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Criminal Procedure
Stetson University School of Law
Flowers, Roberta K.

· The Criminal Justice System Generally
o Have a federal system and a state system
· 52 different criminal justice system
§ Each state has own unique criminal justice system and own codes of criminal procedure
§ Federal gov’t
§ Washington DC – both federal system and state system working in the same office
o Federal criminal prosecution is very limited
· Less than 2% of all prosecutions in the US occur in the federal system
§ Only 4% of all felony prosecutions
· Criminal law is really a state based area of law
§ 85% of all law enforcement are employed by local police departments
o Criminal procedure is based on the federal Constitution
· Federal constitution has to reach all the way down to effect law enforcement at the state level

· Criminal Prosecution Process
o Reported crime
· Half of all crimes come to attention of the authorities, depending on nature of offense
· Come from: Citizen complaints, police observation, investigation
o Pre-arrest investigation
· Reactive/on scene arrests
· Crime has already occurred and they are attempting to react to that crime by gathering evidence about that crime to either solve the crime or most of the time to put together a case against the person who has been charged w/ that crime
· (Know a crime occurred)
· Mostly seen in the federal system
· Involves a grand jury – assisting the prosecution in looking at the facts to determine whether in fact a crime has been committed
· Is where there has been some criminal activity is going on and the prosecution is trying to proactively investigate that case either before the crime has occurred OR as its an ongoing crime (trying to investigate suspicious conduct to determine if a crime has been committed)
· (Not sure if a crime has occurred or is occurring)
Prosecution/Grand Jury
Arrest/Booking (once there has been an investigation)
· Warrant – a judicial officer (usually a magistrate) has looked at the evidence and decided that there is enough evidence to arrest this person
· Warrantless – police just arrest the person based on what they are seeing right then w/o there being judicial oversight
Search/physical evidence?/lineups
· Information/indictment
· Indictment occurs if there has been a grand jury
Decision to Charge
Prosecution does this for felonies or is done by way of indictment
· Is done by filing of charges and a complaint
Police do the charges in misdemeanors
Filing of charges/complaint/indictment
Done by the prosecution
First Appearance
24-48 hours if in custody
Set bail
Court appointed counsel
Preliminary Hearing
Probable cause/”bind over for trial”
· Determination by court that there is probable cause to go forward
50-80% by-pass for grand jury
· (No need for preliminary hearing to determine probable cause if it has already been determined by a grand jury)
Plea bargaining
Informed of charges
Enter plea
Pretrial Motions
Motions to Suppress
· Small number of cases decided by this
· Usually done in drug cases
Most jurisdictions only see about 5-8 trials a month
· Take a while for a case to make its way to a trial
Felonies 15% (extraordinary jurisdictions 30%)/Misdemeanors 3-7%- (go to trial)
· Most felonies are determined by plea bargain as opposed to going to trial
Jury trials 12 or 6
2-3 days to try felonies
Judge decides
Sentencing guidelines
Appeals/Post Conviction Remedies
Anders briefs – a public defender or a defense attorney has to file a brief that says “I’ve reviewed the record and I can find no basis for an appeal.”

· Objectives of the Criminal Justice Process
Enforcement of substantive criminal laws
Discovery of Truth
Adversary Adjudication
Accusatorial Burdens
Minimizing Erroneous Convictions
Minimizing Burdens of Accusation and Litigation
Providing Lay Participation
Respecting the Dignity of the Individual
Maintaining the Appearance of Fairness
Achieving Equality in the Application Process
Addressing the Concerns of the Victim
Not every court weighs the objectives the same way

· Adversary System
Two sides/each represented by an advocate
Presenting their “story” to a neutral fact finder
Set of formal rules w/ corresponding responsibilities
Truth emerges from the process

· Modified Adversary System (criminal justice system)
Not totally inactive decision maker
Seeks to prohibit excesses in adversary presentation
· Ex. prosecutors overstepping what they need to do
Duty on each side to assist in gathering information
Prosecutor has responsibility to do justice

· Criminal Justice Jurisprudence
How criminal procedure cases and the constitution has developed historically to where we are today
Constitution vs. Bill of Rights
How it has been used to protect the criminal Ds rights against the government over time and how those rights have developed
Bill of Rights – 24 rights/8 amendments
13 are aimed at criminal justice
Apply to federal government (as originally written)
Majority of prosecution occurs at state level
So originally, the Bill of Rights and constitutional protections did not have influence at the state level
So things had to change b/c of this

· 2 Issues that changed the course of Criminal Procedure Jurisprudence
Incorporation (of the Const. Protections to the states)
Constitutional protections only if applied to the state
14th Am. – Due Process
· States are bound by the idea of due process of law
· What does that mean? What does the 14th Am. incorporate?
· What does that mean at the state level for the criminal to have due process?
Total Incorporation
· ALL the process that would be due a federal prisoner is due a state prisoner
· This was NEVER considered to be the majority opinion
Fundamental Fairness
· This is what was originally adopted by the SC
· Have to look to see what is fundamentally fair and that is what due process means – it is not the specific rights themselves that are enumerated in the bill of rights that are incorporated in the due process clause (ex. all of the rights in the federal system are now applied to the states)
· What the SC held was that DP means that the states must be fundamentally fair in dealing w/ criminal ∆s
· B/c of its vagueness fundamental fairness really became a case-by-case analysis – was a very high standard for the criminal ∆ to meet (that it was so outrageous that it violated fundamental fairness) – very few cases were overturned b/c of a fundamental fairness argument
· W/ regard to pretrial/investigative rights in the absence of physical violence towards of the ∆ or some sort of outrageous conduct by the police, very few cases found a violation of due process (fundamental fairness)
· So very few of the rights that were articulated in the bill of rights were applied to those state prosecutions
Selective Incorporation (1960s)
· DP clause selectively incorporates those rights that go to the fundamental fairness of the process – those rights that are necessary to fundamental fairness are incorporated into the DP clause along w/ all of the case law interpretation in re: to that right
· By the end of the 1960s all of the rights in the bill of rights had been selectively incorporated into DP except for 1 – the indictment provision (this remains today)
· States not required to have a state accused be indicted by a grand jury
· In federal system – every ∆ (unless he waives it) must be indicted b

· 1 – You have to have an arrest in a PUBLIC place
· 2 – Must have probable cause for the arrest
o Probable cause – quantum of trustworthy info within the police officer’s knowledge that would warrant a person of reasonable caution to believe a crime has been or is being committed
· There has to be quantity and quality of information
o Quantity – how much info does the police officer have to know to be said to have had probable cause?
· Probable cause is the SAME for getting a warrant and when the police officer decides if they can arrest someone
§ Difference is who makes the initial determination
· For a warrant – the police officer goes to a magistrate with an affidavit and the magistrate decides if the police officer can get a warrant
· Police officers need a warrant to search someone house or arrest someone in their house
· Affidavit – a sworn statement telling the evidence
· At state level, the police officers do it themselves, at the federal level it is the prosecutor who writes the affidavit based on the info that the police officer gives
· 4 corners rule – the magistrate must make his determination as to probable cause based on the 4 corners of the affidavit
· It cannot be other information shared by the officers, they can only rely on what is actually in the affidavit
· If the magistrate finds that there is sufficient, trustworthy info written into the affidavit then the magistrate will write a warrant
· Warrant – a court order telling the police to search a location or arrest a certain person
§ Deference will be given to a magistrates finding of probable cause than it is to a police officer
· Because a magistrate is neutral

· US v. Draper
o Facts: Informant told police that a man would be arriving on the train on either 9/8 or 9/9 wearing a certain jacket and walking fast. On 9/9 the police found someone matching the description and arrested him. Affirmed probable cause.
o Factors to assess the reliability of a known informant
· Look at success rate, that he’s been used before
· Assess reliability at the time of the statement
· Basis of the informant’s knowledge
· Corroboration of the details from the police officer
· Illinois v. Gates
o Facts: Anonymous informant sent a letter that said the Gate’s sold drugs, it gave the location of the home, said the wife would drive to FL then the husband would fly down and they would fill the car with drugs, then the husband drive back the next day and the wife would fly. Police corroborated most of the info with the letter. The only discrepancy was that the wife didn’t fly back, she drove back with her husband. Police arrested them and found 350lbs of pot – drugs cannot be considered because it was AFTER they searched them.
o Aguilar-Spinelli test
· 2 prong test – had to meet BOTH for informant
§ 1 – had to be able to show the voracity of the informant
§ 2 – and the reliability of his information
· It was almost impossible to satisfy this 2 prong test when you didn’t know who the informant was