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

Myers, Fall 2015
Bill of Rights= protects Americans from the government à acts as a barrier between Americans and the government à applied to states through incorporation
1. Failures
Barrington: use of sweatbox is okay because it’s okay under state law and not directly barred by Constitution
Bram: any influence on confessions is INADMISSIBLE
*Brown v. Mississippi (1936): D pled not guilty to murder—court appointed counsel—found guilty and sentenced to death after 1 day trial—D claimed he confessed only by physical torture (hung and whipped repeatedly, otherwise there was no evidence
o   D asserting 14th Amendment at the time—court says self-incrimination right CAN be withdrawn by the state
o   HOLDING= UNCONSTITUTIONAL—state can enact whatever as long as it doesn’t conflict with fundamental principlesà due process limits this (14th Amendment violation)
o   Court: you can do away with rights that are non-fundamental (5th Amendment is NOT fundamental, 14th Amendment IS fundamental)
*Powell v. Alabama (1931): black and white youths were on train illegally and got into a fight—blacks chased/threw all but 1 white from train—at next stop, white mob got them and took them to jail—found out they were accused of raping white women and were nearly lynched—pled not guilty
o   D= denied right of counsel
o   HOLDING= UNCONSTITUTIONAL—clear denial of due process—There was no lawyer until morning of the trial—pre-trial is the most vital time and there was no counsel—no time to prepare and Ds are illiterate
2. The Norms of the Criminal Process
3 Factors for How Judges Decide These Issues=
1.      Balance public’s security with individual rights
2.      Federalism
3.      Racism
Beyond a Reasonable Doubt Standardà 1) encourages more innocent Ds to stand trial and 2) influences juries to vote not guilty—should be more difficult to convict guilty Ds than innocent ones
Goals= 1) accuracy, 2) fairness, 3) limited-government provisions, and 4) efficiency
3. The Bill of Rights and the 14th Amendment: The Incorporation Story
No TOTAL incorporation
Duncan v. Louisiana: D wanted jury trial for simple assault but LA law only grants jury trial if penalty may be capital punishment or imprisonment of hard labor
o   Issue= is jury trial a fundamental right?
o   Court= jury trial IS a fundamental right, per the 14th Amendment
o   How many people HAVE to be on a jury?= more than 6 (5 is unconstitutional); must have unanimity
4th Amendment= 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.
1.      Reasonableness/Rights Prong
a.       Who are “the people?”
b.      Persons, houses, papers, effects à standing/whose stuff?
c.       What’s unreasonable?
d.      What’s a search/seizure?
2.      Warrants Prong
a.       Probable cause
b.      Particularity
Remedy= exclusion of the evidence improperly obtained
1. The Reach of th

, police set up surveillance—3 hours later, 4+ officers sought entrance again—D didn’t come to door immediately, at least 1 door was forcibly opened and entered—D’s lawyer arrived but officer wouldn’t let her see him; officer showed them paper he claimed was a warrant, but it was not
·         Rejects Wolf v. Colorado
·         HOLDING= all evidence obtained by searches and seizures in violation of the Constitution is INADMISSIBLE IN COURT (state)—4th Amendment applies to the STATES
o   Stands for establishing the exclusionary rule AND incorporating 4th Amendment
I. What is a Search?
Old Law= Olmstead: without penetration of physical, constitutionally protected space, then 4th Amendment is not implicated à Goldman: detectaphone on the outside of a building—when trespass was the standard for privacy, this was not a problem
Silverman: there was a parting wall between 2 buildings and law enforcement put a spike microphone in the parting wall that would pick up conversations via the heating ducts—government argues that it never trespassed
·         Court: UNCONSTITUTIONAL because there was enough of a physical intrusion—there was de facto physical intrusion into the apartment even though there wasn’t a technical physical intrusion
·         Still good law