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

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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- . 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
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This note was uploaded on 02/12/2008 for the course LAW 7045 taught by Professor Dutton during the Fall '06 term at Colorado.

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

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