Outline- Draft - I OVERVIEW OF CRIMINAL PROCESS RELEVANT...

Info icon This preview shows pages 1–2. Sign up to view the full content.

I. O VERVIEW OF C RIMINAL P ROCESS & RELEVANT PARTS OF THE C ONSTITUTION Amendments IV, V, VI, and XIV- Doctrinal debates regarding how the IV, V, VI apply to states through XVI. Warren Ct- pretty liberal, against law enforcement. Burger ct- retreat from the liberal view of the Warren ct. Rehnquist ct- move to the right, in favor of law enforcement. Roberts ct- probably close to the Rehnquist ct. TWO Conflicting Perspectives —One “Swiss cheese” result 1. Crime Control - 4 th Am Reasonableness Clause- Scalia & White - No one truly believes that a warrant is always required- there must be exceptions for extenuating circumstances, consent, plain view, etc. 2. DP- 4 th Warrant Req - Marshall & Brennan - warrant req is not a high standard- 4 th am is supposed to prevent police misconduct, not simply redress it neutral judge is needed for the initial determination of the need to intrude in one’s privacy—Reasonableness standard is inherently vague & unpredictable. 3. Swiss cheese-wholes through the 4 th Am warrant req with exceptions for reasonableness. TWO Types of Rules : 1. Bright line rules - favored in search/seizure cases for clarity of law enforcement, burden on cts, etc. 2. Case-by-case - flexible; per se rule too expansive and stiff. II. I NCORPORATION D OCTRINE FOUR DIFFERENT APPROACHES SC does NOT accept the TOTAL Inc reading of the 14 th Amend, BUT in the 60’s, Warren CT selectively incorporated more specific provisions of BOR in the 14 th . A. F UNDAMENTAL R IGHTS A PPROACH Fundamental rights - 14 th A only requires states to recognize fund rights; If system still stands after taking away right, then its not fund. Criticism : ad hoc, subjective/personal application of 14 th A by elitist judges. 14 th am has indep potency ( Frankfurter ) BOR talks about fund rights- maybe not all in BOR and others outside of BOR are fund. Historical args stronger- Palko & Adamson . No need for a necessary rel between 14 th and BOR – DPC simply incorp principles implicit in concept of ordered liberty and deeply rooted in traditions. Under 14 th am, proc safeguards included in BOR were said to be applicable to the states if they were “implicit in the concept of ordered liberty,” “if a fair and enlightened system of justice would be impossible without them.” ( Cardozo in Palko ) Later, in Duncan , White said that “state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and this country. Q is whether given this kind of system a particular procedure is fundamental – whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty.” Palko- Fund rights- 14th Am, proc safeguards included in BOR were said to be applicable to the states if implicit in the concept of ordered liberty,” “if a fair and enlightened system of justice would be impossible w/o them.- Cardozo Adamson- Fund rights approach- but see Black dissent for TI argument. “Total incorporation plus” every procedural right that
Image of page 1

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 2
This is the end of the preview. Sign up to access the rest of the document.
  • Fall '06
  • Dutton
  • Law, Fourth Amendment to the United States Constitution, Warrant

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern