Advanced Criminal Procedure
Spring 2006
1/23/05
· Criminal law is historically a state matter. Only when something fundamental is at state do the feds step in.
· People can be tried for both state and federal crimes.
· Why have a criminal justice system
o Deter and punishment
§ Social order
§ Rehabilitation
§ Punishment
§ Incapacitation
o Convict the guilty
o Acquit the innocent
· How do we want our system to operate?
o Efficiently
o Accurately
§ Distribution of risk.
o Fairly
o Limits on Government Power
· Duncan v. Louisiana
o Trial by jury.
· Felonies:
o Defendant:
§ Arrested
§ Charged
o Defense Counsel
§ Right for counsel begins when
§ Responsible
o Prosecutor
§ Discretion, authority
§ Responsibilities
o Grand Jury
§ Some states used them but is only required for Federal Government
§ Screener of investigation.
o Judge:
§ Presides
§ Impartial
§ Arbiter of law.
1/24/06
· Crime (2004)
o All Types: 24,061,140
o Homocide: 16, 137 – 62%
o Violent Crimes: 5,182,670 – 42%
o Property Crimes: 18,654,400 – 15%
· Crime Timeline:
o Arrest
o Custody- Administrative
o Complaint: Notice document
§ Allegation of Crime
§ Statutory Language
§ Some allegation of facts.
§ Serves Due Process function.
o Presumption of Innocence
§ “Cloaks the defendant”
o Initial Appearance
§ Liberty Interest
· 2nd only to life.
§ Rule 5 of FRCP
§ Probable Cause standard.
§ Counsel is usually appointed.
o Grand Jury
§ Must have for feds.
§ Must return an indictment (5th Amendment)
§ Don’t have to have a Preliminary Hearing
· Grand Jury takes care of PC requirement.
§ 16-23 people
§ Secret proceedings.
§ D has no right to counsel.
o Preliminary Hearing:
§ Kansas uses the most to take care of PC.
§ Right to counsel since its adversarial.
o Arraignment:
§ Happens immediately after the Preliminary Hearing
§ Charges read to D, plead entered.
o Plea or Trial
§
v’t moved for no bail because no conditional release would assure the safety of the community.
§ There is an alarming problem of people committing crimes while under release.
§ Detention-clear and convincing
§ Challenged: Facial challenge
· 8th Amendment
o Gov’t can look at other compelling gov’t interests other than flight.
o Const. doesn’t require bail.
· Substantive Due Process
o Punishment before trial.
o US v. Goba:
§ Arrested for conspiring to aid OBL.
§ Must meet one of 6 categories under § 3142(e).
· Term of incarceration
· Nature of the offense
· Criminal record of D.
· Seriousness of
1/30/06
· Bail Reform Act
o 3 Types of Release (§3142):
§ Release on personal recognizance (OR)
§ Release on a condition (c):
· Can’t commit a crime
· Remain in custody of a 3rd person
