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Criminal Procedure
South Texas College of Law Houston
Gershowitz, Adam M.

Criminal Procedure Outline

I. Background
a. Virtually ever defendant pleads guilty. Rarely do cases end up in an actual trial. 3% go to trial and 1.5% are jury trials.
b. Outline:
i. Commission of a crime
ii. Investigation by the police (theoretical) – a criminal investigation begins when a police officer, on the basis of her own observations and/or those of an informant, comes to believe that criminal activity may be afoot or has already occurred.
1. No investigation needed
2. reactive investigation
3. proactive investigation
4. prosecutorial investigation
iii. Arrest
1. 75 to 85% of defendants cannot afford a lawyer; they get one appointed or a public defender
2. when a routine arrest occurs in a private home, the police must ordinarily be armed with a warrant to take the suspect into custody.
3. arrests in public places usually can be made without an arrest warrant.
iv. Post-Arrest Investigation
v. Prosecutorial Discretion
1. enormous discretion is given to prosecutors
vi. Filing a complaint – not tested on the bar
vii. Initial Appearance
1. Gerstein hearing
a. Following a warrantless arrest, the 4th Amendment requires that a prompt judicial determination of probable cause be made as a precondition to any extended restraint of the arrestee’s liberty.
b. defendant doesn’t have to be present, is not entitled to representation by counsel, and testimony can be based on hearsay.
c. In many jurisdictions, the probable cause hearing is conducted in the suspect’s presence at her first appearance before a judicial officer.
2. Initial Appearance before a magistrate
a. The arrestee receives formal notice of the charges against her, her constitutional rights in the impending prosecution are explained to her, and a date is set for the preliminary hearing.
b. If the suspect is indigent and not presently represented by counsel, a lawyer is appointed.
c. A Gerstein hearing may be conducted.
d. The magistrate determines whether the arrestee should be set free on her own recognizance, released on bail, or detained pending further proceedings.
viii. Grand Jury/Preliminary Hearing
1. Grand Jury
b. neither the defendant nor his/her lawyer is entitled to be present, except if and when she is called as a witness; waiveable
c. The rules of evidence do not apply because no judge is present.
d. The prosecutor is not required to disclose to the grand jury evidence in her custody that might exculpate the putative defendant.
e. jury only has to determine that there is probable cause for the case to move forward
2. states that don’t have grand juries have to have a preliminary hearing (defendant’s attorney can show up here because it is adversarial in nature; often the attorney does not put up a rebuttal case because the prosecutor only needs probable cause).
a. The primary purpose is to determine whether there is probable cause to believe that a criminal offense has occurred and that the arrestee committed it.
b. A discovery mechanism – defendant attorney can see the prosecution’s case
c. Defendant may waive.
ix. Information or Indictment will replace formal complaint – not on bar
x. Arraignment
1. At the arraignment, at which time defense counsel is permitted to be present, the accused is provided with a copy of the indictment or information, after which she enters a plea to the offenses charged in it.
a. Innocent is not a plea; “not guilty” is
xi. Pretrial Motions
1. Various defenses, objections, and requests that often are raised prior to trial; such as:
a. That the indictment or information is defective, in that it fails to allege an essential element of he crime charged or that it fails to give the defendant sufficient notice of the facts relating to the charge against her.
b. That the venue of the prosecution is improper or inconvenient
c. That the indictment or information joins offenses or parties in an improper or prejudicial manner
d. That evidence in the possession of one of the parties should be disclosed to the opposing party
e. That evidence should be suppressed because it was obtained in an unconstitutional manner
f. That the prosecution is constitutionally barred, such as by t

c. To what extent, if at all, does the 14th Amendment due process clause incorporate the Bill of Rights, so as to make the Bill restrictions on federal power applicable to the states?
i. Why question is important:
1. determines the extent to which people are protected from overreaching by agents of the state.
2. If the due process clause incorporates the Bill of Rights in its entirety, the latter charter becomes a national code of criminal procedure.
3. federalism – degree of uniformity among states
4. exacerbates the rule of the judiciary in the enforcement of constitutional rights.
ii. Theories:
1. Total Incorporation
a. The 14th Amendment in general, and the due process clause in particular, incorporates all of the rights included in the Bill of Rights.
b. Advocated by Judge Hugo Black; never received support of the majority
2. Fundamental Rights
a. The 14th Amendment does not incorporate any of the provisions of the bill of rights.
b. The 14th Amendment requires the states to honor fundamental rights which may overlap with the ones in the bill of rights but are not related to them.
3. Total-Incorporation-Plus
a. The due process clause incorporates the Bill of Rights in its entirety as well as all the fundamental rights that fall outside of the express language of the Constitution.
4. Selective Incorporation
a. Once a right is determined to be fundamental, every feature of the federal right applies to the states.
Although inclusion of the right in the 14th Amendment is selective (only fundamental rights are protected by the due process clause), once it is identified as fundamental, the right perfectly mirrors the federal provision.