EXAM:
will be asked to assume a role- judge, prosecutor, defense atty, etc
answer the question being asked- no general discussions
avoid not making a decision- take a position- if there are counter veiling arguments include them but try to dismiss them- don’t put “on the one hand…on the other hand”
concentrate on the first paragraph- write draft of first paragraph
3 hr exam, 3 questions (usually 1 hr each)
OVERVIEW CRIMINAL PROCEDURE:
1) Statutes/ Rules
2) Constitutional Restraints- 4th, 5th, 8th Amendments- etc
èeach criminal procedure question can become a constitutional law case
èConstitution trumps EVERYTHING!-
èSupremacy Clause: constitution of US is supreme law of the land
CRIMINAL PROCEDURE STATUTES AND RULES:
A. FEDERAL RULES:
1. all of criminal procedure statutes in US are contained within Title 18 (1200 pgs in length)
2. Federal Rules of Criminal Procedure:
B. STATE
1. Statutes- Title 53
2. Rules- The Criminal Practice Book
BILL OF RIGHTS
– pg. 38 in text book (xxxviii)
a) 4th amendment- search and seizure
– Unreasonable Search and Seizures Clause:
§ right of people to be secure in their persons, houses, papers and effects against unreasonable search and seizures shall NOT be violated
– Warrant Clause:
§ No warrant shall be issued w/o
1) probable cause
2) supported by oath or affirmation
3) has to particularly describe the place to be searched and the persons or things to be seized
– Issues:
1.is a “stop” a seizure of the person?
2.what is the relationship between an unreasonable search and warrant?
b) 5th amendment- self incrimination
– Indictment Clause
§ no person shall be held to answer for a capital or otherwise infamous crime UNLESS on a presentment or indictment of a Grand Jury
§ in CT: there is no right to a grand jury indictment (there are no grand juries)
§ instead CT has “information” in which prosecutor signs accusatory instrument
è how can CT do this???
è 5th amend has NOT been incorporated to apply to all states!
– Double Jeopardy Clause:
§ Nor shall any person be subject to the same offense twice put in jeopardy of life or limb
– Right against Self Incrimination:
§ Nor shall be compelled in any criminal case to be witness against himself
– 5th Amendment- Due Process
§ nor be deprived of life, liberty, or property without due process of law
– Eminent Domain
§ Nor shall private property be taken for public use, without just compensation
c) 6th amendment- multiple protections:
– speedy and public trial
– impartial jury of the state and district wherein the crime shall have been committed
–
d) 8th amendment- bail: cruel & unusual punishment
– Excessive Bail
§ Excessive bail shall NOT be required
1. does the bail clause prohibit the government from eliminating bail? (no right to bail in murder cases, etc)
2. does gov have to give reasonable bail?
– Cruel and Unusual Punishment
§ Nor cruel and unusual punishment be inflicted
§ At no time has fed gov said death penalty= cruel & unusual punishment
e) 14th amendment- due process: incorporation
– post civil war amendment
1) Section 1- makes slavery unconstitutional
– all persons born or naturalized in the US and subject to JS of the US
2) Section 2- Equal Protection of Law
Case Flow in the State Criminal Justice System
1. Step 1- PRE ARREST INVESTIGATION:
A) On-the-scene arrests:
– majority of investigation will occur after the
B)
2.
– TRIAL COURT
1. Charge
2. Arraignment
3. Trial
4. Plea
5. Conviction
6. Sentence
– APPEAL
§ Intermediate
§ state supreme court
– COLLATERAL ATTACK- STATE HABEAS CORPUS
§ after convictions have been confirmed- can appeal for state habeas corpus- state due process rights under state law were denied- go to state supreme court
– COLLATERAL ATTACK- FEDERAL HABEAS CORPUS
§ after everything has been denied- can claim violation of federal constitutional right
§ has to be federal law that has been violated
1. US DISTRICT COURT OF CT
2. Trial
3. Plea
4. Conviction
5. APPEAL- US COURT OF APPEALS (2nd Circuit)
– if do not affirm district court- gets remanded-> district court
– if affirmed, D can file for writ of federal habeas corpus
2 Cases:
Seatbelt case- pg. 239- Atwater v Alta Vista
State v Fed Law- Virginia v Moore (whether state statute saying you cant be arrested for certain crimes applies)
Powell v Alabama
FACTS: 6 African American men from Tennessee were convicted of raping 2 white girls on train from Alabama- during that train ride- 6 men got into a fight w/ a group of white men (all but one were kicked off the train) and were arraigned without counsel
s!
§ Motion to suppress-
· Exclusionary rule- evidence obtained unconstitutionally is NOT admissible!
§ Motion to dismiss indictment: 2 types
1. constitutional attack on underlying criminal statute
–
1. non dispositive motions-
§ Reorders/ facilitates/ frames how the process will continue BUT does not end the case!
§ structuring the trial that has not yet occurred
1. joinder- bringing together
a. joinder of “offenders”
b. joinder of “offenses”
– if item of evidence is admissible against one co-conspirator- it is admissible againt ALL co-conspirators
2. severance- taking apart
– Discovery
– Plea- formal response to accusation, 2 kinds of pleas
1. Guilty
1. plea of nolo contendere- do not contest the charges (not that you are guilty)- courts have discretion about whether to accept these pleas
2. alford plea- North Carolina v Allford
§ D said he was not guilty but was willing to accept consequences of guilty plea
§ Permissible!
– 2 requirements for a valid guilty plea:
1) plea MUST be voluntary!- not as a result of pressure or threats OTHER than in the course of plea bargaining
2) MUST be a factual basis for the plea
o does not mean that D must be factually guilty but there must be some sufficient facts on the record for the judge to conclude/accept a guilty plea
ü usually a guilty plea swallows up any preceding motions (ie. motion to suppress)
o but both the CT rules of civ pro and fed rules- allow a D to plea guilty and then adjudicate the motion to suppress and then if granted, guilty plea becomes invalid
o plea bargaining: if prosecutor doesn’t want you to preserve the plea, will let D plea to lesser offense but motion to suppress has to go away
2. Not Guilty
Sentencing:
– Federal:
§ 10 yrs ago, congress est the “U.S Sentencing Commission”- who is charged w/ duty of establishing guidelines for sentencing
§ MANDATORY- fed courts were bound to establish certain sentences for certain crimes
