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Criminal Procedure
Wayne State University Law School
Moran, David A.

A. Sources of Criminal Procedure Law

Provisions of the Constitution
State Constitutions: May add to the rights & privileges of the accused beyond provisions of federal Const, but cannot detract or take away from those fed const protections and rights
State & Federal Statutes: (state statutes applicable to state proceedings, fed to fed) Neither can violate Constitution, state statutes may not violate state constitution
Court Regulations: comes from supervisory power over the administration of criminal justice

B. Due Process Incorporation
– Originally applied to only to federal court, but 14th amendment (ratified 1868) due process clause extended these rights to apply to states:
§ 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
3 Functions of the 14th and 5th Amendment Due Process:

Incorporates almost all of the guarntees in the bill of rights to the states
Substantive Due Process (“shocking”)
Procedural Due Process – State can’t take your life, liberty or property without fair procedures such as imminate domain (just compensation before taking), notice, regularized reasonable procedures (important in confessions and witnesses)

Incorporation Doctrine
– Leads to selective incorporations of rights:
o Early cases – incorporated rights deemed to be fundamental/implicit in the concept of ordered liberty, so that w/o them, a fair and enlightened system of justice would be impossible (Palko 1937)
o Later cases – focus on the attributes of the actual crim justice system involved (i.e. whether given this anglo-american system a particular procedure is fundamental) (Duncan v. Louisiana [28] (1968) (holding that the 6th amend right to a jury trial was applicable to the states through the 14 amend, even though other criminal justice systems are imaginable that would be orderly, fair, and equitable even w/o juries) Harlan dissent p.31 – concerned that by doing jot for jot incorporation not raising state protection so much as lowering fed protection. Harlan hesitant about diluting ability of states to experiment, incorporate Bill of Rights into state law deters state from trying diff systems to protect rights
– All criminal rights are incorporated with the exception of inditments
Constitutional Amendments/Rights Incorporated:
1. 4th amendment: search & seizure & to have excluded from crim trials any evd illegally seized
2. 5th amendment: right against self incrimination & double jeopardy
3. 6th amendment: right to counsel, to speedy & public trial, to confrontation of opposing witnesses, compulsory process to obtain witnesses

Amendments that don’t apply to the states:
· 5th amendment Right to inditment, states do not need to hold grand juries to approve of felony charges
· 7th amendment right to a jury trial in a civil case does not apply to the states
· 2nd amendment right to bear arms
· 3rd amendment right not to quarter troops

Scope of Incorporation:
– OLD: each right was incorporated to the same extent as applied at the federal level.
– NEW: Baldwin v NY (6 person jury in state crim case does not violate 6A); Williams v FL; Apodaca v OR , (less-than-unanimous jury verdicts ok in state criminal trials)[30] (1970s). (But not in a nonunanimous 6 person jury for non-petty offenses) [32 fn.g]

C. Procedural Due Process: fair procedures must be followed
– Standard: Whether the state practice offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental. Medina v CA (1992) [37)
– e.g. Notice, Opportunity to be heard, Fair decision makers (-5th Amendment (fed), 14th Amendment (state)), identification procedures..
– can argue this on entrapment but it will lose.
– Fundamental unfairness means due process violation.

D. Substantive Due Process:
– Before 1950’s due process did not mean that the Bill of Rights was incorporated to apply to the states: Instead meant conduct that shocks the conscience
Bodily Extractions & the Incorporation Doctrine
– Forced Stomach Pumping: Rochin v. California (1952)– [33] Rochin suspected of selling drugs, cops see capsules on bedside table, R swallows them, they take him to hospital and forcibly induce vomiting, capsules produced are chief evidence for conviction. CA crts say no problem b/c that right not incorporated. May the police use forcible tactics to extract evd by pumping the stomach of the suspect? SCOTUS →
o “shock the conscience” test – If the methods of obtaining evidence “shock hardened sensibilites”, the evidence must be excluded under the DPC
o Coerced Confessions cannot be used as evidence: even if the statements are proven true by other evidence, bc such coercion offends the community’s sense of fair play and decency.
§ rule later specified, if force pumping of stomach illegal search but if already passed out is ok, if passed out can take blood, Irvine v. CA was distinguishable b/c in Rochin used force but here was no force even though no warrant, strange lines created by SC
o concurring – Black says cannot just use unclear ideas of due process, look at specific rights in Bill to ensure protection of individual liberty so 5th directly applies to state here; Douglas says if make rule turn on due process makes it turn on judges, instead if apply Amend standard to both state and fed then rights turn on Const
– Blood Samples: Schmerber v. U.S. (1966)[35]- Permited the state police to take a blood sample from an unconscious person at an automobile accident scene, or from an injured person over his objection to prove intoxication. Taking blood is not shocking. Good reasons for the police to do this bc evd would be lost. Looked at shock the conscience test including a consideration of the interest of society, and asked if it was an unreasonable search and seizure. Bound the 4th A to the states. Also looked to make sure that the 6th A right agains self-incrim wasn’t violated. So ask:
1. Does it violate any constitutional rights? (right against self-incrim; unreasonable search & seizure, ect); if no → ask
2. does it shock the conscience?
– Sacremento v Lewis [37] (1998)- Car chase. Not seized bc still fleeing, so 4th A not violated, then ask shock the conscience.

Exclusionary Rule

Judge-made doctrine that prohibits introduction of evd obtained in violation of a defendant’s Fourth, Fifth, and Sixth Amendment rights. Under the rule, illegally obtained evd is inadmissible at trial, and all “fruit of the poisonous tree” (ie evd obtained from exploitation of the illegally obtained evidence) must also be excluded.

Enforcing the exclusionary rule: A Δ is entitled to have the admissibility of evd or a confession decided as a matter of law by a judge out of the hearing of the jury. The Govt has the burden of establishing the admissibility by a preponderance of the evidence.

Suspect can still be tried: The illegally arrested Δ is not himself suppressible, but only evd not tainted by police misconduct can be used in the trial (US v Crews)

A. Fourth Amendment
– 4th Amend has no clause that illegally obtained evidence, crt has created this, but does guarantee in all areas no unreasonable searches or seizures so has reasonableness test
– When does the violation occur? At the time of search, not when evidence is introduced bc must have state action to have a 4th amend violation
– Policy: Exclusionary rule aimed at deterring police from committing illegal 4th Amend action. Not a remedy to make the victim whole, but a remedy to prevent future violations by the police
– Evidence illegally seized can’t be used in crt to support a conviction (Weeks v US (1914)
o Early rule: Wolf v. Colorado – exclusionary rule does not apply to states
o Modern rule: Mapp v. Ohio (1961)– Exclusionary rule applies to states (4th amend right to privacy) b/c nothing else really prevented cops from violating 4th; exclusionary rule only real way to deliver safeguards of 4th

Alternatives to exclusionary rule:
1. Private suits: If you can show the illegal search and seizure was part of the policy of the department, you can sue the government, but unless you can show violation of clearly established constitutional rules, the police officer has qualified immunity (otherwise they would always be sued).
(a) This might fail b/c governmental immunity or qualified immunity
(b) To do this you must show what they did was a policy or custom

A reaonably well trained police officer would know probable cause is lacking (objective test)

Information in affidavit is knowingly or recklessly false and is material (necessary to finding probable cause) (Franks v. Delaware)

Warrant clearly facially defective (doesn’t say where police can search or what items are to be seized)
Magistrate not neutral

– Key Point: Who made the error. Police in Grow wrote the warrant (evd suppressed), in Shepard the magistrate made the mistake & told the officer that the warrant said what he wanted it to say (evd not suppressed)
– Az v Evans: Pulled guy over, and saw there was a warrant out for him which was a clerical error not made by the police vs Whitely v WardenCannot rely on police radio that there is a warrant
– In wrong house cases, cts usually hold that the police should’ve done more to ensure they had the right house.
– Impeachment: Evd subject to the exclusionary rule can be introduced to impeach testimony, even if it has been otherwise excluded, but only against the defendant (not other witnesses)

The Scope of the Exclusionary Rules
A. “Standing” To Object to the Admission of Evd (or “The extent of a particular D’s rights under the Fourth Amendment”)

Generally: Only the person whose constitutional rights were violated (i.e. was “aggrieved”) can invoke the exclusionary rule and get Ch 7, # 2, 4evd suppressed.

A person may not challenge the search that violates the rights of another person (Alderman p.892)
A person may not challenge the search that violates the rights of a co-defendant or co-conspirator (Padilla)
It doesn’t matter if you point to constitutional violations or police mishaps if they did not violate your constitutional rights

Policy: Ct not convinced that the added benefits of expanding the scope of the E rule justifies further encroachment on public interest in prosecution

Who has standing to challenge Confessions:
– 6th amendment (Messiah violations); 5th amendment (Miranda); Involuntary DP Violations = only the person who is being interrogated in violation of one of these can get the confession suppressed.
· Also, another person’s confession will not be used against you; “Confrontation Clause” and Hearsay, only comes up when they testify at trial against you

Who has standing to challenge Identifications:
– 6th A Identification Violations = only person subjected to a live line up has standing
Wade – Conducting in absence of counsel is the violation
– DP Identification Violations = If you want to use a highly suggestive identification against a co-defendant (i.e. not against the person id’d but their co-defendant) Co-D’s argument: this violates my rights bc the use (not the proceeding itself) violates my rights when used against me.
DP – violation is the use of the suggestive id

Who has standing under the 4th amendment?

STANDING TEST = Katz Test: D must show (1) he personally has an EofP in the place searched; and (2) his E is reasonable, i.e., based in society expectations or concepts of real or personal property law) (Rakas p.896)

Standing depends on whether the challenged search or seizure violated the 4th A rights of the person challenging the intrusion seeking to exclude the evd obtained during it

Different than 4th A test: Standing limited to the particular D vs 4th A inquiry into did the police intrude upon anyone’s justified E