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crimpro_emanuel - [Note Numbers in brackets refer to the...

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[Note: Numbers in brackets refer to the printed pages of the Emanuel Law Outline where the topic  is discussed.] Emanuel Law Outlines Criminal Procedure Chapter 1 CONSTITUTIONAL CRIMINAL PROCEDURE GENERALLY I. STATE PROCEDURES AND THE FEDERAL CONSTITUTION A. Meaning of "criminal procedure": The term "criminal procedure" refers to the methods by which the criminal justice system functions. Here are some of the topics that are usually included within criminal procedure: 1. The arresting of suspects. 2. The searching of premises and persons. 3. The use of electronic surveillance and secret agents . 4. The interrogation of suspects, and the obtaining of confessions . 5. The use of line-ups and other pre-trial identification procedures. 6. The Exclusionary Rule , and how it affects the admissibility of evidence obtained through methods that violate the Constitution. 7. The right to counsel . 8. Grand jury proceedings. 9. Bail and preventive detention. 10. Plea bargaining . 11. The right to a speedy trial . 12. Pre-trial discovery . 13. The Double Jeopardy clause. B. Focus on U.S. Constitution: Many aspects of criminal procedure are regulated by the U.S. Constitution, particularly the Bill of Rights (the first ten amendments). As discussed below, most federal constitutional provisions concerning criminal procedure are binding on state proceedings as well as federal ones. 1. Non-constitutional issues: The states are free to develop their own procedures for dealing with criminal prosecutions, as long as these do not violate the federal constitution. C. Applicability of Bill of Rights to states: In deciding how the federal constitution applies to state criminal prosecutions, the Supreme Court follows the "selective incorporation" approach. Under this approach, not all rights enumerated in the Bill of Rights are applicable to the state, but if any aspect of a right is found to be so necessary to fundamental fairness that it applies to the 1
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states, then all aspects of that right apply. Thus if a right is applicable in state courts, its scope is the same as in federal courts. [2] 1. All but two rights applicable to states: All Bill of Rights guarantees have been held applicable to the states, except for two. [5] The two Bill of Rights guarantees that have not been found applicable to the states are: a. Bail: The Eighth Amendment’s guarantee against excessive bail (so that apparently, a state may choose to offer bail, but may then set it in an "excessive" amount); and b. Grand jury indictment: The Fifth Amendment’s right to a grand jury indictment (so that a state may decide to begin a prosecution by using an "information" prepared by the prosecutor rather than a grand jury indictment). D. Raising constitutional claims in federal court: A defendant in a state criminal proceeding can of course raise in the proceeding itself the claim that his federal constitutional rights have been violated (e.g., by the use against him of a coerced confession or the fruits of an illegal search and seizure).
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