Criminal Procedure: Theory and Practice, Second Edition by Jefferson L. Ingram

1. Criminal Procedure: Theory and Practice, Second EditionbyJefferson L. Ingram Chapter 1: The Constitution and the Bill of Rights: The Source of Protections for the Accused

2. 1. Constitutional Basis of Rights for Persons Accused of Crime • Political philosophers suggested: a government must be fundamentally fair to its people. • States wrote new constitutions after the Revolution.

3. 1. Constitutional Basis of Rights for Persons Accused of Crime (cont.) • After American Revolution: continued fear of a strong central government in the United States. • Result: creation of a weak central government under the Articles of Confederation.

4. 1. Constitutional Basis of Rights for Persons Accused of Crime (cont.) • Fear of a strong central government: mandated Bill of Rights. • Purpose: assure continued rights of Englishmen under the new national government.

5. 2. Articles of Confederation • After 1776: States developed individual constitutions. • Continental Congress: Promoted a written constitution for national government. • Challenges: Large states demanded more influence; small states feared domination by larger states.

6. 2. Articles of Confederation (cont.) • Articles weak form of government. • Challenge of the Articles: • No central control over commerce. • No mandatory national taxation powers. • Weak Articles suggested: • A new form of government.

7. 3. The Constitution: Revision in National Government • Delegates assembled in Philadelphia in 1787. • Delegate compromises: A new document, the Constitution of the United States. • Granted power over interstate and foreign commerce to national government. • Resolved representation issues among the large and small states.

8. 3. The Constitution: Revision in National Government (cont.) • Created a two house Congress: a Senate and a House of Representatives. • Representation in House: Based on population.

9. 3. The Constitution: Revision in National Government (cont.) • Proposed government: three equal branches, the legislative, the executive, and the judicial. • New Constitution: submitted to state conventions for ratification or rejection.

10. 4. The Constitution: Challenges to Ratification • Diversity of Opinion on Proposal: • Concern: political organization. • Concern: economic matters. • Ratification by nine state conventions necessary to approve.

11. 4. The Constitution: Challenges to Ratification (cont.) • Arguments against ratification of Constitution: • Contained no Bill of Rights. • Sacrificed state sovereignty. • Had taxing power over states. • Might favor one section over another.

12. 4. The Constitution: Challenges to Ratification (cont.) • Massachusetts ratified: wanted changes. • Other state conventions ratified: wanted a Bill of Rights added by First Congress. • Congress under the Articles accepted the new governing document.

13. 5. Rationale and Need for the Bill of Rights • One argument: Bill of Rights necessary because enumerated rights are clear to all. • Contrary position: listed rights implied they were the only ones existent. • Overall Concern: list of rights necessary to limit the federal encroachment of rights.

14. 6. History of the Bill of Rights • Bill of Rights (1791): Equal footing with the original Constitution of the United States. • Amendments: Placed restraints on the powers of the federal government. • Following the ratification of the Fourteenth Amendment: Arguments suggested: Bill of Rights or parts of it should apply to limit state governments.

15. 6. History of the Bill of Rights(cont.) • The Slaughter-House Cases (1873): Supreme Court determined: 14th Amendment not intended to alter the rights of states. • Gitlow v. New York (1925), the Court assumed that freedom of speech and of the press was guaranteed against state encroachment under the due process.

16. 7. Constitutional Developments: The Civil War Era • In 1861, eleven states seceded forming the Confederate States of America. • Sparked civil war and created a constitutional crisis. • One theory: the seceded states were considered “dead” states. • States were just out of their usual relationship with the federal government.

17. 7. Constitutional Developments: Civil War Era (cont.) • To rejoin Union, seceded states forced to ratify the Thirteenth, Fourteenth, and Fifteenth Amendments. • After Gitlow v. New York (1925), selective incorporation doctrine brought Bill of Rights into the due process clause of the Fourteenth Amendment.

18. 8. Constitutional Developments: Thirteenth Amendment • The Thirteenth Amendment (1865) abolished slavery within all states. • Achieved Lincoln’s primary war aim. • Exceptions to Thirteenth Amedment: • Punishment for crime. • Holding people as material witness. • Drafting men into the armed services.

19. 9. Constitutional Developments: Fourteenth Amendment • Fourteenth Amendment: Protected new rights of former slaves. • Fifth Amendment’s due process clause: Added to guarantees of the Fourteenth Amendment. • Due Process Clause, later interpreted to offer: • the right to be free from unreasonable searches. • right to a trial by jury. • protection against double jeopardy. • right to counsel. • right to a speedy and public trial.

20. 10. Constitutional Developments: Fifteenth Amendment • The Fifteenth Amendment: • right of citizens of the United States to vote could not be limited by the United States or any state where that limitation was based on a person's race, color, or prior status of servitude. • not intended to grant universal suffrage for everyone, including women.

21. 11. Criminal Procedure Prior to the Selective Incorporation Doctrine • Before ratification of Fourteenth Amendment: Fifth Amendment did not apply to states. • Example: Barron v. The Mayor and City Council of Baltimore, 32 U.S. 243 (1833), the Fifth Amendment did not apply against a state or a city created by a state.

22. 11. Criminal Procedure Prior to the Selective Incorporation Doctrine (cont.) • Bill of Rights: No limit on state activity. • Pervear v. Commonwealth, 72 U.S. 475 (1867): Court rejected argument that Eighth Amendment prohibition against cruel and unusual punishment applied to prevent a state court conviction and sentence. • Court unwilling to go against the original intent of the framers of the Bill of Rights as late as 1867.

23. 12. Selective Incorporation Doctrine: Federalization of Criminal Procedure • Chicago, Burlignton & Quincy R.R. v. Chicago (1897): Court affirmed the taking of land without compensation. • Stated that taking lacked due process of law required by the Fourteenth Amendment. • Opened the door for selective incorporation of some of the Bill of Rights into the due process clause of the Fourteenth Amendment.

24. 12. Selective Incorporation Doctrine: Federalization of Criminal Procedure (cont.) • Gitlow v. New York, 268 U.S. 652 (1925), Court initiated Selective Incorporation Doctrine. • Freedom of speech and press were protected against action by states Fourteenth Amendment. • After Gitlow, on a case by case basis, the Court incorporated: • Fourth Amendment guarantees against unreasonable searches. • Double jeopardy guarantee against two trials.

25. 13. Fourth Amendment: Prohibition against Unreasonable Searches • The Fourth Amendment: Protection against unreasonable federal searches. • Excluded the admission of illegally seized evidence. Weeks v. United States, 232 U.S. 383 (1914). • Wolf v. Colorado, 338 U.S. 25 (1949): Fourth Amendment not incorporated into the due process clause of the Fourteenth Amendment.

26. Facts: Wolf had been convicted of criminal abortion based on evidence seized by state officers that would have been illegally seized under 4th Amendment. Colorado state courts offered no relief. Supreme Court of the United States granted certiorari. Issue: Should the Fourth Amendment guarantees be incorporated into the due process clause of the 14th Amendment? Held: No. Rationale: Court noted that if a state sanctioned illegal searches, the result would be different. Wolf had other remedies. Court was not ready to decree that due process is violated by the use of illegally seized evidence in a state court. The Fourteenth Amendment does not forbid the use of such evidence in a state court. Case 1.1, Leading Case Brief: Wolf v. Colorado, 338 U.S. 25(1949).

27. 13. Fourth Amendment: Prohibition against Unreasonable Searches (cont.) • Mapp v. Ohio, 367 U.S. 643 (1961), incorporated 4th Amendment into due process clause of 14th Amendment. • Adopted the exclusionary rule to prevent the use of evidence illegally seized by state. • Selective incorporation doctrine applied.

28. 14. Fifth Amendment: Right to a Grand Jury Indictment, Privilege against Self-Incrimination, Prohibition against Double Jeopardy as part of the Right to Due Process • Hurtado v. California, 110 U.S. 516 (1884): No right to grand jury indictment in state case. • No selective incorporation of the right to a grand jury indictment into the due process clause of the Fourteenth Amendment.

29. 14. Fifth Amendment: Right to a Grand Jury Indictment, Privilege against Self-Incrimination, Prohibition against Double Jeopardy as part of the Right to Due Process (cont.) • In Malloy v. Hogan, 378 U.S. 1 (1964): Supreme Court held: • Fifth Amendment privilege against self-incrimination was part of due process • Deemed incorporated against the states.

30. Facts: Malloy, ordered to testify concerning gaming operations and related activities. When he asserted his Fifth Amendment privilege against self-incrimination, he was cited for contempt of court and jailed. State courts held that the Fifth Amendment did not apply in a state court proceeding. Issue: Should the Fifth Amendment privilege against self-incrimination be incorporated into the due process clause of the Fourteenth Amendment? Held: Yes. Rationale: Privilege against self-incrimination found to be one of the principles of a free government. CitingTwining v. New Jersey, the Court stated that some of the rights guaranteed by the first eight amendments must be recognized by state courts since a denial of them would be a denial of due process of law. The Court incorporated the Fifth Amendment protection against compelled self-incrimination into the due process clause of the Fourteenth Amendment. Case 1.2, Leading Case Brief: Malloy v. Hogan, 378 U.S. 1(1964).

31. Fifth Amendment: Right to a Grand Jury Indictment, Privilege against Self-Incrimination, Prohibition against Double Jeopardy as part of the Right to Due Process (cont.) • Palko v. Connecticut, 302 U.S. 319 (1937): Double jeopardy: Not part of the Fourteenth Amendment’s due process clause. • Benton v. Maryland (1969): Palko was wrong and that the Fifth Amendment was incorporated into Fourteenth Amendment’s due process clause.

32. 15. Sixth Amendment: The Right to a Speedy and Public Jury Trial, the Right to Confront Witnesses, and the Right to Counsel • The Sixth Amendment speedy trial: Not originally intended to require rapid resolution of criminal cases in state courts. • Klopfer v. North Carolina, 386 U.S. 213 (1967): Sixth Amendment right to a speedy trial incorporated into Fourteenth Amendment.

33. Facts: Trial resulted in a mistrial, but the prosecutor did not retry in 18 months. The prosecutor entered a nolle prosequi that would allow the prosecutor to bring the case at any time. Klopfer contended that he had the right to a Sixth Amendment speedy trial. Issue: Does the Sixth Amendment right to a speedy trial apply in a state criminal prosecution? Held: Yes. Rationale: Where a prosecutor fails to bring a case to trial, a defendant remains subject to limitations on his or her liberty. Since the Sixth Amendment right of confrontation has been incorporated against the states, Court held that the right to a speedy trial was fundamental and had to be incorporated into the Fourteenth Amendment’s due process clause. Case 1.3, Leading Case Brief: Klopfer v. North Carolina, 386 U.S. 213(1967).

34. 15. Sixth Amendment: The Right to a Speedy and Public Jury Trial, the Right to Confront Witnesses, and the Right to Counsel (cont.) • Right to a public trial incorporated into the Fourteenth Amendment due process clause. • In re Oliver, 333 U.S. 257 (1948), court convicted defendant of contempt of court in a private proceeding. • The Supreme Court held: Public trial right was fundamental to fairness and had long roots in the English common law.

35. 15. Sixth Amendment: The Right to a Speedy and Public Jury Trial, the Right to Confront Witnesses, and the Right to Counsel (cont.) • Jury trial under the Sixth Amendment incorporated into the due process clause. Duncan v. Louisiana, 391 U.S. 145 (1968). • Two years incarceration: required a trial by jury. • In Baldwin v. New York, 399 U.S. 145 (1970), right to a jury trial: any case if potential sentence greater than six months.

36. 15. Sixth Amendment: The Right to a Speedy and Public Jury Trial, the Right to Confront Witnesses, and the Right to Counsel (cont.) • Determined right to confront and cross-examine adverse witnesses was fundamental to a fair trial. • Incorporated into the due process clause of the Fourteenth Amendment in Pointer v. Texas, 380 U.S. 400 (1965). • Reaffirmed Pointer : Wife’s out of court statement could not be used against her husband where she could not be cross-examined. Crawford v. Washington, 541 U.S. 36 (2004).

37. 15. Sixth Amendment: The Right to a Speedy and Public Jury Trial, the Right to Confront Witnesses, and the Right to Counsel (cont.) • Gideon v. Wainwright, 372 U.S. 335 (1963), no trial without an attorney for a felony. • Gideon determined Sixth Amendment guaranteed indigent state felony defendant free counsel. • Argersinger v. Hamlin, 407 U.S. 25 (1972), due process required free counsel if any chance of incarceration.

38. 16. Eighth Amendment: Prohibition of Excessive Bail, Excessive Fines, and Protection against Cruel and Unusual Punishment • Robinson v. California, 370 U.S. 660 (1962): Determined punishment for being addicted to drugs violated the due process clause of the Fourteenth Amendment. • Eighth Amendment prohibition against cruel and unusual punishment was deemed to be part of due process.

39. 16. Eighth Amendment: Prohibition of Excessive Bail, Excessive Fines, and Protection against Cruel and Unusual Punishment (cont.) • Excessive bail prohibition of the Eighth Amendment: not clearly incorporated into the due process clause. • Cooper Industries v. Leatherman Tool, 532 U.S. 424 (2001), in dicta, the Court noted, Eighth Amendment’s guarantees applied to states.

40. 17. State Criminal Procedure: Beyond the Federal Constitutional Minimum • States must meet the minimum constitutional standards. • May grant greater protections than minimally required. • For example, Indiana requires juvenile Miranda warnings be understood by involving a parent or guardian in the waiver decision.

41. 18. Summary • Western and English thinkers influenced colonists. • Enlightened view found its view in state and federal constitutions. • Articles of Confederation proved weak. • New Constitution designed to cure weak points of Articles.