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

Crim Pro I Outline
 
I.          Criminal Justice System Overview
 
Steps in the Process
1)      The Reported Crime
2)      Pre-arrest Investigation
a.       On-scene arrests
                                                  i.      Substantial % of arrests for a wide range of crimes are of the “on-scene variety”
                                                ii.      Based on officer’s own observation or on the direction of a witness who witnessed the crime
b.      Reactive investigations
                                                  i.      Involves determining whether there actually was a crime committed
                                                ii.      If so, determining who committed the crime,
                                              iii.      Collecting evidence of that person’s guilt
                                              iv.      Locating offender to be taken into custody
                                                v.      Proactive investigations
                                              vi.      Aimed at uncovering criminal activity that is not specifically known to the police
c.       Prosecutorial Investigations
                                                              i.      Grand jury investigations
                                                            ii.      Subpoena authority
3)      Arrest
4)      Booking
5)      Post-Arrest Investigation
6)      The Decision to Charge
                                                              i.      General rule you have to be before judge within 48 hours
                                                            ii.      4 part process
1.      the decision of the arresting officer to arrest the suspect
2.      the police review of that decision prior to filing charges
3.      possible prosecutorial review prior to filing; and
4.      ongoing prosecutorial review after the filing
                                                          iii.      Prosecutor rejection not to charge may be for the following reasons:
1.      insufficient evidence
2.      witness difficulties
3.      due process problems
4.      adequate disposition will be provided by other criminal proceedings
5.      the interests of justice
6.      anticipated use of a diversion program
7)      Filing the Complaint
a.       Two major ways of charging somebody
1.                  Grand jury-group of citizens. Ex parte proceeding. Opportunity for prosecutor to present case. Do informal way. Prosecutors cultivate a relationship with the jury. D and D counsel not allowed to be present. Product of grand jury is indictment.
Indictment are product of
 
The only way to be charged in federal court is to be charged thru grand jury indictment
 
2.                  Information. Not in Constitution. Second way that people are charged. Preliminary hearings produce information. The only issue is there probable cause that the person committed the offense. Preliminary hearings are very informal.
 
If D had a choice then he would always want a Preliminary hearing. D can be present at Preliminary hearing.
           
8)      Magistrate Review of the Arrest
9)      First Appearance
10) Preliminary Hearing
11) Grand Jury Review
12) The Filing of the Indictment or Information
13) Arraignment on the Information or Indictment
a.       Arraignment: somebody has been warned that there is charge against him. Usually waive reading of indictment. Attorney should be present
b.      At arraignment you enter plea guilty or not guilty
14) Pre-Trial Motions
a.       Pre-trial motions become very important. 725 ILCS Sec. 114 deals with pre-trial motions:
                        Motion to dismiss
                        Motion to continuance
                        Motion to change venue
                        Motion to substitution of judge
                        Motion to join crimes
                        Motion to severe the D’s
                        ***Motion to suppress confessions
                        ***Motion to suppress evidence
 

 
2254 section of Fed Code dealing with Habeas Corpus from state court.*****Has to be a federal issue.
 
You have automatic right to appeal to 7th Circuit.
 
You then can appeal again to Supreme Court
 
Federalist papers: series of short essays trying to convince people (Madison, Hamilton and Jay). Federalists making arguments why the states should come together and ratify constitution. Strong central govt.
 
Anti-Federalists: real concerned that federal government would be too strong.
 
 
II.        The Nature of Due Process
 
1868 14th Amendment sec. 1 overruled Dred Scott and made slaves/African Americans citizens of U.S.
 
14th Amendment sec. 1 is restraint against the states
            privileges, immunities, due process
 
14th privileges, immunities deals with those rights by virtue of being U.S citizens.
 
Due Process clause of 14th Amendment makes Bill of Rights applicable to states.
 
14th amendment it is a bill of restriction against the States
            Federal Constitution guaranteeing rights of the people against the States
 
First clause of 14th Amendment deals away with Dred Scott case
 
            3 different cases
1.      privileges or immunities
2.      deprive any person of life
3.      equal protection
 
Theories
Due process of law means you look at the rights in the Bill of Rights get carried over to the states thru the 14th Amendment this is knows as total incorporation.
 
Total Incorporation you think of Justice Hugo Black
            Black wanted to avoid Judges as Gods. Took literal view of the Constitution
 
U.S. Supreme Court rejected total incorporation