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


Selective Incorporation:
TEST: Is the procedural safeguard at issue fundamental to the American scheme of justice or necessary to the American criminal process?
14th Amendment incorporates rights (from the Bill of Rights) that are “so rooted in the traditions and rights as to be ranked as “fundamental”
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

Palko v. Connecticut

Fundamental rights approach holds that the fact that a particular criminal procedure is prohibited by the BoR does not necessarily mean that the 14th prohibits its use by the states
14th Amendment requires only that the states apply those procedures that are implicit in the concept of ordered liberty

Adamson v. California

Cali law permits the prosecution to comment upon the D’s failure to testify; D says it violates his self-incrimination
Court finds a way to incorporate the self-incrimination clause in the 5th Amendment into the 14th Amendment and they do that through due process

Duncan v. Louisiana:

Made the right to a jury trial applicable to the states through the 14th amendment; incorporates the 6th Amendment into the 14th– the right is available in all “serious” offenses
Right to a jury is fundamental to the scheme of justice

Teague v. Lane
A “new rule” of criminal procedure is NOT retroactively applicable on collateral review (meaning habeas review) UNLESS it meets 1 of 2 exceptions:
(1) it changes the legal status of the defendant; d cannot be subjected to the punishment that was already proscribed
(2) you can apply the new rule if it is a “watershed” rule of procedure that bears on the accuracy on the truth binding process

Danforth v. Minnesota

RULE: Retroactivity rule only applies to federal collateral rule; States are free to give retroactive effect if they want but they do not have to


“the right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

No textually proscribed remedy in the 4th for unreasonable search and seizures – SC carved out a remedy à EXCLUSIONARY RULE (Mapp v. Ohio)
All evidence obtained in violation of the 4th amendment must be excluded from defendant’s trial whether defendant is in federal or state court
Justifications for Exclusionary Rule:
Police Deterrence Remedy
Judicial Integrity

Mapp v. Ohio

Officers found obscene materials in home – they were not there to look for that evidence they found but rather to find a suspect of a bombing that was believed to be hiding out in that house
Incorporates exclusionary rule to state courts
Right of privacy is implicated by an unreasonable search and seizure and the right of privacy is basic to a free society

hey are found by lawful means and unrelated to original taint; cannot have a casual link
(2) Inevitable Discovery
Evidence would have inevitably been discovered by lawful means and unconnected to original taint; established by preponderance of the evidence
(3) Attenuation
If the seizure of the derivative evidence is too attenuated from the initial illegality, then it is admissible
Factors to determine if there is attenuation:
Temporal Proximity: If there is a substantial lapse of time b/w the initial illegality and the subsequent discovery
Intervening Cause
Flagrancy/Purpose of Police Misconduct
Effect on Defendant of Initial illegality


Katz v. United States: [what constitutes a search]

D was convicted of illegally transmitting wagering information via telephone
Admitted into evidence were recordings of his conversations made by a device attached to the outside of a telephone booth by FBI agents
Unauthorized electronic eavesdropping is an illegal search and seizure
What a person knowingly exposes to the public is not protected by the 4th amendment
4th Amendment protects privacy rights and protects PEOPLE not PLACES
4th Amendment is implicated when (Privacy Rule):
(1) there must be an actual subjective expectation of privacy
(2) that society is prepared to recognize as reasonable (objective