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Criminal Procedure
Villanova University School of Law
Dobbyn, John F.

Criminal Procedure Outline – Fall, 2006 – Dobbyn
I.                   The Bill of Rights
A.    Introduction: The first 10 amendments to the United States Constitution, commonly known as the Bill of Rights, include provisions limiting Congress’s power over criminal procedure. In particular:
1.      The Fourth Amendment: provides “[t]he 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 on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
2.      The Fifth Amendment: provides “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces…; nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law…”
3.      The Sixth Amendment: provides “[i]n all criminal prosecutions, the accused all enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. 
4.      The Eighth Amendment: provides “excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.”
B.     Selective Incorporation of the Bill of Rights: The Supreme Court has, over time, made many of the individual rights guaranteed by the Bill of Rights applicable to the states by reading the rights into the Due Process Clause of the Fourteenth Amendment, which, by its terms, is applicable to the states. However, a Supreme Court majority has never held that the Fourteenth Amendment “totally” incorporates all provisions of the Bill of rights and makes them fully applicable to the states. Instead, the majority position has been one of selective incorporation. In Duncan v. Louisiana, 391 U.S. 145 (1968), the court proclaimed that those portions of the Bill of Rights, “fundamental to our concept of ordered liberty” have been so incorporated.
1.      Fourth Amendment: The Supreme Court incorporated the 4th Amendment rights into the Due Process Clause of the 14th Amendment:
a.      The prohibition against unreasonable search and seizures [Wolf v. Colorado, 338 U.S. 25 (1949)]; and
b.      The exclusionary rule, which prohibits the use of items obtained as a result of an unreasonable search and seizure as evidence against a criminal defendant [Mapp v. Ohio, 367 U.S. 643 (1961)] 2.      Fifth Amendment: The Supreme Court has incorporated the following Fifth Amendment rights into the Due Process Clause of the Fourteenth Amendment:
a.      The bar against double jeopardy[Benton v. Maryland, 395 U.S. 784, (1969); and
b.      The privilege against self-incrimination [Malloy v. Hogan, 378 U.D. 1 (1964)].
3.      Sixth Amendment: The Supreme Court has incorporated the following Sixth Amendment Rights into the Due Process Clause of the 14th Amendment:
a.      The right to a jury trial [Duncan v. Louisania, supra];
b.      The right to a public trial [In re Oliver, 333 U.S. 257 (1948)];
c.       The right to a speedy trial [Klopfer v. North Carolina, 386 U.S. 213 (1967)];
d.      The right to confront witnesses [Pointer v. Texas, 380 U.S. 400 (1965)];
e.       The right to compulsory process to obtain witnesses [Washington v. Texas, 388 U.S. (1967)];
f.       The right to the assistance of an attorney in felony cases [Gideon v. Wainwright, 372 U.S. 14, (1967)]; and,
g.      The right to the assistance of an attorney in misdemeanor cases in which a prison term is imposed [Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979)]. 
4.      Eighth Amendment: The Supreme Court has held that the Eighth Amendment prohibition against cruel and unusual punishment has been incorporated into the Due Process Clause of the Fourteenth Amendment. [Robinson v. California, 370 U.S. 660 (1962)]  
II.                Privilege Against Self-Incrimination
A.    Constitutional Basis: The Fifth Amendment guarantees that “no person shall be compelled in any criminal case to be a witness against himself.” This privilege against self compulsory self-incrimination was applicable to the states in Malloy v. Hogan.
B.     Purpose of the Privilege: The privilege against compulsory self-incrimination has a three-fold purpose:
1.      Reliability: Compelled testimony that is self-incriminating is often the product of coercion and not a product of the defendant’s free will. For this reason, such compelled testimony may well be unreliable evidence. Confessions obtain by use of coercion were often made by the accused solely in the hope that to do so would end the interrogation. Under the threat of physical pain or terror, an innocent person might confess to any crime. 
2.      Avoidance of coercion: The bar against compelled self-incrimination is also a safeguard against the use of coercion or torture by government agents in efforts to secure confessions. Rationale: If the evidence obtained through methods constituting coercion will be excluded at trial, and as a result a guilty person might go free, government agents will be less likely to employ such methods. 
3.      Conformance with adversarial system: The privilege against self-incrimination reflects the fact that our legal system is adversarial, not inquistitorial, in nature. The accused is not expected to prove innocence; instead, the government must shoulder the burden of proving the defendant’s guilt in a court of law. 
C.    Who may assert the Privilege: Only natural person may assert the privilege, not corporations associations, or partnerships. The privilege is personal and can be asserted by a party only when her testimony will incriminate her; the Fifth Amendment does not protect an individual whose testimony will incriminate another. However, an attorney may assert the privilege for the benefit of a client.
D.    When Privilege May Be Asserted: The privilege can be asserted at any proceeding (e.g. criminal, civil, administrative) at which the government might compel incriminating testimony from the person asserting the privilege for use in a later prosecution. The privilege can be asserted ay any stage of the proceeding. (Does this include grand jury proceedings?) The privilege may be asserted even if the witness claims innocence, as long as the witness has cause to fear danger of prosecution from testifying. 
III.             Confessions
A.    Due Process “Voluntariness” Approach: Before a confession of guilt will be admitted into evidence, the trial judge must find that it was voluntarily made, as required by the Due Process Clause of the Fifth and Fourteenth Amendments. The test for voluntariness is whether “the confession [was] the product of an essentially free and unconstrained choice by its maker.” [Culombe v. Connecticut, 367 U.S. 568 (1961)] 1.      Purpose served by the requirement: Three distinct purposes are served by requiring the confession to have been voluntarily made: (i) the interest in trustworthy evidence, (ii) the preservation of individual freedom of choice, and (iii) the deterrence of unlawful police conduct. 
2.      Mere reliability insufficient: It is important to note, that given sufficiently e

tal Impairment: A person’s mental retardation alone does not make a statement inadmissible, but it may be considered in determining voluntariness. 
8)      Intoxication: The use of drugs or proof of addiction dos not per se render inadmissible a statement made under the influence. However, withdrawal symptoms, threats, or promises connected with withdrawal are factors that may lead to a decision that the statement was involuntary. 
e.        McNally-Mallory rule: In a series of cases before many of the recent major confession cases, the Supreme Court held that persons arrested in federal jurisdictions were to be brought before a judicial officer “as soon as possible” so that the authorities would not hold an accused merely in hope of extracting a confession. [McNabb v. United States, 318 U.S. 332, (1943)]. This rule was apparently based on the Federal Rules of Criminal Procedure. However, after Miranda, Congress attempted to eliminate the rule by stating that a confession “shall not be inadmissible solely because of delay in brining such person before a magistrate.” 18 U.S.C. §3501. This section was ruled unconstitutional in Dickerson v. U.S. 
f.       Harmless error test applies: In dicta, a majority of the Supreme Court held that the harmless error test should be applied to determine whether a conviction must be overturned because of the erroneous admission of a coerced confession. 
C.    Sixth Amendment Right to Counsel Approach: Even if a statement is admissible under the voluntariness test, it may still be excluded from trial if the taking of the statement violated the defendant’s Sixth Amendment right to counsel. Thus the right is violated if after adversary judicial proceedings have begun (e.g. after indictment), the police question the defendant outside the presence of counsel or without a valid waiver of the right to counsel. [Massiah v. U.S., 377 U.S. 201 (1964) – conversations overheard through a bug placed in defendant’s car were inadmissible because the government had intentionally elicited incriminating evidence after indictment and in the absence of counsel] 1.      When defendant not explicitly questioned: The Sixth Amendment right to counsel can be violated even if the defendant is not explicitly question, as long as the incriminating evidence was actively secured from the defendant without the presence of counsel.  The test is whether the government obtained incriminating statements by knowingly circumventing the accused’s right to counsel present in a confrontation between the accused and a government agent. [Maine v. Moulton, 474 U.S. 159 (1985)]. The key question is whether the government officers or agents “deliberately elicited” the incriminating statement from the suspect. [Rhode Island v. Innis, Fellers v. U.S., 124 S. Ct. 1029 (2004)] 2.      When defendant’s lawyer not present during interrogation: The courts look carefully at confessions obtained from defendants who have retained lawyers when the police do not allow the lawyer to assist in integration and are more likely to find the right to counsel has been violated.