1) what’s your legal burden, 2) what would you do practically to show it?
As a prosecutor, what evidences would you show to bring the evidence in?
CHAPTER 2: INCORPORATION DOCTRINE.
iPre- and Post-Incorporation: (1) U.S. CONST. AMENDMENTS IV, V, VI, and XIV, Casebook 936-37. (2) Palko, Incorporation Note, and Duncan, Casebook 34-36, 43-54.
I. 14th A due process clause
A. Palko:
1. Applicable to states through incorporation doctrine
2. Not shorthand for bill of rights: but broader concept of “fair process,” or “fundamental process”
3. Implicit in the concept of ordered liberty, that is so essential that it must be deemed fundamental
B. Shocks the conscience of civilized society, even though not enumerated anywhere in the constitution
1. Rochin: police made D vomit
2. Tumey: judge’s salary depends on D’s convictions
3. Due process: free floating concept, not textually limited
C. Selective incorporation: Duncan
1. Everything in 4th, 5th and 6th A were made applicable to the states in the same way they are applicable to the federal govt.
2. What is “fundamental” here and now:
a. Given American convention, American practices
b. Historically contextualized, localized inquiry
3. Facts: LA is out of line with what is fundamental in America, even though denial of jury trial could be fine elsewhere
4. Most of the bill of rights have been incorporated, with a couple of exceptions: 5th A grand jury, 7th A, unanimous jury requirement in state court
D. Implications after Duncan:
1. Suit in state ct: both fed and state constitutions may be cited
2. Suit in fed criminal ct: only fed constitution applies
3. Shocking the conscience
4. Due process: some things, though not enumerated, are so egregious that it is an obvious fundamental rights violation
a. Both Rochin and Tumey remains good law
b. Unenumerated violation of fundamental fairness: free floating due process concept
5. Due process clause of 5th A applies equally to the fed proceeding
CHAPTER 3: FOURTH AMENDMENT.
“The right of the people to be secure in their person, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oa
rial proceeding called suppression hearing
a. D generally bears the burden if there is warrant
ii. Before the juries are composed
iii. Usually the same judge hears both suppression hearing and the actual trial
iv. Important juncture for criminal cases
f. Appellate review:
i. There is no interlocutory appeal from the defense.
ii. If the evidence is suppressed, the govt. generally can take immediate interlocutory appeal
C. Exclusionary rule: constitutional inquiry
1. If 4th A violation proved in criminal cases (fed/state), then ER applies: Mapp
a. Overruled Wolf, that distinguished 4th A right from its remedy
i. ER is the only effective remedy
ii. ER is an “essential ingredient” of the 4th A right
b. Justifications:
i. Deterrence of police from violating the 4th A
ii. Judicial integrity: ct should not participate in lawbreaking, that legitimacy of judicial system would be undermined otherwise
2. Leon “good faith” exception:
a. In some cases, even when there is demonstrable violation of the 4th A, ER does not apply
Justification:
