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Criminal Procedure: Investigation
University of Illinois School of Law
Leipold, Andrew D.

i)        Themes of Criminal Procedure
(a)    Resources are Limited
(1)   Too many cases, too few: judges, prosecutors & defense lawyers
(2)   Significant impact on scope and interpretation of rules
(b)   Prosecutor Runs the Show
(1)   Prosecutors have unlimited discretion to investigate and charge suspects
(2)   Very broad authority to resolve cases
(c)    Harmless Errors are Ignored
(1)   Procedural errors standing alone are rarely enough to overturn convictions
(2)   Defendant will almost always need to show prejudice
ii)       The Crime
iii)      The Investigation
(1)     Traditional police work
·         Confessions, lineups, searches, seizures and physical evidence analysis
·         Primarily regulated by Courts  rather than Congress
(2)     Complex federal case= Grand Jury
·         Examines the conduct of the “target” of the investigation
iv)     The Arrest (FRCP 4)
(1)     Summons-alternative to taking person into custody (different than arrest)
·         Simply an order to show up in court.  Not taken into custody, just given an order to appear.
(2)     Police success is measured by clearance rate (% of reported crimes resulting in arrest & charges [not convictions])
v)       Booking
(1)     Arrestee is taken to station for custodial arrest, fingerprinted, inventory searched etc..
(2)     There is a possibility of stationhouse bail – post small amount for minor crime
·         Could post a certain amount of money and be released without going throguth the system
(3)     If not stationhouse bail, the arrestee goes to jail
vi)     Initial Charging Decision
(1)     Can be made by the police or the prosecutor
(2)     Now that the suspect is arrested, have to figure out what the charges are
·         BIG difference in practice between prosecutors’ office and police station, but either can do it.
(3)     Beginning of the screening process
vii)    Complaint
(1)     A written statement of the essential facts constituting the offense charged (FRCP 3)
(2)     Complaint is DIFFERENT for Felonies and Misdemeanors:
·         For felonies, temporary charging document
·         For misdemeanors, final charging document
(3)     Done under oath, it’s the first document created in the case
viii)  First/Initial Appearance (first formal step in the process)
(1)     Make sure there is enough evidence to continue to hold D (Gerstein hearing)
·         Prosecutor will say this is the evidence we have and there must be probable cause to hold the suspect in jail.
1.       If there has been no probable determination made previously, then the magistrate makes sure there is probably cause to continue to hold the suspect
2.       If the suspect doesn’t have an attorney, just need to present the court with sufficient evidence that there is probable cause to find that the defendant committed the crime charged.
·         Magistrate makes determination whether to release someone prior to trial
·         Must be w/in 48 hours of arrest – Rule 5A, without unnecessary delay
(2)     Appointment of lawyer if the suspect is indigent
1.       Mechanical process to determine if the suspect is indigent.
(3)     Bail Determination
ix)     Preliminary Hearing (FRCP 5.1)
(a)     HOWEVER – if the prosecutor can get to the Grand Jury FIRST then the defendant is not entitled to a preliminary hearing.
2 ways to avoid preliminary hearing:
1.       if Defendant waives it;
2.       or if GJ indicts D
(b)     Adversarial determination of probable cause
(1)     Probable cause as to whether or not the defendant committed the crime
·         Different than First Appearance because this is adversarial, meaning now the defendant has an attorney
·         Prosecution must put on evidence to establish that the defendant committed the crime.  Defense has the opportunity to challenge this.
·         Takes place 1-3 weeks after the arrest
(c)      if enough evidence case is bound over, either;
(1)     To the grand jury; or
(2)     To the trial court
(d)     Preliminary hearings yield Informations
x)       Grand Jury Review
(1)     23 citizens drawn at random from the community – meet in secret, no one else is allowed in the room except:
·         Prosecutors; (no judge or defense lawyers or targets or public allowed in front of GJ)
(2)     Review evidence to see if there is enough for trial; if so vote to indict (true bill)
·         Didn’t we just do this at the preliminary hearing? Yes! There’s virtually never both, the grand jury and the preliminary hearing
·         GJ does not need a vote of 12 to decide to send the case forward
·         Not an adversarial hearing
·         Because only the prosecutor is in the room, we start to see that they decide what goes
(3)     Grand Jury yields: indictments
·         This means the grand jury has approved the charge and the case goes to trial.
xi)     Filing of Indictment or Information
(1)     Now that the Grand Jury has decided to send the case forward the Defendant is now indicted.
(2)     Formal charge filed w/the trial court
(3)     Indictment replaces the Complaint as the official charging document
·         Defendants often decide they don’t want GJ to review their case; they waive GJ; if the do so then prosecutor files the information- and that becomes the official charging instrument
xii)    Arraignment
(1)     Informs a Defendant of charges against him in open court
(2)     Defendant enters a plea of guilty or not guilty (also nolo contendere, or no contest- I am not admitting that I did it, but I will not contest the charges)
(3)     Guilty pleas are sometimes the result of plea bargains
·         75-80% of cases get resolved this way
·         There is no option of guilty by reason of insanity in Federal Courts.  In order to plead insanity, would have to plead guilty then argue insane.
xiii)  Pretrial Discovery
(1)     Exchange of information between the parties
(2)     Prosecution disclosure of Brady material in addition to pretrial discovery
·         Prosecutor has a constitutional duty to turn over evidence that is favorable to the accused and material to the determination of guilt
xiv)  Trial
(1)     In between this and previous step you file all sorts of pretrial motions to figure out what evidence is in or out
(2)     Prosecutor’s burden – proof beyond a reasonable doubt
·         Defense has no burden at all
·         Defendant has no obligation of proving anything, or even to put on a defense.
(3)     Defendant need not testify – privilege against self incrimination
(4)     Right to a jury for serious crimes- jury must be unanimous either way
(5)     Jury has absolute power to acquit- no appeals by government; even if the jury does something really stupid
xv)   Sentencing
(a)     Federal sentencing is done by the judge, not the jury
(1)     ***Exception: death penalty cases: juries do the sentencing
(b) Federal Sentencing Guidelines- limit judicial authority to sentence
xvi)  Appeals
(1)     All convicted defendants can appeal once as a matter of right
(2)     Limited to trial errors – no new evidence
(3)     Second, discretionary review in Supreme Court
·         Depending on what the court of appeals said, even the government can seek review in Supreme Court
xvii)Post Conviction Petitions
(1)     Also called State and Federal Habeas Corpus Actions
·         Habeas petitions are filed against the warden of the prison
(2)     They challenge the legality of confinement
Basic Functions of Bail
A.      Bail preserves the liberty interest of the suspect; denial of bail would deprive suspect of liberty interest
B.     D’s case preparation will be more effective; chances are much better to prepare case more thoroughly “from the outside”  (and can keep working to make money for deense)
C.      Bail saves govt $$$- don’t have house prisoners; helps alleviate jail crowding

of the evidence
iii.     Defendants character, physical and mention condition, family ties, employment, finances, length of residence in the community, community ties, past conduct, history of drug and alcohol abuse, criminal history, record of court appearances, and status as a probationer or parolee
(a)    Primary Purpose- make sure Defendant shows up for hearing (NO Constitutional right to bail)
(b)   Why is it not excessive punishment to sent higher bail amount for more serious charge?
(1)   The more serious the charge, the greater the consequence if convicted, thus the individual is more likely to flee
(c)    Factors that Keep Bonds Low
(1)   Ties to the community
(2)   Voluntary surrender
(3)   Lack of ability to flee
(d)   Factors that Increase Bond Amounts
(1)   May previous arrests; although if D showed up every time that may be a mitigating factor
(2)   Severity of the crime
(3)   Evidence of guilt
(4)   Capital Crimes – facing the death penalty
(5)   Relatives in a foreign country
(6)   Wealth – the more wealthy they are the less they’ll care about losing money
·         Court may impose a higher bail amount to give them second thoughts about fleeing
·         How does this contrast with Stack v. Boyle?
(e)    Stages at Which One can be released prior to trial
(1)   Field Release – a summons, police give a citation and tell someone to show up in court
(2)   Stationhouse Bail- non-judicial release mechanism
(3)   Judicial Release- now a judge and lawyers are involved
(f)     Recourse if Bail is Denied
(1)   Bail is excessive if it is set at an amount greater than what is needed to make the defendant show up
(g)   Hypos:
(1)   If D is homeless & charged w/ armed robbery courts won’t set a bail at $20; people just won’t stay around for that amount of money. On the other hand, the fact that Bill Gates can afford $20M bail for a petty theft charge does not mean court can charge that much
(2)   D will get a high bail b/c he lacks community contacts, uses aliases that make it easier to flee & has previous convictions
(3)   D will get low bail b/c he is a lifelong resident of community, has lots of community ties & lacks the ability to flee
(a)    No constitutional right to counsel at bail hearing
(a)    Lots of ppl don’t have counsel at bail hearing
(b)   Once counsel is appointed, they may move to reduce bail or relax the conditions of bail
(c)    At a bail hearing under the 1984 Act: ∆ has right to put on evidence, call witnesses and cross examine them before the court reaches its decision
(d)   Bail can be given pending appeal, but it is very hard to get b/c presumption of innocence is now gone
(1)   3143(b) of Bail Reform Act – to get bail pending appeal ∆ must show there is a substantial question that must be resolved
i)        Stack v. Boyle – preventing flight is the only legitimate consideration in refusing bail
(a)    There is strong evidence that courts have always taken into account that ∆ is a danger to the community
ii)     US v. Salerno- 8th Amendment not violated by Pre-trial detention (upheld the bail reform act of 1984)
(Adds a grounds for denying bail – threat to the public)