Procedural Criminal Law What are the constitutional rights of the accused?

Key Bill of Right Provisions for Criminal Procedure  4 th : Prohibition of unreasonable search and seizures  5 th : Prohibition against self – incrimination  5 th : Prohibition against double jeopardy  6 th : Right to counsel  6 th : Right to a speedy and public trial  6 th : Right to jury trial  6 th : Right to confront witnesses  8 th : Protection against cruel and unusual punishment

Historical Perspective The Bill of Rights: 1787  The ineffectiveness and lack of federal powers within the Articles of Confederation  The Constitution as a radical departure visa vi allegiance to the state’s powers  The Bill of Rights offered as a means of safeguarding against federal overreach

Historical Perspective: The 14 th Amendment: (1868) Section 1: “… No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of the law.”

Historical Perspective: The Warren Court  14 th Amendment “Due Process” clause virtually silent until the 1960’s  Warren Court infers 4 th,5 th, & 6 th amendment rights as being applicable to state actor’s as well federal via the “due process” clause  Causes a radical shift in police & court practices

Key Bill of Right Provisions for Criminal Procedure  4 th : Prohibition of unreasonable search and seizures  5 th : Prohibition against self – incrimination  5 th : Prohibition against double jeopardy  6 th : Right to counsel  6 th : Right to a speedy and public trial  6 th : Right to jury trial  6 th : Right to confront witnesses

6 th : Right to counsel  Gideon v. Wainright  A question of quality and fairness  Pro Bono v. Public Defenders

6 th : Rights of Trial by Jury  Why ??????  The Right to a jury trial v. the pragmatism of plea bargaining  “Speedy Trial” in a clogged system

6 th : Rights of Trial by Jury  The Voir Dire process  Challenges for cause  Preemptory Challenges  The science of jury selection

5 th: Amendment Protections  Protection against self-incrimination v. police interrogation  Miranda v. Arizona  Double Jeopardy: Being tried for the same crime twice

4 th : Prohibition of unreasonable search and seizures Evidentiary search and seizure: The police’s taking of property from a person or place to establish a crime has been committed.  Q: What is an “unreasonable” therefore unconstitutional evidentiary s/s? 1. Who was conducting the search? 2. Did the accused have a reasonable expectation of privacy? 3. Given 1&2, did the police need a valid search warrant? 4. If police didn’t have a warrant, were there circumstances which justify a search without a warrant?

Some constitutional exceptions for warrantless searches  Consent (authorized person allows a search without a warrant)  Search incident of a lawful arrest (“grab area”)  Hot pursuit  Emergency / Exigency of Circumstances  Plain View (weapon, contraband or instrumentality of crime in private area which can be viewed by public: Technology and Google maps? )  Border and Airport Searches

Key Constitutional Doctrine The Exclusionary Rule In criminal law, if a judge rules the state ( the police ) violated a defendant’s 4 th, 5 th or 6 th amendment constitutional protected right, the judge may exclude evidence against the defendant which was obtained as a result of that violation.

Key Constitutional Doctrine “The fruit of a poisonous tree” Further, all evidence obtained or derived subsequently from the exploitation of evidence illegally obtained will also be excluded.

Key Constitutional Doctrine Exceptions to “the fruit of a poisonous tree” doctrine (or ways in which the causal link is broken) 1.Intervening act of defendant’s free will 2.An alternative independent source 3.Inevitable discovery

4 th : Prohibition of unreasonable search and seizures  Since the 1960’s, one of the most debated arenas of criminal law; law school courses devoted solely to the subject  Crime Control v. Due Process  Burger / Rehnquist Courts shrinking of scope of the exclusionary rule doctrine  War on Terrorism: Today’s hot topic