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4th amendmentprotection against Unreasonable Search and Seizure5th amendmentThe Right to Remain Silent/Double Jeopardy, right to due process6th amendmentThe right to a Speedy Trial by jury, representation by an attorney for an accused person14th amendmentDeclares that all persons born in the U.S. are citizens and are guaranteed equal protection of the lawsconstitution as floor of rightsstates can give more rights US constitution=floorhow do the US constitutional rights get applied to the states?-certain rights "fit" into a 14th amendment "pipeline" to the states -by being considered "fundamental" to ordered libertywolf v. coloradono unreasonable search and seizures (4A) applies to all the statesmapp v. ohioestablished the exclusionary rule was applicable to the states (evidence seized illegally cannot be used in court)14th amendment as a "pipeline""nor shall any STATE deprive any person of life, liberty, or property without due process" (explicit reference to the states)legislative branch-what makes up policy and creates law -article I -political branch (representative hire/fire)executive branch-enforces/carries out laws -article II -political branch (can be voted out in 4 years)judiciary branch-interprets the laws -article II -insulated branch (appointed by president with senate support)natural law-based on REASON -exists regardless of and independent to enacted law fairness in generalpositive law-law dictated from higher authority -specifically enacted by legally valid procedures of proper authority specific guaranteespositive law and natural law...both have strengths but are dangerous in excessfundamental rights-ordered liberty -law up to 1960's -due process has a potency independent of BOR and so neither guarantees all BOR nor limited to BOR.with natural law, judge themselves decides...1. is this portion of right 2. so critical to "fundamental fairness" that it is "essential to ANY scheme of ordered liberty?"upside to fundamental rightsflexible enough to rise above shortcomings of lawdownside to fundamental rightsdanger: who decides what is fair? -unelected judges who are no longer limited by a written constitutiontotal incorporation-proposes to incorporate all the BOR into 14th amend. due process and apply them to all the states - offered by justice black -never received majority approvalupside to total incorporationpromotes a WRITTEN constitution -prevents judges from "roaming at will"downside to total incorporationno flexibility to have rights grow as a society grows (ex/ 5A nor shall any person... be twice put in jeopardy of life or limbselective incorporation-created in Duncan v. Louisiana (right to a jury trial) -was a COMPROMISE between fund. fairness and total incorporation -sounds like fund. fairness because kept same language -ACTS more like total incorporation. because asks whether right is necessary for fundamental fairness to the "AMERICAN" scheme of justice instead of "ANY" scheme of justice testresult of selective incorporationall the rights except 5A right to indictment by grand jury have now been incorporated (one by one)PALKO V. CONNECTICUT (1937) evolution of due process cases-created "fundamental rights" or "ordered liberty" formulation of Due Process used until 1968 -rejected justice blacks "total incorporation" proposal -Palko's characterization of Double Jeopardy as NOT fundamental was overruled in Benton v. Maryland (1969)ADAMSON V. CALIFORNIA (1947) evolution of due process cases-reaffirmend Palko's "fundamental fairness"/ "ordered liberty" test -adamson's allowance of prosecutorial comment on defendants failure to testify at trial was overruled in Griffin V. California (1965) -key= justice black's dissentDUNCAN V. LOUISIANA (1968) evolution of due process cases-created todays "selective incorporation" test for 14A due process incorporation WHICH: 1. talks like fundamental fairness, BUT 2. walks much more like total incorporationpurpose of juries1. act as a buffer between corrupt prosecutor and biased judge 2. excursive common sense (of life experience and society's centuries) 3. judges provide "community participation" lining legitimacy to CJSduncan v. Louisiana (jury trials)created and used selective incorporation as a way to make a RULE about jury trialsDUNCAN HELD BECAUSE...-6A trial by jury in criminal cases is 'fundamental to the American scheme of justice' -"14A due process guarantees a right to jury trial in ALL criminal cases which, if they were tried in federal court, would come with the 6A guarantee" SO- STATE criminal defendants have the SAME jury. trial rights to the SAME EXTENT, as do criminal defendants in federal courtJURY TRIAL (scope of right to jury trial)1. for serious crimes or non petty crimes 2. MORE than potential 6 month imprisonmentNO JURY TRIAL (scope of right to jury trial)-for petty crime -UP TO 6 months imprisonment and no moreconsequences of equating state rights with federal rights-extending federal rights to apply in the states can cause the rights in both federal and state courts to be diluted -CAUTION: the US Supreme Court has recently undermined this theory in Ramos V. Louisiana (2020)Williams V. Florida (1970) (diminution of jury trial rights after Duncan v. Louisiana)-12 person jury NOT constitutionally necessary under 6ABallew V. Georgia (1978) (diminution of jury trial rights after Duncan v. Louisiana)-while 6 member juries are okay, 5 member violates 6AApodaca v. Oregon (1972) (diminution of jury trial rights after Duncan v. Louisiana)-ruled that unanimous verdicts were NOT constitutionally necessary -ruled that 11-1 and 10-2 verdicts were okayRamos v. Louisiana (2020) (diminution of jury trial rights after Duncan v. Louisiana)-OVERRULED APODACA -ruled that 6A right to jury trial requires unanimityTimbs v. Indiana (2019) (the most recent addition to selective incorporation)-the 8A's excessive fines clause is incorporated into 14A due process, and so is applicable against the statesHoffa v. United States constitutional issues (one case can trigger more than one constitutional issue)1. 4A: right against unreasonable search and seizure 2. 5A: privilege against self-incrimination 3. 6A: right to counsel 4. 5A right to due processHoffa case #1: Us v. Hoffa-the "test fleet case" where Hoffa was accused of violating the taft-hartley act (Act that provides balance of power between union and management by designating certain union activities as unfair labor practices; also known as Labor-Management Relations Act (LMRA)Hoffa case #2: US v. Hoffa-Hoffa accused of bribing the jury in the test fleet case4th AMENDMENT RULING HOFFA CASE (right against unreasonable search and seizure)HOFFA HAS NO 4A PROTECTION BECAUSE: 1. defendant had no "misplaced confidence" 2. in an "untrustworthy ear" 3. and so "assumed the risk" of loss of privacy5th AMENDMENT RULING HOFFA CASE (privilege against self-incrimination)-hoffa was not compelled by the government to incriminate himself because he was not even aware that he was speaking to the government when the informant overheard his statements6th AMENDMENT RULING HOFFA CASE (right to counsel)-while Hoffa has a 6A right to counsel for the test fleet case, he did NOT have a 6A right to counsel for his bribery case because: 1. there was no "formal charging" of bribery 2. 6A is "offense specific"5th AMENDMENT RULING HOFFA CASE (right to due process)-while use of an informant, and therefore government lying is troubling, it does not rise to the level of "shocking the conscience" of the court, and so no violation of due process occurredconfessionsadmission to ALL FACTS needed for conviction (the whole ballgame)admissionacknowledging a fact or some facts that tend to establish guilt (just an inning)inculpatory evidencetends to show one's guilt or involvement in a crimeexculpatory evidencetends to show one's innocence or lack of involvement in a crimea statement can seem exculpatory on its face but be inculpatory in contexttruevoluntarinesschoice being made of a persons free will, as opposed to being made as the result of coercion or duress -deals with if we are respecting ones wish to confessthe USSCt. does a cost/benefit analysis when crafting "voluntariness" of the lawtruebenefits of confessions1. effective tools for law enforcement 2. ensure the guilty are caught and the innocent are free 3. point to additional evidencecosts of confessions1. inherent untrustworthiness of coerced confessions 2. police violate law in enforcing law by coercing confessions (government by example) 3. disgust and revulsion at coercive practices 4. coerced confessions undermine adverbial system (less policing police are doing)Brown v. Mississippi (1936) (HISTORY OF COURTS REACTION TO COERCED CONFESSIONS)-first employs 14A due process: ** "nor shall any STATE deprive any person of life, liberty, or property without due process of the law."Messiah V. United States (1964) (HISTORY OF COURTS REACTION TO COERCED CONFESSIONS)-employs 6A right to counsel: ** "in all criminal prosecutions, the accused shall... have Assistance of Counsel for his defense."Miranda V. Arizona (1966) (HISTORY OF COURTS REACTION TO COERCED CONFESSIONS)-employs the 5A privilege against self incrimination ** "no person shall be... compelled in any criminal case to be a witness against himself."miranda deals with...warningsHopt V. Utah (1884) (development of confession law USSCt. cases)1. began to form the "totality of the circumstances" analysis for voluntariness 2. USSCt., in this case, initially NOT bothered by the gap in knowledge created by the policeBram V. United States (1897) (development of confession law USSCt. cases)1. applied 5A (because assessing FEDERAL officials) 2. ruled that "any promise or threat" undermined voluntariness 3. the "any promise or threat" test is so extreme that it is no longer good lawBrown V. Mississippi (1936) (development of confession law USSCt. cases)*EXTREME BRUTALITY* 1. first applied 14A due process to exclude an INVOLUNTARY confession due to STATE official misconduct 2. caused police to avoid physical brutality in future cases (meant to limit STATES 14A)Ward V. Texas (1942) (development of confession law USSCt. cases)1. police caused confession to be involuntary because they drove the suspect OUTSIDE JURISDICTION where they learned he would be helped by friends/family therefore isolating the suspect (moved from jail to jail until confession made)Malinski V. New York (1949) (development of confession law USSCt. cases)1. police caused confession to be involuntary in part by stripping the suspect nakedWatts V. Indiana (1949) (development of confession law USSCt. cases)1. police caused confession to be involuntary by "relentless questioning", isolating the suspect in solitary confinement, denying him food and sleep, and preventing him from having a preliminary hearingLeyra v. Denno (1954) (development of confession law USSCt. cases)1. police caused confession to be involuntary by coercing the confession through hypnotismPayne V. Arkansas (1958) (development of confession law USSCt. cases)1. police caused confession to be involuntary by threatening to allow a violent lynch mob into the jail to confront the suspectRogers V. Richmond (1961) (development of confession law USSCt. cases)1. police caused confession to be involuntary by threatening to take suspects wide into custody for questioning and saying that he was "less than a man" for failing to confess and therefore stopping her from being brought inTownsend V. Sain (1963) (development of confession law USSCt. cases)1.police caused confession to be involuntary by "treating" the withdrawal symptoms of the suspect, a heroine addict, by injecting him with "truth serum"Lynumn V. Illinois (1963) (development of confession law USSCt. cases)1.police caused confession to be involuntary by coercing the suspect by threatening to take the custody of her children away from her and warning her that "strangers would have them"Ashcraft V. Tennessee (1944) (development of confession law USSCt. cases)1. the "relay questioning case" 2. police caused confession to be involuntary by using "relay questioning" for 36 hours 3. USSCt. explicitly blames police for LACK OF INFORMATION due to "secret inquisitorial practices"Spano V. New York (1959) (development of confession law USSCt. cases)1. "false friend" case - "an open foe may prove a curse, but a pretend friend is worse" 2. provides a full articulation of the "totality of the circumstances" analysis for voluntariness under 14A due processColorado V. Connelly (1986) (development of confession law USSCt. cases)1. coercion from psychosis is NOT relevant to voluntariness/admissibility issue because it lacks STATE action 2. 14A due process ca only be violated with "police overreaching" creating improper STATE conduct causing confession ** was coerced by God not "state or deity" in law14A's "totality of the circumstances" test for voluntariness1. 14A's due process requires confession to STATE officers to be "voluntary" under the "totality of the circumstances" including: internal factors and external factors 2. "involuntariness" can only exist if it is caused by "police overreaching"internal factorssuspects health, age, education, mental state, priors, etc.external factorsenvironmental circumstances, police behaviorArizona V. Fulminate (1991) (development of confession law USSCt. cases)case has 3 issuesArizona V. Fulminate (1991) ISSUE #1whether THREAT of physical brutality/violence is sufficient to make confession involuntary? -ANSWER: YES, it is enough to create coercion as in Payne V. ArkansasArizona V. Fulminate (1991) ISSUE #2is the administration of involuntary confession at the trial ever "harmless error"? -ANSWER: YES, this prosecution can try to prove administration of the involuntary confession was "harmless"Arizona V. Fulminate (1991) ISSUE #3can the prosecution prove, in this case, that the admission of the defendants confession was "harmless beyond a reasonable doubt"? ANSWER: NO, the admission of the confession was not harmless error hereharmless errora mistake by the trial judge that was too minor to affect the outcome (cannot reverse decision)2 kinds of constiutional errortrial error and structural errortrial error-NO automatic reversal -although, may reverse conviction after H.E. analysisstructural error-automatic reversal -these errors are NOT subject to H.E. analysis because they "can't be quantified" (measured)what is the "harmless error" analysis for trial errors?1. the burden is on the prosecution to prove (offer up evidence) 2. that when the remainder of the evidence against the defendant is viewed (without the error), 3. the admission of the evidence is "harmless beyond a reasonable doubt" (biggest burden of proof level)what does "harmless beyond a reasonable doubt" mean here?it means that the improperly admitted evidence was merely cumulative and redundantexamples of trial errors1. error in jury instructions on capitol sentencing 2. improper comment on the defendants silence/lack of testifying at trial 3. leaving out the "presumption of innocence" jury instruction 4. INVOLUNTARY CONFESSIONSexamples of structural errors1. unlawful exclusion of grand jurors from panel 2. biased judge at trial 3. denial of counsel at trial 4. denial of self-representation at trial 5. denial of public trialissue with the 14A totality of the circumstances test is it is SUBJECTIVEsubjectiveness of the test makes it easy to manipulate the case (ex. using 10-12am as "until midnight" as opposed to "in the evening")6A right to counsel for confessions (history of courts reaction to coerced confessions)1. Brown v. Mississippi (1936): 14A due process 2. Messiah v. United States (1964): 6A right to counsel 3. Miranda v. Arizona (1966): 5A privilege against self-incrimination14A is...thinned out and covers a lot6A is...narrower and doesn't cover a lotGiddeon v. Wainwright (1963) (6A right to counsel)-first incorporated 6A right to counsel into the 14A due process against the statesMassiah v. United States (6A right to counsel)ISSUE: when does the right to counsel "attach" (apply) before trial? 1. the right to counsel attaches at "critical stages" 2. which occur upon "formal charging" 3. when the government has committed its resources against the individual 4. formal chargingformal charging is1. indictment 2. information 3. preliminary hearing 4. arraignment 5. initial appearance before a judgeBrewer v. Williams (1977) (VIOLATION of 6A right to counsel)** 6A right to counsel is violated by 1. "deliberate elicitation" = subjective standard (purposely set up) 2. after formal charging 3. in absence of counselBrewer v. Williams cleansing of taint-a constitutional violation infects or "taints" any evidence obtained by exploiting the violation -sometimes this taint can be cleansed -one way to cleanse this taint is "inevitable discovery"6A is offense specifictrueTexas V. Cobb (2001) (6A right to counsel at police questioning)1. 6A does NOT extend to any other crime than the one which was formally charged 2. 6A does NOT even apply to crimes that are "factually related" to the charged offense only formally charged for burglary not murder"deliberate elicitation" in jailhouse informant context casesU.S. V. Henry (1980) Kuhlmann V. Wilson (1986)"deliberate elicitation" in jailhouse informant context-jails and prisons are DIFFERENT from any other context -so, "deliberate elicitation" is defined differently when an informant collects statements from a suspect in jailD.E. in jailhouse"stimulator" or "voice" (talking asking questions)no D.E. in jailhouse"mere listening post" or "ears" (no talking)chronology of a trial1. voir dire (speak the truth) 2. opening statements 3. prosecution CASE-IN-CHIEF (prove defendant guilty/prove case) a) direct examination b) cross examination c) re-direct d) re-cross 4. prosecution rests 5. defendants defense 6. prosecutions rebuttal 7. defenses rebuttal 8. prosecutions sur rebuttal 9. defenses sur rebuttal 10. prosecutions opening argument (6-10 attacking defendants case if put out) 11. defenses closing argument 12. prosecutions closing argument 13. judges "charging" the jury with jury instructions 14. verdictremedy for violation violation of 6A by deliberately elicitationwhat are the consequences in an informant violates 6A right to counsel?kansas v. vertil (2009) (remedy for violation of 6A by deliberate elicitation)1. any statement deliberately elicited by a jailhouse informant in violation of 6A is EXCLUDED FROM CASE-IN-CHIEF at trial 2. but if the defendant lies on the stand, the statement can be used to IMPEACH defendantPatterson v. Illinois (1988) (waiver of right to counsel)1. as a general matter, Miranda warnings sufficiently inform defendants of their 6A to counsel, validating a waiver 2. because: -miranda makes defendants "sufficiently aware of the right to have counsel present during questioning" AND -miranda makes defendants "sufficiently aware of the possible consequences of forgoing the right to counsel"Montejo v. Louisiana (2009) (waiver of right to counsel)when a court appoints counsel for a defendant at a judicial proceeding, in absence of any request by the defendant, there is NO BASIS to presume any subsequent waiver of the right to counsel is involuntary5th amendment privilege against self incrimination1. no person 2. shall be compelled 3. in any criminal case (proceedings) 4. to be a witness 5. against himself#4 to be a "witness"-"witnesses" "testify" by telling what they know, or "showing the contents of their minds" -the 5th amendment protects persons by preventing the government from forcing them to divulge the contents of their minds and then using this information against them at trialgrand jurybarrier to reckless and unfounded charges