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

Professor O’Neill
Criminal Procedure
Spring 2016
The John Marshall Law School
This class is about, from the defenses’ perspective, the concept of motions to suppress, and from the prosecutor’s point of view, what evidence is admissible.
This course is not concerned with §1983 civil suits (a legal action against somebody operating under the color of any statute). This course concerns the criminal situation were a suspect is found w/ something or has done something that necessitates a criminal prosecution.
This is basically a Constitutional Law III course.We’ll consider the 4th amendment (suppression of stuff), 5th Amendment (suppression of statements), and the 6th Amendment (issues at hearings).
For these Amendments there are exclusionary rules.These say that under certain circumstances evidence that has been illegal seized, or statements made by suspects, cannot be used against the D at a criminal trial. That is what this course is about.We’re going to learn how to get this evidence in, and at the same time keep it out.
SUPPRESION MOTIONS: what evidence goes in/out at trial.
If you’re the prosecution, you can take an immediate appeal on a suppression motion.But if you’re the defense, in order to appeal you have to go to trial and raise it there; can’t immediately appeal.
The success or failure of suppression motions determines whether you’re going to trial or what plea bargain the defense you’re going to get.
About 90% of all felony indictments end up in plea bargains; trial is rare. So what these suppression motions do is deal the cards of what will be given and taken in a plea bargain. This will heavily influence the bargaining.
How to determine what is admissible and what is not?
Look to statutes
Rules of Evidence
Based on violations of the federal Bill of Rights
4th amendment: unreasonable search and seizures
5th amendment: confessions
6th amendment: right to counsel
14th amendment: due process
In the class we’re going to be dealing with values. The 4th Amendment talks about unreasonable searches and seizers.But we have no idea what that means.Each justice has their own idea of what that means.
When a court has an opinion, we’re reading the point of this particular court at this particular time and it has this particular view. We’re dealing with VALUES.
Bill of Rights = Bill of Restrictions (on gov’t)
Themes throughout the course:
First, again, this is a Con. Law course.
Second, we’re not dealing w/ the 18th, 19th and most of the 20th century.Once we hit 1960, then it’s on.Starting in 1960 everything changes and the Supreme Court gets really into criminal procedure. USSC did not have jurisdiction until 1891. So we’re back loaded; everything in the past 50 years.
Third, there is a predictability in this course
From a criminal point of view, if you’re the defendant, there is one reality: you’re going to lose when you get to the USSC if under: S-T-A-R-K; they will hold for the prosecution.
S (Scalia) T (Thomas) A (Alito) R (Roberts) K (Kennedy).
But there are 4 justices, that if it is death case, S-G-B-S, “someone going to be saved”; they are very pro-defense.
S (Souter) G (Ginsburg) B (Breyer) S (Stevens)
The history of the past 50 years are very important to understand where we are today.
Fourth, race is important theme.
Race plays an enormous part, especially w/ the Warren Court (1953).The Warrant Court was bothered with racial injustice and that manifested in their decisions. They were interested b/c what was going on in civil rights at the time.
In the 1960's the Warren Court moved from school issues to another area they felt there was too much racial discrimination – criminal procedure (lynch mobs, segregated juries, etc.).
Fifth, federalism.
This is the division of power between the Feds and the states.It is based on the word: Faith. It is based on trust and dividing authority.
We have a remarkable balance on what the state and federal governments can do.
So federalism is the allocation of power to the states; a certain faith that we have that allows us to join a federation (comes from the origins of the word – faith).
In a federalist system , we have 52 criminal justice systems (50 states; D.C.; Federal System)
Up until the 1950s the state criminal justice systems could do pretty much anything they wanted, but then the Warren Court began expanding the applicability of the federal Constitution to the state criminal justice systems and procedures.
Sixth, normative (what the world SHOULD be like) v. descriptive (what the world IS like).
First you have to understand where we are to argue how things should be.
Descriptive:how the world is; isn't necessarily how the world should be or that the law can't be changed; whether to disagree or agree is a decision we have to make.
Normative:how the world should be.
The Steps in the Process:
Pre-Arrest Investigation
The first step in the processing of what eventually may become a felony prosecution most often is a pre-arrest investigation by the cops.
Investigative procedures are divided between those aimed at solving specific past crimes which cops think have been committed (reactive), and those aimed at unknown but anticipated ongoing or future criminal activity (proactive). There is also the investigation conducted through the use of the subpoena authority of the grand jury.
Reactive Investigations
These are incident driven or “complaint responsive;” cops initiate an investigation responsive to a “known crime.”
In general, these do not use specific methods of investigation, confrontations w/ crafty criminals, or reliance upon formal informants.
Proactive Investigations
Aimed at uncovering activity that is not specifically known to the police.
Choice of procedure largely tied to the specific objective of the investigation.Deception is a common element of many proactive procedures.
In general, these are more resource intensive, more intrusive, arguably more likely to foster community opposition, and clearly pose more legal problems than typical reactive investigative procedures.
Prosecutorial Investigations
For certain types of crimes, the best investigatory tool is the subpoena (a court order directing a person to appear in a particular proceeding for the purpose of testifying and presenting specified physical evidence within his possession).
This is usually available for the general investigation of crime only through the grand jury.
The grand jury, although it tends to be known for its screening function in reviewing the prosecution’s decision to charge, also has authority to conduct investigations into the possible commission of crimes within the judicial district in which it sits.
In carrying out this function, the grand jurors, being a group of laypersons w/ no special expertise in investigation, quite naturally rely heavily on the direction provided by their legal advisor, who is the prosecutor. Thus, these investigations really become investigations by the prosecutor.
These often have both reactive and proactive qualities. The investigation starts w/ some information (typically coming from informants or investigators) suggesting that a specifi

n depending upon whether that decision is made:
(1) Prior to the filing of complaint; (2) after the complaint is filed, and prior to the filing of an indictment or information; or (3) after the filing of the indictment or information.
2 basic ways of charging a crime:
Indictment by grand jury
Information issued by judge in a preliminary hearing
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 or 48 hours, and the complaint must have been filed at that point
When a prosecutor decides against proceeding in the prosecutor’s initial screening of the police department’s charging decision, that conclusion most often will have been used anticipated difficulties of proof.
However, the prosecutor also may decide against prosecution, even though the evidence clearly is sufficient, b/c there exists an adequate alternative to prosecution, or special circumstances render prosecution not “in the interest of justice.”
EX. Cont.: Within the 48 hours they have to make a decision whether they will proceed with this (30%-50% get dropped).
Filing the Compliant
Assuming that the police decide to charge and the decision is not overturned in a pre-filing prosecutorial review, the next step is the filing of charges w/ the magistrate court, which must be done prior to the arrestee’s scheduled 1st appearance.
The initial charging instrument commonly is called a “complaint.”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.
EX. Cont.: Let’s assume they come forward with a charge.What happens then is the 1st appearance before a judge.If they do that, they need a complaint, like the one from civil procedure.A complaint is a 1 page thing.The caption on the complaint is important.It will read People of the State of IL v. Jones. This is the paper that will begin the criminal process.
Magistrate Review of the Arrest
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.”
If the accused was arrested w/out a warrant and remains in custody (or is subject to restraints on his liberty as a condition of stationhouse bail), the magistrate must determine that there exists probable cause for the offense charged in the complaint.
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.
Since a judicial probable cause determination already has been made when an arrest warrant was issued, a Gernstein review is not required in such cases (or in case in which the arrestee was indicted by a grand jury prior to his arrest).