I. Introduction
a. Sources
i. Federal Constitution
ii. State Constitutions
iii. State Statutes
iv. court rules
v. rules of ethics
1. disclosure of evidence
b. Discretion
i. points in time of discretion
1. police officer decides ≠ to arrest
2. ∏ decides ≠ to prosecute or on a lesser charge
3. grand jury may determine insufficient cause to continue
4. juries may acquit
5. judges may impose a sentence above or below the guidelines
state appeal à state post conviction à federal habeas corpus
standards of review & standards for the ∆ get harder as go up the process.
federal habeas corpus – is seeing if the state courts was trying to pull a fast one. now, no longer get relief if there was error, now it must be unreasonably wrong.
Why do we have criminal procedure
balance between having the process to be right or to control crime, to find truth.
will make a decision based on some swinging of this pendulum
II. Cycle of a Criminal Prosecution
a. Probable Cause Hearing & Initial Appearance
i. Booking of charges
ii. Gerstein Hearing: the probable cause hearing
1. Gerstein hearing must be heard within a reasonable time
2. follows if there has been no warrant issued for arrest
3. Gerstein v. Pugh (US 1975)
4. County of Riverside v. McLaughlin (US 1991): Gerstein hearing must be held within 48 hours
5. this is based on the fourth amendment & do ≠ directly address issues of due process
6. relatively low standard of proof for probable cause.
iii. Initial Appearance
1. even if follows arrest warrant, all jurisdictions require Gerstein or initial appearance
2. Requires that the arrestee be apprised of:
a. the charges ┤him,
b. of his constitutional rights
i. right to counsel
ii. that he may apply for bail
3. Judges will
a. set bail
b. determine if ∆ is entitled to appointed counsel
4. often will be combined with Gerstein hearing
iv. Preliminary hearing or examination: term used to describe either or both of the proceedings
b. Bail
i. 8th Amendment right ┤excessive bail
ii. mechanics of Bail
1. bail to assure the ∆’s return for trial, but avoids pre-trial incarceration
2. Pre 1960’s
a. ∆ obtain surety
b. bailbondsman
3. Post-1960s Bail Reform
a. VERA Foundation: established methods to determine ∆s character, ties to community & if they would be safe bet.
b. Federal Bail Reform Act of 1966:
i. presumption that all federal ∆ should be released w/o any money bail at all & released on their own recognizance
ii. judicial officer may ≠ impose a financial condition that results in the pre-trial detention of the person
iii. if court doubtful about pre-trial release, judges can set increasingly stern conditions for release culminating in money bail.
c. States have abolished money bail or provide the same kind of service that bondsmen had previously provided (cash bail)
d. money bail: surety bond.
4. Determining Bail – Factors
a. seriousness of the crime charged
i. more serious, higher the penalty ∵∆ less likely to return voluntarily
b. evidence ┤the ∆
ii. romely v. rayes
iii. caballero v. United Kingdom
3. Preventative Detention
a. detention to prevent further crime, intimidation of witnesses, safety of community even though ≠ a flight risk. Could ≠ consider these factors before Salerno & sometimes resulted in excessive bail in consideration of flight risk (risk low, other things high)
b. U.S. v. Salerno (Us 1987)
i. Held: the revised 1966 statute for preventative detention was ≠ unconstitutional
ii. detention is regulatory & ≠ punitive, thus 8th ≠ involved
iii. appears to also settle that:
1. 8th does ≠ guarantee possibility of bail to all ∆s, even non cap offenders
2. presumption of innocence has no effect upon a pretrial detainee’s status; presumption is merely a procedural devise for allocating the burden of proof at trial.
iv. makes presumption that the federal statute expressly requires detention to be made on individual case by case basis (Stack)
v. Salerno allows for denial of bail if ∆ would commit more crimes if released.
