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Criminal Procedure: Adjudication
St. Johns University School of Law
Cunningham, Larry

Criminal Procedure Adjudication – Cunningham – Spring 2014
Federal Rules of Criminal Procedure -> Page 87 in Supplement
Initial Appearance: First time the Defendant appears in court before a judge
·         Determines where the Defendant will live while the case is pending
o   Either in jail vs. at home
§  Bail determination
·         Judge can also review the information for the first time
o   Means he can dismiss the case if there isn't enough evidence
·         SOMETIMES plea bargains will be offered
·         No more than 24 between arrest and IA in NY
o   No more than 48 hours in Federal Courts
Preliminary Hearing is almost like a mini-trial, where charges can be dropped if not enough evidence
Grand Jury
·         Secret
·         NY has 23 people serve on the Grand Jury
·         Only gets to hear the Government's stuff
·         Serves as a check on the Gov't, police, judge, prosecutors.
·         If insufficient evidence the charges are dismissed
o   If sufficient evidence, the Defendant is indicted
·         Sometimes criminal litigations begin here
o   If the police refuse to arrest then the Defendant goes to get indicted first
·         Defendant enters guilty or not guilty plea
·         Usually there's a long time between the arraignment and trial
Brown v. Mississippi
·         White man gets killed and 3 black men are accused
o   The black men get brought in and tortured until they confess
·         4 days between the murder and the indictment (CRAZY FAST)
·         Big issue is whether or not the Supreme Court can rectify injustices at the State Level
o   5th Amendment: Self-Incrimination?
§  Bill of Rights only applied to the Federal Government at this point, not the state governments
·         So, SCOTUS invokes the 14th Amendment for Due Process
o   14th Amendment intended to protect people from the STATES
§  “Nor shall any state deprive any person of life, liberty, or property without due process”
o   Is there a violation of the 14th Amendment?
§  Yes; the state court KNEW that there was torture used to get the confession
·         Obviously can't have due process then
§  “The state is free to regulate procedure of its courts in accordance with its own conceptions of policy, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
·         Was this trial procedurally fair?
o    No
Powell v. Alabama
·         Scotsborough Boys Case – A group of African-American youths were on a freight train through Alabama. They got into a fight with some white youths, throwing the white boys from the train. A message was sent, requesting all blacks be removed from the train. Two white girls on the train testified that they had been raped by six different youths in turn. The youths were taken into custody. The community was very hostile, as a mob met the youths. The trial judge appointed “all members of the bar” for the purpose of the arraignment. The defendants themselves were illiterate and “ignorant”. They were all tried separately, each trial lasting a day, convicted, and sentenced to death.
·         At arraignment judge assigns entire bar as counsel
o   But not one specific person
·         At trial, out of state attorney Mr. Roddy says he offered to help, but not serve as the main attorney.
·         Defendant argues the 14th Amendment Due Process for Incorporation
o   6th Amendment should Right to Counsel
o   Confrontation
o   Public and Speedy Trial
·         Some of state laws are violated
o   Why doesn't the SCOTUS rule that its a violation?
§  Because the SCOTUS doesn't have power to define state laws
·         So, what's the Due Process violation here?
o   There's no real counsel; everybody gets assigned but nobody really meets with Defendants until the day of trial
§  You NEED counsel for the day of the trial and leading up to it
·         Need a zealous counsel who will actually do an accomplish something; needs to be effective
·         Need to plan a defense, prep witnesses, opening statements, etc. etc.
§  Bottom Line: Defendant is entitled to lawyer at all critical phases of the trial
o   Due Process:
§  Procedural
·         2 elements;
o   1) Notice
o   2) Opportunity to be heard
§  The opportunity to be heard is basically useless if you don't have effective counsel
o   Expediency has to give way to due process
§  State is thrilled with having a trial here because the other option is for the Defendants to be lynched
o   BOTTOM LINE: What does Powell do?
§  Did NOT establish right to counsel for all serious issues; only fact specific in this case.
§  Dissent:
·         Defendants never asked for any form of postponement; have to preserve the issue for appeal
o   But, there is an exception for fundamental issues
Duncan v, Louisiana
·         An altercation between Duncan, an African-American youth, and some white boys who were engaged in a conversation with his cousins. Duncan slapped one of the white boys on the elbow.
·         State law only allows jury trials for certain types of crimes; is this kosher?
o   6th Amendment issue
§  Not incorporated at this point in time
o   Is it fair trial without a jury?
§  Its a trial and who can argue that the judge is an asshole?
o   Defendant argues incorporation
§  Black argues that the 14th Amendment's Privileges and Immunities clause incorporates everything
·         But this is rejected
§  Historical argument wins;
·         Substantive Due Process: Where the right is fundamental
o   “Whether a right is among those fundamental principles of liberty and justice”
o   Look to England, the Bill of Right

       Arrest warrant issued
o   OR, judge can set bail;
§  Monetary amount to be held by court for Defendant to get released and return
·         If failure to return, bail is forfeited (The Government gets it) and there is an arrest warrant issued
§  Two types of bail:
·         1) Unsecured Bond: Defendant doesn't have to put up any money upfront
o   Signs a piece of paper agreeing that if he doesn't show up after being released then he owes the Government
·         2) Secured/Surety Bond: Have to pay upfront
o   Can either have someone you know pay it or bail bondsman pay it
§  Pay the bondsman 10% of the bond and then he posts bail for you
·         What if you don't show up?
o   Bondsman issues a “bounty” and collects the guy, gets the bounty reinstated.
o   OR, judge can detain
o   OR, judge can release Defendant on conditions
§  Such as curfew, stay away from victim etc. etc.
Stack v. Boyle
·         Communists are charged with violations of the Smith Act
·         Government seeks unusually high bond because the last time 4 communists were charged, they fled.
·         Focus and charge of bail MUST be set individually
o   Can't just charge everyone with the same thing
·         8th Amendment: Excessive bail or no bail was cruel and unusual punishment
o   Essentially punishing the Defendant who is “Innocent until proven guilty”
·         CURRENT RULE IN NY: Whether the amount will provide the person with a stake to appear
o   Has to be set low enough that they can afford it, but high enough that it is going to mean something and the Defendant is not going to just let it go to the Government and not show up
·         Note 7: Rothgery; Right to attorney doesn't attach at bail hearings yet.
Bail Reform Act of 1984: Pg. 58 in Supplement
·         NY still uses the Stack rule
o   Flight is the ONLY consideration
·         §3142:
o   (a): Judge has options
§  R.O.R
§  Conditions
§  Bonds
§  Detain
o   (b) R.O.R is the DEFAULT rule in Courts
§  Unless
·         1) Release will not reasonably assure appearance of person, or
o   Stack rule
·         2) Release will endanger the safety of any other person or the community
o   Preventive detention
o   Commit another crime or seek out specific person for threatening or attacking, eg: a witness