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

Criminal Procedure, O’Brien, Fall 2012
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 occurrence after first appearance
Bail can actually be set at any phase in the process.
If it’s not it will be set at the arraignment.
14. Arraignment on the Information or Indictment (in circuit court)
May also be called district or superior court in some jurisdictions
At this hearing:
Bail is reviewed
Counsel is re-addressed
Plea is entered (guilty, not guilty, no contest)
This is where Crim Pro I ends.
15. Pre-Trial Proceedings
Motions filed (motions to suppress evidence, for change of venue, etc.)
Discovery performed
Defense investigation takes place (and prosecution to some extent)
16. Plea Negotiations and Acceptance
17. Trial/Plea/Dismissal of Charges
18. Sentencing or Discharge (if jury says not guilty)
19. Appeals
20. Collateral Remedies
Ex. Federal Writ of Habeas Corpus
*Note:  At anytime in this process the suspect may found innocent, suspect may cut a deal, or it may be found that there is no crime and then the process will not proceed.  If the grand jury finds there is no crime it is called no true bill.
The Sources of Criminal Procedure
        I.            Fourteenth Amendment Due Process Clause-Incorporation
a.       District of Columbia v. Heller (p.25): held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense.
b.      McDonald v. City of Chicago (p.25): maintained that the City’s ban on handguns violated the Second and Fourteenth Amendments.
      II.            Selective Incorporation/Bodily Extractions
Total Incorporation –
                                                               i.       The bill of rights is the same in state and federal cases
                                                             ii.      This approach hones in on the P&I language of the 14th Amendment
                                                           iii.      This approach never carried a majority of the SC.
Selective Incorporation – (this theory won out)
                                                               i.      Look at each right one by one and determine if the right is
1.       (a) “Implicit in the concept of ordered liberty”; or
2.       (b) “Fundamental to the American scheme of justice”
                                                             ii.      If yes to either then it’s incorporated to the state level.
                                                           iii.      How do you know if something meets (a) or (b).
1.      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).
a.      Case would be dead in federal court, but not in this state situation
b.      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.      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)
a.      Dead in federal court immediately, but not in this state situation
                                                          iv.      What kind of evidence will you look for to see if something meets (a) or (b)?
1.      History
a.      Ex. in Palko the ct. looked at th

y trial.
Apodaca v. Oregon (1968) – exception to eye-for-eye and jot-for-jot interpretation.
[4-4 split on whether verdict must be unanimous] In Louisiana you still have to have a vote of 10-2 to be aquitted or convicted.
See my notes below
Burch v. Louisiana (1979)
Upholding non-unanimous verdict of 6 person jury
This Right to Jury Trial is the one exception in that it’s not incorporated jot for jot. See my notes below
If can go to jail – more than 6 months – can get a jury trial – Baldwin v. New York (1970).
6th Amendment Right to Counsel
Powell v. Alabama (1932)
Not incorporated, but did find independent 14th Amend. “right to counsel under limited special  circumstances” when case is complex, or if accused mentally retarded, for example.
Gideon v. Wainwright (1963)
Incorporated 6th Amendment right to counsel for all felony cases.
6th amend. right to counsel applies to the states for their defense in all felony cases.
State must appoint a free lawyer to a person who is charged w/ a felony. This is the first time a ct. has ever held this!
The case caused more retrials than any other case prior
Every person in prison w/ in the US who had been found guilty w/out a lawyer was entitled to a new trial. (This is also useful for the Retroactivity section).
6th Amendment Right to Speedy Trial – that right now applies to the states
Klopfer v. North Carolina (1967)
6th Amendment Compulsory Process Clause
Washington v. Texas (1967)—subpoena power for defendants to compel someone to testify or produce evidence.
6th Amendment Confrontation Clause—corollary right to compulsory process—right to cross examine a witness to test credibility
Pointer v. Texas(1965)
Righgt to confront and examine witnesses against you
8th Amendment Cruel and Unusual Punishment Clause – incorporated into the 14th Amendment DPC after this case.
Robinson v. CA (1962)
Rights Not Incorporated: (ONLY 2!!!)
6th Amend. Grand Jury Indictment Clause
Hurtado v. CA
8th Amend. Reasonable Bail Clause
Almost all amendments incorporated come during the Warren Court during the ‘60s
·         Impact of Incorporation:
Jot-for-jot and case for case” application for federal case law.
Exception: Right to jury trial (See Apodaca, Burch)
Rights enforceable through habeus corpus, 28 USC Sec 2254
Re-litigation: is the incorporation retroactive? Who will it apply to?
Incorporation under the 14th Amendment doesn’t just cover rights expressly provided in the Bill of Rights, but also Substantive Due Process rights.
Rochin v. California (pg 33-36)
Police, believing Rochin was selling drugs, broke into his room and saw him quickly grab some pills and swallow them. Police couldn’t get the pills out of his mouth before he swallowed them, so they took him to the hospital and had his stomach pumped. Pump retrieved the pills, which were found to be morphine, and the pills were used as evidence to convict Rochin. Rochin appealed, claiming his 4th Amendment protection from unwarranted search and seizure was violated and Supreme Court agreed, holding that police violated his 14th Amendment Due Process rights.
Frankfurter – Court basically felt the conduct in question “shocked the conscience” and was akin to a forced confession.
Black – felt the police actions were justified in that they were akin to forcing Rochin to testify against himself