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Criminal Procedure
St. Thomas University, Florida School of Law
Lawson, Tamara F.


A. Criminal Justice System.

· Arrest through post-trial procedure:
· First stage is when crime is committed/investigated, followed by an arrest. An arrest can occur with or without a warrant. Arrest warrant can be based on a complaint, indictment or information.
· Complaint: A complaint (federal) occurs when the suspect is detained by the officer and the officer prepares a complaint which is then presented to a magistrate, which if signed, the suspect will be held based on the complaint. A complaint is based on probable cause. Also, there may be a complaint in an ongoing investigation.
· Indictment: A federal grand jury investigates what is presented to it by the assistant attorney. If the grand jury finds a basis that a crime has been committed, the grand jury will issue an indictment, which is then given to a magistrate for review. If the indictment is proper, it is returned to the grand jury with an arrest warrant.
· Information:
· Magistrate: A magistrate is a statutorily created judge. Magistrates are appointed by the federal district court judges. They are appointed for eight years and have jurisdiction to prepare orders that have no final effect on the outcome of the case (search warrants, arrest warrants, discovery orders, etc.). A magistrate is usually responsible for the initial proceedings in a criminal trial (arraignment, bond hearing, etc.). A magistrate also issues reports and recommendations to the judge with regard to pre-trial motions.
· Initial Appearance. Once a defendant is arrested, the first step within the court system is to bring the suspect before the judge. At the initial appearance the judge informs the defendant of his rights (right to remain silent, right to attorney). Also the defendant is informed of the charges against him – and a copy of the charging document is provided to the defendant. If the defendant has an attorney, the attorney will be present. If the defendant does not have an attorney then the court will determine if the defendant can afford an attorney. If the defendant cannot afford an attorney, then the court will appoint an attorney.
· Initially, a federal public defender may be appointed. If there is a conflict (multi-defendant cases), the additional defendants will get a Criminal Justice Act (CJA) attorney (private counsel paid by government).
· Once counsel is appointed, the court will determine if the defendant can be released on bond pending outcome of case.
· No Bond: A court can hold the defendant in pre-trial detention – if a person is charged with certain offenses/crimes there is a rebuttable presumption that the person is a flight-risk and/or danger to the community and will be held without bond. This also applies if the defendant has a long criminal history or was arrested while on probation. A defendant is provided with credit for time served, if convicted.
· Bond: Three types of bonds.

Corporate Surety Bond – Judge imposes amount and defendant pays 15% of the bond to a bondsman for issuance of the bond. Also, the defendant must secure the remaining amount with collateral.
Ten Percent Bond: The defend

uance of warrant only with probable cause and the place to be searched and persons/things to be seized must be specified.
· 5th Amendment: Prohibition against self-incrimination (Miranda). Also the requirement of due process of law.
· 6th Amendment: Right to counsel in all criminal prosecutions.
· 14th Amendment: Incorporates the above amendments to the states.

B. Exclusionary Rule.

· Exclusionary Rule: Evidence offered by the prosecution that must be rejected because of the improper method in which it was obtained.
· Mapp v. Ohio: All evidence obtained by an unconstitutional search and seizure will be inadmissible in a state court. In Wolf, the Court held that evidence obtained by state officers during an unconstitutional search and seizure did not have to be excluded. However, in Weeks, the Court held that evidence obtained by federal officers during an unconstitutional search and seizure did have to be excluded. Mapp overruled Wolf and applied the Weeks exclusionary rule to the states. The right to exclusion of evidence is a judicially created remedy.
Purpose of exclusionary rule: Deter illegal search and seizure by government officers, preserve judicial integrity by excluding evidence obtained as a result of an illegal search and