Select Page

Criminal Procedure
University of North Carolina School of Law
Rosen, Richard A.

Criminal Procedure:

Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .

Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Amendment XIV: . . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .

I. Due Process: embodied in the 5th Amendment as applied to the federal government and in the 14th Amendment as applied to the States; no person shall be deprived of life, liberty, or property w/o due process of law
A. idea is that the state must treat people fairly when it uses its coercive machinery to catch and punish criminals
B. criminal justice system represents the state action most likely to deprive people of life, liberty, or property; thus, DPC has its most frequent application in criminal procedure; helps to explain why the course is a Con. Law course
C. Hurtado v. California (US 1884) represented the Ct.’s first foray into determining what a fair criminal process must entail
1. Issue: Does Due Process require an indictment before a grand jury?
2. D’s argument:
a. grand jury requirement is in the 5th Amendment as applied to the federal gov’t
b. grand juries date back to the Magna Carta
c. thus, indictments before a grand jury are an indispensable part of Due Process
3. Held: Due Process does not require an indictment
4. Rationale:
a. textual argument: 14th only incorporates the DPC of the 5th, not the whole Bill of Rights; since the DPC and the grand jury requirement are listed separately, the DPC of the 14th does not include the indictment requirement
5. Rule: DPC only requires a reasonable, non-arbitrary system; there must be some kind of Rule of Law over the process that ensures that substantive individual rights are preserved
6. Harlan’s Dissent: framers specified the indictment requirement to ensure its role in due process; the framers wouldn’t have enumerated these rights if they were not a part of due process
D. Matthew’s decision represents the Rule of Law view
1. goal of due process is to limit arbitrary gov’t action
2. guards against caprice and whim, the misuse of gov’t power, and the reliance on illegitimate criteria for decisions
3. goals are regularity and evenhandedness in the admin. of justice, and gov’t accountability
4. preventing arbitrariness requires that crimes are defined w/ specificity; vague criminal statutes would be unconst.; wholesale delegation of discretion invites abuse
a. Coates v. Cincinnati (1971) (invalidating an ordinance forbidding conduct “annoying to persons passing by)
b. Papachristou v. Jacksonville (1972) (invalidating a law criminalizing “rogues and vagabonds,” “habitual loafers,” and “persons wandering or s

ery amorphous concept
4. does the state conduct “shock the conscience?”
a. if stomach pumping, yes; See Rochin v. California (1952)
b. if D.A. is being creative in his closing, no; See Darden v. Wainwright (1986)
H. Incorporation
1. Between 1960 and 1968, the Ct was at its most liberal; began to reign in an abusive criminal justice system; referred to the guarantees of the 4th, 5th, and 6th Amendments to determine what was meant by Due Process; thus, many of the cases reference these amendments rather than the DPC per se; goal was to ensure Due Process by clarifying the protections in these amendments and enforcing them against the states
2. Duncan v. Louisiana (1968)
a. Issue: whether trial by jury is a part of due process
b. Held: jury trials are “fundamental to the American scheme of justice”; any trial that would require a jury in fed. court requires a jury in state court (unless waived)
3. incorporation has the virtue of clarity
4. when incorporation moves beyond the Bill of Rights (creating fundamental rights that are not enumerated), there is an argument that the Courts are taking over the leg. role
I. Does due process include rights and privileges outside of the Bill of Rights? (answer must be yes so long as you are not Black) What does it include?
1. Medina v. California (1992)
a. Issue: whether a state can place the burden on D of showing incompetence by a preponderance of the evidence
D’s argument: placement of this burden is contrary to due process under the Matthews v. Eldridge