1) Criminal_procedure Outline - Michigan 2005

1) Criminal_procedure Outline - Michigan 2005 - Criminal...

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Criminal Procedure Outline Jaime Olin Prof. Gross, Winter 2005 I. Introduction a. Defined: regulation of police practices which deal with investigation of crimes b. Rules only apply to police and sometimes prosecutors i. Consequences of violating rules is that evidence cannot be used at trial ii. So state has to proceed in constitutionally-approved manner c. The American criminal justice system is conspicuous for fragmentation i. Federal government does 2-3% of prosecutions ii. Each state has its own body of criminal laws iii. Almost all prosecutions are initiated by county prosecutors, there are thousands of them, and they are each completely independent from other offices iv. Also, the police forces are all independent, no central authority v. Popular elections for sheriffs, prosecutors, and judges d. Supreme Court started taking on criminal procedure cases in the 1950s, and this is mainly because of race II. Incorporation a. Introduction i. The first eight amendments were enacted as limitations on the federal government ii. Some argued that the Fourteenth Amendment totally incorporated all the provisions of the Bill of Rights and made them fully applicable against the states (TOTAL INCORPORATION THEORY: Justice Black liked this) iii. Another theory is FUNDAMENTAL RIGHTS, which prevailed through the 1960s 1. Thinks the due process clause incorporates all the principles of justice implicit in the concept of ordered liberty or so rooted in conscience and traditions that they rank as fundamental 2. Also, a specific practice may violate fundamental fairness even though it is not prohibited under the Bill of Rights iv. Current regime is SELECTIVE INCORPORATION 1. Most, but not all, provisions in the Bill of Rights have been incorporated by the Due Process Clause v. Reasons for having these rights 1. Preserve privacy, freedom, and autonomy 2. Credibility of courts 3. System that runs predictably and smoothly 4. Protect the adversary system 5. Protect citizens against government misconduct 6. Increase accuracy b. The Modern Approach 1
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i. Through the 1960s, Court selectively incorporated or absorbed more of the specific provisions of the Bill of Rights against the states 1. Rejects the fundamental rights interpretation when it emphasizes the totality of the circumstances approach in a particular case 2. Recognizes that not all rights in the Bill of Rights are necessarily fundamental and other outside rights may be ii. What has been selectively incorporated 1. Freedom from unreasonable searches and seizures (Mapp ) 2. Right to have excluded from criminal trials any evidence obtained in violation thereof (Ker ) 3. Prohibition against cruel and unusual punishment (Robinson ) 4. Right to assistance of counsel (Gideon ) 5. Privilege against compelled self-incrimination (Malloy ) 6. Right to confront opposing witnesses (Pointer ) 7. Right to a speedy trial (Klopfer ) 8. Right to compulsory process for obtaining witnesses (Washington ) iii. What has not been selectively incorporated 1. Prohibition against excessive bail 2.
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