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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 pretrial detention, such as the criminal history and background of the arrested.
ii. With this decision, the Supreme Court decision resolved ongoing controversy ofthe right of the arrested to due process and a reasonable amount of bail, resulting from the Bail Reform Act of 1984.
2. Half of federal defendants are incarcerated- 40% of federal convictions now are drugs, 15% are immigration violations, 15% white collar offenses; 8% robbery. Violent crimes are a pretty small percentage
3. Argument in favor of preventive detention: Prevents D from injuring others in the community. Non-criminal detentions exist in society for mentally ill, so pre-2001, we could conclude that pure preventive detention is Constitutional
4. Argument against preventive detention: Quarantine and POWs may be different because you have to act quickly and it is terminable. Preventive detention for crime however is a situation where neither of these obtains- dangerousness will not lessen (so different than mental illness), and is potentially endless in the ways that POWs and quarantines aren’t endless

II. CASE SCREENING
A. Police Discretion
1. Police’s job: bring cases. In most cases, prosecutor d/n control the investigation
2. Assumption: police need significant discretion to decide who should be arrested, cited, or warned and allowed to go on their way
3. Unless there is an invidious reason for the police exercising or not exercising discretion (ex. racial discrimination), the police generally are vested with discretion as a constitutional matter (Ex. Atwater case from Criminal Pro I)
4. 22-2307 subsection (a) “shall adopt written policies regarding domestic violence calls….” (b)(1) shall include that a statement directing that the officers shall make an arrest when they have probable cause to believe that a crime is being committed or has been committed”- very explicit effort to

ause
b. In most jx, preliminary hearings are possible under statute, and many also have the possibility of obtaining felony indictments by grand jury
c. Significant difference: 5th A insistence that federal indictments be brought by grand juries
d. May be able to rely on hearsay, where you couldn’t in the trial- varies from state to state. Because we are only establishing PC, it is highly unusual for the defense to testify or put on a case. Defense has the opportunity to cross examine the witnesses who are testifying on behalf of the govt.
f. One of the most important discovery tools the defense has in the criminal process. You have opportunity to cross-ex witnesses.
g. In KS, the govt. is also required to endorse the names of the witnesses that it knows are going to be testifying on the complaint, so D is likely to be aware who the witnesses are prior to the trial itself (contrast to the federal system).
h. Coleman v. Alabama( p. 812)- right to counsel applies in a preliminary hearing- this is a critical stage because if there is a process that has witnesses that are sworn, you have the right to engage in a cross-examination of those witnesses

D. GRAND JURY SCREENING OF CASES
1. Originally: citizens who functioned as an accusatory body. In time, used not only to deal with people who they personally knew committed a crime, but now to take evidence.
2. Evolved independently of the mechanism of the crown. In colonial times, when the citizens and the govt. were battling, there were several very important instances of grand juries refusing to issue an indictment. Those refusals helped convince the framers that this was important enough to be put into the 5th Amendment to the Constitution.
3. As a protector of individual liberty, the grand jury has not been effective. That is why the SC has not held that it should be incorporated to the states. Reasons:
a. Prosecutor decides who to call- responsible for suggesting to the Grand Jury who it should call as witnesses
b. Prosecutor acts as the legal advisor to the grand jury as well
4. So why not amend the Constitution to get rid of it?
a. still an important investigative tool because:
i) Operates in secret
ii) Has a prosecutor
iii) subpoena authority and failure to testify is punishable by contempt
5. Given the really significant power that the govt. has in the grand jury process, what should the court’s role be? Does the court have the power to look over the govt.’s shoulder?
6. United States v. Williams(p. 824):Grand Jury as a shield
a. D indicted for making false statements. Govt. didn’t introduce potentially exculpatory evidence, and that decision influenced the decision to indict; would have significantly increased the chances that the grand jury would not have found probable cause, and so the court should use its power to make sure prosecutors do not engage in this kind of behavior.
b. Court: can’t mandate the rules for the grand jury because it is not part of the judiciary or legislative branches- it is independent and so should not be subject to undue influence by any branch.
c. Dissent argument: are grand juries really separate from the institutions of justice? No. Courts convene the grand jury, grand jury comes to the court, and the court enforces subpoenas of the grand jury.
d. Not a constitutional decision- this is whether the court deems it appropriate.