Criminal Procedure Outline

Criminal Procedure, Professor Nunn, Fall 2011

Intro.

1. Criminal Procedure defined: “The study of those procedures used to determine who violated the substantive criminal law and what the consequences of that violation will be.”

a. Who broke the law? – Determination of guilt AND

b. What is going to happen to him? – Assignment of punishment

2. Determination of guilt

a. Investigatory procedures – Was the law broken?

i. Arrest

ii. Search & Seizure

iii. Wiretapping

iv. Surveillance

v. Evidence collection

vi. Interrogation

vii. Entrapment

viii. Identification procedures

b. Accusatory procedures – Who do we think broke the law?

i. Grand Jury

ii. Indictment

iii. Information

c. Adjudicatory procedures – Who in FACT broke it?

i. Trial

3. Police Practices

a. Constitutional and statutory limitations on the exercise of police powers

i. Investigation

ii. Interrogation

iii. Identification

iv. Arrest

v. Search and Seizure

b. Zone of rights you retain as a citizen

i. 4th amendment – protection against search and seizure

ii. 5th amendment – rights against self-incrimination/due process

iii. 6th amendment – right to counsel/right to a fair trial

iv. 14th amendment – right to equal protection/due process

4. Deductive v. inductive reasoning:

a. Deductive: reasoning based on premises, which if accepted, mandate or make necessary the given conclusion

i. Syllogism (deductive) – if premises are accepted, then conclusion must follow

b. Inductive: reasoning based on a data source that suggests a given conclusion

i. Hypothesis (inductive) – offers a conclusion that is probable based on converging evidence

ii. Analogy (inductive) – offers a conclusion that is probable based on similarity with a known fact

iii. Generalization (inductive) – offers a conclusion that is probable based on a presumed pattern

5. Criminal Process

a. Report crime

i. Usually after the fact by an eyewitness

ii. Can be suspected crime in progress where police investigate events

b. Pre-arrest investigation

i. Complex investigation occurs in only most serious cases

ii. Determining whether crime was committed and if so, who did it?

iii. In home searches, need warrant or consent of resident

c. Arrest

i. May be with or without warrant

ii. Mirandized

iii. Warrant for arrest or search must be supported by affidavit

d. Booking

i. Fingerprint, photo, background info.

ii. First appearance or arraignment

e. Preliminary arraignment

i. Decision of whether an dhow to charge defendant – first time offenders often get diversion or probation

ii. Defendant is informed of charges

1. In misdemeanor à complaint usually charging doc. throughout

2. In felony à complaint is eventually replaced by more formal “information” issued after prelim. Hearing or indictment issued by grand jury

f. Continue Investigation

i. Post-arrest investigation: DNA, photo-spreads, witnesses, other lab analysis, subpoenas, search & seizure

ii. At this point, defendant will have asserted 6th amendment right to counsel

g. Preliminary Hearing

i. Can be waived if defendant plans to plead guilty

ii. Used to establish probable cause but defendant attorney may ask broad questions in an opportunity for discovery

1. Different models:

a. Federal – grand jury indictment approved by grand jury finding PC

b. State – defendant attends prelim. Hearing before a judge, charges embodied in information

h. Grand Jury Review

i. States very widely

1. In some, GJR and indictment are required for felonies

2. In others, prosecutor may proceed with either indictment or information

a. If there is an option:

i. Prosecutor may prefer speed and efficiency of prelim. Hearing and information BUT

1. If more discovery is needed, may prefer grand jury bc can subpoena witnesses, docs, and objects and not reveal too much evidence to defendant attorney

i. Filing

i. Indictment or information drafted by prosecutor

1. Signed by judge or grand jury

j. Arraignment on Information or Indictment

i. Told charges faced at trial and defendant enters plea

k. Pre-trial motions

i. Often immediately before trial

ii. Allows motions to be made before double jeopardy attaches

1. Can only appeal an erroneous ruling if that ruling is made before jeopardy attaches

iii. When does jeopardy attach?

1. At trial jury when the jury has been empanelled and sworn in

2. At bench trial after 1st witness is sworn

l. Trial

i. All planning must be geared toward discovery and trial

ii. Chances are affected by pre/post investigation and pre-trial motion outcomes

m. Sentencing

i. Guidelines may be based on prior record and offense

ii. Severity puts limits on trial judge discretion

1. Prior record score and severity “interact” on a grid

n. Appeals

i. Must be filed within time limit, usually 30 days

o. Post conviction remedies

i. After exhausting available appeals

1. Ineffectiveness of prior counsel

2. Habeas corpus

Search & Seizure

Basic Concepts

1. Fourth Amendment

a. Questions to ask:

i. What are the parameters of the 4th amendment? (When does it apply)

ii. What is the substance of 4th amendment protection (What does it protect)

iii. Under what circumstances does the 4th amendment provide protection? (limits and exceptions)

iv. What remedies apply to the 4th amendment?

b. How to approach Fourth Amendment Problems: chart p. 98

c. Does the 4th amendment re