Criminal Procedure
Sanders
Fall 2016
Chapter 1: Introduction to Criminal Procedure
The Participants in the Criminal Justice System
Defense Counsel
Police and Other Law Enforcement Officers
Magistrates and Judges
Corrections Officials
Stages of the Criminal Justice Process
Step 1: Pre-Arrest Investigation – can occur before or after a suspect is arrested
Step 2: Arrest – can arrest with or without a warrant. If police don’t use an arrest warrant, they have to file an affidavit with the court setting forth the probable cause for the arrest and getting a complaint to hold the defendant for further proceedings.
Step 3: Filing the Complaint – prosecution must file charges in order for police to hold a suspect after arrest
Step 4: Gerstein Review – Magistrate judge must review the prosecution’s complaint and supporting affidavit to determine whether there is probably cause supporting the initial charges against the defendant. Comes from Supreme Court in Gerstein v. Pugh. Magistrate’s review for probable cause is done ex parte and is based on filing alone.
Step 5: First Appearance/Arraignment on Complaint – usually occurs within 48 hours of arrest.
Step 6: Grand Jury or Preliminary Hearing – Grand jury is made up of 23 members of the community who decide if there is probable cause to prosecute. States don’t have to use grand juries in felony prosecutions. Preliminary hearings are not required by the Constitution.
Step 7: Arraignment on Indictment or Information – defendant is asked to enter guilty or not guilty plea and is advised of charges against him and assigned counsel if needed.
Step 8: Discovery – Process by which the parties seek to examine the evidence that the other party is likely to use at trial.
Step 9: Pretrial Motions – ex. Suppress evidence, motion in limine.
Step 10: Plea Bargaining and Guilty Pleas – more than 90 percent never go to trial. Prosecutors can reduce charges to get people to plead guilty.
Nolo contendere plea has the same effect as a guilty plea but is not an admission for guilt in a civil case.
Step 11: Trial – Proceeds to trial if defendant pleads not guilty.
Step 12: Sentencing – If convicted, defendant is sentenced by the court.
Step 13: Appeals and Habeas Corpus – burden shifts to defendant on appeal. Habeas corpus petitions are suits that allege the defendant is being held unconstitutionally. Ex. Ineffective assistance of counsel.
The Purpose of Procedural Rules
Why do we need criminal procedure rules?
Respect for criminal defendants
Efficiency and consistency
Rules make sure we’ve evolved as a democracy
Powell v. Alabama
: Train rape. Black men arrested, appointed counsel by “all members of the bar.” Black men were illiterate.
: Sufficient counsel? 14th Amendment violation?
: No sufficient counsel, 14th Amendment Rights violated. Under due process clause, trial proceedings were inherently unfair.
: “Where the defendant is unable to employ counsel, and is incapable of making his own defense… it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.”
Patterson v. Former Chicago Police Lt. Jon Burge
A man convicted for two murders who spent 13 years on death row was pardoned. He filed suit stating that the defendants violated his Constitutional rights when they knowingly filed false charges and framed him for the murders and tortured him.
Key Provisions of the Bill of Rights
Need for a Warrant and probable cause
Right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Probable cause needed for warrants.
No double jeopardy, no self-incrimination, general right of due process in criminal cases.
Right to a speedy and public trial with an impartial jury of the state; right for defendant to confront the witnesses against him.
No excessive bail or cruel and unusual punishment.
The Application of the Bill of Rights to the States
The Provisions of the Bill of Rights and the Idea of “Incorporation”
Provisions of the Bill of Rights did not apply to state governments until the twentieth century and generally not until the second half of the twentieth century.
Barron v. Mayor & City of Baltimore (1833) – S.C. held that the Bill of Rights did not apply to the states. Claim: City’s diversion of streams and made water in harbor too shallow for boats.
Applies only to federal government
Burlington & Quincy Railroad Co. v. City of Chicago (1897) – S.C. ruled that the Due Process Clause of the Fourteenth Amendment prevents states from taking property without just compensation.
Twining v. New Jersey (1908) – S.C. stated that some personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.
Opened the door to the S.C. applying provisions of the bill of Rights to the states by finding them to be included into the Due Process Clause of the Fourteenth Amendment.
Selective incorporation: look at each clause separately to see if it should apply
Total incorporation
Gitlow v. New York (1925) – Court said that the First Amendment’s protection of freedom of speech applies to the states through its incorporation into the Due Process Clause of the Fourteenth Amendment.
Fiske v. Kansas (1927) – Court found that a state law regulating speech violated the Due Process Clause of the Fourteenth Amendment for the first time.
The Debate over Incorporation
Debate between total and selective incorporation determined the reach of the Bill of Rights and the extent to which individuals could turn to the federal courts for protection from state and local governments.
Palko v. Connecticut (1937) – Court held the prohibition of double jeopardy does not apply to the states.
Adamson v. California (1947) – Court held that states were not obligated to follow the Fifth Amendment’s prohibition on a prosecutor’s commenting on a criminal defendant’s failure to take the witness stand.
Debate over incorporation was centered on 3 issues:
Over history and whether the framers of the Fourteenth Amendment intended for it to apply the Bill of Rights to the states
Over federalism – applying B of R to states imposes a substantial set of restrictions on state and local governments. Opponents of total incorporation argued based on federalism – wanted to preserve autonomy.
Over the appropriate judicial role. Advocates of total incorporation claimed that letting Court pick and choose which rights to incorporate left too much to the subjective preferences of justices. Advocates of selective incorporation thought total incorporation would mean more judicial oversight of state and local actions and thus less room for democracy to operate.
The Current Law as to What’s Incorporated
Supreme Court never accepted the total incorporationist approach. However, one by one, the S.C. found almost all of
Katz – the fact that there was no physical trespass is not outcome determinative.
Katz 2 part test from Harlan concurrence:
Person has actual expectation of privacy
The expectation must be one that society is prepared to recognize as reasonable
If both of these are met, look at #2 and #3 for analysis on exam below
Why is the threshold of what is a search important?
If it’s not a search, the Fourth Amendment doesn’t apply.
Is there a search?
Was that search unreasonable?
Any applicable warrant exceptions?
Katz v. United States
: The petitioner used a public telephone booth to transmit wagering information from Los Angeles to Boston and Miami in violation of federal law. After extensive surveillance, the FBI placed a listening device to the top of the telephone booth and recorded the petitioner’s end of the telephone conversations which was then used as evidence against him to convict him at his trial.
: Whether the Fourth Amendment of the Constitution protects telephone conversations conducted in a phone booth and secretly recorded from introduction as evidence against a person? Whether the search and seizure conducted in this case complied with Constitutional standards?
: “The government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment” “It is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place.”
However, you can’t retroactively authorize their conduct since they did it without prior judicial sanction.
Evidence is inadmissible. They needed a warrant.
: The protection of the Fourth Amendment of the United States Constitution (“Constitution”), against unreasonable searches and seizures, follows the person and not the place.
: Katz supplements Olmstead trespass test. See Katz test above.
Florida v. Jardines (Supplement)
: Tip that person was growing marijuana in their home. Detectives brought drug dogs to front door and dog detected narcotics. Applied for warrant, searched home, arrested Jardines.
: Using a drug sniffing dog on a homeowner’s front porch to investigate the contents of the home is a search within the meaning of the Fourth Amendment. Since it was trespass there is no Katz issue.
: Physical intrusion into curtilage = warrant necessary
