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



· 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)

· 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)

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

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


“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.


· 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)