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Criminal Procedure
Temple University School of Law
Sonenshein, David A.

CRIMINAL PROCEDURE
 
I.         Studying the Criminal Justice Process
a.        The Steps in the Criminal Justice Process
                                                              a.      Pre-arrest Investigation
1.        Reactive investigations
1.        Aimed at solving specific past crimes which police believe to have been committed
2.        Can be “incident-driven” or “complaint-responsive”
3.        Will have one or more of the following objectives:
                                                                                                                                      1.      Determining that the crime actually was committed
                                                                                                                                      2.      Determining who committed the crime
                                                                                                                                      3.      Collecting evidence sufficient to support the arrest of the person
                                                                                                                                      4.      Locating the offender so that he may be arrested.
4.        A wide variety of investigative activities may be used to achieve these objectives, including:
                                                                                                                                      1.      Interviewing victims
                                                                                                                                      2.      Interviewing other witnesses present when the officer arrives at the crime scene
                                                                                                                                      3.      Canvassing the neighborhood for other persons with relevant information
                                                                                                                                      4.      Interviewing suspects
                                                                                                                                      5.      Examination of the crime scene and collection of physical evidence found there
                                                                                                                                      6.      Checking departmental records and computer files
                                                                                                                                      7.      Seeking information from informants
                                                                                                                                      8.      Searching for physical evidence of the crime in places accessible to the suspect
                                                                                                                                      9.      Surveillance of a suspect aimed at obtaining leads to evidence or accomplices
                                                                                                                                   10.      Using undercover operatives to gain information from the suspect
2.        Proactive investigations
1.        Aimed at unknown crime activity that is not specifically known to the police or at anticipating future criminality and placing police in a position to intercept when the crime is attempted
2.        Deception is a common element of many proactive procedures
3.        Prosecutorial investigations
1.        Subpoena authority available through the grand jury, which relies heavily on the direction provided by the prosecutor. 
2.        Grand jury investigations tend to be used where:
                                                                                                                                      1.      Witnesses will not cooperate with the police
                                                                                                                                      2.      Critical evidence of crime is a paper trail buried in voluminous records of business dealings
                                                                                                                                      3.      The area of investigation is especially sensitive
3.        Investigations presenting such special needs tend to deal with crimes of public corruption, misuse of economic power, or widespread distribution of illegal services or goods.
                                                              b.      Arrest based on probable cause
1.        An arrest is the act of taking a person into custody for the purpose of charging him with a crime
2.        Police may make an arrest of a person only if they have probable cause to believe the person committed an arrestable offense. 
3.        Where there is no immediate need to arrest a suspect, an officer may seek to obtain an arrest warrant, issued by a magistrate. 
                                                              c.      Booking
1.        Arrestee is taken to a police, where a booking is conducted.
2.        This involves recording the arrestee’s name, the time of arrival, and the offense for which he was arrested in the police blotter or log; it also involves photographing and fingerprinting the arrestee
3.        This is strictly a clerical procedure and does not control whether the arrestee will be charged or what charge might be brought. 
                                                              d.      Post-Arrest Investigation
1.        Most are aimed solely at gaining further evidence that the defendant committed the crime
2.        Whether a post-arrest investigation is used depends in large part on the strength of the evidence obtained before the arrest. 
                                                              e.      Decision to Charge
1.        For the vast majority of felony cases, the initial decision to charge a suspect with a crime is made when a police officer makes a warrantless arrest of the suspect. 
2.        The ultimate authority over chagrining rests with the prosecutor. 
3.        A prosecutor’s decision not to go forward on the charge requires a different processing action depending on whether that decision is made
1.        Before the filing of the complaint
                                                                                                                                      1.      A decision not to go forward at this stage simply results in the complaint not being filed and the release of the arrestee from police custody without any involvement of the judiciary
                                                                                                                                      2.      Must occur in a short time span
2.        After the complaint is filed
                                                                                                                                      1.      A decision not to proceed at this stage commonly occurs in connection with the prosecutor’s review of the case against the defendant before presenting it to a magistrate at a preliminary hearing or to a grand jury
                                                                                                                                      2.      This decision is commonly formalized in a prosecution motion before the magistrate to withdraw the complaint
                                                                                                                                      3.      Where a grand jury review is being used, the prosecutor can simply ask the grand jury to vote against indicting. 
3.        Or after the filing of the indictment or information.
                                                                                                                                      1.      A decision not to proceed at this stage requires a prosecutor’s nolle prosequi motion, which must be approved of the trial. 
4.        Where the prosecutor in the initial screening process decides in favor of criminal prosecution, other decisions also must be made
1.        Initially, the prosecutor must decide whether the proposed charge is set at the correct level, or whether there is a need to reduce or raise the offense level recommended by the police
2.        Prosecutor must also consider the potential for charging multiple separate offenses
3.        Where the prosecutor chooses to proceed on more than one charge, the prosecutor may decide whether to bring the charges in a single prosecutor or in multiple, separate prosecutions. 
4.        A similar choice must be made where several people have been arrested for their participation in the same crime.
                                                               f.      Filing the Complaint
1.        The next step is the filing of charges with the magistrate court, which must be done before the arrestee’s scheduled first appearance.
2.        The initial chagrining instrument is the complaint. 
3.        The basic function of the complaint is to set forth concisely the allegation that the accused, at a particular time and place, committed specified acts constituting a violation of a particular criminal statute.
4.        The complaint will be signed by a complainant, a person who swears under oath that he or she believes the factual allegations of the complaint are true.
5.        When an officer complainant did not observe the offense being committed, but relies on information received from the victim or other witnesses, the officer ordinarily will note that the allegations in the complaint are based on “information and belief.”
6.        With the filing of the complaint, the arrestee officially becomes a defendant in a criminal prosecution.
                                                              g.      Magistrate Review of the Arrest
1.        The magistrate must undertake a “Gerstein review.”
2.        If the accused was arrested without a warrant and remains in custody, the magistrate must determine that there exists probable cause for the offense charged in the complaint. 
1.        This normally is an ex parte determination. 
3.        If the magistrate decides that probable cause has not been established, he will direct the prosecution to promptly produce more information or release the arrested person. 
4.        Since a judicial probable cause determination already has been made where an arrest warrant was issued, a Gerstein review Is not required in such cases, or in cases where the arrestee was indicted by a grand jury before his arrest.
                                                              h.      Initial Appearance
1.        Defendant must appear in court within a reasonable period of time (specified as either 24 or 48 hours) of the arrest. At this appearance, the defendant will be informed of the following:
1.        The charges against him
2.        His right to counsel
3.        How counsel will be appointed (for indigent defendants)
4.        His right to a bail determination and, if bail is to be set, the amount at which it is set.
                                                               i.      Preliminary Hearing
1.        Provides a screening of the decision to charge by a neutral body
1.        Neutral body is the magistrate
2.        Magistrate must determine whether, on the evidence presented, there is sufficient evidence to send the case forward. 
3.        Ordinarily, the magistrate will already have determined that probable cause exists as part of the ex parte screening of the complaint, but unlike that step in the process, both sides are represented by counsel. 
4.        Consists of calling live witnesses and presenting evidence.
5.        Defendant has opportunity to challenge the evidence presented through calling his own witnesses and presenting his own evidence.
6.        If the magistrate concludes that the evidence presented is sufficient for the prosecution to move forward (usually that it establishes probable cause), he will “bind the case over” to the next stage in the proceedings. 
1.        In an indictment jurisdiction, the case is bound over to the grand jury. 
2.        In a jurisdiction that permits the direct filing of an information, the case is bound over directly to the general trial court. 
3.        If the magistrate finds that the evidence supports a lesser charge, the charge will be reduced.
4.        If the magistrate finds that the evidence is insufficient to support any charge, the prosecution will be terminated.  
                                                               j.      Grand Jury Review
1.        Although almost all jurisdictions have provisions authorizing grand jury screening of felony charges, such screening is mandatory only in those jurisdictions requiring felony prosecutions to be instituted by an indictment, a charging instrument issued by the grand jury.
2.        In the majority of states, the prosecution may proceed either by grand jury indictment or by information at its option. 
1.        Usually, prosecutors choose to prosecute by information. 
3.        The grand jury is randomly selected from the same pool of prospective jurors as the trial jury. Unlike the trial jury, it sits not for a single case, but for a term that may range from one to several months. 
4.        The primary function of the grand jury is to determine whether there is sufficient evidence to justify a trial on the charge sought by the prosecution. 
5.        The grand jury participates in a screening process quite different from the preliminary hearing.
1.        It meets in a closed session and hears only the evidence presented by the prosecution. 
2.        The defendant has no right to offer his own evidence or to be present during the grand jury proceedings.
6.        If a majority of the grand jurors conclude that the prosecution’s evidence is sufficient, the grand jury will issue the indictment requested by the prosecutor. 
1.        The indictment will set forth a brief description of the offense charged, and the grand jury’s approval of the charge will be indicated by its designation of the indictment as a “true bill.”
7.        If the grand jury majority refuses to approve the proposed indictment, the charges against the defendant will be dismissed. 
                                                              k.      Filing of Indictment or Information
1.        If an indictment is issued, it will be filed with the general trial court and will replace the complaint as the accusatory instrument in the case.
2.        Where grand jury review either is not required or has been waived, an information will be filed with the trial court. Like the indictment, the information is a charging instrument which replaces the complaint, but is issued by the prosecutor rather than the grand jury.
                                                               l.      Arraignment on the Information or Indictment
1.        The defendant is arraigned, i.e., he is brought before the trial court, informed of the charges against him, and asked to enter a plea of guilty, not guilty, or nolo contendere, i.e., a plea in which the defendant accepts a judgment of conviction but does not admit guilt. 
                                                            m.      Pretrial Motions
1.        During the pretrial stage, the defense raises objections through pretrial motions. In addition, both parties may conduct discovery. The motions can attempt to suppress unlawfully obtained evidence, dismiss individual charges, or dismiss the entire case. Discovery is the opportunity of each side to obtain evidence to which it is entitled. 
                                                              n.      Guilty Plea Negotiation and Acceptance
1.        Guilty pleas are often the product of a plea agreement under which the prosecution offers certain concessions in return for the defendant’s plea. 
2.        Where a plea is entered as a result of an agreement with the prosecutor, that agreement must be set forth on the record before the trial court. The trial judge will review the agreement to ensure that its terms are within the law. 
1.        The judge’s responsibility in accepting the guilty plea is to ensure that the defendant understands the legal consequences of entering a guilty plea and the terms of the plea agreement. 
                                                              o.      Trial
1.        At the trial, the prosecution must prove beyond a reasonable doubt each element of the crime(s) charged. The majority of trials require trial before a jury of the defendant’s peers.
1.        Confrontation Clause: The defendant has the right to be confronted with and examine the witnesses who have supplied incriminating evidence.
2.        Verdict: after closing arguments and the jury instructions, the case is submitted to the jury, who will deliberate the facts and law. Upon reaching a conclusion, the jury must give a verdict of guilty or not guilty (or if the jury is hung, a mistrial can be declared).
                                                                                                                                      1.      Verdict must be unanimous
2.        How criminal trial is distinguished from civil trial:
1.        Presumption of defendant’s innocence
2.        Requirement of proof beyond a reasonable doubt
3.        The right of the defendant not to take the stand
4.        The exclusion of evidence obtained by the state in an illegal manner
5.        The prosecution’s use of incriminating statements previously made by the defendant often to police
                                                              p.      Sentencing
1.        If the verdict is guilty, the judge will sentence the defendant. 
2.        Three types of sentences may be used:
1.        Financial sanctions
2.        Release into the community
3.        Incarceration in jail or prison
3.        The process applied in determining the sentence is shaped in large part by the sentencing options made available to the court by the legislature. 
4.        During sentencing, each party may submit evidence that it wishes the judge to consider in issuing a sentence.
5.        The rules of evidence do not apply in sentencing proceedings, and neither the prosecution nor the defense has a right to call witnesses or to cross-examine the sources of adverse informati

” exception largely removes from the reach of the remedy police action that, although unlawful in retrospect, was committed in the reasonable belief that the action did not violate the Fourth Amendment. 
1.        A number of states refuse to recognize this exception. 
b.        Criminal Procedure and Retroactivity
                                                              a.      The Court bases its retroactivity decisions on the following factors:
1.        Purpose of new standard and its effect on truth-telling
1.        If the new constitutional procedural requirement is intended to promote the truth-finding function of criminal procedure and raises questions about the accuracy of previous guilty verdicts, it will be given retroactive effect. 
2.        Reliance
1.        The degree to which police have relied on the existing procedural standards is one factor. When police reliance on the old standard was justified because the standard was clear and widely accepted, the Court is less likely to apply the new standard retroactively.
3.        Effect
1.        The practical effect a retroactive application would have upon the administration of justice is the other factor. For example, it may be impossible to retrieve evidence.
                                                              b.      Applications
1.        Right to counsel
1.        Gideon v. Wainwright held that all defendants in felony prosecutions were entitled to counsel, and if they could not afford one themselves, the state must provide one. This holding was given complete retroactive effect. 
2.        Exclusionary rule applied to the states
1.        Mapp v. Ohio held that the Fourth Amendment’s protection against unreasonable searches and seizures was incorporated by the Fourteenth Amendment so as to require state courts to exclude evidence obtained by unlawful searches and seizures. This ruling as not applied retroactively to final state convictions because the purpose of the rule – deterrence of lawless police action – would not be promoted by retroactive application, since any police violations would already have occurred. Also, the rule has no bearing on guilt.
3.        Comment on defendant’s failure to testify. 
1.        Griffin v. California held that the Fifth Amendment’s privilege against self-incrimination forbids adverse comment by a judge or prosecutor on a defendant’s failure to testify, and that this applies to the states. This rule was not applied retroactively because the privilege is not intended to protect the innocent from conviction but to protect the individual’s right to be let alone. 
4.        Miranda warnings
1.        Miranda was applied only to those cases in which the trial began after the date of the Miranda decision. 
5.        Right to pretrial counsel
1.        In Wade and Gilbert, the Court granted the right to counsel at certain pretrial events. These holdings applied only to confrontations for identification purposes conducted after the date of the decisions, thus indicating the importance of police reliance on existing procedures. 
                                                              c.      Extent of retroactivity
1.        Prospective application
1.        Even when the Court determines that a new standard will have only prospective application, it necessarily applies to the case at hand and to that extent is applied retroactively. Justice Harlan objected to this approach in his dissent in Desist v. United States. He felt it unprincipled that two similarly situated defendants could be treated differently merely because one’s case came before the Court instead of the other’s.
2.        Cases on Direct Appeal
1.        In Desist, the Court did not distinguish between final convictions and those still pending review so far as retroactivity was concerned. 
2.        In U.S. v. Johnson, the Court relied on Harlan’s approach and decided that the rule set forth in Payton requiring an arrest warrant to enter a suspect’s house to make an arrest should be applied to cases still pending on direct appeal when Payton was decided. 
3.        The rule was not applied retroactively to state-court convictions finally affirmed by a state supreme court before Edwards v. Arizona was decided, however. 
c.        Due Process, Individual Rights, and the War on Terrorism: What Process is Constitutionally Due a Citizen who Disputes his Enemy-Combatant Designation?
                                                              a.      Hamdi v. Rumsfeld
1.        Facts:
1.        Hamdi (P), an American citizen, was captured in an active combat zone abroad, detained by the U.S. military as an “enemy combatant” and held in custody. 
2.        P sought habeas corpus relief, claiming that the Non-Detention Act of 1948 barred indefinite detention.
3.        The Fourth Circuit Court of Appeals held that P was not entitled to habeas corpus relief because of military needs. The court held that the AUMF satisfied the requirement in the Non-Detention Act for an Act of Congress authorizing detention. 
2.        Issue:
1.        Whether the President has the authority to detain citizens who qualify as “enemy combatants” for an indefinite period of time with no opportunity for an impartial hearing. 
3.        Holding:
1.        Congress authorized detention through the AUMF. The detention of individuals falling into the limited category of “enemy combatants” is a fundamental incident to war and falls within the AUMF.
2.        There is no reason that the government cannot hold on of its own citizens as an enemy combatant. 
3.        While indefinite detention is not authorized by Congress, if there are active combat operations going on in Afghanistan against Taliban combatants, the United States may lawfully detain Taliban combatants during these hostilities.
4.        Although the AUMF did authorize the detention of combatants such as P in the narrow circumstances of this case, the writ of habeas corpus remains available to every person detained within the United States. The writ has not been suspended. P may properly seek a habeas determination on the issue of whether P falls within the category of hostile forces subject to detention. Due process requires that a citizen held in the U.S. as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.
5.        To satisfy the minimum requirements for such a hearing, the citizen-detainee must receive notice of the factual basis for his classification and a fair opportunity to rebut the government’s factual assertions before a neutral decisionmaker. Evidentiary standards may be relaxed so that the government may use hearsay to support the classification. There may be a rebuttable presumption in favor of the government’s evidence.
4.        Concurrence and Dissent
1.        The AUMF does not refer to detention, so it cannot provide a basis for P’s detention. 
2.        The government has failed to justify holding P in the absence of an Act of Congress, criminal charges, a showing that his detention conforms to the law of war, or a showing that section 4001(a) is unconstitutional. 
3.        In a moment of genuine emergency, the president can detain a citizen if there is reason to fear he is an imminent threat to the safety of the nation and its people, but such emergency power must be limited by the emergency, and P has been held for over two years, so that exception does not apply here.