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Criminal Procedure
University of North Carolina School of Law
Myers, Richard E.

Criminal Procedure
Fall 2009 – Meyers
I.       The Criminal Process à Themes
A.      Privacy vs. Security
B.      Crime control vs. due process
1.       Focus is on pre-case activities of the government, especially law enforcement
C.      Balance of Interests
1.       Not giving government too much power
2.       But still handling crime/criminals
D.     State vs. Federal Law
1.       A state may make a law which provides for greater protection that the Constitution, but it must clearly state this in the opinion.
E.      Federalism
1.       Robust or minimal federal intervention in state criminal justice?
2.       Supreme Court cannot interfere with state determination of due process based on state law. (Powell v. Alabama)
F.      Court’s institutional role
1.       One-way conversation from the Court to police setting out rules that lower courts will enforce
G.      Role of race and class in criminal justice
II.    The Criminal Process à Procedure
A.      Generally looking at suppression hearings as to whether evidence was obtained unconstitutionally
B.      Formal evidentiary rules do not generally apply to suppression hearings
C.      Bill of Rights applied to the states for the first time in 1868 w/ the passage of the 14th Am.
1.       Extent to which people are protected from overreaching by agents of the state depends on extent to which the 14th Am. incorporates the Bill of Rights.
2.       Broader the scope of the 14th Am., the less free the states are to develop their own rules of criminal procedure
D.     Rules vs. Standards
1.       Rules –
·         Easy to explain, apply, predict, and enforce.
·         Rules are drawn from standards over time
·         Ex: Speed limit is 55mph
2.       Standards –
·         Prevent unfair consequences, taking into account all circumstances
·         Ex: No unsafe operation of a vehicle
·         DP Clause is a standards, and many rules are drawn from it (Miranda, searches/seizures)
E.      Standard of Proof:
1.       Wild guess à mere suspicion à reasonable suspicion à probable cause à        beyond a reasonable doubt à certainty.
2.       Beyond a reasonable doubt –
·         The highest burden
·         Used in criminal cases
3.       Preponderance of the evidence
·         Uses in civil cases
·         Whichever side tips the scale in their favor wins
4.      Probable Cause
·         Ex parte standard
·         Exists where the facts or circumstances within the officer’s personal knowledge or of which they have reasonable, trustworthy information are sufficient in themselves to warrant a man of reasonable cause in the belief that either:
o    (1) An offense has been or is being committed by a specific person, or
§ Arrest warrant standard
§ Means that you can go where that person is to arrest them
§ May want to wait until they’re in a certain location (so you can search the location, too)
o    (2) Evidence of a criminal activity will be found in the place to be searched.
§ Search warrant standard
·         Because officer knows somebody is a drug user – this is NOT enough for PC. Need something more.
III.Due Process
A.      Incorporation by reference – due process means all procedures of the Bill of Rights
B.      Selective incorporation – due process means something more abstract: there are certain basic elements that the American justice system recognizes as crucial to fairness (Duncan test)
1.       Ex: trial by jury
C.      Reality is that only the 2nd, 3rd, 7th, and 8th Amendments have not been fully incorporated
D.     Incorporation plus – due process clause provides protections above and beyond the Bill of Rights (e.g., due process voluntariness test in confessions law)
E.      Sources of due process: Bill of Rights, common law, state statutes, foreign practices
IV. Exam Tips:
A.      For each question –
1.       One answer is right
2.       One answer is absurd
3.       One answer is wrong on its fact (may come down to just one word). Will not even be applicable to the facts
4.       One answer is wrong on the law
B.      Look at each issue separately (don’t mix Miranda, 4th Am, 6th Am)
C.      Reminder: Cannot use 4th Am for racial discrimination (even if they’re arguing no PC because it was race). Must look to the EPC.
A.      Analysis:
1.       What was found?
2.       Where was in found?
3.       Was it found in a place where the person bringing the claim has a reasonable expectation of privacy? (SEARCH)
4.       Has there been a meaningful interference with the owner’s possession? (SEIZURE)
B.      Always consider each item of evidence and each Δ separately.
1.       Discuss each item of evidence separately
2.       Think of each item of evidence in chronological order (order of obtainment)
3.       For each item, if govt wants to introduce it as evidence against more than one Δ, analyze each Δ separately (think about each Δ’s standing)
C.      (1) Was it a state actor or agent?
D.     (2) Does Δ have standing to bring a 4th Amendment challenge?
1.       If not, end analysis
2.       To have standing must have a reasonable expectation of privacy
E.      (3) Did police activity in question implicate a person, house, paper, or effect?
1.       If NO, 4th Am. doesn’t apply here
2.       Note that it requires a state actor (police, govt. official, informant, etc.)
3.       4th Am. doesn’t apply if action wasn’t taken by a state actor
F.      (4) Did police activity constitute a search and/or seizure?
1.       If NO, 4th Am. doesn’t apply
G.      (5) Was the search/seizure of person, house, paper, or effect reasonable or unreasonable?
1.       What level of search/seizure occurred?
·         Terry

tions not met, look to exclusionary rule.
1.       Remedy for a 4th Am. violation
2.      Purpose – to deter
3.      If police obtain evidence in violation of the 4th Am., that evidence must be excluded at trial.
4.      If we didn’t have the E Rule, how else could we manage police conduct?
·         Allow civil suits against state actors
·         Fine state actors
o    Problem – DA would be the one fining. This wouldn’t work well
5.      E Rule is notconstitutionally mandated.
6.      Use of illegally-seized evidence is allowed during grand jury indictment
·         Proponent of this rule say this is OK – Δ still goes to court innocent until proven guilty and thus the bad evidence won’t harm them.
·         But – what is Δ wouldn’t have been indicted but for the tainted evidence?
1.       Does the individual seeking to have evidence excluded based on 4th Am. have standing to contest or challenge the police conduct?
·         The only person who has standing is the victim of the unreasonable search/seizure.
·         Each case decided on own facts
2.      Who has standing?
·         Victim of unreasonable search/seizure
o    Victim must have a reasonable expectation of privacy in the place/object searched
o    Even if you have a possessory interest in the particular piece of property (drugs), you don’t necessarily have a reasonable expectation of privacy as to the search of the area where the object was found (purse)
·         Examples of people w/ standing:
o    Overnight guest has standing if house where he stayed was searched.
o    Almost all social guests have standing
·         Examples of people w/o standing:
o    Person in a house for just a few house to package drugs (in house for 1st time and no evidence of confidential information discussed)
o    Passenger in car
3.      Case Law
·         Rakas v. Illinois à A person has standing to contest a search if that specific person, not a person in general, has a legitimate expectation of privacy in the invaded place.
o    This asked whether the particular defendant had an expectation of privacy.
o    Different from Katz, which asked whether a person in general would have an expectation of privacy.
Facts: Rakas was passenger in car with 3 other people; stopped