Chap. 11 - Constitutional Aspects of Criminal Procedure

Question 1

Which percentage of criminal prosecution occur in state courts?

Answer 1

95 percent.

Question 2

Is each state free to to design its criminal justice system in any manner it chooses?

Answer 2

Yes.

Question 3

What is the term that means the Constitution has extended to the states?

Answer 3

Incorporation.

Question 4

What year was the 14th amendment adopted?

Answer 4

1868.

Question 5

What is the independent content approach?

Answer 5

The 14th’s due process clause does not include any right found in the Bill of Rights. Due Process has an independent content, and none of the right secured in the Bill of Rights apply against the states. The Supreme Court has never adopted this position.

Question 6

What is total incorporation?

Answer 6

The entire Bill of RIghts is incorporated by the 14th amendment and that all the rights contained therein may be asserted by defendants in both state and federal courts.

Question 7

What is total incorporation plus?

Answer 7

The Due Process clause not only incorporates the Bill of Rights but also secures additional independent rights. This has not been adopted by the Supreme Court.

Question 8

What is fundamental fairness?

Answer 8

Those rights that are fundamental and essential to an ordered liberty are incorporated through this approach. No relationship existed between the Bill of Rights and those deemed fundamental, although the rights recocognized may parallel rights recognized by the Bill of Rights.

Question 9

What is the selective incorporation doctrine?

Answer 9

A right is incorporated under this doctrine if it is both fundamental and essential to the concept of ordered liberty. Independent rights are also recognized under selective incorporation analysis.

1. Blanket rules are established to act as precedent for all similar cases in the future. In addition, the entire body of precedent interpreting a federal amendment becomes applicable to the states as a result of an amendment’s incorporation.
2. A right secured by the Bill of Rights is more liekly to be protected by the 14th amendment. This continues to be the approach of the Supreme Court today.

Question 10

Has almost the entire Bill of Rights been incorporated under the selective incorporation doctrine?

Answer 10

Yes.

Question 11

Which rights have not been incorporated under the doctrine/

Answer 11

1. The right to grand jury indictment has not been incorporated.
2. Nor has the right to a jury trial in civil cases.
3. 8th amendment right to be free from excess bail or fins.
4. The right to bear arms was incorporated in 2010.

Question 12

What is constitutional interpretation?

Answer 12

The process of determining the meaning of the phrases in the constitution.

Question 13

What is expansion?

Answer 13

Extending a right beyond its narrowest reading.

Question 14

What is the exclusionary rule?

Answer 14

Evidence that is obtained by an unconstitutional search or seizure is inadmissible at trial. It discourages law enforcement personnel from engaging in unconstitutional conduct.

Question 15

Does the exclusionary rule apply to pretrial matters?

Answer 15

No. The defendant’s remedy is at trial.

Question 16

What is another important exception to the exclusionary rule?

Answer 16

The government is allowed to use illegally seized evidence to rebut statements made by a defendant. The government may not use the evidence if the defendant does not ‘open the door’.

Question 17

What is contemporaneous objection?

Answer 17

A motion made at the moment the prosecutor attempts to introduce exclusionary evidence at trial.

Question 18

What is primary evidence?

Answer 18

Evidence that is the direct result of an illegal search or seizure.

Question 19

What is derivative evidence?

Answer 19

Fruit of the poisonous tree: Evidence that is tainted by the prior illegal conduct is inadmissible. However, if the connection is marginal, it may be allowed.

Question 20

What are the exceptions to the exclusionary rule?

Answer 20

1. Such evidence is admissible at court hearings where determinations of guilt are not made: grand jury proceedings, pretrial hearings, and sentencing.
2. IF a defendant opens a door by referring to such evidence, a prosecutor may refer to it as well in rebuttal or to impeach the testimony of the defendant.
3. When there is an independent source: An alternative, unconnected, and legal pathway to the same evidence.
4. Evidence that would be inevitably discovered by law enforcement may be admitted. Police must actually obtain evidence from an untainted, lawful source to invoke the independent source doctrine.

Question 21

What is the inevitable discovery doctrine?

Answer 21

Evidence that is the fruit of an illegal search, seizure, or arrest may be admitted if it is probable that the evidence would have been obtained lawfully at a later date.

Question 22

Is evidence that is obtained illegally by private individuals and turned over to law enforcement allowed?

Answer 22

Yes, unless the government asked the person to get the evidence.

Question 23

What is standing?

Answer 23

A person’s right to bring or join a lawsuit because he or she is directly affected by the issues raised. This is called ‘standing to sue.’

Question 24

Must a person have standing before they can successfuly have evidence supressed?

Answer 24

Yes.
1. The person challenging the evidence must have an adversarial interest in the proceeding. (Only defendants in criminal cases may challenge evidence as seized in violation of the 4th amendment. A mother lacks standing.

2. A defendant must have a reasonable expectation of privacy to a place or thing before he or she can have it excluded at trial. The defendant’s constituional rights must have been violated before evidence will be suppressed.

Question 25

What is New Federalism?

Answer 25

A renewed interest in state constitutional law.

Question 26

Why do courts generally tend to favor citing state law?

Answer 26

If a state court relies upon federal law when defining a right, the possibility of reversal by a federal court, usually the Supreme Court, exists.

Question 27

What are some examples of state law giving greater protection to rights than federal law?

Answer 27

1. Leon case by the Supreme Court gave a good-faith exception to the exclusionary rule; The Edmunds decision by the Supreme Court of Pennslyvania, expressly rejects the good-faith exception in state prosecutions.
2. Some states have not followed the Supreme Court’s lead in allowing statements made in violation of Miranda to be used by the prosecution in impeachment of a defendant.

Question 28

May state laws reduce federally secured rights?

Answer 28

No. State laws may not enlarge federally secured rights. rights. However, they may through state law, enlarge rights also protected by federal law.