CRIMINAL PROCEDURE
Professor Kuo
Spring 2008
Incorporation – the Bill of Rights was not construed to extend to the States at the time of Barron in 1833. The states viewed the Bill of Rights as a wall between themselves and the federal government. Incorporation deals with the question of to what extent, if at all, the 14th Amendment due process clause “incorporates” or “absorbs” the BOR so as to make the Bill’s restrictions on federal power applicable to the states. There are two options: either the due process or privileges and immunities “incorporates” some (Court’s argument), or all (Justice Black’s argument) of the Bill of Rights.
Powell v. Alabama – in this case a group of defendants were not appointed specific and individual attorneys, instead there was a collective appointment of the entire bar to represent them. There was very little time for preparation for trial. The court had to decide two issues: (1) whether the defendants were denied the right of counsel; and (2) whether that denial infringed on the due process clause of the 14th Amendment. The court found that the defendants were indeed denied counsel and that it was a denial of the defendants’ due process rights under the 14th Amendment. (That “collective appointment” was not enough to satisfy due process)
Duncan v. Louisiana– the court had to decide whether a state that provides trial by jury for all felonies is prohibited by the Constitution from trying lesser charges without a jury and through the court alone. The majority uses “selective incorporation” saying that fundamental principles of liberty and justice govern (as a standard) what is incorporated. Justice Harlan dissented and argued that the 6th Amend should not be incorporated because a jury trial is not necessary for a fair trial. The Court (through Justice White) selectively incorporated the 6th Amendment through the DPC including jury trials. Justice Black would have incorporated the whole BOR through the DPC. Justice Fortas said there was not necessarily the same content of rights under the 6th Amendment as there was under the 14th, and Justice Harlan, in his dissent said there is freestanding fundamental fairness through the DPC—not including jury trials.
The Fourth Amendment & the States – the4th Amendment applies only to state action and not private action. The first part of the amendment tell us what it seeks to prohibit (the right we hold against the government) and says who is covered—“the people”, what is covered—“persons, houses, papers, and effects” and the nature of that protection—“to be secure against unreasonable searches and seizures.” This first part is often called “the reasonableness clause. The second part of the amendment, which is often referred to as “the warrant clause” expressly relates to warrants. It tells us what is required for a warrant to be issued (probable cause, supported by oath or affirmation) and tells us something about the form of the warrant itself (“particularly describing the persons or things to be seized.”
Standing – A defendant in a criminal prosecution cannot raise a 4th Amendment claim unless he personally is the alleged victim of the unreasonable search or seizure. In other words, 4th Amendment rights are personal—they cannot be vicariously asserted.
STEPS OF 4TH AMENDMENT ANALYSIS: Ask:
(1) Does the defendant have standing to raise a 4th Amendment challenge to the specific item of evidence in question? If no, the evidence is admissible. If the answer is yes,
(2) Is the defendant among “the people” protected by the 4th Amendment? (not a non-resident alien) If yes,
(3) Did the police activity in question implicate a “person, house, paper, or effect?” If no, (which is rare), then the 4th amendment doesn’t apply.
(4) Did the police activity constitute a “search” and/or “seizure?” If not, the 4th amendment doesn’t apply.
(5) Was the search and/or seizure reasonable or unreasonable?—this is the ultimate substantive issue because it indicates whether the 4th amendment was violated. To answer this question you have to consider several sub-issues:
(a) did the police have adequate grounds to conduct the search and/or seizure? –traditionally, the police have to have probable cause, but some searches or seizures can be permitted on the lesser ground of “reasonable suspicion”;
(b) did the police act on the basis of a search warrant and/or arrest warrant? If not, the sub-question is whether the police had a valid reason for failing to obtain a warrant—arrest warrants are required only in very limited circumstances. Search warrants are required more often, but there are a lot of exceptions to a warrant requirement. If the police did act on the basis of a search/arrest warrant,
e for a criminal prosecution in a court of law. This is a prophylactic rule formulated by the judiciary in order to protect a constitutional right. This rule is designed to provide a remedy and disincentive, short of criminal prosecution, for prosecutors and police who illegally gather evidence in violation of the Fourth and Fifth Amendments which provide protection from unreasonable searches and seizure and compelled self-incrimination. The exclusionary rule also applies to violations of the Sixth Amendment, which guarantees the right to counsel. This rule is concerned with how the evidence is acquired, not what it proves. For this reason, when an illegal action is used by police to gain any incriminating results, all evidence whose recovery resulted from that illegal action (fruit of the poisonous tree) can be thrown out. Critics of the exclusionary rule argue that criminals should not go free just because “the constable blundered” In other words, accurate evidence should not be suppressed just because the police may not have followed procedure or may have illegally seized evidence
Weeks v. United States – The exclusionary rule was created in this case, where it was found to be a requirement under the Fourth Amendment prohibiting unreasonable searches and seizures. This decision, however, created the rule only on the federal level. There were two reasons for the court’s decision: (1) Judicial integrity—the court cannot condone improper state action by allowing things seized by constitutionally violative conduct to be used as evidence in the courts; and (2) the fact that the creation of a constitutional right implies there must be a remedy. The court reasoned that if private documents and possessions can be seized and used as evidence against someone in violation of the 4th Amendment then the 4th Amendment is of no value and may as well be taken out of the Constitution.
