I. criminal procedure overview 3


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1. The Text

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2. Due Process

Constitutional hook & historical phases

  • The 4th and 5th Amends were initially intended to only apply to the federal government, but following the 14th Amend (in 1868), the SC has over time applied the Bill of Rights to states by virtue of the “Due Process Clause” (see Mapp v. Ohio)

  • There are 3 phases of criminal procedure (CB p.82): The first phase was from 1776 (independence)-1868 (passage of the 14th Amend) and during this phase there was very little criminal procedure as the criminal justice system was just beginning and police forces didn’t exist as we know it (instead the government relied on private citizens to help enforce the law). The second phase was from 1868-1960s when courts began to define limits on criminal procedure following the passage of the Due Process Clause, however the limits were vague due to the difficulties interpreting what “due process” actually meant. The third phase was from the 1960s-present, which saw major reforms under the Warren SC which relied not on “due process” (which was impossible to define) but instead on the Bill of Rights (which contained more specific guarantees)

What does “due process” actually mean?

  • Rule of law: Signifies the constraint of arbitrariness in the exercise of government power. Criminal punishment is according to the law, no special rules for particular cases or persons (CBp.89)

  • Accuracy and race: Due process should ensure accurate procedures to prevent the conviction of innocents (CB p.94)

  • Fundamental Fairness: (see below) (CB p.95)

  • Incorporation of the Bill of Rights: That “due process” should incorporate the BoRs (CB p.91)

How has the SC applied the Due Process Clause?

The SC has adopted 3 approaches over the years to give effect to the Due Process Clause:

  • 1. Fundamental Fairness: The first approach adopted by the SC, effectively a rubric for the body of precedent that takes a holistic look at whether the result is “fundamentally unfair” by looking at the “totality of circumstances” → this is a flexible approach but also vague which presents problems in its coherency → it looks at the nature of the defendant (i.e. did they go to law school or have special skills/knowledge, how complex were the proceedings? etc.)

  • 2. Total Incorporation: This approach states that all of the first 8 Amendments of the Bill of Rights (BOR) are incorporated into the Due Process Clause → therefore if there is a violation of one of those Amends then there is a breach of due process under the 14th Amend (based on Congressional debates). But this approach never prevailed because of practical difficulties (i.e. the requirement for a grand jury under the 5th Amend and the 7th Amend which required jury trials where the value is over $20)

  • 3. Selective Incorporation: This is the current approach adopted by the SC → it represents a pragmatic compromise → only selective parts of the first 8 Amends are incorporated into the Due Process Clause (i.e. double jeopardy is incorporated under the 5th Amed, but not grand juries).

  • Prof: There is no historical, textual or logical basis for this selective incorporation approach → it is a purely pragmatic compromise by the SC in the absence of any textual basis (even by conservative justices like Scalia)



1. The 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.
Two key roles of the 4th Amend (CB p.337)

  • Privacy: 4th Amend is the chief source of privacy protection under the law (i.e sanctity of a man’s home – historical opposition to tyrannical abuses of government power under King George)

  • Regulation of police: It regulates the conduct of government actors (especially law enforcement)

Summary of key principles

  • Only “unreasonable” searches are prohibited

  • Generally speaking, a search is “unreasonable” without probable cause and a warrant

  • The exclusionary rule will apply to suppress evidence in violation of 4th Amend (Mapp v Ohio)

  • If it is not a “search” or a “seizure”, then not restricted by the 4th Amend

  • Textual argument that 4th Amend only applies to tangible things – i.e. a “person, house, paper or effect” → but this has been rejected (per Silverman & Katz which applied to oral conversations)

Doctrinal criteria that the SC uses to guide its interpretation of the 4th Amend:

  • Text of the Constitution itself

  • History and original intention of the Framers

  • Establishment of clear rules to ensure consistency in application

  • Flexibility to adapt to changing standards

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upload documents -> Fed Courts Outline: 26 Pages

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