CRIMINAL PROCEDURE
FRANK BOWMAN
SPRING 2013
I. CONSTITUTIONAL RESTRAINTS ON CRIMINAL PROCEDURE 1/17
A. Criminal Justice Process
1. Policy: balance State power v. individual liberties
2. Pre-arrest investigation: incapacitation (protect public); gather information; misdemeanor v. felony (dividing line)
3. Arrest: taking Δ into custody to charge w/crime
a. Police discretion to make arrest: based on expertise and police officer’s authorization for use of force.
b. Policy; tension btw practical needs of community (disarming Δ, defusing situation, gathering/securing Δ so amenable to legal judgments) v. individual liberties (protecting indiv. liberties and guarantees of proper process before State imposes pain or limits on freedom, bodily integrity)
4. Apprehension: bail or detention
5. Charges filed indictment (grand jury deliberations) OR deal for information: made by DA
6. Pre-adjudication
a. Arraignment:
1) initial arraignment: must take place within 48 hours of individual’s arrest, 72 hours if the individual was arrested on the weekend and not able to go before judge until Monday. Dis informed of the pending legal charges and is informed of his or her right to retain counsel. Presiding judge also decides at what amount, if any, to set bail.
b. post-indictment arraignment: Δ is allowed to enter plea.
c. Discovery process: Δ gets info from P and vice versa
d. Plea negotiations: 95-96% felony cases resolved by plea
7. Trial: right to jury trial for cases where incarceration. 6th AM.
a. Δ can waive right to jury for bench trial.
8. Sentencing
9. Appeals
B. Police Investigative Conduct & Evidence Collection to Ascertain Guilt
1. Criminal Investigation
a. Searches: Can cops search
b. Person on sidewalk
c. Person/effects on MU Law prop
d. House
e. Car
f. Bank records/safe deposit box
g. Smartphones and contents
h. laptop/Hard drive
i. 24/7 surveillance (phone taps/cameras/surveillance drones) — BIG BROTHER IS WATCHING YOU.
1) When advising clients, never let client talk to cops. EVER.
j. Post-Arrest: Can cops
1) Interrogate Δ
2) Can Δ refuse to talk
3) Torture (physical means to induce Δ to talk)
4) Refuse Δ lawyer/counsel
5) Continue talking to Δ despite request for lawyer
6) After getting lawyer, continue questioning
2. Adversarial system: Δ’s rights and protections for person is sensible balance btw society’s rights and individual rights.
3. Gathering Evidence: Should rules/expectations change in terrorism cases?
a. Guantanamo Bay/waterboarding
b. Surviellance techniques: Different for US citizens or foreign?
c. Drones to kill w/o due process in foreign countries
d. 9/11 changed everything: crim pro, boundaries of permissible debate, boundaries of permissible cop conduct. Many types of terrorism: not all foreign on US soil
e. Uphold constitutional limits and limit gov overreaching in face of horrible crimes?
C. Incorporation of Bill of Rights Into Due Process 1/22
1. History:
a. Civil War: State rights/autonomy “are v. is”
b. 1865 — Union Restored
c. 13th AM (1865): abolished slavery
d. 14th AM (1868): All native born or naturalized persons are citizens of U.S. and state of residence
1) No State shall abridge the privileges or immunities of U.S. citizens; DP & EP
e. Barryn v. Baltimore: except where SC says, federal const doesn’t limit rights of states.
f. Powell v. AL (1932) : (capital case); SC looks at 14th AM for crim process and holds State must allow Δ in state crim case to have counsel
1) Increased recognition that 14th AM applies in crim pro for states
2. Modern:
a. First 8 AMs to US Constitution apply by their terms only to the federal government
b. BUT SC has incorporated many of these rights into the due process requirement binding on the states by virtue of the 14th AM.
c. Selective Incorporation Approach: SC selectively incorporated portions of Bill of Rights “fundamental to our concept of ordered liberty”. Duncan v. LA; Palko v. CT.
d. All BoR guarantees held applicable to states except for
1) Bail (8th AM guarantee against excessive bail-State can offer bail but set it in excessive amt)
2) Grand jury indictment (5th AM) State can begin prosecution using “information” prepared by prosecutor rather athn grand jury indictment
D. Approaches to Due Process Clause of 14th AM
1. 14th AM Text: “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.”
2. “Fundamental Fairness”:
a. Processes which are “implicit in ‘the concept of ordered liberty’ and [are] as such enforceable against the State through the Due Process Clause.” Wolf v. CO (J. Frankfurter).
b. Rights that cannot be denied “without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” Powell v. AL.
3. Critiques:
a. Underinclusive — insufficiently protective of individual rights
b. Overinclusive — so vague that it gives judges warrant to impose personal preferences on the states
4. “Total incorporation” (J. Black)
a. Critiques:
1) Not required by text or history
2) Not as restrictive as Black maintains because AMs are themselves imprecise
3) Eliminates room for diversity and experimentation in states
5. “Selective incorporation” (Duncan)
a. Most, but not quite all, of the rights in the Bill of Rights. (E.g., 5th AM right to indictment by grand jury not incorporated) [CB p. 26, n. 13]
b. AND, not quite all of the details of the incorporated rights as developed in federal case law. See Williams v. FL (1970) [CB p. 27, nn. & 14]
c. Williams v. FL (1970): “Selective incorporation” forces “reconsideration”
1) Does 6th AM, as incorporated thru 14th AM, require 12-person juries in state criminal trials?
2) Holding? What had been SC’s position on this question as to federal trials? Does SC’s holding change the constitutional rule for federal trials?
d. Duncan v. LA: Δ convicted of battery; sentence dto 60 days prison & $150 fine. Δ requested jury trial but denied b/c LA const allows jury trials only if capital punishment or hard labor imposed.
1) 6th & 14th AM secure right to jury trial in state crim prosecution where sentence as long as 2 yrs imposed.
2) Held: Δ entitled ot jury trial under 6th & 14th AM Reversed & remanded.
a) Trial by jury in crim cases = fundamental to US scheme of justice.
1. 14th AM guarantees right of jury trial in all crim cases which would come w/in 6th AM guarantee of trial by jury for Ds tried in fed. ct.
2. 14th AM denies states power to deprive any person of life/liberty/prop w/o DP of law.
b) Look at penalty for crime to determine if comes w/in 6th AM guarantees. Since battery = punishable by 2 yrs prison, it’s serious, so 6th AM applies.
c) Rule: 6th AM right to jury trial in serious criminal cases = fundamental right and must be recognized by all states as part of obligations to give DP to all persons in juris.
1. Policy: granted to crim Δ to prevent gov. oppression
e. Apodaca v. OR
a. Johnson v. LA (1972): Does 6th AM, as incorporated thru 14th AM, require unanimous verdicts in state criminal trials?
f. Bottom Line: SC has adopted the “selective incorporation” approach, but applied it in way that makes virtually all of its holdings construing the criminal provisions of the Bill of Rights applicable to state courts.
2. “Freestanding Due Process”: Does the due process clause provide source of power to regulate police conduct independent of the incorporation of most provisions of the Bill of Rights?
E. Constitutional Reqs Held Binding On States Under 14th Am Due Process
1. 4th AM prohibition against unreasonable searches and seizures. Wolf v. CO.
2. Exclusionary rule: req result of 4th AM violation cannot be used as evidence against Δ. Mapp v. OH.
3. 5th AM privilege against compulsory self-incrimination Malloy v. Hogan
4. 5th AM prohibition against double jeopardy. Benton v. MD.
5. 6th AM right to speedy trial. Klopfer v. NC.
6. 6th AM right to public trial. In re Oliver.
7. 6th AM right to trial by jury. Duncan v. LA
8. 6th AM right to confront witnesses. Pointer v. TX.
9. 6th AM right to compulsory process for obtaining witnesses. Washington v. TX
10. 6th AM right to assistance of counsel in felony cases. Gideon v. Wainwright.
11. 6th AM right to assistance of counsel in misdemeanor cases in which imprisonment is imposed. Argersinger v. Hamlin.
12. 8th AM prohibition against cruel and unusual punishment. Robinson v. CA
a. Note: Constitution provides the floor of protection for criminal Δs. States are free to grant greater protection, and many do.
F. Constitutional Reqs Held NOT Binding On States Under 14th Am Due Process
1. 5th AM Right to Indictment by Grand Jury for capital and infamous crimes has been held not binding on the states. Hurtado v. CA (state can begin prosecution using “infor
utional.
3) Police relied in good faith on defective search warrant.
a) Four exceptions to good faith reliance on defective search warrant:
a. affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it. Aguilar (sole assertion: “we have it on good information and do believe drugs at Aguilar’s house” but no info on why).
b. Warrant is invalid on its face (i.e., failure of warrant to state with particularity the place to be searched or the things to be seized.)
c. Police officer lied to or misled the magistrate.
d. Magistrate has wholly abandoned his judicial role. (J. White)
7. Standing: D must have standing to raise issue of unconst. law enforcement conduct.
a. D has standing only if:
1) D seeks to remedy violation of own personal const. rights, not another person’s rights.
2) D’s personal const. rights violated: const harm done to that D individually, at place or to something where and when D had “reasonable expectation of privacy”.
8. Exemptions:
9. Cases:
C. Derivative Evidence – The Fruit of the Poisonous Tree Doctrine
1. Fruit of Poisonous Tree (FOPT): Generally, exclude all illegally obtained evidence AND all evidence obtained or derived from result of original police illegality. Courts deem such evidence tainted fruit of poisonous tree. Nardone; Wong Sun.
a. E.g.: Δ was arrested without probable cause and brought to police station. police read Δ his Miranda warnings three times and permitted Δ to see two friends. After being at the station for six hours, Δ confessed. confession must be excluded because it is the direct result of the unlawful arrest—if Δ had not been arrested illegally, he would not have been in custody and would not have confessed. Taylor v. AL.
b. Compare: Police have probable cause to arrest Δ. They go to Δ’s home and improperly arrest him without warrant, in violation of 4th AM (see III.B.2.b.3), infra). Δ confesses at home, and police then take him to the station. Δ confesses again at the station. home confession must be excluded from evidence because it is the fruit of the illegal arrest, but the station house confession is admissible because it is not fruit of the unlawful arrest. Because police had probable cause to arrest Δ, they didn’t gain anything from the unlawful arrest—they could have lawfully arrested Δ the moment he stepped outside of his home and then brought him to the station for his confession. Thus, the station house confession was not exploitation of police misconduct; i.e., it was not fruit of the fact that Δ was arrested at home as opposed to somewhere else. NY v. Harris.
2. Test for FOPT: Apply FOPT where arrest led to a search if:
1) D has standing to challenge original violation (“tree”);
2) Original police activity violated D’s individual rights; AND
3) E sought to be admitted against D (“fruit”) was obtained as result of original violation.
4) Limitations—Fruits derived from Miranda Violations: fruits derived from statements obtained in violation of Miranda (see IV.D.1., infra) may be admissible despite the exclusionary rule. (See IV.D.4.b., infra.)
3. Balancing Test:
a. In recent cases, SC has emphasized that in deciding whether to apply the exclusionary rule, lower courts must balance the rule’s purpose (i.e., deterrence of police misconduct) against its costs (i.e., the exclusion of probative evidence). Therefore, exclusion of tainted evidence, including fruit of the poisonous tree, is not automatic. Whether exclusion is warranted in given case depends on “the culpability of police and the potential of the exclusion to deter wrongful police conduct.” Herring v. US.
