Select Page

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

Criminal Procedure I Outline
Professor Jack Nowlin

v This course will be about, in particular:
o 4th Amendment – Search and Seizure (S/S)
o 5th Amendment – Self-incrimination (S/I)
o 6th Amendment – Right to Counsel (R/C)
o 14th Amendment – DPC
v Interpretation of the Constitution/Policy Disputes
o Substantive Policy
§ Crime Control model – an assembly line – focus on the government’s protecting citizens from crime – protect the individual from private crime
§ Due Process model – an obstacle course – protecting the accused from the deprivation of rights by the government
o Procedural Government Power
§ Judicial Activism v. Judicial Restraint
o Crime Control lines up with Restraint and conservatives; DPC view lines up with Activism and liberals
o Restraintists want to read amendments narrowly; activists want to read them liberally. Restraintists like the ideas of majority rule (courts aren’t elected!); activists want to protect minority rights. Restraintists look to the separation of powers and federalism to back up their view; activists say that the courts, under S/P, have a special role to protect minority rights.
v Creation of Federal Criminal Procedure
o Very little case law in this area before 1960s; primarily a state issue
o “Explosion” of cases under the Warren Court
o In the 1980s, there was a more conservative group, and the cases from the Warren Court were narrowed
o Justices/time period are important in interpreting the cases
o Shows a difficulty in establishing a coherent body of case law – why is this a problem?
§ Court has to take cases as they come, and they are busy; they have to take a lot of different cases
§ Multi-member/change in membership
§ Policy disputes/interpretations of the text
o The court also does not have the ability to implement/enforce their rules.
§ Dershowitz handout
§ There’s a kind of “dance” between SCOTUS and police officers around loopholes
§ Remember exclusion rule
v Selective Incorporation
o Approaches to Incorporation
§ Total – All and only the BoR
§ Pseudo – The 14th has paralles to the BoR; mimics the BoR, and rights are granted by the 14th; the BoR isn’t fully applied under 14th (“fundamental fairness” is the basis for what rights apply under the 14th)
§ Selective – This is the doctrine the Court uses. It is a compromise; incorporation of SOME of the BoR.
o Duncan v. Louisiana
§ Settles modern approach of incorporation
· White – Right to trial by jury is “fundamental to the American scheme of justice.” Juries are a check on judges.
· Harlan (dissent) – By adopting S/I, will be too onerous on states
§ Why compromise?
· Total interpreted the Const. as saying the orig. understanding was full incorp. Of BoR; Pseudo said that there was no intent

unications, not to physical evidence – that part of Boyd is overturned
· There was an exigency (emergency) which gave probable cause to proceed with S/S of blood for BAC test (this was a DUI case) without a warrant.
· Shemerber would have had superior property rights under Boyd.
· The analysis for the 4th and 5th are no longer the same – court now focuses on the reasonable of the search instead of the trespass/property rights issue.
· Black (dissent) – taking of blood was testimonial and of a communicative nature, and therefore, there should be no distinction.
§ Warden v. Hayden
· Further erodes Boyd. Issue – distinction b/t “mere evidence” and instrumentalities used in the commission of the crime.
· This is a privacy issue here, not a property issue – 4th shifts to privacy analysis
· A S/S is reasonable if there is proper respect for privacy – that meanst there is prob. Cause and a warrant or prob. Cause, no warrant, and a good reason for not getting a warrant (such as time).
Mere evidence rule is expressly overruled (no difference b/t fruits, etc., and mere evidence – outdated and irrational)