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Criminal Procedure
University of Oklahoma College of Law
Thai, Joseph

Criminal Procedure I: Thai Spring 2015
I.            Criminal Procedure Overview
A.   General Principles
·         Proper Government Roles:                                         
o   Security of Person/property
o   Prevent private violence/retaliation
o   Selection but also restraint of ruler
o   Preservation of freedom
Major Questions of Criminal Procedure:
o   When/how may state seize your?
o   When/how may state search you?
o   When/how may state interrogate you?
·         Police Encounter Standards
o   Voluntariness
o   Reasonable Suspicion (“Reasonableness”)
o   Probable Cause—20-35%+
o   Preponderance of the Evidence—51%+
·         Crime-Control v. Due Process Models—Two models for dealing with crime control
Emphasis on speed and finality
Trades quantity for accuracy
Assembly-line model
Formal, adjudicative, adversarial, fact-finding process
Trades accuracy for quantity
Obstacle course model
Rests on reliable fact-finding early on that makes the remaining stages a matter of fact
Presumption of innocence
·         Sources of Law
o   (1) State & Federal Statutes and Rules
§  (1) Cannot violate constitutional protections—but may exceed
§  (2) Selective incorporation doctrine—requires state courts to guarantee protections of the Bill of Rights
o   (2) Bill of Rights
§  (a) Fourth Amendment—Freedom from Unreasonable Searches and Seizures
§  (b) Fifth Amendment—Freedom from Self-Incrimination, Federal Due Process Clause
§  (c) Sixth Amendment—Right to Assistance of Counsel, Speedy Trial
o   (3) Fourteenth Amendment INCORPORATION—Makes the Bill of Rights Apply to states
·         Majority View: SELECTIVE Incorporation:
o   4th Amend.—Mapp v. Ohio
o   5th Amend.—Mally v. Hogan (Self-incrimination)
o   6th Amend.—Gideon v. Wainright (Counsel); Kopfer v. NC (Speed); Pointer v. TX (Confrontation)
·         Minority View: TOTAL Incorporation
§  Prior to incorporation Rochin was the standard for determining if a state had violated the DUE PROCESS RIGHTS of individuals
·         STANDARD: The rights of a

  Exclusionary Rule—Mapp, 1961: Court held that the exclusionary rule should be applied to the states as well as the 4A because without the exclusionary rule the 4A is just words—without the exclusionary rule there is NO incentive for police to honor the rights of citizens against unreasonable search and seizure
·         4A Origins:  The English crown often used general warrants to search houses and people.  General warrants were very broad and unspecific.  Writs of assistance were general warrants granted to private citizens to enforce the government’s wishes.  After Entick, an author of a publication, had his house searched, he brought a suit and was awarded a substantial amount of money—Led to the passing of bills condemning general warrants
o   We read the language of the 4A in light of the history of general warrants and writs of assistance in England and the American Colonies