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Criminal Procedure
John Marshall Law School, Chicago
O'Neill, Timothy P.

Criminal Procedure
Spring 2015
·         Step 1: Pre-Arrest Investigations
o   Reactive Investigations
o   Proactive Investigations
o   Prosecutorial Investigations
·         Step 2: Arrest
o   Here, we refer to the act of taking a person into custody for the purpose fo charging him with a crime
o   This involves the detention of the suspect for the purpose fo 1st transporting him to a police facility and then requesting that charges be filed against him
o   As an alternative to such a full custody arrest, many jurisdictions authorize the officer in certain situations to briefly detain the suspect and then release him upon issuance of an official document which directs the suspect to appear in ct on a set date to respond to the charge specified in the document
o   Where there is no immediate need to arrest a suspect, an officer may seek to obtain an arrest warrant prior to taking the person into custody
o   To obtain a warrant, the police must establish, to the satisfaction of the magistrate, that there exists probable cause to believe that the prospective arrestee committee the crime for which he will be arrested
o   The vast majority of arrests for felonies are made without 1st seeking a warrant
·         Step 3: Booking
o   It is at this facility tat that the arrestee will be taken thru a process known as booking
o   Initially, the arrestee’s name, the time of his arrival and the offense for which he was arrested are noted in the police blotter or log
o   This is strictly a clerical procedure, and does not control whether the arrestee will be charged or what charge may be brought
o   Once booking is complete, the arrestee ordinarily will be allowed 1 telephone call
o   After that, the arrestee will be placed in a lockup pending his subsequent presentation at a 1st appearance
o   Before entering the lockup, the arrestee will be subjected to another search, often more thorough than that conducted incident to the arrest, with his personal belongings removed and inventoried
o   In some jurisdictions, persons arrested on lower level felonies can gain release from the lockup by meeting the prerequisites  of a stationhouse bail program
·         Step 4: Post-Arrest Investigation
o   The police may obtain from the arrestee identification exemplars, such as handwriting or hair samples, that can be compared with evidence found at the scene of the crime
·         Step 5: The Decision to Charge
o   The ultimate authority over charging rests with the prosecutor, rather than the police
o   The prosecutor is engaged in an ongoing evaluation of the charge throughout the criminal justice process, but a prosecutor’s decision not to go forward on a charge requires a different processing action depending upon whether that decision is made: (1) prior to the filing of complaint (step 6); (2) after the complaint is filed, and prior to the filing of an indictment or information (step 11); (3) after the filing of the indictment or information
o   A decision not to proceed at the 1st stage simply results in the complaint not being filed, and the release of the arrestee from police custody without any involvement of the judiciary
o   A decision not to proceed at the 2nd stage commonly occurs in connection with the prosecutor’s review of the case against the D prior to presenting it to a magistrate at a preliminary hearing or to a grand jury
o   A decision not to proceed further at the 3rd stage requires a prosecutor’s nolle prosequi motion, which must be approved by the trial court
o   Prosecutorial review of the police charging decision prior to the filing of the complaint must occur in a short time span, as the arrested D must be brought before the magistrate within 24 hours or 48 hours
·          Step 6: Filing the Complaint
o   Assuming that the police decide to charge and that decision is not overturned in a pre0filing prosecutorial review, the next step is the filing of charges with the magistrate ct, which must be done prior to the arrestee’s scheduled 1st appearance
o   Its basic function is to set forth concisely the allegation that the accused, at a particular time and place, committed specified acts constituting a violation of a particular criminal statute
o   The complaint will be signed by a complainant, a person who swears under oath that he or she believes the factual allegations of the complaint to be true
·         Step 7: Magistrate Review of the Arrest
o   Following the filing of the complaint and prior to or at the start of the 1st appearance, the magistrate must undertake what is often described as the “Gerstein review”
o   If the accused was arrested without a warrant and remains in custody the magistrate must determine that there exists probable cause for the offense charged in the complaint
o   If the magistrate finds that probable cause has not been established, she will direct the prosecution to promptly produce more information or release the arrested person
·         Step 8: The 1st Appearance
o   An arrestee who is held in custody, or who otherwise reminas subject to custodial restraints, must be presented before the magistrate ct within a time period typically specidied as either 24 or 48 hours
o   Since the arrestee is now a D, and this is his initial appearance in that capacity, this proceeding before the magistrate is described in many jurisdictions as the 1st appearance
o   Initially, the magistrate will inform the D of the charge in the complaint, of various rights possessed by the D, and of the nature of further proceedings
·         Step 9: Preliminary Hearing
o   In most jurisdictions, the prosecution, if it so chooses, can preclude a preliminary hearing by obtaining a grand jury indictment prior to the scheduled date of the hearing
o   D who intend to plead guilty commonly waive the hearing and move directly to the trial ct
o   Where the preliminary hearing is held, it wil provide, like grand jury review, a screening of the decision to charge by a neutral body
o   In the preliminary hearing, that neutral body is the magistrate, who must determine whether, on the evidence presented, there is sufficient evidence to send the case forward
o   The preliminary hearing, however, provides screening in an adversary proceeding in which both sides are represented by counsel
o   If the magistrate concludes tha the evidence presented is sufficient for the prosecution to move forward, she will bind the case over to the next stage in the proceedings
o   In an indictment jurisdiction, the case is bound over to the grand jury, and in a jurisdiction that permits the direct filing of an information, the case is bound over directly to the general trial court
o   If the magistrate finds that the evidence is insufficient to support any charge, the prosecution will be terminated
·         Step 10: Grand jury Review
o   18 states, the federal system, and DC currently require grand jury indictments for all felony prosecutions
o   The grand jury is selected randomly form the same pool of prospective jurors as the trial jury
o   Unlike the trial jury, however, it sits not for a single case, but for a term that may range from 1 to several months
o   The primary function of the grand jury is to determine whether there is sufficient evidence to justify a trial on the charge sought by the prosecution
o   It meets in a closed session and hears only the evidence presented by the prosecution
o   The D has no right to offer his own evidence or to be present during grand jury proceedings
o   If a majority of the grand jurors conclude that the prosecution’s evidence is sufficient, the grand jury will issue the indictment requested by the prosecutor
o   If the grand jury majority refuses to approve the proposed indictment, the charges against the D will be dismissed
·         Step 11: The Filing of the Indictment or Information
o   If an indictment is issued, it will be filed with the general trial ct and will replace the complaint as the accusatory instrument in the case
·         Step 12: Arraignment on the Information or Indictment
o   After the indictment or information has been filed, the D is arraiged – ie., he is brought before the trial ct, informed of the charges against him, and asked to enter a plea of guilty, not guilty, or as is permitted under some circumstances, nolo contendere
·         Step 13: Pretrial Motion
o   In most jurisdictions, a broad range of objections must be raised by a pretrial motion
o   Those motions commonly present challenges to the institution of the prosecution
·         Step 14: Guilty Plea Negotiation and Acceptance
o   Guilty pleas in felony cases most often are the product of a plea agreement under which the prosecution offers certain concessions in return for the D’s plea
o   The trial judge’s primary responsibility in accepting a guilty plea is to ensure that the D understands both the legal consequences of entering a guilty plea and the terms of the plea agreement
·         Step 15: The Trial
o   Several distinguishing features that are either unique to criminal trials or of special importance in such trials
o   These include: (1) the presumption of D’s innocence; (2) the requirement of proof beyond a reasonable doubt; (3) the right of the D not to take the stand; (4) the exclusion of evidence obtained by the state in an illegal manner; and (5) the more frequent use of incriminating statements previously made by the D
o   Where the jury cannot reach agreement, it is commonly described as a hung jury
o   Such a jury is discharged w/o reaching a verdict, and the case may be retired
·         Step 16: Sentencing
o   Basically 3 different types of sentences may be used: financial sanctions; some form of release into the community; and incarceration in a jail or prison
·         Step 17: Appeals
·         Step 18: Collateral Remedies
Section 3 – Diversity in Legal Regulation
·         52 lawmaking juris

Facts. Petitioner was an indigent, charged with carrying concealed weapon, an offense punishable by imprisonment up to six months and/or a $1,000 fine. It was a judge-trial, and the petitioner had no representation. He was sentenced to a 90-day jail term. The Florida Supreme Court held that the right of court-appointed counsel applies only to trials for “non-petty offenses punishable by more than six months imprisonment.”
Issue. Whether the Sixth Amendment right of court-appointed counsel applies to only trials of non-petty offenses.
Held. No. The Supreme Court of the United States first held that the Duncan case the Florida Court had relied upon actually “limited the right to trial by jury to trials where the potential punishment was imprisonment for six months or more.” The Court also noted that “problems associated with the misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial.” The Court did not consider the right to counsel as applied to people facing actual jail time.
AL v. Shelton
Facts. Defendant represented himself in a state court assault trial. Although the court warned defendant repeatedly of the disadvantages of this strategy, they did not offer him assistance of counsel at state expense. After conviction, he was given two years unsupervised probation and a thirty-day suspended sentence that he did not serve. After the lower appeals court affirmed, the Alabama Supreme Court reversed the defendant’s suspended sentence and vacated the probation. The State of Alabama then sought certiorari.
Issue. Does the Sixth Amendment right to counsel permit a state to impose a suspended sentence even though the ineffectively-assisted defendant was not actually incarcerated?
Held. No. The Alabama Supreme Court’s vacation of the suspended sentence was affirmed.
Because the suspended sentence could potentially result in an actual deprivation of the indigent defendant’s liberty, he needed to have received adequate assistance of counsel in his trial for assault.
The court did not view the suspended sentence as a contingent penalty at the violation of probation capable of being cured by giving the defendant an attorney at subsequent probationary hearings. They viewed it as a prison term that would be imposed as a result of the assault trial at which he had ineffective assistance of counsel, and thus his Sixth Amendment rights were violated.
Discussion. This decision results in courts having to offer to appoint counsel at state expense to indigents whenever there is a possibility that the offense with which they are charged may result in prison time. This is the case even if they are not sent directly to prison.
Rothgery v. Gillespie County (D)
Issue: Does a criminal D’s initial appearance before a judicial officer, where he learns of the charges against him, constitute the start of adversarial proceedings that triggers the attachment of the 6th amendment’s right to counsel?
Holding & Decision: Yes. A criminal D’s initial appearance before a judicial officer, where he learns of the charges against him, constitutes the start of adversarial proceedings that triggers the attachment of the 6th amendment’s right to counsel. The ct has previously held that the 6th amendment right to counsel attaches at the initiation of criminal proceedings, whether that initiation is in the form of an indictment, arraignment, preliminary hearing, or some other hearing wherein the D is formally charged. Typically, an arraignment is the initial appearance. The issue here is whether TX’s Article 15.17 hearing is an initial appearance. It clearly qualifies. At the hearing, the D informed P of the charges against him and set bail. Once attachment occurs, the D must appoint counsel during any critical stage of the post attachment proceedings. The ct shall not consider at this time whether the 6 month delay in appointment of counsel for P specifically constituted a violation of his right to counsel. Reversed