Lushing Sp07 Crim Pro outline-1

Lushing Sp07 Crim Pro outline-1 - I II Due process a 14th...

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I. Due process a. 14 th amendment incorporates bill of rights against the states. b. Prohibition of Double jeopardy not applied to the states. Only provisions that are “part of a scheme of ordered liberty” are incorporated by the 14 th against the states. ( Palko) c. State law that allows comment on the fact that D did not testify at his trial does not violate due process. ( Adamson) i. Look to the common law to see what is considered “fundamental” to ordered liberty, if it is fundamental it is incorporated. ii. This case overruled. iii. NY statute—if a D wants, Ct can instruct a jury to disregard the fact that D did not testify. iv. Lakeside v. Oregon (1978)— Judge made instruction w/o D’s request, constitutional since jury would have notice anyway that D did not testify. d. Pumping an arrestee’s stomach to get evidence does “shock the conscience” offends the Ct’s sensibilities, and violates due process. concept of due process changes continually to reflect modern societal needs. e. Trial by jury in criminal cases is fundamental to scheme of justice, the 14 th amendment incorporates 6 th amendment right to a speedy trial and jury. (Duncan 1968) i. Jury has historically been a right at common law. ii. Protection form overzealous prosecutors and judges. iii. If you face more than 6 months in jail it must be a jury trial (Baldwin (1970) iv. No federal right to have a non-jury trial. NY gives D’s this right. f. Extradition— i. No violation of due process to forcefully take someone from one state to try them in another state as long as other procedural safeguards are followed (right to counsel etc) (Frisbie) ii. Asylum state can only look at the documents to see if suspect sought is correct person. iii. Demanding state can petition the fed gov’t on a write of mandamus to compel the asylum state to extradite the suspect to the demanding state. II. 4 th amendment a. Probable cause—when the facts and circumstances within the officer’s knowledge are sufficient in themselves to warrant a man of cautious belief that an offense has been or is being committed. ( Draper) i. Probable cause needed to search, informant who had given specific information that was confirmed sufficient probable cause. Not hearsay, b/c officer reasonably relied on. ii. Probable cause has no quantification.
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iii. Ok to arrest the suspect as long as their was probable cause to arrest before the search, can not use what was found in the search to constitute probable cause to arrest. (Riggs) iv. Only held if there is probable cause, v. Not unreasonable under the 4 th amendment to arrest someone w/o a warrant provided there is probable cause. (U.S v. Watson) 1. warrants preferred, since get on the record. Shields the cop from civil liability, judge’s imprimatur on the arrest.
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