CRIMINAL PROCEDURE
95% of Crim. Pro. cases deal with 1 of 5 constitutional amendments:
4th –arrest, search, and seizure.
5th –grand jury requirement doesn’t apply to the states, but the state’s Constitution may require it.
6th –right to trial, right to a public trial, right to an impartial jury, venue requirement (where crime occurred), notice of charges, Confrontation clause (criminal D has the right to cross all of prosecution’s witnesses).
8th –prohibition of excessive bail and fines; most 8th amendment matters involve cruel and unusual punishment.
14th –most important aspect of this is the due process clause for this course; also have the equal protection clause (can apply in criminal cases where race is used in prosecution of a case or jury selection).
I. The Nature and Scope of 14th Amendment Due Process and BOR Applicability to States
A. Fundamental Rights and Incorporation Theories
1. Fundamental Rights Theory—Palko v. Connecticut pg. 34
a. Facts. Palko gets a life sentence for 2nd degree murder. The state appealed, got to retry the case and he was convicted on 1st degree murder and was sentenced to death. Palko argues that this is double jeopardy. It could not have been tried again in a federal court, so Palko argues that the 14th Amendment incorporates the BOR.
b. Holding. The Court rejects this theory and states that if the D can appeal the case, then the state should be able to appeal for errors.
c. Fundamental fairness or ordered liberty gives justices an ad hoc way of deciding cases. Some are in, some are out.
d. Overruled. This case was overruled in 1961. Now, double jeopardy applies to the states through the 14th Amendment.
2. Incorporation Theory—Adamson v. California pg. 36
a. Facts. Adamson challenged the law in CA that prosecutors could comment on the D’s decision to stay silent. He said this violated his 5th Amendment right to avoid self-incrimination.
b. Holding. The Court could not see why a comment could not be made on his silence and said that it was not fundamentally unfair for D to choose between being impeached on the stand or not taking the stand and having the prosecutor comment on it.
c. J. Black’s Dissent set forth the Total Incorporation Plus. This doctrine states that all of the BOR apply to state proceedings plus those rights that are fundamentally fair. This is a distinct minority view.
d. Overruled. Griffin Rule—overruled Adamson and stated that no comment can be made regarding the D’s failure to testify b/c it violates the 5th Amendment. It can be harmless error but it also can be irreversible error.
3. Neo-Incorporation—even though a specific guarantee does apply to the states through the BOR, not all of the federal procedures are binding on the states.
B. Selective Incorporation (The Modern Approach)—Duncan v. Louisiana
of the case law on the 4th Amendment deals with the reasonableness clause.
a. U.S. v. Verdugo (1990) This is a case about the deportation of an illegal alien. The Court construed the word “people” in the 4th Amendment to mean “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” pg. 84 Understanding
b. You must show that there was a search and seizure before the 4th Amendment will apply. Further, it must be a gov’t conducted search or seizure.
c. Most jurisdictions say that an off-duty police officer’s search does not trigger the 4th Amendment.
d. Any state employee can trigger the 4th Amendment. It doesn’t have to be a police officer.
e. Burdeau (1921) Private detectives broke into Burdeau’s office and took his papers. This did not trigger the 4th Amendment b/c it was not a gov’t conducted search or seizure.
f. Definitions of “persons, houses, papers, and effects” are on pg. 90-91 in Understanding.
Judges give houses the most protection. A warrantless search of a house is presumptively unconstitutional. Not so when searching a person.
