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Criminal Procedure
University of Mississippi School of Law
Nowlin, Jack Wade

Crim Pro Outline – Nowlin – Spring 2013


1. Crime Control Model

a. Focused on efficient convictions of criminals/controlling crime

i. Central values center on D’s guilt and efficiently punishing wrongdoers

b. Assembly line – courts are busy/most people are guilty anyway

c. Worried about criminals as a threat to others (indiv. rights need to be protected from private violence)

d. Judicial restraints

2. Due Process Model

a. Focused on D’s rights

b. Obstacle course – gives gov’t/police obstacles to overcome

c. Concerned about police violating indiv. Rights

d. Judicial activists

3. Activism v. Restraint

a. Activism (liberals)

i. Believe in legislation from the bench

ii. Concerned w/ indiv. Rights

iii. Associated w/ due process model

iv. Political branches structured to be “tough on crime,” so judiciary should protect accused b/c gov’t cannot.

b. Restraint (conservatives)

i. Uphold law unless clearly unconstitutional

ii. Want courts restrained – federal courts don’t have power to expand crim pro laws

iii. Associated w/ crime control model

4. Warren Court à Rehnquist Court (1960s when crim pro began)

a. Dominated by liberal decisions (due process model)

b. Switched to conservative in 1980s, but very few of old cases overturned.

c. They limited them in scope instead – narrowly interpreted cases instead of broadly.

5. Problems w/ Criminal Procedure Rules

a. Coherence

i. Challenges to creating coherence in cases:

1. Multi-member institution that changes over time

2. Policy disputes

3. Unsettling text of Constitution

b. Completeness

i. Challenges to creating a complete set of rules:

1. Court is passive – they have to wait on cases

2. Court is busy – can’t take all cases


1. Process of applying the Bill of Rights to the states by interpreting 14A’s Due Process Clause as encompassing those provisions.

2. 3 Historical Approaches

a. Selective – not all of BOR is incorporated, but some are.

i. Test to see if it’s incorporated is fundamental fairness (provisions that are fundamental to fairness are incorporated).

b. Total – all of BOR is incorporated (and only the BOR)

c. Pseudo – none of BOR is incorporated, but based on “fundamental fairness,” certain parallel rights are created in 14A.

3. Duncan

a. Facts – D didn’t get jury trial for crime punishable by 2 years in prison

b. Issue – whether 6A right to jury applies to states

c. The arguments:

i. Selective (Majority)

1. Right to jury trial is fundamental to fairness and is therefore incorporated.

2. White (majority) compromises b/t total and fundamental fairness (some instead of all or none)

3. Black/Harlan criticize this as pure activism b/c no historical defense for selective incorporation

4. Most provisions have been incorporated today, and all provisions of 4A, 5A, and 6A have been.

ii. Total

1. Is there a right to jury in BOR? Yes, so it’s incorporated.

2. Black argues for this – drafters intended for total inclusion

a. Fundamental fairness (pseudo) test too vague for states…leads to activism

iii. Fundamental Fairness (pseudo)

1. Harlan – Jury trial is not fundamental to fairness b/c there are fair bench trials all the time.

a. Founders didn’t mean incorporation of they would’ve said so and total incorporation is too burdensome on states

4. 4th Amendment

a. Clause I – persons, houses, papers, and effects are protected from unreasonable search and seizure.

b. Clause II – warrants are only issued on probable cause supported by oath or affirmation and with particularity describing a place to be searched and things to be seized.


1. Two Questions:

a. Was there a search and seizure of persons, houses, papers, or effects?

b. Was it reasonable?


1. Boyd

a. This is how the early court interpreted this issue and is no longer good law.

b. Making D turn over papers was the functional equivalent of a search/seizure.

c. Old view of analyzing searches:

i. Gov’t could only search for fruits of instruments of criminality, or contraband, b/c no one has a valid property right to these.

d. 2 Questions: Is there a property right? Was there a physical invasion?

e. Is there a property right?

i. Property rights (trespass) is key.

ii. Mere evidence rule –A search warrant can be issued only to seize instruments or weapons of a crime, and not to seize items that have mere evidentiary value.

iii. When does gov’t have a right in property?

1. When gov’t has right in papers (record gov’t requires citizens to keep)

2. Gov’t has claim in the good (lien)

3. Contraband (narcotics)

4. Instrumentalities of crime

5. Stolen goods (gov’t is acting on rights of the rightful owner)

f. Was there physical invasion?

i. Making

on, house, paper, or effect?

2. Is there a physical invasion/trespass?

3. Can the conversation be seized?

ii. Under traditional Boyd analysis, there does not appear to be a search/seizure … no 4A violation b/c no trespass into a house. Could argue phone booth is a rented “house,” but no physical invasion, so no 4A violation.

d. Katz Analysis

i. Got rid of physical invasion requirement

ii. Protects PEOPLE, not places (concerned w/ privacy, no property)

e. Reasonable Expectation of Privacy Test (from Harlan’s concurrence)

i. Subjective Prong – was there an actual subjective expectation of privacy?

1. Payment of toll, shutting sound proof door … there’s a subjective expectation of privacy in a phone booth.

ii. Objective Prong – was there a reasonable objective expectation? Is the privacy interest something legitimate and justified, and would society recognize the privacy expectation as reasonable? Nowlin’s Schema:

1. Empirical Concerns – how often is this invaded?

2. Normative Concerns – how important is it to society to protect the privacy … questions of values:

a. What is the social value of the privacy at stake

b. What is the privacy value being asserted

c. How intrusive is the search

d. What efforts did D take to guard privacy

e. Crime control concerns – how important is it to police to be able to engage in this behavior w/o 4A violations

f. Dissent – language of persons, houses, papers, and effects does NOT include oral conversation … founders knew about eavesdropping but still did not include it, so electronic eavesdropping does not violate 4A.

2. Rule

a. To determine if a search exists, apply the REP test: actual expectation of privacy and reasonable expectation of privacy.

b. Once determined a search has occurred, next step is to determine if the search was unreasonable (unreasonable defined by clause II – PC + warrant)

3. Olmstead (overruled by Katz)

a. Wiretapping from outside a building NOT a search b/c no “actual physical invasion” and no trespass upon a protected location.