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Criminal Procedure
Wayne State University Law School
Broughton, J. Richard

CRIMINAL PROCEDURE OUTLINE

HISTORY OF INCORPORATION (3 approaches)

· 1.) FUNDAMENTAL RIGHT/ORDERED LIBERTY APPROACH (pre-1960) à if a particular criminal procedure is prohibited by Bill of Rights – not necessarily prohibited in state courts
· But – a procedure may violate fundamental fairness – even if not specifically prohibited by Bill of Rights (separate inquiries)
· SELECTIVE INCORPORATION PLUS?

· Palko v. Connecticut à Only procedures that apply to states = 1.) “Implicit in the order of liberty”, or 2.) “So rooted in the traditions and conscience of our people as to be ranked fundamental” (Cardozo)
· Determine = Does procedure subject D to hardship so shocking that our policy’s will not endure it? à Double Jeopardy = NO

· Adamson v. California: applying fundamental fairness approach
· Statute allowed prosecution to comments on D’s failure to testify – imply guilt
· D argued that commenting violated his 5th amendment privilege against self- incrimination, 5th

· RULE: Difference btw compelling someone to testify & commenting of their silence à no fundamental unfairness in trial, no constitutional violation
· Frankfurter, Concurrence à NO INCORPORATION

INCORPORATION DOCTRINE (No incorporation + 3 approaches)

· 1.) NO INCORPORATION – Frankfurter (Concurrence in Palko)
o Bill of Rights = separate from 14th amendment interpretation
o Natural-law-like tests à “Does the state’s action shock the conscience?” or “Is the state’s action inconsistent with our concept of ordered liberty”? (Case-by-case approach)

· 2.) TOTAL INCORPORATION
o All rights enumerated in Bill of Rights are incorporated into 14th amendment – apply to states
§ Black, Duncan dissent – Fundamental Rights not enumerated = aren’t incorporated
o Determine = whether it would violate an enumerated right – if yes, 14th incorporates

· 3.) TOTAL INCORPOATION PLUS
o Murphy, Adamson dissent & Douglas à state gov’t. Must respect every procedural right that fed. Does – whether or not it is enumerated in Bill of Rights
o Determine = 1.) Enumerated right or 2.) Whether a fundamental right falling into 5th amendment general due process clause was at stake

· 3.) SELECTIVE INCORPORATION (1960 – modern): 14th incorporates certain fundamental provisions, but not others
o Duncan v. Louisiana, White: whether asserted right is fundamental to the overall scheme of justice
· Incorporated right to a jury trial to apply to the states through the 14th amendment – the right is available in all “serious” offenses

§ TEST: Is the procedural safeguard at issue fundamental to the American scheme of justice or necessary to the American criminal process?
· If any aspect of a right is found so necessary to fundamental fairness that it applies to states à then all aspects of that right apply (scope = same as federal courts)
o Rehnquist à Not all aspects should be incorporated
§ 14th Amendment incorporates rights (from the Bill of Rights) that are “so rooted in the traditions and rights as to be ranked as “fundamental”
o Due Process clause of the Constitution protects these rights and makes them applicable to the states
§ All of the Bill of Rights has been applied to the states except for the right to a grand jury indictment and the right to be free of excessive bail
§ Determine = whether any aspect of a right was so important that it should apply to states – if yes, every part of that right is incorporated

DOCTRINE OF RETROACTIVITY à Bears on the “federalism” question
o General Rule – Teague v. Lane à New rule of criminal procedure is not retroactively applicable on collateral review unless it meets one of the two exceptions – but only applies to federal courts
§ If falls in an exception = Applies to future cases, cases pending on direct review, federal habeas corpus proceedings (collateral attack)
§ Rulings – not an exception = Future cases, pending on direct review – not federal collateral attack on state conviction
o EXCEPTIONS à Court has never found new rule to satisfy 2nd (maybe Gideon)
§ Exception 1: Changes legal status of a defendant – making a new substantive rule that places D’s conduct beyond criminal law-making authority to forbid
§ Exception 2: Apply new rule if it is a watershed rule of procedure that bears of the accuracy of the truth-finding process
· Not only improve accuracy
· But – also alter understanding of the bedrock procedural elements essential to fairness of a proceeding

o Danforth v. Minnesota à scope of Teague
§ State courts are not required to recognize Teague constraints, but are not prohibited from doing so – may or may not apply federal retroactivity doctrine
§ Teague Rule à Only applies to federal habeas corpus petitions reviewing state court criminal convictions

PROTECTIONS OF THE FOURTH AMENDMENT:

“The right of the people to be secure in their persons, houses, papers, effects, against unreasonable

privacy in garbage let outside of someone’s home
· Aerial Surveillance Rule: the government can conduct non-sense enhanced/ can be obtained from the naked eye aerial surveillance in public navigable airspace
· US v. Karo: (Electronic beepers) installation of a tracking device/beeper does not violate the 4th amendment but if monitoring the beeper reveals information that could not have been obtained through visual surveillance then there is a 4th amendment search

· US v. Kyllo: (heat sensing) any physical intrusion into the home is a search within the context of the 4th amendment; there is a firm line drawn at the entrance of the house
o Thermal imaging = 4th amendment search

· United States v. White: (PLAIN FALSE FRIENDS DOCTRINE – no expectation of privacy in a conversation) no 4th amendment search if a government agent acting as a friend listens to and reports or records incriminating statements
· Also applies where “false friend” wears a “wire” to record the conversation with defendant

· Zurcher v. Stanford Daily: mere evidence can be searched for and seized on the premises of an innocent 3d party – as well as fruits and instrumentalities of a crime

§ SEIZURE: police are authorized to seize any item (whether or not it is described in warrant) if:
· (1) They discover the item while searching a place that they have the authority to search;
· (2) The item is located in such area; and
· (3) They have probable cause to believe the item is subject to seizure.

PROBABLE CAUSE

· RULE: when – based upon the totality of the facts & circumstances within the officer’s knowledge and the facts and circumstances are reasonably trustworthy and those facts and circumstances would cause a reasonable person to believe that either a crime has been committed and the person arrested has committed a crime or in a search where a specific item will be found in the place that is to be searched (reasonable inference)

WARRANT REQUIREMENTS: