BASICS
1. arrest
2. booking
3. filing complaint
4. first appearance
a. notice of charge
b. right to counsel
c. bail
5. preliminary hearings
6. filing of indictment or information
a. nature of grand jury proceeding
b. information
7. arraignment
8. pre-trial motions
9. trial
10. sentencing
11. appeals
12. post-conviction remedies
INCORPORATION
1. the bill of rights and the 14th amendment
a. bill of rights – first ten amendment to the US constitution
i. limitations on federal power – BOR limits the power of the federal govt in its relation w/ the American people
ii. no limitation on state power – however, the BOR does not limit the authority of states in their relations with their citizens. That is, as far as the BOR is concerned, there are no limits on local and state police power.
1. Barron v. Baltimore
iii. BOR policy
1. one thing that procedural safeguards are that….???1/25 p.3
a. prevents tyranny
b. keeps deterrent effect (innocent goes to jail, and b/c worse criminal, while guilty man is still free)
c. protects the sphere of individual rights
b. 14th amendment – 14th amendment to the US constitution, adopted in 1868, applies to the states. It includes three important clauses, only one of which pertains to the incorporation debate
i. privileges and immunities clause – first clause provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US”
1. national citizenship – this clause applies to privileges and immunities inherent in national citizenship, such as the right to vote in federal election
2. relationship to the bill of rights – the rights set out in the bill of Rights are not privileges or immunities of national citizenship. Consequently, this clause is not relevant to the incorporation debate
a. Slaughter House Cases
ii. due process clause – the second clause, which provides that no state shall “deprive any person of life, liberty, or property, w/o due process of law,” is the key provision in the incorporation debate, discussed below
iii. equal protection clause – a 3rd clause of the 14th amendment, which provides that no state shall “deny to any person within its jurx the equal protection of the laws,” is not relevant to incorporation debate.
2. nature and significance of the issue
a. nature of the issue – question that courts and scholars have debated is this: to what extent does 14th due process clause “incorporate” the various provisions of the BOR, so as to restrict state action in the same manner that federal government is restricted by the bill of rights?
i. Related issue – court have also asked the following questions: to what extent does the due process clause recognize unenumerated rights, i.e., rights not expressly found in the BOR?
b. Significance of the issue
i. Greater contact with state and local police – in daily life, a person is more apt to encounter state or local police than federal law enforcement officers, for the simple reason that there are more of the former than the latter. One’s liberty, therefore, is more apt to be threatened by state action than by the federal government. As a consequence, it is vital to determine the extent to which federal constitutionl liberties also apply in the state context.
ii. Federalism – the values of federal are at stake in the incorporation debates
1. state autonomy – under the doctrine of federalism, states have the right to develop their own laws and rules of criminal procedure, largely independent federal restrictions.
2. loss of state autonomy – but, if the 14th amendment incorporates the entirety of the BOR, then the letter charter functions as a national code of criminal provedure, which means that state autonomy is lost and uniformity is compelled
iii. separation of powers – the incorporation debate raises important separation of powers issues
1. judicial usurpation – as discussed below, certain incorporations doctrines purportedly increases the risk that judges will impose their own subjective views of proper conduct on the states, thereby overriding the wishes of the democratically elected legislature
3. the leading incorporation theories
a. “total incorporation” – one theory of the relationship between the 14th amendment and the BOR is that the Due Process Clause incorporates all of the provisions of the BOR, no more and no less
i. leading judicial advocate – the primary proponent was Justice Hugo Black
1. Adamson v. Cal. (dissenting opinion)
2. Rochin v. Cal (Concurring opinion, Douglas)
a. Dissent – The 5th amendment should apply to the states as well as the federal government. To rely on due process instead of the 5th amendment makes the law turn on not the constitution, but on the idiosyncracies of the justices of the SC
b. Fact – pumped D’s stmach
c. Holding – if a search “shocks to conscious”, then it violates due process
b. “fundamental rights doctrine” (aka selective incorporation??) – a competing view provides that the 14th amendment due process clause neither comprehends the specific provisions of the BOR nor is it confined to them. Instead, the DPC prohibits state encroachment of those “principles of justice so rooted in the traditions and consciences of our people as to be ranked as fundamental.”
i. Snyder v. Mass
ii. The parameters of the doctrine – notice that this theory recognizes unenumerated “fundamental” rights, i.e., liberty interests not expressly stated in the constitution; at the same time, however, a right is not necessarily “fundamental” – and, therefore, applicable to the states – simply because it is found in the BOR. Thus, this theory provides both more and less thn the “total incorporation” doctrine
iii. Leading judicial advocates – among the leading exponents of the fundamental rights doctrine where Justices Cardozo, Frankfurter, and Harlan.
1. Palko v. Connecticut (Cardozo)
2. Adamson v. Cal. (Frankfurter)
a. Overruled
b. Only fundamental rights of BOR are carried over to states, like freedom of speech
c. Self incrimination and jury trial are NOT one of the fundamental rights
d. Rule (not good) – D’s fifth amendment right not to bear witness’s against himself is not protected by the 14th amdnement’s due process clause
e. Dissent (Black) – total incorporation
3. Duncan v. Loisiana (Harlan)
iv. Boyd v. US (very liberal decision, overruled by Warren court
1. rule – the government may not force a person to produce personal and incriminating documents.
2. 4th and 5th defenses both worked
a. the government may not force a person to produce personal and incriminating documents
b. 5th – having to give up information is the same as being a witness against yourself
c. 4th – you can’t search a person’s papers by going through his house, therefore you can’t force him to do the same by having him turn them over
3. rationale – if it was property that the govt had a prior right to, then the property violated the 5th b/c obtaining it violated the 4th, but if it was contraband, then D had no prior right, then it could be seized. The idea is that if it is your property, the using against you violated self-incrimination?????
a. Therefore can’t get diary, but can get coke
c. “Total incorporation plus” – some justices supported the idea that the 14th amendment DPC incorporates all of the provisions of the BOR (as a total incorporation claim), as well as all unenumerated “fundamental rights” (as the fundamental rights theorists assert)
i. leading judicial advocates – Douglas, Murphy, Rutledge, were exponents of this “best of both worlds” civil libertarian doctrine.
1. Adamson v. Cal (Murphy and Rutledge, dissenting)
2. Poe v. Ullman (Douglas)
4. summary of debate
a. defense of total incorporation
i. history – Justice Black and some scholars contend that the framers of the 14th amendment intended to incorporate the BOR
ii. libertarianism – total incorporation provides citizens with more protection from governmental overreaching than does the fundamental rights doctrine.
1. weakness of the fundamental rights theory – the fundamental rights theory does not nationalize all of the provisions of the BOR, as does total incorporation
2. a fixed review of constitutional rights – under total incorporationism, all of the rights guaranteed in the BOR apply to the states through the 14th amendment, and they always will. In contrast, under the fundamental rights theory, even if a right is deemed “fundamental” today, it may be considered “nonfundamental” tomorrow (and, therefore, no longer a limitation on state
ct review (everything up to and including SC, after SC it is collateral review
e. Other exceptions – that are similar to Teague:
i. When the primary conduct of D – has been declared substantially legally defective (e.g., use sodomy to get a rape conviction)
ii. The second – is the watershed procedure for the system is unfair, and the more time you have done, the more we are disturbed
7. raising constitutional claims in federal court – D can raise in state court that his federal constitutional rights have been violated
a. federal habeus corpus – when D exhausted his appeals, then he can bring a federal action for writ of habeus corpus. Heard by federal district judge, and if he finds that D’s constitutional rights have been violated then D can get released (usually subject to new trial)
i. limits
1. search and seizure cases – if D had full and fair litigation to show illegal search and seizure took place, then no habeus corpuse allowed
6TH AMENDMENT
1. the indigent’s right to counsel
a. introduction – 6th amendment says that “in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.”
i. Right where jail at stake – 6th amendment right means that an indigent defendant has the right to have counsel appointed for him by the government in any prosecution where the accused can be sent to jail
ii. Right to retain counsel – 6th amendment also means that the govt can’t materially interfere with non-indigent D’s rights to retain/pay for his own lawyer
b. The right to appointed counsel generally – we focus here on the right of the indigent to have counsel appointed for him by the government, not on the non-indigent right to retain counsel
i. Applicable to states – 6th amendment right to counsel applies to the states, not just federal govt (Gideon v. Wainwright)
1. facts – D tried on non-capital felony, and he was denied counsel and he fought it
2. rule – when an indigent is prosecuted for a non-capital felony, the Constitution requires that counsel be supplied
a. case does not distinguish b/n misdemeanor and felony?????????
b. right to counsel is an essential right, therefore SC has to give full retroactivity to it
c. this is a case where everyone likes the results, but can’t make it fit with the history
d. before Gideon – it was not essential b/c 6th amendment was not fully incorporated into the 14th.
ii. Various stages – the right to appointed counsel does not merely mean that the accused has the right to have a lawyer at trial only, other parts of the prosecution that are found to represent a “critical stage” in the proceedings (e.g., the arraignment) also triggers the tight of the appointed counsel
1. critical stage – exists whenever “a defendant finds himself faced with prosecutorial forces of organized society and immersed in the intricacies of substantive and procedural criminal law.”
2. critical stages include:
a. initial appearance before magistrate
b. preliminary hearing
c. arraignment
d. felony trials and some misdemeanor trials
e. incriminating statements elicited by an undercover sgaent from a suspect who has been formally charged with the crime in question
f. misdemeanor trials in which imprisonment may be imposed
g. line/ups after “formal proceedings” are begun
h. senctencing
i. extra:
i. line-ups b/f charged
Right to effective assistance – the right to counsel also includes
