Criminal Procedure Outline – Lerner – Fall 2010
I. Preliminary Topics in Criminal Procedure:
· There are 3 topics we must first discuss:
o 1) What makes a Case Criminal or Civil
o 2) Incorporation of the Bill of Rights to States
o 3) Retroactivity of Supreme Court decisions
· 1. What Makes a Case Criminal
o It is not that the “burden of proof” is higher then that of a civil case, or that the penalty is jail time
o This may be similarly true of Civil Cases
§ Reasons for Wanting a Civil or Criminal Case
· Usually the ∆ will argue that it is in fact a criminal case
· Criminal Cases give certain benefits of constitution
o Right of Counsel
o 5th Amendment Privilege against self incrimination
o Higher Standard of Proof
o Right to Jury Trial
§ The 7th amendment has not been incorporated to states for civil trial
o Punishment differs
o Stigma is different
o Consequences of Felony Conviction
§ Gun Rights end, Voting rights end
o Legislatures Designation:
§ What makes a case criminal or civil then, is the designation of the legislature
§ When they say its criminal, they mean to invoke the criminal system for that sanction
§ View of Supreme Court:
· The Title of a case, however, is not dispositive, so the Court has come up with a test for evaluating if a case actually is Criminal or Civil
· United States v. L.O. Ward:
o F- The penalty for discharging hazardous waste within water was called a “civil” punishment, but challenged that it was criminal to gain benefits of constitution
o L.O. Ward Test:
§ 1) Determine Congress’s Intent to make Civil or Criminal
· How it is categorized
§ 2) Then Determine if the penalty is so punitive as to negate the categorization
· Only clearest proof will prove element #2
· Heavy presumption with legislatures designation
o Applied in:
o Civil Commitment of Sex Offenders
§ 1) Allen v. Illinois:
· Commitment proceedings, sending to Maximum Security Prison were not considered Criminal
· The 5th Amendment did not apply
· Strong Presumption worked, as Court relied on the label as “civil”
§ 2) Kansas v. Hendricks:
· F- Commitment statute was used to commit sexual predator immediately after the jail time was up. This was challenged under the a) Double Jepoardy Clause and the b) Ex Post Facto Clause (as it was passed after he was in jail)
· R-
o Thomas: Applying the L.O Ward test, the intention was civil
§ Based on placement in the books
§ Title
§ The clearest proof to negate was not used, as it was only used as evidence of a mental defect
§ Even if you weren’t convicted, you could be committed
§ Allowed for release on treatment working
§ So # 2, no punitive intention
o Sex Offender Registration:
§ These statutes, “Megan” statues, require convited sex-offenders to register with local authorities when they move, buy a house, and continue to do so forever periodically
§ Have been challenged under “Ex-Post-Facto” reasoning, that they were passed after peoples convictions
§ Smith v. Doe:
· Kennedy: Statues are Civil, and not criminal
o Hendricks, was used showing that restricting a dangerous individual is legitimate government purpose that isn’t punitive
o Didn’t have characteristics of Punishment:
§ Not physically restraining
§ Was not like “supervised” release or probation
§ Just had to let them know, and you were free to act
· Souter (Concur):
o Said the non and punitive benefits were balanced
§ Was located within the criminal code, called civil, had stigmatism of criminal punishment, and based on crime
o But because of strong presumption of intent, # 2 of L.O Ward test was not met
· Ginsburg (Dissent): Is Criminal
o Argued that this was same as supervised release/parole
o Said it was punitive because it applied to all people, no matter if they would even be dangerous in the future
o These people have no chance to end this either, no matter what they do
§ Punished indefinitely for crime that occurred and was punished for
§ Policy:
· The reason the Criminal/Civil question comes up a lot in Sexual Offender crimes is that they have high rate of recidivism and are politically charged. Highly legislated then, leads to many appeals
o Civil and Criminal Contempt Proceedings:
§ Civil Contempt: Fined or imprisoned, but can rid yourself of your own contempt by actions
§ Criminal Contempt: Court will assign a sentence or fine of fixed amount and duration no matter what you do
§ International Union v. Bagwell:
· F- Union violated injunction, and court levied $64M in fines for civil contempt. Π appealed arguing that this was a criminal punishment and because of which, their constitutional rights were violated because of a lack of jury trial
· R- Court held fines were criminal.
o Court was not punishing something that happened in its presence
o Court was policing out of court activity and fine was very serious amount, requiring a jury, acting as police during a many month violation of injunction
· 2. Incorporation of Bill of Rights to States
o Question of “Does the Bill of Rights bind the state?”
o Because of Incorporation, Criminal Procedure has turned from a rules based class into essentially a Constitutional Law Class
§ We almost exclusively focus on the Bill of Rights, and its criminal procedure aspects
§ Seen first in Powell v. Alabama, incorporating the 6th Amendment’s right to Counsel
o Historically:
§ Barron v. Baltimore (1833):
· Court concluded that the Bill of Rights only applied to the Federal Government
o Did not apply to the states
o Article 1 § 10 of constitution clearly stated what states were prohibited from
§ Because that specified states, BOR did not apply because it didn’t specify
§ 1860s à Post-Civil War Amendments Created
§ Twining v. NJ:
· Privilege against self-incrimination did not incorporate to states
§ Powell v. Alabama (1932):
· One of earliest incorporation cases, incorporating 6th amendment right to counsel through the 14th amendment due process clause
§ Palko v. Connecticut (1937):
· F- Connecicut that had a rule allowing prosecution to appeal verdict. This was contrary to the federal rule of “double jeopardy” but resembled European rule that allowed prosecution to appeal
· R- Identified the possibility of Bill of Rights incorporating through the 14th amendment
· Established rule that if BOR provision was “implicit in the concept of ordered liberty” à could incorporate
· But found that “Double Jeopardy” clause of America was not implicit in concept of ordered liberty, because other places, like Europe, were operating in ordered liberty fine without it
o Modern Incorporation Doctrine:
§ In 1960s, Warren Court shifted incorporation view
§ Currently, Black’s view of total incorporation has almost fully occurred, and essentially the entire BOR does incorporate to apply to states
· Grand Juryà Has not incorporated
· Excessive Bail Clauseà Has not incorporated
· 7th Amendment Right to Jury Trialà Has not Incorporated to Civil Trials
§ Duncan v. Louisiana (1968)
· WhiteàMajority:
o Testà while the court’s test has varied, a BOR provision incorporates if “It is Fundamental to the American Scheme of Justice”
§ Differs from Cardozo’s view in Palko, which looked at European models which were “ordered”
§ Idea here, was that our system, America’s system, was different in values, and even if something worked elsewhere like England, there were certain things fundamentals here
§ “Trial by Jury” appears in BOR and Art. III §2à its important to us, and fundamental to our American system
§ Thereforeà 6th amendment incorporates through 14th amendment to states
§ “Selective Incorporation Doctrine”
· Bring in BOR piece by piece
§ “Jot for Jot”
· Believes that if a BOR provision incorporates, it applies exactly the same to the Federal and State government
· Every Detail Equally Applies
· Black (Concur):
o Concurs, supporting this “selective incorporation” because at least it brings part of BOR to states, but believes in
o Total Incorporation:
§ Textualistà idea that the 14th P&I stands for the BOR, and was reasonable way to say it
· Originalist
· He was Senator, and believes in looking at congressional intent
o Historical in CI analysis shows that that is what is intended
o Fundamental Difference in View from Harlan
§ Believes in limited judicial discretion
§ By limiting what can be incorporated to BOR, disallows justices from finding new things to incorporate
§ Disagrees with Harlan’s approach, because it allows the Justices too much discretion in deciding what to incorporate, or think of new things within the idea of due process
o Federalism
§ As member of KKK, justice Black supports idea that Federal Gov shouldn’t interefere with states
§ By advocating TI, limited to BOR, it may increase federalism, by limiting possible judicial limits Harlan’s approach would put on states
· Harlan (dissent)
o Justices should gradually Include: While agrees TI is consistent, thinks that Justices should gradually include based on justice’s interpretation of what due process and liberty mean within the 14th amendment.
§ Judicial Discretion to determine what may be
o Allow what is Far: Letting states experiment is beneficialà Like Connecticut’s prosecutory appeal
§ Advocates idea of evaluating the fundamental “fairness” of the state’s process, and if it is fairà its ok
o Text Does not mean BOR:
§ Text does not incorporate
§ Uses Law Review article to find intent of congress and argues that if it wanted to incorporate BOR, the P&I clause is a funny way of doing so
· 3. Retroactivity
o At what point does a new Supreme Court Rule Apply in a case?
§ Who Gets the benefit?
o Based on Direct and Collateral Review
§ Direct Review:
· Everything before filing of certiorarià Direct Review
§ Collateral Review
· Once Direct Review has been exhausted à Collateral Review / Habeus Corpus
o Process: begin in trial courtàAppealsà Highest (State or Fed)
· Collateral Review Is Limitedà Does not allow case to be redone
o Rule of Retroactivity:
§ Everyone on direct review gets the benefit of the new rule of Supreme Court
· EG: convicted, appeals and files for cert and while cert petition is petition is pending new rule comes down, you get the benefit
§ No One on Collateral Review gets the benefit
· Unless (2 narrow exceptionsà Teague v. Lane (O’Connor)):
o 1) Rule places primary conduct regulated beyond the power of the government to prescribe
§ EG:1st amendment protects what you were convicted of
o 2) Without the procedure in new rule, there would be serious problems with determining guilt or innocence
§ What is a “ New Rule” à Something that reasonable minds would disagree on the outcome of
§ Why did O’Connor Limit Exceptions to Retroactivity?
· 1) Finalityà We want criminal convictions to be finalized
o costs are high if they are not
o if we are very retroactive, the less likely it is the Supreme Court will make new rules
· 2) Comityà We need to respect state courts
II. The 4th Amendment:
“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable search 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 persons or things seized”
· Basics
o Begin by analyzing the text of the amendment
o 1) “The People”
§ the amendment makes it seem as though it was meant to apply to all people, regulating their conductà Supreme Court has narrowly construed, however
§ What People are they Talking about?
· U.S. v. Verdugo-Urquidez
o F- Mexican citizen, non-us resident was arrested by Mexican police in mexico, and transported to US. Then, US officials searched his home in mexico
o R-
§ Court saidà 4th amendment does not protect abroad, non-citizen outside of US
§ “People” was intended to be part of Nation, connected to this country
· Illegal Aliens within US
o While not explicitly decided, 5 justices indicated that the 4th amendment would apply in this case
§ The “connection” would be sufficient, because within country
o Post 9/11, however, presents many questions of the unknown
o 2) Made up of 2 Clauses
§ a) The Reasonableness Requirement
· prohibits “unreasonable search and seizure”
§ b) Warrant Clause
§ Both, however, have been read together
§ All searches and seizures without a warrant are presumed unreasonable
· There are exceptions
o When soà must only be reasonable, or only have probable cause
o The Text and Exclusion Rule
§ The 4th amendment has substance but has no remedy
§ Court has imputed the remedy as à Exclusion of evidence acquired without compliance
· However, the fear that evidence will be excluded has effected the interpretation of the amendment, making it somewhat far reaching
· Therefore, the scope of the rule is changed
· What is a Search and or Seizure?
o The 4th amendment only regulates unreasonable search & seizure
§ Therefore, if activity constitutes neitherà 4th amendment does not apply
§ Government then does not have any restrictions to act reasonably
§ A Search or seizure is presumptively unreasonable, unless a warrant has issued
o Search and Katz v. United States:
§ F- Person in phone booth was convicted of 8 counts of transferring wagering information over the phone. FBI used wire tapping device to listen to his conversation but did not have a warrant
§ R-
· Majority:
o 1) Cleared idea that the 4th amendment was not restricted to tangible things
§ Does not only apply to physical intrusion