Sources of Law Potential Sources of Criminal Procedure James Madison, The Federalist Papers, No. 10 most US criminal procedure law is judge-made Constitutional law Contrasts with most of rest of world, where statutory rules prevail binding on law enforcement at every level History of rights early common law defendants put on the stand and asked whether he committed crime, jury to decide whether telling the truth no defense lawyers allowed thought that they would just mislead the jury – around 1700 right to hire defense attorney (not provided) – around 1750 abuses by English king lead to some reforms – Entick v. Carrington a trespass in government officials entering the plaintiff's – home and breaking open his boxes and examining his papers, court held that search warrant was not valid without some proof to back it up, i.e., probable cause 1770s American Revolution, US Constitution – Bill of Rights responds directly to English king’s abuses 4th Am. no unreasonable searches or seizures; warrants only on probable trial and – no general warrants (must be specific) 5th Am. cannot be compelled to be a witness against yourself – 6th Am. trial rights (speedy, jury, etc.); assistance of counsel – Late Constitution begins to be applied to the states – 14th amendment, reconstruction, ect. Early 1900s police force grows rapidly, becomes professional – SCOTUS toying with Due Process Clause to restrict states through the Bill of – Rights Powell v. Alabama (1932) All citizens have 14th Am. DP rights, which is meaningless – without a lawyer (can’t say 6th Am. violated directly b/c doesn’t apply to the states) Palo v. CT (1937) rights incorporated if in concept of ordered liberty – “implicit Adamson (1947) by immutable principles of justice as conceived by a civilized – “required society” Duncan (1968) to the scheme of American justice – “fundamental Rochin v. California (1952) police forcibly pump suspect’s stomach to get the drugs he – swallowed; police conduct that the conscience” violates DP “shocks 1960s Warren Court, procedural revolution – 4th Am. incorporated Wolf v. CO (1949) incorporates, Mapp (1961) recognizes remedy – for violation 5th, 6th Am. incorporated 2nd Am. Maybe incorporated? Heller striking down DC handgun ban; individual to own handgun in your – home for self-defense McDonald v. City of Chicago (pending)
Sources of Law Potential Sources of Criminal Procedure James Madison, The Federalist Papers, No. 10 most US criminal procedure law is judge-made Constitutional law Contrasts with most of rest of world, where statutory rules prevail binding on law enforcement at every level History of rights early common law defendants put on the stand and asked whether he committed crime, jury to decide whether telling the truth no defense lawyers allowed – thought that they would just mislead the jury around 1700 – right to hire defense attorney (not provided) around 1750 – abuses by English king lead to some reforms Entick v. Carrington – a trespass in government officials entering the plaintiff's home and breaking open his boxes and examining his papers, court held that search warrant was not valid without some proof to back it up, i.e., probable cause 1770s – American Revolution, US Constitution Bill of Rights responds directly to English king’s abuses 4th Am. – no unreasonable searches or seizures; warrants only on probable and no general warrants (must be specific) 5th Am. – cannot be compelled to be a witness against yourself 6th Am. – trial rights (speedy, jury, etc.); assistance of counsel Late – Constitution begins to be applied to the states 14th amendment, reconstruction, ect. Early 1900s – police force grows rapidly, becomes professional – SCOTUS toying with Due Process Clause to restrict states through the Bill of Rights Powell v. Alabama (1932) – All citizens have 14th Am. DP rights, which is meaningless without a lawyer (can’t say 6th Am. violated directly b/c doesn’t apply to the states) Palo v. CT (1937) – rights incorporated if “implicit in concept of ordered liberty Adamson (1947) – “required by immutable principles of justice as conceived by a civilized society” Duncan (1968) – “fundamental to the scheme of American justice Rochin v. California (1952) – police forcibly pump suspect’s stomach to get the drugs he swallowed; police conduct that “shocks the conscience” violates DP 1960s – Warren Court, procedural revolution 4th Am. incorporated – Wolf v. CO (1949) incorporates, Mapp (1961) recognizes remedy for violation 5th, 6th Am. incorporated 2nd Am. Maybe incorporated? Heller – striking down DC handgun ban; individual to own handgun in your home for self-defense McDonald v. City of Chicago (pending) trial
Criminal%20Procedure-SBA.docx