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Advanced Criminal Procedure
University of Kansas School of Law
Gottlieb, David J.

ADVANCED CRIMINAL PROCEDURE GOTTLIEB SUMMER 2007

PRETRIAL STAGE

I. PRETRIAL RELEASE
A. What happens after arrest (can occur with or without a warrant)
1. Police/prosecutor prepares and files a complaint setting out the
charges against the D
2. Initial arraignment- within 48 hours of arrest; magistrate
determines whether the arrestee can be released pending trial
a. judicial determination of probable cause- initial appearance:
b. appear before a judge who has the responsibility to determine (if there has been no previous determination) of probable cause if it exists to proceed- occurs through the Complaint
i. a short statement of the charge and the facts against the individual.
ii. In the situation where there is already a warrant, the only thing that tends to happen in terms of the sufficiency is the judge looks at the complaint to make sure it states an offense.
c. Defendant is informed of his or her right to an attorney
i. KS- practice differs from place to place. In some jx, PD will be there. In some rural counties, however, the defender is not there. Lawyer will be arranged later.
3. Once the complaint is filed and the individual appears in front of the judge, have the initiation of adversary proceedings and 6th amendment right to counsel attaches-the process has begun.
4. Initial appearance- determination of bail is the last thing that happens
a. possibility for pretrial incarceration of D while awaiting prosecution.

B. Interests at Stake in the Release Decision
1. Defendant’s:
a. decision affects liberty interest
b. Jailed defendant’s ability to adequately prepare for trial is restricted
c. Jailed defendant is likely to lose his job
d. Body of research indicates that D who is unable to post bail is more likely to be convicted on that basis alone
2. Public’s stake:
a. risk D might flee or hide if released at pretrial
b. released D may destroy undiscovered incriminating evidence, harm or intimidate potential witnesses, or commit crimes

C. Bail and Other Release Mechanisms
1. Pretrial incarceration can be devastating in two immediate senses:
a. Jail is dangerous
b. More difficult for D as a litigation matter (i.e. pressure to settle, assisting in own defense- calling people, helping to recover evidence in a particular case, etc)
2. Traditionally, government required the D put up a bond to ensure the D’s appearance at trial
3. Two aspects of the process that were notable about the American system:
a. Worry about the individual the higher the money amount could go
b. And bondsman put up the bond at the court
4. In traditional bailing situations, the standard for giving bond was supposed to be risk of flight
a. The only factor that was present in the statute was whether or not it was likely the individual would flee
b. Dependent on the D’s ability to pay- studies showed huge numbers on petty offenses were doing time because they couldn’t make the bonds
c. Discriminatory against the poor
d. Promoted a kind of dishonesty among courts- many bonds were being set to ensure the individual wasn’t going to get out rather than as a result of any concern that the individual would be a flight risk
1) Ex.: Exxon Valdez oil spill- captain went to initial appearance, and judge imposed a 1 Million bond for a misdemeanor offenses- nothing whatsoever to do with his flight risk
e. 1960s: set of reforms trying to minimize use of bail on the federal level
g. KS still has a presumption in favor of suretyship (bailbondsmen)
5. First major reform on the federal level: Bail Reform Act (no longer the law)
6. Second Major statute: 1984 Federal Bail Reform Act- Comprehensive crime bills:
a. Toughened the standards and penalties
b. Changed the system of bail to make it somewhat more repressive and more honest:
i. Explicitly cited danger to the community as a justification for restricting the liberty of an individual
ii. One of the possible outcomes that could occur was detention of the individual pending trial
iii. Rebuttable Presumption that we are going to release individuals- least restrictive environ
c. Set of conditions:
i. previous conviction for violent crime
ii. previous conviction for life sentence crime, drug offenses, or crimes on release
d. Depending on crime charge and D’s prior record, release may not protect the public

D. PREVENTIVE DETENTION
1. United States v. Salerno (p. 774): PT detention does not violate DPC because it is regulatory, not punishment (no 5th A violation). Also denial of bail does not violate the 8th. Standard for DPC is clear and convincing.
a. Facts: Two mafiosos charged under the RICO act; govt. moves to detain. Likely to continue to commit crimes while awaiting trial given the severity of the charges, the govt. is able to do so.
i. Clear and convincing evidence (standard) that no other conditions of release are likely to protect the public safety
b. Defense Arguments:
i. 8th Amendment- excessive bail
ii. 5th Amendment- substantive due process- being held pretrial w/o a conviction is punishment before trial
c. SCOTUS- govt. is not doing this to punish, but rather as a regulatory measure- simply holding the D for a short time.
d. Two more arguments:
i. Govt. not able to effectively determine the likelihood an individual is going to reoffend, and should not be doing this.
ii. Clear and Convincing, say 66% of a proposition which if you establish, you’ve only established a 50% likelihood that it is true
a) Very different inquiry than in proof beyond a reasonable doubt
iii. Problem: whether or not if this is simply too chancy
iv. Dissent: Problematic to use the indictment which supposedly is only there to state the charge as a factual basis in order to detain
v. D acquitted under the statute is released, but that does not mean he has been declared non-dangerous.
e. Excessive bail under the 8th Amendment
i. Defense argument- presupposition of the opportunity to have bail, and so denial violates the 8th Amendment
f. Court strikes that down with two arguments:
i. We are not even sure if this is going to be incorporated
ii. Directed to the judiciary; there to tell Congress when or when not a person can get bail
iii. Had conditions before that have existed in statutes allowing the denial of bail (capital crimes, etc.)
g. Significance
i. provided the govt. with a tool for reducing threats posed by dangerous people who are arrested and likely to commit further crime,if the government can produce clear and convincing evidence to support p

ink of this also as almost an allocation of resources)
c. Maybe can’t convict, might be difficult to prove the case and so decides not to go forward (unimportant cases that can’t be proven very easily even if there is technically an offense)
d. Cost-benefit
e. other public mechanisms dealing with the issue satisfactorily Theoretically, an individual can be punished for the same act in both the federal system as well as the state system
f. Making deals with informants- may be more important to offer immunity notwithstanding the prosecutor may be able to prove they themselves have committed a crime
g. Situations where the victim’s interests are sufficient to convince the prosecutor that charges should not be brought- question is whether the public is so disserved by that
6. Problem of the overzealous prosecutor: State v. Michaels (p. 795) brought 131 counts of child sex abuse against a female daycare worker. 6 years later, determined the children’s recollection was influenced by the questions the investigators asked and convictions reversed. Prosecutor at that time declined to re-prosecute.
a. Problem 1: incredible suggestibility of young children
b. Problem 2: essential absence of evidence of abuse
c. Analogous to the Duke case- charges should never have been brought in the first place- no physical evidence to corroborate the accounts that started- example of the difficulty you can have in prosecutorial discretion when there appears to be something really serious and the consequences of not acting look very bad from a political standpoint
7. Constitutional Limits on Discretion in Charging
a. United States v. Armstrong (p. 800)- In order to prove a prima facie case that decision to prosecute is based on race, must show similarly situated white people were not prosecuted.
1) Defense: decision to prosecute was based on racial animus
2) Defense would have to prove their case by inference- they use an affidavit of an interview from an intake coordinator at a drug treatment center that an equal number of users/dealers existed among both Caucasian and African-American people; affidavit
from the Federal Public Defender’s office that the people prosecuted have all been black
3) Lose because they have to make a prima facie showing that similarly situated white people were not prosecuted.
4) Must show that similarly situated people in the larger population are not being prosecuted for the same offense. In order for discovery, you have to come up with evidence that this is happening.
b. Blackledge v. Perry(p. 808) DP violation for prosecutor to retaliate against a D for filing an appeal.