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Criminal Procedure
UMKC School of Law
O'Brien, Sean D.

Obrien Criminal Procedure Spring 2012
Background of Criminal Procedure
–          People exercising discretion are the lowest on the totem poles (police officers)
o   Power flows up from the bottom. Officers make the decision about whether to put a person into the criminal justice system
o   There is no vertical checks and balances, this has been left up to the courts to figure out.
–          This poses the question: At what point does the U.S. Constitution step in to protect citizens from the criminal justice system.
–          Several government agencies fit into the criminal justice system:
o   Several agencies have power to investigate people and then criminal charges can be filed.
o   Police Department, IRS, DEA, ATF, FDA, USDA, DOJ, INS, SEC, FBI
o   Bobby is a homo, with Hunter, on the weekends.
Steps in the Process:
–          The following just describes the typical procedure in a typical felony case as there is no standard set of procedures that are applicable to procedures in all jurisdictions
–          This overview also only applies to non-capital felony cases
Timeline in a Typical Case: (no law saying this order has to apply)
1. Crime is committed
Rare instances exist where an investigation begins before a crime is committed.
2. Pre-arrest criminal investigation takes place
May be Reactive, Proactive, or Prosecutorial Investigations
Reactive – crime committed, police search for perpetrator
Witness interviews, victim interviews, investigate suspects, collect evidence
Pro-Active – Sting operations, undercover work
Prosecutorial – Usually Grand Jury investigations, involving subpoena power (Criminal Procedure II)
Starts when police believe a crime has been committed.
Sometimes the investigation may actually include the questioning of suspects.
3. Arrest is made
What constitutes arrest? – Traffic citation (summons, complaint, ticket), custody (cuffs/detention), duration (24-hour rule), search incident to arrest (automobile? Show up?)
What supports an arrest? – Probable cause? Absent PC, violates Constitution. Reasonable suspicion? Consequences of unlawful arrest?
Do we need a warrant?
MO uses a pick-up order
How long can we hold them without a charges or hearing?
Typical rule is 24 hour limit
4. Interrogation (is not always necessary)
5. Booking à “Checking in” to detention
Establishing the identity of the suspect you are taking into the system
More of a police procedure rather than a judicial process.
Does not attach any legal consequences
o   Will learn about bail?  24-hour rule – time that commences from time taken in till time must be released (will vary among jurisdictions).
6. Post Arrest Investigation (Optional)
Examples include: lineups, getting hair or writing samples
Impound car? Inventory search? Line-ups? Interrogations? Undercover Informants?
7. Charging Decision – whether to charge and what will suspect be charged with?
Initially made by the police, but must be reviewed & approved by prosecutor.
Ultimately prosecutor has ultimate say.
Some cases will fall out at this point as the prosecutor may not feel a crime is committed.
8. Complaint is filed – sets out to court what the charge is (Usually occurs only at the state level) à filed w/magistrate (associate Circuit Court in MO)
Equivilent to an indictment in federal court by a grand jury
9. Magistrate Review of Arrest (Usually occurs only at the state level)
Occurs before first appearance, magistrate must review to make sure probable cause existed for the arrest.
Sometimes called an arraignment
In MO, magistrates are called Associate Circuit Judges
Purpose is to tell accused what they are charged with, determining whether they need a court appointed attorney (arraignment/presentment)
No evidence is introduced, no pleading is requested, bail is set
10. Preliminary Hearing (probable cause hearing) (Usually occurs only at the state level)
Prosecutor presents evidence to magistrate judge
Judge determines if
Probable cause exists to say crime was committed
Probable cause exists to determine if suspect committed the crime
Like a grand jury proceeding except it is public and defense is represented by counsel.
If the case moves forward it is bound over.
11. Grand Jury (can be used in lieu of preliminary hearing) (Usually only at the federal level under Fifth Amendment; State can choose to indict – MO has a provision for an indictment)
Jury makes determination of probable cause instead of magistrate judge.
If probable cause is found, jury issues an indictment – has same effect as magistrate judge’s finding of probable cause.
If no probable cause, jury returns a “No True Bill” (this is what it’s called if a Grand Jury decides not to indict)
This is another place where the case can fall out.
12. Indictment (grand jury) / Information (filed by prosecutor and can be amend, but no such thing as an amended indictment because prosecutors don’t indict, grand juries do)  (Usually only at the federal level)
Indictment comes after a grand jury investigation
The 5th amendment indictment clause does not apply to the states.
So long as a state has some process to screen cases, the SC says it is sufficient.
Information comes from the preliminary hearing
13. Bail is set à maybe most important

This approach never carried a majority of the SC.
Selective Incorporation – (this theory won out)
Look at each right one by one and determine if the right is
(a) “implicit in the concept of ordered liberty”; or
(b) “fundamental to the American scheme of justice”
If yes to either then it’s incorporated to the state level.
How do you know if something meets (a) or (b).
1. Does the right undermine the RELIABILITY of the outcome! (Palko v. Connecticut—charged with shooting a police officer, Palko was committing, charge was 1st degree murder, acquitted of 1st degree murder but convicted him of 2nd degree murder, appealed and retried, where he’s convicted of 1st degree murder and sentenced to death, but he was previously found innocent of first degree murder). DOUBLE JEOPARDY? Retrials not barred by double jeopardy clause.  Is this right implicit in the concept of ordered liberty?  At this time – no (is now).
Case would be dead in federal court, but not in this state situation
Court says 1st trial does not have any bearing on the reliability of the outcome of the 2nd trial, so he could be tried and convicted
2. Does the Govt.’s conduct “shock the conscience of the ct.?” (Rochin v. California—suspected drug user and dealer, police officers without warrant and questionable on probable cause break down his front door and burst into the bedroom, when Rochin reaches over and swallows two capsules of heroin, officers took him to the hospital and forcibly pumped his stomach to convict Rochin of possession)
Dead in federal court immediately, but not in this state situation
What kind of evidence will you look for to see if something meets (a) or (b)?
Ex. in Palko the ct. looked at the double jeopardy clause and historically courts had not used the DJ to distinguish b/t degrees of homicide.
What are Current Policy Makers Doing?
What are the current legislative efforts surrounding the issue?
Ex. Current policies and regulations of law enforcement bodies.
 [BKG1]For this class incorporation centers around prisoners rights. What from the bill of rights to prisoners have from state rights