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Criminal Procedure II
University of California, Hastings School of Law
Aviram, Hadar

Criminal Procedure II Aviram Spring 2013

Introduction and Constitutional Underpinnings:

Concept of Funnel:

· Many mechanisms in the trial system are meant to throw out cases in the CJS

· Only 5 % of cases end in Criminal Jury Trial

o Cases settled, get dismissed

o Criminal Justice system has been specialized

§ Juveniles treated different

§ Problem Solving Courts

§ Misdemeanors

· 5th amendment:

o Right to grand jury (not incorporated)

o Double Jeopardy

o Compelled to be a witness against himself

o Deprived of life, liberty or property w/o due process of law

· 6th Amendment:

o Speedy and Public trial

o Impartial jury

o Informed of the nature of the accusation

o Confrontation Rights: confront with the witness against him

§ Brings up problems with child abuse cases, and with multiple defendants who turn against each other.

o To have assistance of counsel for his defense.

· 8th amendment

o Excessive bail shall not be required (not incorporated)àall State Constitution’s have provisions similar

o Excessive fines must not be imposed

o No Cruel and Unusual Punishment

Two ways to look at Criminal Process (Packer 1968)

Crime Control Model:

· Efficiency is most importantàwant to develop effective way to streamline criminal justice process. (Rehnquist court)

· Cases not going to be convicted should not go to trial

o Does two things

§ Innocent get out

§ Creates Presumption of Guilt

· If everybody who reaches trial is probably guiltyàthen do not have to take as many precautions during trial àleads to “presumption of guilt”

o Presumption of innocenceàevidentiary rule for prosecutor to prove beyond reasonable doubt.

o Presumption of guilt: not a rule, but an observation of the ruleàif a lot of power is given to police to investigate properly and prosecution looks at case for charging any case that made it past police and prosecution probably means person is guilty

§ In a system that is more crime controlàprosecutor becomes very important.

Due Process Model:

· Purpose is to avoid mistakes (having innocent person behind bar)àto do this need lots of quality control. (Warren court)

Historical Overview (Warren Court v. Post Warren Court)

· Warren Court (60’s)à4 themesàDue process model

o Reform through Bright line rulesàreaction to big mess undergroundàtrying to create bright line rules to tell people what they can and cannot do

§ Partially done through incorporation

o Federalism: Warren court was invested in allowing the Constitution to apply against the states

§ Can the Federal Government tell states what to do when the state’s pay?

o Attention to inequality and indigent Defendants

§ Impacted by civil rights struggle

o Historical Overview

§ Attention to inequality and indigent Defendants

· Attention to the fact that different people get different forms of justice

· Also impacted by civil rights struggle

§ Broad access to justice

· Related to inequality

· Need to allow people to get justice even w/o money

o Not just w/ defense at trial

o Also applies to appeal (not mentioned in Constitution)

· Post Warren Court (Rehnquist)à4 themesàCrime Control Model

o Ultimate mission: to convict the guilty and let the innocent free

§ Bright line rules allow guilty to go free in order to teach law enforcement

§ Post Warren court allows discretionà”totality of circumstances”

· Move towards “totality of circumstances” standard different from a rule oriented approach

§ Greater faith in integrity of prosecutionàleaves room for prosecutorial misconduct.

§ Less Federal interference in state processingàmore trust in local governments


· Doctrinal law v. Administration of Justice

o Interpretation of constitution versus how things work in the real worldàreal world occurrences impacts interpretation

· Punitive v. Victim Perspectives

· Rule oriented v. Outcome Oriented (Warren court v. Post Warren Court)

· Federal vs. State level

Pretrial Release

· Once individual is arrested, taken into custody and booked, complaint must be prepared and filed to outline charges against defendant.

o Misdemeanors: Bail determined by bail schedule (based on offense charged).

o Felonies: Individual remain in custody until taken before a magistrate

· Federal court: Must be brought before magistrate “without unnecessary delay”.

· Initial proceeding normally occurs within 24 hours of arrest

o Defendant informed of charges

o Defendant informed of rights

o Magistrate determines whether defendant may be released pending trial and under what conditions.

2-Step Analysis:

1. If arrested only based on police discretionàdetermination of probable cause for arrest (Gerstein hearing)

2. Should the Defendant be released pending next proceeding

Interests at Stake in Release Decision

· Defendants interests = weighty.

§ Liberty! (takes MONTHS to go to trial)

§ Restricts ability to prepare for trial

§ Loses job

§ Strain on family relationships

§ Conviction rate HIGHER for those detained than those released

· Public Interests

§ Risk Defendant fleeing (Integrity of justice system and retribution then undermined)

§ May destroy incriminating evidence, harm witnesses or commit other crimes

Bail and Other Release Mechanisms

· Citation Release/Station House Release

· Preset Bail Schedules for misd.

· Presentation before a magistrate

o Release on nonfinancial conditions (O.R.) normally check in or supervised closely

o Supervised Release

o Third Party Custody

o Unsecured Bond (only if fails to appear)

o Full Bond through Bails Bondsman

§ Reasons for bond: assure defendant returning for pledged collateral.

§ Move from historical friends/loved ones posting bail to private bondsmen.

§ Private bondsmen, and their decision of whether or not to give surety (i.e. decide who doesn’t gets out.)

§ Move towards bail reform focused on providing alternatives to traditional surety bail system,

o “Deposit bail”: bypassing professional bondsman allowing for a % of bond to be posted with court.

· Bail Reform Act 1984: Allows for consideration of dangerousness and allows preventative detention in limited circumstances.

Stack v. Boyle (1951) Vinson:

DC had given bail at widely varying amounts, then set bail at $50,000 for each of the petitioners, members of the Communist Party charged with conspiring to advocate or teach the overthrow of the government by force (Smith Act). This was an amount greater than that used with certain serious crimes. In objecting to the petitioners’ motions to reduce bail under the Eighth Amendment, the government showed evidence that 4 other people convicted on similar charges had forfeited bail.

· Federal law so relying on federal constitution.

Issue: Is a court setting bail for multiple defendants at a higher amount than that usually fixed for a crime and not applying the traditional standards of fixing bail to each one a violation of the Eighth Amendment?

Bail set an amount higher than that which would be reasonably calculated to assure the presence of the accused at trial is excessive under the Eighth Amendment.

Bail cannot be generalized, but must be specific for each individual and evidence must be presented regarding the situations of each D for 8th amendment.

It is unconstitutional to fix excessive bail to assure that a defendant will not gain his freedom.


· Defendants arrested for non-capital offense shall be admitted to bail.

· Here, no counter to the fact that the bail is higher than normal in this case and no argument for, individually, why that is.

· Prosecutor argues to trust them without offering evidence. Totalitarianism!

· If a court is setting bail unusually high for multiple defendants, they need to have evidence come in regarding the situations of each defendant for the Eighth Amendment protection against cruel and inhuman punishment to not be violated.

o That was not done here, so the setting of bail was constitutionally invalid and must be rectified.

o It clearly was not reasonably calculated to fulfill the purpose of assuring the presence of the defendant.

o A smaller matter here was the determination that the proper procedural remedy in this situation was a motion to reduce bail not habeas corpus.

Rothgery v. Gillespie (2008):

D was arrested in Texas as a felon in possession of a firearm. S was taken before a judge for processing and, upon learning that seeking legal assistance would delay the proceedings, waived his Sixth Amendment right to counsel. No prosecutor was present at this hearing. D posted bail and was released, but was rearrested after a grand jury indictment several months later hiked his bail to a sum he could not afford. Throughout this entire period D continued to pursue legal counsel and only obtained such counsel approximately one week after the grand jury indictment. D’s attorney produced evidence that D was in fact not a felon and he was released from custody. D brought suit against Gillespie County, TX for violating his civil rights by not appointing counsel as required under the Sixth Amendment. Both DC and the 5th Circuit rejected his claim, the Fifth Circuit stating that D’s Sixth Amendment rights were not implicated because no prosecutor was present at the initial hearing. D argued: That both federal and st

to the danger a person may pose to others if released

o Arrestee has a number of procedural safeguards

§ May request presence of counsel at detention hearing

§ May testify and present witnesses on his behalf/ give evidence

§ Burden is clear and convincing evidence.

o Judge not given unbridled discretionàCongress has given specific considerations

§ Factors include

· Nature & seriousness of charges

· Substantiality of governments evidence against arrestee

· Arrestee’s background and characteristics

· Nature and seriousness of the danger posed by the suspects release

o Detainee is entitled to expedited appellate review of detention order

· Here, Salerno and Cafaro were arrested after being charged with RICO violations.

o Governments evidence showed Salerno was boss of a crime family and Cafaro the captain

o Salerno challenged government’s witness, offered character/medical testimony.

II. Facial challenge to a legislative act, is the most difficult challenge to mount successfully

· Challenger must establish that no set of circumstances exist under which the act would be valid.

o D argues the act exceeds limitations placed of federal government by due process clause

§ 2 ways to violate due process

· Shocks the conscious

· Violates fundamental rights implicit in the concept of ordered liberty

§ D argues Act allows punishment before trial.

· Act is regulatory not penalty

· Just b/c person is detained does not mean government has imposed punishment.

o This is not punishment before trial this is a regulatory solution b/c Congress said (punishment and regulation are too different thing)

§ Congress enacted act to prevent people from fleeing (regulatory) not punitive.

o Act contravenes the 8th amendments proscription against excessive bailàif no excessive bail it means there should be REASONABLE BAIL. àdoes not say you need to get bail

§ 8th amendment addresses pretrial release by proving excessive bail shall not be required

· Does not say whether bail shall be available at all.

§ Primary function of bail is to safeguard cts rule of adjudication guilt/innocence of D’s but does not categorically prohibit the government from pursuing other admittedly compelling interest through regulation of pretrial release

§ Only limitation of the bail clause is that governments proposed conditions of release or detention not to be excessive in light of the perceived evil.

§ Excessive means NOT TOO MUCHàbalance compelling governmental interest v. personal interest (freedom)

· Kind of applying strict scrutiny test but does not explicitly use it b/c less sympathy for criminal defendants.

Held: liberty is the norm and detention prior to trial or without trial is the carefully limited exception

· Provisions for pretrial detention in Bail Reform Act fall w/I the carefully limited exception.

· This congressional determination, based on public safety does not face due process, 5th amendment, or 8th amendment.

· First case that say there is no right to be granted bail.

Marshall Dissent: Majority’s decision disregards basic principles of justice.

· Dividing analysis between 14 & 8th Amendment is wrongà

o 14th amendment: has no dichotomy between regulatory and punitive legislation

o Government could get away with a lot more if they were to say it is just regulatory rather than punitive.

Assessing Dangerousness:

Actuarial Assessment:

· Software that predicts dangerousness of criminals.

· CDCR uses PVDMIIàwould have constitutional problem if we are dealing with punishment

o But parole releases, civil commitments etc are regulatory so they are allowed (Salerno)

Clinical Assessment:

· The person talks to a professional (therapist) and based on the answers they decide whether person is dangerous or not.