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Criminal Procedure
South Texas College of Law Houston
Corn, Geoffrey S.

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.
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.
b. 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.
d. Duncan v. Louisiana
i. Facts: Defendant accused of simple assault in Louisiana. He wanted a jury trial but was denied because Louisiana only allows jury trials for felonies.
ii. Issue: Whether right to a trial by jury guaranteed by the 14th Amendment.
iii. Rule: Right to trial by jury is fundamental and the 6th amendment right to a trial by jury applies to the states.
iv. Reasoning: 1.The right to a jury trial should apply to the states because there is a long history of a right to a jury trial in the United States. 2. Without a jury trial there will be oppression by the federal government; reluctance to entrust power over life and liberty to judges.
v. Concurrences: 1. Justice Black wanted all of the provisions of the Bill of Rights applicable to the state and that judges shouldn’t be able to tinker with individual provisions. 2. Fortas doesn’t want all of the provisions included, but is okay with the 6th Amendment being included.
III. Overview of the Fourth Amendment
a. Text – “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 toe searched, and the persons or things to be seized.”
b. Purpose – What does the 4th Amendment seek to protect?
i. What broad overriding values inspired the framers of the 4th Amendment?
1. The more recent interpretation of the amendment is that the framers intended to protect people’s legitimate expectations of privacy in their “persons, houses, papers, and effects.”
2. The unwarranted entrance into an individual’s home is the clearest violation of 4th Amendment values.
c. Standing – A defendant in a criminal prosecution may not raise a claim of a 4th Amendment violation unless she is the alleged victim of the unreasonable search or seizure.
d. Exclusionary Rule
i. Primary 4th Amendment remedy – provides that evidence seized by the police in violation of the 4th Amendment may not be introduced by the prosecution in a criminal trial of the victim of the unreasonable search or seizure.
ii. Weeks v. United States
1. Facts: Defendant was arrested. While he was being arrested the police went and searched his house without a warrant. Later that day a U.S

rs the is-it-a-search question in the negative, any claim that the police acted without warrant or probable does not matter.
b. Modern Analysis
i. Katz v. United States
1. Facts: D was the subject of warrantless surveillance of his conversations by federal officers, who attached an electronic listening device to the outside of a telephone booth from which he conducted conversations.
2. Issue: Was the method of placing an electronic listening device outside of a phone booth a search?
3. Rule: Harlan’s concurrence – twofold requirement, 1. that a person have exhibited an actual (subjective) expectation of privacy and, 2. that the expectation be one that society is prepared to recognize as reasonable.
4. Reasoning: From this point forward, Katz sets up a doctrine that the 4th amendment protects people, not places. Eliminates the idea of criminal trespass is necessary before the 4th amendment is implicated. Reasonableness is an objective standard. Stewart’s Opinion: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. Whereas what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Because the telephone booth was made of glass, D’s physical actions were knowingly exposed to the public, but what he sought to exclude when he entered the booth was the uninvited ear. Therefore, by shutting the door on the booth and paying the toll, D was surely entitled to assume that the words he uttered…would not be broadcast to the world. Harlan’s Concurrence: “reasonable expectation of privacy….” Police conduct does not constitute a “search” if either prong of the test is lacking. D would not have had a valid expectation if he had left the door to the booth open or if he knew that the booth was bugged.
5. Problems with Harlan’s test – difficult to implement, difficult to prove, and once people know that the government is reading their mail, listening to their conversations, and generally intruding on their privacy, they will possess no subjective expectation of privacy. Non-government intrusions can undermine our right to be free from government intrusions. Set up a test for a case by case analysis of subsequent cases.
6. Dissent: Black doesn’t like judges determining whether or not there is an expectation of privacy.
ii. Subjective prong – “. that a person have exhibited an actual (subjective) expectation of privacy”
1. The Court has generally found that the Fourth Amendment claimant possessed an expectation of privacy, was willing to assume that she did, or simply moved on without discussion to the objective prong.
iii. Objective prong – “that the expectation be one that society is prepared to recognize as reasonable.”
1. The Court has applied the objective prong strictly
2. Factors:
a. The nature of the property inspected.
i. The extent to which a person has a reasonable expectation of privacy is significantly tied to the place where the police activity occurred.
b. The extent to which a person has taken measures to keep information, her property, or activities private is vital.
i. Rule 1: A person cannot possess a reasonable expectation of privacy in that which she knowingly exposes to the public or is in open view.
ii. Rule 2: One who voluntarily conveys information or property to another person assumes the risk that the latter individual is a government agent or will transmit the information or property to the government.
1. United States v. White
a. Facts: a police informant sets up a drug dealer. On some occasions the informant is wearing a wire and on others another officer is hiding in the closet and recording the conversations.
b. Issue: Is the police’s use of a wired informant a search within the meaning of the Fourth Amendment?
c. Rule: A person does not have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.
Reasoning: It is not a search because the defendant had no expectation of privacy when speaking to another person. Distinct from Katz becausethere is a “stabbed in the back” rule that says that a person is taking a chance when they talk to someone else. Whereas a person can control the extent to which