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Criminal Procedure
South Texas College of Law Houston
Wheeler, Michael E.

Professor Wheeler/ Criminal Procedure/ Fall 2015
v  Steps in the Process
Ø  Steps in the Process
§  Pre-arrest Investigation
·         Investigation by the police or prosecutor, is the initial administrative step in the processing of what eventually will become a felony prosecution
·         Ongoing process that continues after the second step noted below (the arrest) and sometimes beyond the filing of charges
·         Distinction between reactive and proactive investigations
¨       Reactive: aimed at solving a past crime
Ø  General purpose police agencies
Ø  Traditionally have devoted the vast majority of their investigative efforts to reactive investigations
Ø  Incident driven or complaint responsive style of policing
Ø  Objectives
§  Determining that the crime actually was committed
§  Determining who committed the crime
§  Collecting evidence sufficient to support the arrest of the offender
§  Locating the offender so that he may be arrested
Ø  Investigative Activities used to achieve obj’s
§  Interviewing of victims
§  Interviewing of other witnesses present when the officer arrives at the crime scene
§  Canvassing the neighborhood for still other persons with relevant info
§  Interviewing of suspects which may require a physical stopping of the suspect on the street and a frisking of the suspect
§  Examining the crime scene and collecting physical evidence found there
§  Submitting forensic evidence for a possible identification match through the use of one of the national databases
§  Checking departmental records and computer files
§  Seeking info from informants
§  Searching for physical evidence of the crime in places accessible to the suspect and seizing any evidence found there
§  Surveillance of a suspect aimed at obtaining leads to evidence of accomplices
§  Using undercover operatives to gain info from the suspect
¨       Proactive: aimed at placing the police in a position to respond to an unknown but anticipated ongoing or future crime
Ø  Variety of procedures may be used
§  Deception
§  Undercover operations
§  Decoy tactic
§  Use of informants
§  Surveillance through stakeouts, covert patrols, and electronic monitoring 
§  Intrusive confrontations designed to place police in a position where they can observe what otherwise would be hidden or to elicit nervous or unthinking incriminatory responses that will provide a legal grounding for taking further investigative action (e.g. arrest for a minor offense)
§  Heavy field interrogation
·         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 (e.g. documents) within his possession
Ø  Typically available for the general investigation of crime only through the grand jury
§  Arrest
·         The act of taking a person into custody for the purpose of charging him with a crime
·         Alternative to full custody arrest- many jurisdictions authorize the officer in certain situations to briefly detain the suspect and then release him upon issuance of an official document which directs the suspect to appear in court on a set date to respond to the charge specified in the document
·         Officer may seek to obtain an arrest warrant
¨       Issued by magistrates
¨       Police must establish probable cause to believe that the prospective arrestee committed the crime for which he will be arrested
¨       May be made by affidavits or live testimony of either the investigating officer or a witness (usually the victim)
·         Contributes to the investigation i.e. search incident to the arrest
·         May be made with or without a warrant
§  Booking
·         Arrestee’s name, the time of his arrival and the offense for which he was arrested are noted in the police blotter or log
·         Felony arrestees ordinarily also will be photographed and fingerprinted
·         Once the booking process is complete, the arrestee ordinarily will be allowed one telephone call      
·         Then arrestee placed in lockup pending his subsequent presented at a first appearance
¨       Subjected to another search
·         In some communities, persons arrested on lower-level felonies can gain release from the lockup by meeting the prerequisites of a stationhouse bail program
§  Post-arrest investigation
·         Critical source: allows police to obtain eyewitness ID by placing the arrestee in a lineup, having a witness view the arrestee individually, or taking the arrestee’s picture and showing it to witnesses
¨       Also handwriting or hair samples that can be compared with evidence found at the scene of the crime
§  The Decision to Charge
·         Initial decision to charge a suspect with a crime is made when a police officer makes a warrantless arrest of the suspect
·         May be reversed
·         Ultimate authority over charging rests with the prosecutor
·         Prosecutorial review must occur in a short time span (24-48 hours)
§  Filing the Complaint
·         Filing of charges with the magistrate court which must be done prior to the arrestee’s schedules first appearance = complaint
¨       Brief document
¨       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
¨       Signed by complainant: a person who swears under oath that he or she believes the factual allegations of the complaint to be true
Ø  Victim or investigating officer
¨       Arrestee officially becomes a defendant in a criminal prosecution
§  Magistrate Review of the Arrest
·         Following the filing of the complaint and prior to or at the start of the first appearance, the magistrate must undertake what is often described as the Gerstein review
¨       If the accused was arrested without a warrant and remains in custody, the magistrate must determine that there exists probable cause for the offense charged in the complaint
Ø  Ex parte determination
¨       If the magistrate finds that probable cause has not been established, she will direct the prosecution to promptly produce more info or release the arrested person
§  The First Appearance
·         An arrestee who is held in custody, or who otherwise remains subject to custodial restraints must be presented before the magistrate court within a time period typically specified as either 24 or 48 hours
·         Setting bail
·         Counsel is appointed
§  Preliminary Hearing
·         All but a handful of the 52 jurs. Grant the felony defendant a right to a preliminary hearing to be held within a specified period (typically within a week or two if the defendant does not gain pretrial release and within a few weeks if released)
·         Right to preliminary hearing is mooted if a grand jury issues an indictment (thereby establishing probable

double jeopardy 1969
·         Privilege against forced incrimination – Hogan case 1964
·         Right to jury trial – Dunkin case
·         Right to public trial – In Re Oliver 1948
·         Right to a speedy trial – Kolpfer case
·         Right to confront witnesses – Pointer 1965
·         Right to obtain witnesses – Washington v. Texas 1967
·         Right to assistance to attorney in felony case – Gideon v. Wainwright
·         Right to assistance to attorney in misdemeanor case – Scott v. Illinois 1979
·         Prohibition against cruel and unusual punishment – Robinson v. California
v  Trends and Countertrends – New Federalism in Independent State Grounds
Ø  A state supreme court bent on providing the accused with greater protection than that said to be required by the federal constitution must be careful to make it clear that it is resting its ruling on an independent state ground
Ø  Michigan v. Long: when the adequacy and independence of any possible state law ground is not clear form the face of the opinion, we will accept as the most reasonable explanation that the state court decide the case they way it did because it believed that federal law required it to do so.
Ø  Decisions of the Supreme Court are not and should not be dispositive of questions regarding rights guaranteed by counterpart provisions of state law
§  Can go above the minimum constitution standard but must be on state law basis not federal
·         Narrow concept
·         Must be clearly indicated, expressly under a state constitution
·         If not, then assume they used federal and you’re going to be out of court
·         If done successfully, locks out Supreme Court
v  The Exclusionary Rule
Ø  Wolf v. Colorado
§  Issue: Does a conviction by a state court for a state offense deny the due process of law required by the 14th am. solely because evidence that was admitted at the trial was obtained under circumstances which would have rendered it inadmissible in a prosecution for violation of a federal law in a court of the US because there deemed to be an infraction of the 4th am. As applied in Weeks?
§  Weeks: Court held that in a federal prosecution the 4th am. Barred the use of evidence secured through an illegal search and seizure
§  Holding: In a prosecution in a state court for a state crime the 14th amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure
§  Weeks- creation of exclusionary rule, apples to federal courts, not state courts
·         Didn’t extend exclusionary rule to states in this case
§  Exclusionary rule used to form boundaries about what is proper and improper for police/gov. to do (punishment)
§  Judicial integrity is another reason for the exclusionary rule
§  Overturned by Mapp