Crim Pro Outline
1. Introduction (Incorporation)
a. Analytical approach
i. US Constitution
1. This applies in federal cases
2. Incorporation: which State cases are going to be under federal law
ii. State Constitution(s)
1. Ex: PA Constitution: PA criminal cases are governed by the PA Constitution
2. Does NOT apply in Federal Court
a. Need to see which jurisdiction has the case
iii. US Statutes
1. Applies to federal cases
2. COULD apply to state cases; it depends
iv. Hypo: Your client robs a federally insured bank in PA and is prosecuted in federal court by the FBI, does the PA Const apply – No, b/c it is a federal case; federal law is supreme to state law
2. Incorporation Doctrine
a. History of US Constitutional amendments in state cases: Incorporation
i. Founding Period
1. Constitution gets ratified; part of the deal was to have a Bill of Rights (first 10 A’s). These provisions only apply in federal cases is what comes out early on (i.e. Const only applies in federal cases)
ii. Civil War Period
1. Changed everything; under 14th A 3 big rights are given to people against the states: Privilege and Immunity clause, DPC, etc
iii. Modern Era
1. All due process protects are things that shock the conscious of the court
b. Approaches
i. Fundamental Fairness (Palko case): “Implicit in the concept of ordered liberty” – US DPC is going to protect people in the states where the right is implicit in the concept of ordered liberty
ii. Total Incorporation – BOR provisions apply to states as they apply to the federal gov’t
1. These justices take the view that the provisions in the BOR in the US Const shall apply to the states
2. US and Federal cases are treated the same
3. This view has never gotten the view of a majority on the SC
c. Common Law: Duncan
i. Facts: Duncan is a black man who is involved in a fight w/ white men; he is charged w/ assault and his attorney says he wants a jury trial and the judge says we don’t give jury trials for assault cases
ii. Issue: Does the 6th A right to a jury trial apply to state cases
1. Holding: yes, it does apply to state cases
iii. Incorporation views (how to apply US Const law in a state case)
1. Majority: Selective
a. Right to a jury trial should apply to state criminal cases because, according to the majority, it is a fundamental right. It is fundamental b/c it is fundamental to an American scheme of justice
b. Example
i. Protection against forcing to testify against yourself
1. This is fundamental b/c there is a HISTORY of it
c. Being in the BOR it is EVIDENCE of the intent of defining it as fundamental; the fact that something is written in the BOR it is seen as fundamental to our scheme of ordered justice
d. In sum: the fact that something is in the BOR is not in and of itself enough to be incorporated but it gets it a long way there (to being incorporated)
2. Selective incorporation says, in theory, it is great that it is in there but we need to show that it is fundamental to the scheme of American justice
a. Selective incorporation is the RULE/Law – (right to a jury trial is incorporated) (could argue that total incorporation won the war)
3. Black: Total Incorporation
a. Hypo with D demanding an English attorney – Black would say he could use that attorney b/c if it is in the BOR it applies to the states; Under this, Federal and State cases are the same
4. Harlan: No Incorporation
a. He believes incorporation is wrong, wrong law, wrong federalism
b. His view: “In” only if necessary for fundamental fairness
d. Flow chart
i. Facts of the case violate one of BOR
1. Federal case: that is a constitutional violation
2. State case: is that part of the BOR incorporated by the 14th A DPC?
a. If so, that is a constitutional violation
e. State constitutional protections
i. State Const may give more protection that the US Const gives; US Const provisions are minimum standards; states can give more
1. Where: own state constitutions; rules of evidence; statutes
f. Recap on page 18
i. Hypo: Police arrest a person and put him in a cell; person says he has a constitutional right to a phone call – this is not in the BOR however, the person has a legitimate argument to phone an attorney (they could want to call your family), would could find this in fundamental fairness for our justice; fundamental fairness can get in through the “plus”
3. Right to Counsel
a. Early history
i. 6th A is enacted; in England only people charged with small crimes could have lawyers (K, property), in the criminal law you could do it for petty offenses
ii. Developed quickly by statute; this is an example of the gov’t giving greater rights than the Const required; fed system, from the beginning, they said counsel will be appointed for a capital case (something punishable by death)
iii. Then developed a practice they were appointing atty’s for people that couldn’t appoint them
iv. Stays this way until 1930’s before the courts are really deciding what to do
b. Cases
i. Johnson v. Zerbst: what it takes for a D to waive his or her rights; in all federal cases in which someone can be deprived of liberty they are entitled to have an appointing of an atty if they can’t afford one
ii. Powell v. Alabama
1. Facts: about 6 black youthful people who were accused of raping two white women; they were convicted and sentenced to death
2. When it reaches the SC due process claim that really includes 6th A content
a. So even though they had lawyers the argument is they had ineffective assistance of counsel
b. Court sees that this DOES NOT satisfy due process
3. Courts conclusion (2)
a. Denial of due process for not given reasonable time and opportunity to secure counsel in their defense
i. 14th A DPC was violated
b. It is a violation to not give them court appointed/paid for atty’s; court found that they were not afforded the right of counsel in any substantial sense
c. Critical factor of this case: early example of TOTALITY OF THE CIRCUMSTANCES
i. No one fact is critical, it is the totality
4. This case left open of WHEN do they have to provide a layer
. Fourth Amendment
a. Text: The right of the people to be secure in their persons, houses, papers, and 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 persons or things to be seized
i. Who: person’s who are part of a national community, or connected
1. Examples: US citizens, non-citizens who reside here
2. Notion is it just says people
a. 14th A says citizens and all persons born or naturalized AND persons; same A used the word citizens here as well
3. Hypo: criminal hiding proceeds in villa in France, can the US go and search w/ the constraints of the 4th A: we can to go and check since it is the person we are following/searching
4. Illegal alien who has rights under the 4th A – suppose your client is someone who overstays a student Visa, what argument can you make that they have 4th A rights:
a. Still connected to the country since they lived here and went to school here; they were protected by the laws when they were here for 4 years; do they lose their “people” status when their Visa runs out (no, they don’t)
5. Hypo: what if someone just crosses the border illegally
a. Once they are here for long enough to develop connections, even w/o documentation, we sort of accept them into the nation
ii. What: what rights are guaranteed by the 4th A
1. Unreasonable searches and seizures (A lot is protected)
a. People have the right to be secure in persons, houses, paper, or effect
i. Houses: dwelling, will have to make arguments for certain things (such as this law school building)
ii. Papers: this could be outdated and we made need to think of what this represents today
iii. Effects: personal belongings/stuff (car, laptop, etc)
2. Warrant
3. Two main clauses
a. Reasonableness: seems to apply to all searches and seizures
b. Warrant: presumably applies only to warrants, to make searches reasonable (except in a few cases)
i. All searches have to be reasonable and need a warrant
b. Key terms
i. Unreasonable
ii. Probably cause: minimum of what you need to show to get a warrant
iii. Missing term: Remedy
1. Evidence that could be excluded; if it is legal search/seizure the evidence can be used in trial
