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

4th Am, 5th Am: Self Incrimination, 6th Am, and how they relate to the 14th Am: DP clause, by reading case law of the SC. They have all been incorporated and are used in the states.
I.      Policy Divides in the CJS-Policy background to case law-both go back to Declaration of Independence
a.       Dershowitz handout: 13 rules (basically: everybody lies, everyone knows and doesn’t care, no one cares about justice, anyone will say or do anything to win…just use the word “Dershowitz” on the exam in a cynical manner and you’ll get a gold star)
b.       Competing Criminal Justice Models. We must balance the two b/c the more process we give the harder it is to convict. The more we control the crime, less due process is given. Balance against one another. The more rights we give people, the harder it is to control crime.
                                 i.      Crime Control Model: Conservative Approach, focused on Declaration of Independence language, thinks that gov’t should be protecting citizens rights “ life, liberty, and the pursuit of happiness” from private violence (criminals). 
1.       Central value to be served by the criminal process: Efficiency in processing, conviction, and disposition of cases
2.       Managerial/administrative model
3.       Interested in protecting citizens’ natural rights and human rights to be free from violent acts of criminals
4.       analogous to assembly line
                                ii.      Due process Model: liberal approach: focused on Declaration of Independence language of protecting citizens’ life, liberty, and the pursuit of happiness” from the governments influence
1.       central value to be served by criminal process: the maintenance of the dignity and autonomy of the individual suspected of crime
2.       Focuses on protecting defendants’ rights, human dignity
3.       Not managerial
4.       Adversarial and judicial
5.       Protects from gov’t infringement of ∆’s human rights, showing respect and autonomy of the individual
6.       analogous to an obstacle course
        iii. Real-world criminal process
7.       tends to follow the C/C model more than the D/P model
8.       the officially prescribed norms for the criminal process, as laid down by the S.Ct., are rapidly providing a view that looks more and more like D/P
a.       “judicializing” each stage of the criminal process
b.       enhancing the capacity of the accused to challenge the operation of the process
c.        equalizing the capacity of all persons to avail themselves of the opportunity for challenge so created
b.       The Constitution & The Declaration of Independence
                                 i.      Lincoln (and Nowlin) believe(d) that the purpose of the Constitution was to enshrine and preserve the political principles articulated in the Declaration
                                ii.      Nowlin says the government both protects and potentially violates the rights of citizens
1.       the C/C model tends to view the government as protecting rights
2.       the D/P model tends to view the gov’t as potentially violating rights
iii.   The constitution is a fame that is meant to adorn the picture—DOI—all men are created equal….and men are endowed with certain unalienable rights, that among them are life, liberty or the pursuit of happiness.
iv.   The thought of the declaration is that we create govts. to protect natural rights (life, liberty, and pursuit of happiness) in an effort to control crime. After its established we have to prevent the govt. itself from becoming tyrannical. Balance rights of individuals against the govt. with the right for crime fighting. 
c.        Procedural/Structural Dimension: Judicial Power Dimension. DOI created govt to control crime and protect individuals from criminals but at the same time we have to be concerned with gov’t infringement on individual rights.
                                 i.      Judicial Activism: liberal (look to “Due Process”—police the police)
1.       Constitutional democracy: discretion of interpreting constitution, not necessarily required to ground decision in traditional legal materials/precedents
2.       Fear of the masses. Protect minority rights.
3.       Protection of electoral minority (unpopular)
4.       Part of a system of checks and balances
5.       Believes the constitution is a “living constitution” allowing for modification; makes policy determinations…have to interpret for the times we are living in. Changing values
6.       Believes in broad judicial authority to legislate from the bench and make policy-adapting to tough political/social concerns, where legislature may not be prepared to act because of politics
7.       Not deferential to elected officials.
8.       accept, and even celebrate, judicial policy-making in areas of political importance and controversy
                                ii.      Judicial Restraint: conservative (lean towards crime control and restraint)
1.       Local control: states have police power generally, so their laws should be upheld unless clearly in violation of the constitution; majority rule
2.       Federalism-S. Ct. has little business interpreting Constitution – should focus more on history and intent of framers. Want to stick closely to text and hx in interpretation.
3.       Deferential to elected officials
4.       Courts should do less rather than more
5.       Representative democracy: legislature should get deference, and make policy, not the court. Judicial branch violates rights of citizens by making policy, b/c legislature represents the people and is responsive to them-they should make the law
6.       Decisions of the court should be grounded in history and traditions and precedents, little flexibility allowed here.
7.       Emphasize majority rule
d.       Liberal v. Conservative: Current split 5/4, more justices leaning towards crime control
                                 i.      Liberal justices: Ginsberg….Kennedy could be a swing vote.
1.       Favor due process model and judicial activism
                                ii.      Conservative: Scalia, Alito, Thomas, Kennedy, Roberts
1.       Favor crime control and judicial restraint
e.        This area became popular in the 60’s based on new and expansive interpretations of the constitution. Warrant Court-activist due process approach—Miranda rights, etc.—broad interpretations. By the 1980’s Berger and Rehnquist Court-converted back to old ways. Much more restrained/conservative and much more crime control. However, hardly any of the 60’s cases were overruled by new court. Instead, we get narrow interpretation instead of broad. A 1994 case would be reinterpreted much more narrowly than in the 60’s.
f.        Problems: 1) Comprehensive, 2) Coherence, 3) Implentation. Limits on the SC to make a comprehensive code: they are limited to a passive role of waiting for cases and the cases must be a good vehicle; however the court is busy and can’t take a large number of criminal cases each term. Problem with Coherent Code: complex fact situations, members change, policy shifts, the court can move back and forth between models, cases don’t line up—New justices, moderate justices, often say that overruling would be too radical (earlier decisions) but rather reinterpret them which often leads to disalignment of cases. Problems with Implementation: “Rules of Justice”; if you make it too hard to prevent crime-rules will be violated and Police Officers will lie about it. “Dirty Harry” situations…..Dershowitz means by justice that the system is more interested in crime control rather than Due Process—system is more likely to agree with police officers
g.        Courts create the code of criminal procedure. Problems:
                                 i.      federalism issues (of concern to passivists)
                                ii.      separation of powers: Court’s job is to interpret Constitution, not making statutory law
                              iii.      Court passive; must wait for cases to be presented
                              iv.      Court has packed docket
                               v.      Court’s fact-finding powers are limited
                              vi.      Code needs to be coherent, comprehensive and consistent. Problems:
1.       changing personnel
2.       stare decisis
                            vii.      Courts need to deal with implementation of codes. Problems:
1.       reality: state courts following crime control model conflict w/ S. Ct.’s decisions in many cases, but not much S. Ct can do about it
II.      Incorporation Arguments-Bill Of Rights limitations on federal gov’t; is not a limit on states. 14th Am. limits the states. 4th, 5th, and 6th might be limited to states through the 14th. We need incorporation b/c the states do much of the crime fighting. 
a.       Duncan v. Louisiana – convicted of simple battery (up to 2 years and $300 fine); involved question of whether DP clause of 14th am made the 6th Am. Jury trial requirement applicable to the states. Important to figure out how much of the Bill Of Rights applies to the states, because states do almost all the lawmaking in the CJS. Yes. –right to trial by jury for serious criminal offenses applies to states. Jury Trial comes from Old England and is deeply rooted in Anglo American history. Policy: meant to be a check on the gov’t. to make sure they are not overstepping boundaries.
b.       Harlan’s dissent: Harlan fears that if the same tough rules that restrict the feds were applied to states, it would slow down the state system of justice and crime-fighting and the S. Ct would end up watering the rules down to expedite the state criminal systems (in fact, this was what ended up happening in many cases)
c.        There are several theories:
                                 i.      Total Incorporation – all provisions apply to states. If it appears in Bill Of Rights it is incorporated. This is what Justice Black likes b/c it should be done during privileges and immunities clause which comes under 14th am. Also, text and history of original understanding leads to TI.
                                ii.      Pseudo Incorporation/Fundamental Fairness- BOR should apply to states to the extent necessary to protect ∆ from things which would deprive them of Fundamental Fairness. What rights are fundamental or fair for a fair trial? Never actually incorporating BOR but create rights that look like BOR. We are tracking BOR but only using rights that might parallel BOR. Justice Harlan’s dissent. Black does not like this b/c judges will decide what means “fundamentally fair” and this will lead to judicial activis

ch for “mere evidence” of a crime
                                ii.      Olmstead (1928) eaves dropping in a telephone booth is OK, because it was not trespass. OR b/c of property rights/trespass reasoning) by Schmerber and Hayden. Nothing counts as a 4th Amendment search if there is no physical invasion.
                              iii.      Schmerber v. CA (1966: Brennan): Blood taken from the DUI suspect against his will at hospital; evidence is used to convict of DUI; he loses.
1.       ∆’s argument—Under Boyd-compelled to be a witness against himself; unreasonable search by taking blood b/c it makes him a witness against himself b/c he has a possessory interest (property rights analysis) in his blood. Schmerber would win
2.       Splits 4/5 am.
3.       New 4th Amd’t analysis
a.        Brennan—R’bleness in Clause 1 of 4th Amd’t is not about ppty rights; it refers to Clause 2, Clause 2 addresses warrant and probable cause (you need a warrant OR a major reason not to have one)
b.       To satisfy r’bleness requirement of 4th Amd’t, then:
                                                                                                                     i.      the search must be conducted in a “r’ble fashion under the circumstances”
                                                                                                                    ii.      there must be cause to suspect probable criminal wrongdoing
4.       New 5th Amd’t rule: 5th Amd’t only protects testimonial communications, not physical evidence
5.       The Ct holds that the blood test was a search but was not unr’ble b/c exigency excuse, officer’s actions meet r’bleness test
6.       Effect on Boyd:
a.       5th not all about evidence, only testimonial communication
b.       4th not about ppty rights anymore
c.        “mere evidence” rule dead (although not mentioned)
d.       We must now look to PC and warrant or if there was some exigency that did not allow time for a warrant
e.        4th involves unreasonable search and seizure and protects persons, so its clearly implicated here:
                                                                                                                     i.      There was probable cause that he was drunk, no warrant-but there was exigency (emergency situation) (liver was filtering out alcohol as time passes-destruction of evidence)
f.        5th only applies to “testimony of a communicative nature” and does not apply to property rights…this is the modern rule. Testimonial v. Communicative Evidence.
g.        J. Black’s dissent:  blood here is communicative in nature because it is physical evidence:
                                                                                                                     i.      Thinks there is no real difference in testimonial/physical evidence. Violation of 5th
h.       Fisher case: testimonial communications in police interrogations.
                              iv.      Hayden: Police in hot pursuit of individual go into his home…they found clothing evidence…..they searched and seize for Hayden’s clothing. ∆ personal effects (clothes) seized, which had nothing to do with the crime (doesn’t meet tests of fruits of crime, instumentalities of a crime or contraband requirement). Clothes are not testimonial or communicative (outside reach of 5th amendment)
1.       Under Boyd-police engaged in search and seizure. It was property so gov’t trespasses-unreasonable search (4th) and could be self incrimination. Hayden would win
2.       gov’t thinks they can seize anything they have property right to (like Boyd)
3.       majority kicks out this argument:
a.       nothing in the text of the 4th makes the distinction b/t property and privacy rights: mere evidence in one case could be an instrumentality in another case—throw out the mere evidence rule
b.       4th am is really about privacy rights. Same intrusion exists whether gov’t is searching/seizing evidence or instrumentality. Once a warrant dispels a privacy concern, then the gov’t can seize. What police are searching for cannot be basis for determining whether or not the search was reasonable. 
Analysis now asks “was there probable cuase….do a probably cause analysis and was there a warrant exception