CRIMINAL PROCEDURE OUTLINE
Professor Gershowitz – Fall 2005
“One who is his own lawyer has a fool for a client.” – Professor Gershowitz
I. STAGES OF A CRIMINAL PROSECUTION
II. CONSTITUTIONAL RESTRSTRAINTS ON CRIM PROCEDURE (INCORPORATION)
III. FOURTH AMENDMENT – OVERVIEW
IV. FOURTH AMENDMENT – SEARCH
V. FOURTH AMENDMENT SEIZURE
VI. FOURTH AMENDMENT – PROBABLE CAUSE
VII. FOURTH AMENDMENT – WARRANTS
VIII. FOURTH AMENDMENT – EXCEPTIONS TO THE WARRANT REQUIREMENT
IX. REMEDIES FOR VIOLATION
X. CONFESSIONS
XI. IDENTIFICATION PROCEDURES
XII. PRE-TRIAL PROCEDURES
XIII. ARRAIGNMENT & PLEADING
XIV. JOINDER & SEVERANCE
XV. PRE-TRIAL RIGHTS
XVI. RIGHT TO COUNSEL: AT TRIAL & ON APPEAL
XVII. GUARANTEES OF A FAIR TRIAL
XVIII. OTHER TRIAL ISSUES & PROFESSOR RAMBLINGS
XIX. DOUBLE jeopardy
XX. POST TRIAL STAGE: SENTENCING
XXI. APPEALS
XXII. HABEAS CORPUS PROCEEDINGS
I. STAGES OF A CRIMINAL PROSECUTION
1. Arrest: When a police officer has probable cause to believe that a suspect has committed a crime, the officer makes an arrest. An arrest may occur either with or without a warrant (most are without a warrant).
2. Booking
3. Filing compliant – A prosecutor decides whether there is enough evidence to file charges, if so, the prosecutor prepares a complaint
4. First appearance – Suspect is brought before a magistrate. Magistrate informs D of the charges, notifies him that he has the right to counsel, and sets bail or releases D without bail
5. Preliminary hearing – If the case is a felony case, a “preliminary hearing” is held. Usually involves live witnesses so the magistrate can determine whether there is probable cause to believe that D committed the crime charged
6. Filing of indictment or information – A grand jury hears the prosecutor’s evidence and determines whether to issue an indictment. In a non-grand-jury state, the prosecutor prepares an “information” reciting the charges
7. Arraignment – After indictment or information has been filed, D brought before the trial court and asked to plead innocent or guilty
8. Pre-trial motions
9. Trial – If charge is a felony, or a misdemeanour punishable by more than 6 months in prison, D has right to have the case tried before a jury
10 Sentencing – Usually by the judge, not the jury
11. Appeals
12 Post-conviction remedies – Challenges to convictions through federal-court habeas co
Right to Confront Witnesses
(4) Right to Assistance of Counsel
NOTE: Through incorporation, the SCt has acted in an arbitrary manner. For example, the Right to a jury trial is binding against the states, but not in all instances. The Court has stated this is only in situations where D is charged w/ a crime carrying a sentence of > 6 months.
NOTABALE RIGHTS NOT BINDING ON THE STATES –
Right to Grand Jury Indictment –
Prohibition Against Excessive Bail –
III. FOURTH AMENDMENT – OVERVIEW
TEXTUAL LANGUAGE – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
TEXT BREAKDOWN: A TALE OF TWO CLAUSES –
