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Criminal Procedure
University of Connecticut School of Law
de Figueiredo, Miguel

Criminal Procedure

Spring 2015

Professor Miguel de Figueiredo



a. Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals.

b. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with the initial police contact and continuing through arrest, investigation, sentencing, and appeals.

c. Distinguished from substantive criminal law, which is the body of law defining crimes.


a. What is the appropriate balance between our interest in protecting citizens from unwarranted gov’t intrusion and abuse, and our interest in investigating crime?


a. Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

b. Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; not shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

c. Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”


a. Due Process Clause of the 14th Amendment provides to states and local gov’ts some protections through the BOR.

i. By precedent, the test for holding an amendment applicable to the states through the Fourteenth Amendment is whether the right protected is among those “fundamental principles of liberty and justice, which lie at the base of all our civil and political institutions.

ii. Fundamental Rights Approach: The 14th Amendment only requires that the states apply those procedures that are “fundamental to the American scheme of justice.” Duncan v. Louisiana

b. The Fourth Amendment right to be free from unreasonable searches and seizures and to have any illegally seized evidence excluded from criminal trials.

c. The Fifth Amendment privilege against self-incrimination; guarantee against double jeopardy.

d. The Sixth Amendment right to counsel; right to a speedy trial; and right to an impartial jury.

i. Duncan v. Louisiana held that the 14th Amendment guarantees a right of trial by jury trial in all criminal cases.

ii. States do not need to use a 12-person jury in criminal cases (although it is required for federal trials). (Williams v. Florida)

1. States may allow non-unanimous jury verdicts. (Apodaca v. Oregon)


a. Arrest: Where a police officer has probable cause to believe a suspect has committed a crime, the officer makes an arrest.

b. Booking: The arresting officer then transports the suspect to the police station for “booking” and in the booking procedure, enters the suspect’s name, offense, and other information.

c. Filing complaint: The prosecutor reviews the facts, and decides whether charges should be brought, based mostly on the sufficiency of the evidence. If the suspect is to be charged, the prosecutor prepares a “complaint.”

d. Gerstein Review: Magistrate must determine if there is probable cause based on the prosecution’s complaint à Generally occurs during “initial appearance.”

e. First appearance: After a complaint has been filed, the suspect (who is now a “defendant”) is brought before a magistrate, generally “without unnecessary delay,” where the magistrate typically does the following:

i. Notice of charges: She informs D of the charges; and

ii. Right to counsel: Notifies D that he has the right to counsel

iii. Bail: The magistrate will set bail if D did not previously post stationhouse bail.

f. Preliminary hearing: In felony cases, the magistrate makes a neutral determination of whether there is probable cause to believe that D committed the crime charged. Generally counsel is present.

i. Hearsay can be admitted.

g. Filing of indictment or information: In about half states, a grand jury indictment is required to proceed for at least some, if not all, felony prosecutions.

i. Nature of Grand Jury Proceeding: A closed-proceeding, at which the grand jury decides, by majority vote, whether to issue an indictment.

ii. Information: If the state does not require an indictment for the particular crime in question, ”information” issued by the prosecutor is sued instead. The information recites the charges and is filed with the trial court.

h. Arraignment: Once an indictment or information is filed, D is “arraigned” on the information or indictment. In the arraignment, D is brought before the trial court, informed of the charges against him, and asked whether he pleads innocent or guilty.

i. Pretrial motions: Defense has the opportunity to file various pre-trial motions. Most common motions are to: (1) obtain discovery of the prosecution’s evidence; and (2) have some of the prosecution’s evidence suppressed (e.g., to have a confession ruled inadmissible because Miranda procedures were not followed.)

j. Trial: If the charge is a felony, or a misdemeanor punishable by more than six months in prison, all states give D the right to have the case tried before a jury.

k. Sentencing: If D pleads guilty or is found guilty during the trial, he is then sentenced – the judge, not the jury, usually does sentencing.

l. Appeals: All convicted defendants are entitled to an appeal.

m. Post-Conviction Remedies: Both federal and state prisoners may challenge their convictions through federal-court habeas corpus procedures. In a habeas corpus procedure, D asserts that his conviction violated the federal constitution.


a. Defense Counsel: Serves as D’s counselor.

b. Prosecutors: Administrators of justice, an advocate, and an officer of the court. Prosecutors, not victims, decide which cases to charge, whether to plea bargain, trial strategies, and even sentencing recommendations.

c. Police Officers: Determines whether to investigate a case and when to make an arrest.

d. Magistrates and Judges: Neutral decision makers, who must ensure that D’s constitutional rights are being respected.

e. Jurors:

i. Grand Jurors: Oversee investigations of cases and decide whether to return indictments against individuals.

ii. Trial Jurors: Fact-finders of criminal trials.

f. Correction Officers: Responsible for supervising a D’s incarceration or release on parole or p

nservative estimate: 30% of 115 searches were unconstitutional in a police dept. nationally ranked in top 20%.

· 31 out of 34 of the unconstitutional searches had no arrest, charge, or citation.

· Highest rates of unconstitutional searches were for those released.

· 84% involved African Americans suspects.

· Invisible and unchecked policing (unbridled discretion)

· Racial profiling

· Police legitimacy, especially in marginalized communities

· Data reliability (observation vs. police reports)


a. A search will be deemed to occur if the gov’t:

i. (a) Physically intrudes on the D’s property; and (b) does so in “an attempt to find something or to obtain information.” (U.S. v. Jones, 2012)

1. Concept as being a form of trespass on the D’s property (1791)

ii. (a) Infringes on the D’s “reasonable expectation of privacy;” and (b) does so in an attempt to find something or obtain information. (Katz v. United States, 1967)

1. Does not require “psychical intrusion.”

b. Pre-Katz “Protected Places” Approach

i. Protected only certain places, almost always limited to private property owned by the subject of the search.

ii. No 4th Amendment searches unless gov’t committed some sort of physical intrusion onto the D’s person, real estate, or possessions.

iii. If the Court applied this test in Katz, there would be no 4th Amendment violation because D made his phone calls on public property and FBI agents did not commit a trespass in installing their devices.

c. “Reasonable Expectation of Privacy” Doctrine:

i. The 4th Amendment applies to any gov’t search or seizure that interferes with a person’s reasonable expectation of privacy,” even if there was no interference with that person’s property. (Katz v. U.S.)

1. Protection of People: 4th Amendment protects people, not places. “If what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

ii. Justice Harlan, in his concurrence, established a two-pronged test for determining whether a person is entitled to Fourth Amendment protection.

iii. Two-Pronged Test:

1. First, that a person exhibited an actual (subjective) expectation of privacy and

a. Individual may seek to protect information as private, even in public area.

2. Second, that the expectation be one that society is prepared to recognize as reasonable.

Katz v. U.S. (Telephone Booth)

FBI agents placed electronic eavesdropping equipment on the outside of a public telephone booth from which D, a bookmaker, conducted his business.

– Olmstead v. U.S. was overruled in Katz à Olmstead held that electronic eavesdropping w/o physical trespass was not a search within the meaning of the 4th Amendment.

– Before Katz, must be a physical intrusion.

– D reasonably believed he would have privacy when shut the door and made a phone call.