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Criminal Procedure
University of Wyoming School of Law
Jackson, Darrell D.

Chapter 1. The Criminal Process: Failures, Choices, and Legitimacy

A. Failures

1. Introduction

I. Course introduction and overview

A. Society ßà Law

B. Levels of Analysis

1. First: U.S. Constitution

2. Second: Cases

3. Third: Concepts

a. What do you think? What is your opinion?

i. Won’t be graded on your opinion, but will receive credit for including it.

ii. Give both sides (prosecution/defense) on the exam, then your opinion.

II. Protection (Keep this in mind during the exam)

A. From criminals

1. Search anyone at anytime

2. Nobody has any weapons

3. Monitors everywhere

B. From gov’t

1. Eliminate gov’t

2. Restrictions

a. Gov’t can’t seize property

b. Gov’t can’t kill anyone

i. War

ii. Death penalty

iii. Police brutality

iv. HazMat

C. 10th Amendment protects the rights of the states

2. Investigation Failures

I. Contrast:

A. Barrington case (p.11)

1. In a federal case “any degree of influence” on a prisoner makes his confession inadmissible as a matter of federal law

2. Narrow interpretation of the 14th Amendment/rejected the idea that the federal constitution through the 14th Amendment offered broader due process protection than state law

B. Brown v. Mississippi

1. Issue

a. Whether convictions, which rest solely upon confessions shown to have been extorted by officers of the State by brutality and violence, are consistent with the due process of law required by the 14th Amendment of the Constitution of the United States

b. Sub-issue

i. Can Mississippi mete out justice in the “Mississippi way”?

2. Court turns to dissent in Mississippi Supreme Court case when rendering the decision

a. Gave credibility to Mississippi Supreme Court

i. Helped support federalism

-Always read the dissent; it may be the majority opinion in the next case

3. Holding

a. Reversed/violation of Brown’s due process (14th Amendment)

i. However, still okay to compel Defendant to take the stand (5th Amendment) and okay that no jury trial (6th Amendment)

C. Brown in contrast to Powell

1. Brown

a. Investigatory phase

2. Powell

a. Adjudicatory phase

3. Trial Failures

I. Seeking legitimacy in the 4th Amendment

A. Powell v. Alabama

1. Effective and substantial assistance of counsel

a. Mr. Roddy was not familiar with the rules in Alabama

i. This is how you lose your license

2. Zealous and active representation

3. Holding

a. “. . . the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the 14th Amendment

B. The Norms of the Criminal Process

I. Six Nouns

A. Reliability

B. Accuracy

C. Fairness

D. Legitimacy

E. Efficiency

F. Limiting government

II. Mindset

A. Respect…but not reverence

B. “Criticalist”

III. Due process (Note 2, p. 46)

A. In 1884, the Court acknowledged that the 14th Amendment due process clause applied to state criminal processes, though the Court held that the right to a grand jury indictment is not part of due process.

1. Hurtado v. California

B. In 1900, the Court held that the right to a jury of twelve in a criminal case is not part of due process (the state constitution required a jury of eight).

1. Maxwell v. Dow

C. Eight years later, the Court held that due process did not prohibit an instruction to the jury that it could draw a negative inference from the Defendant’s failure to testify.

1. Twining v. New Jersey

C. The Bill of Rights and the Fourteenth Amendment: The Incorporation Story

I. The Bil

2. Analysis

a. “One who occupies it (the telephone booth), shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.”

b. Also looked at Olmestead, Goldman, and Silverman

3. Holding

a. 4th Amendment protects people (not simply “areas”) against unreasonable searches and seizure, even in the absence of a physical intrusion into a given enclosure

i. 4th Amendment does apply to electronic surveillance

b. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

4. However, Harlan’s two-prong test (in his concurrence) becomes the test:

a. That a person has exhibited an actual (subjective) expectation of privacy and,

b. That the expectation be one that society is prepared to recognize as “reasonable”

5. Also, rule

a. “Searches conducted outside the judicial process, w/o prior approval by a judge or magistrate [i.e., in the form of a SW] are per se unreasonable under the 4th Amendment – subject only to a few specifically established well-delineated exceptions.”

C. Keep an eye on whether rights are being expanded or contracted.

D. Also, track votes. Know what a plurality is; with a plurality opinion, dissents are more important