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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 the double jeopardy and/or speedy trial clauses of the Constitution.
2. In some circumstances, if a defendant’s pretrial motions are successful, the judge will dismiss the charges on her own or on the prosecutor’s motion.
xii. Trial
1. The right to a jury trial applies, at minimum, to any offense for which the maximum potential punishment is incarceration in excess of six months.
2. A jury as small as six in number is constitutionally permitted.
3. Laws permitting non-unanimous verdicts have been upheld as constitutional.
4. “Impartial jury” – an individual juror is not impartial if her state of mind as to any individual involved in the trial, or as to the issues involved in the case, would substantially impair her performance as a juror in accordance with the law and the court’s instructions.
5. The jury should be composed of a persons constituting a fair cross-section of the community
6. entitled to counsel (An indigent is entitled to the appointment of counsel in all felony prosecutions, as well as any misdemeanor trial in which she will be incarcerated if convicted.
7. The defendant may call witnesses on her own behalf, and confront and cross-examine the witnesses who testify against her.
8. Defendant not required to testify on her own behalf.
xiii. Sentencing
xiv. Appeal
1. All jurisdictions statutorily permit a convicted defendant to appeal; not a constitutional right.
2. every state provides a right of first appeal
3. entitled to appointed counsel for that first appeal only
xv. Habeas Corpus
1. After a defendant’s appeals are exhausted, she may file a petition for a writ of habeas corpus in a federal district court, if she believes that her continued incarceration is in violation of the United States Constitution or of a federal law.
2. collateral attack on a criminal conviction
3. The purpose of a habeas petition is to convince the district (trial) court that it should compel the warden of the jail or prison holding the petitioner to bring her before the court so that it can determine whether she is being held in custody against the law.
II. Incorporation of the Bill of Rights
a. The provisions of the Bill of Rights that pertain to criminal procedure – primarily, the fourth, fifth, sixth, and eighth amendments – have no direct effect on the majority of criminal cases that arise in this country because the Bill of Rights originally applied only to the federal government and most criminal cases arose in the states.
b. The 14th amendment imposes limits on state action.
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.

there. When they demanded entrance, D telephoned her attorney, and on his advice, refused to admit them without a search warrant. After keeping the house under surveillance for three hours and, apparently still without warrant, the officers returned to the house. When D did not come to the door immediately, they forcibly entered, damaging the door in the process. Once inside, the officers displayed a piece of paper they claimed was a search warrant. D grabbed it and “placed it in her bosom.” The officers removed the warrant from her clothing after a struggle and they forced her upstairs where they searched her belongings. They searched the rest of the house. They didn’t find any materials related to the bombing, but they did find “obscene materials” which they seized. D was convicted for their possession.
2. Issue: Whether evidence obtained illegally by the state can be admitted in a state trial.
3. Rule: The Fourth Amendment exclusionary rule applies in state criminal trials, just as it does in the federal system via Weeks.
4. Reasoning: Same sanction of exclusion; to hold otherwise provides an incentive to conduct illegal searches and seizures. Significant because it provides not just for the incorporation of the 4th Amendment but also of the exclusionary rule. Also, introduces uniformity among the states. Court said that the states had started to adopt the exclusionary rule and other protections proved worthless or futile. Exclusionary rule is what deters the police from violating the 4th Amendment. Focus on the judicial integrity of the U.S. courts; using tainted evidence is lowering the esteem and integrity of the U.S. Courts.
5. Dissent: Justice Harlan saying that they should have reasoned it under the 1st Amendment. Court overruled Wolf without the issue actually being briefed. (This sort of thing is exceedingly rare. This is the beginning of the Warren Court’s modification of criminal procedure).
v. Rationale:
1. To deter by removing the incentive to disregard the 4th Amendment.
a. If we assume that threat of punishment deters many would-be criminals from violating penal laws, we may assume that police officers, too, will be deterred from violating constitutional rights if they know that the government cannot take advantage of the fruits of the illegal conduct by use of the evidence at a criminal trial.
b. The prime purpose, if not the sole one.
2. The imperative of judicial integrity.
a. Not as widely depended upon anymore.
vi. The exclusionary rule is no longer considered an essential component of the Fourth Amendment, but is merely a remedy devised by the Justices to deter unconstitutional governmental misconduct.
vii. The scope of the exclusionary rule has been narrowed.
e. “Persons, Houses, Papers, And Effects”
i. Police activity that does not involve a person, house, or effect – whether the police activity is reasonable or unreasonable, conducted with or without a warrant, and whether supported by probable cause, reasonable suspicion, or no credible evidence t all, is lawful under the Fourth Amendment.
ii. “Persons” includes:
D’s body, as a whole, such as when he is arrested