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


4 Topics – Limits on Police Power:
(1) Entrapment
(2) Search & Seizure
(3) Confession Law
(4) Identification (of criminals)
è What evidence gets excluded if these doctrines are violated?


4th Amendment – Right against Unlawful Searches & Seizures
5th Amendment – Self-Incrimination Clause
6th Amendment – Right to Counsel

Who were these provisions initially intended to limit?
· Federal government
· So, why now do we apply them also to state governments?
o 14th Amendmentà Under the Due Process Clause, the Bill of Rights also apply to state government
§ “Nor shall any State deprive any person of life, liberty, or property without due process of law.”

What is DUE PROCESS??? èAny of the rights granted by the Bill of Rights

Bill of Rights: First eight amendments to the Constitution of the United States. The states are bound to follow these rules based on the Due Process Clause of the Fourteenth Amendment.
Two exceptions:
1) Right to indictment by a grand jury
2) Right to reasonable bail.

14th Amend. incorporates Bill of Rights against the States
ð Selective Incorporation- the 14th Amendment does not necessarily incorporate ALL of the Bill of Rights against the States (ex – grand jury indictment) – Court has slowly interpreted each right to determine if incorporated against the States or not


Facts: Police raided man’s house; he swallowed the 2 pills of morphine by his bed; Police forced him to get stomach pumped

Holding: Court found that the police action was a violation of Due Process è Action here “Shocks the Conscience”

Shocks The Conscience Test:

1. Shocks the conscience” test: Due process requires evidence to be obtained in a manner that does not offend one’s “sense of justice”.

2. Body searches invoke privacy rights and their “reasonableness” requires a balancing between the public’s need for the evidence against the gravity of the invasions.

At this point, Due Process for the States meant 2 things:
(1) Selective incorporation of the Bill of Rights
(2) Right against “Shockingly Offensive” State Conduct [Substantive Due Process]

Note – under that 2nd prong, even if the police conduct does not violate a particular amendment of the Bill of Rights, it is still unlawful if it “shocks the conscience”



Drawing his blood was not a violation of Due Process
Court asked: 1) Did the police conduct violate the Bill of Rights?
§ Specifically asking, did the police violate the defendant’s rights under the 4th Amend, as incorporated against the states, the 5th Amend, as incorporated against the states, etc.
§ [Court found no] o Nonetheless, was the police conduct “shockingly offensive” [Court found no]

NOTE – NOW, the Court today is “SHOCKED” by VERY LITTLE

Today, Due Process means 3 things:

(1) Selective incorporation of the Bill of Rights
(2) Right against “Shockingly Offensive” State Conduct [Substantive Due Process] (3) Fair Procedures [Procedural Due Process]

ð Know that the Due Process Clause serves the above 3 functions
ð Focus in particular on the 1st function – especially with respect to the 4th, 5th, and 6th Amendments



Facts: Russell (D) contended his conviction for narcotics manufacture should be overturned because the arresting officer’s supplying of an essential ingredient in the illegal manufacture of methamphetamines constituted entrapment.

Rule: Entrapment as a defense requires a showing the defendant was not predisposed to committing the offense.
Issue: Does a defense of entrapment require evidence of an absence of predi

b. Sorrells v. United States, 287 U.S. 435 (1932). A defendant need not be completely law-abiding in order to assert a defense of entrapment; a history of or predisposition to engage in unlawful activity unrelated to the crime at issue does not preclude the defense.

(2) Government Involvement Test –
a. Objective standard focuses on police conduct rather than the predisposition of the defendant. Under the objective test, the court considers the likely impact of the police solicitation on a hypothetical innocent person, not the actual defendant. The “hypothetical person” standard may take into account some of the characteristics of the actual defendant.
b. Model Penal Code § 2.13(2) provides that the entrapment defense should be submitted to a judge rather than to jury.

MINORITY APPROACH (objective approach)
· Focuses on GOVERNMENT involvement in the criminal enterprise at issue.
· Key weakness of this approach: can allow a guilty defendant escape conviction.

MAJORITY APPROACH (subjective approach)
· Focuses on defendant predisposition to commit crime(s) at issue.
· Key weakness of this approach: accepts bad police conduct in many cases.


Russell clearly loses based upon the Pre-Disposition Test [he was involved in the illegal activity before and after government involvement & actually admitted “predisposition”] so he urged the Court to adopt a NEW TEST à Government Involvement

Application of PreDisposition Test:
ð Main Reason that Entrapment Defense FAILS = “he did it” (difficult to outweigh that)