CCP Outline - Constitutional Criminal Procedure Outline...

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Constitutional Criminal Procedure Outline - Tuskey - Spring 2004 1. Constitutional Provisions— Amendment IV —no unreasonable searches and seizures , warrants for probable cause that are ***specific Amendment V —to be held for a capital crime you must be indicted by a grand jury—the court found that this doesn’t apply to the states - no double jeopardy —if the acquittal was from a trial judges error then if an appeal to retry you is that ok? -dual sovereignty doctrine—the state can try using their laws and so the federal acquittal doesn’t keep them from trying you - no self-incrimination —can’t compel the person- due process of law (procedural/redundant)—fundamental fairness, get whatever protection the law otherwise provides, maybe that was available to the protection of procedures that were around when the law was made or what was in common law Amendment VI —speedy and public trial in a criminal case, impartial jury where the crime was committed, know the nature and cause of the accusation, right to confront the accuser, can get witnesses by compulsion if criminal defendant, assistance of counsel XIV Amendment Application to the States 1. Theories that the XIV Amendment applies to the states : a. rights protected by BOR are among the P and I of the citizens and so they are protected b. rights protected are fundamental, essential to liberty and are incorporated by DP clause c. 14 th amend as a whole creates the incorporation, it was one of the things that the framers intended when they wrote the amendment d. 14 th amend and BOR are 2 separate things so the BOR aren’t applicable—14 th amend requires states to give due process/fundamental fairness so any procedural right that is implicit in ordered liberty is protected in the due process law and so some things in the BOR may be covered in the 14 th amendment 2. Palco v. CT —overruled so double jeopardy does apply to the states—said that only some BOR apply to the states, they don’t apply wholesale, must look at specific right alleged to see if it is implicit in ordered liberty 3. Adamson v. CA —SI applies to states and is violated if the prosecutor comments on the defendants silence a. Frankfurter—says 14 th amend doesn’t incorporate BOR b. Black—14 th amendment does incorporate BOR 4. Duncan v. LA—MODERN APPROACH—selective incorporation of the BOR a. Look at what is implicit in liberty of the constitutional system, if incorporated then it applies to the state to the same extent that it applies to the feds 4 th Amendment—Arrest, Search and Seizure 1. The Exclusionary Rule —where it applies, items seized in an illegal search may not be used in proceedings against the person from whom they were illegally seized a. Weeks v. US —if the govt has something you had legally and they took it illegally you can get it back i. The illegally seized evidence can’t be used in federal prosecution if a federal officer is the one who seized it 1
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b. Wolf v. CO —4 th amendment doesn’t require the exclusionary rule in any court, it was
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CCP Outline - Constitutional Criminal Procedure Outline...

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