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Advanced Criminal Procedure
University of Kansas School of Law
Cateforis, Elizabeth Seale

Advanced Crim Pro – Cateforis – Fall 2009

a. Powell/AL – blacks charged with raping whites; several DP violations
b. Duncan/LA – right to jury trial; 6th A violation
c. Constitutional Violations
i. 8th Amendment
1. Excessive bail/cruel unusual punishment
2. Length of sentence proportionate to crime
3. Bail clause/BRA – NOT incorporated to states – no DPC violation
ii. 5th Amendment
1. Self incrimination
2. GJ – not incorporated to states – no DPC violation
3. DJ
iii. 6th Amendment – in ALL criminal prosecutions
1. Speedy trial
2. Confrontation
3. Impartial jury – EP
4. Right to effective assistance of counsel – critical stages (prelim)
5. Subpoena power of Ct – D’s right to present defense
d. This is how the process works:
i. Crime – report/investigation – custody/arrest – complaint by prosecutor/notice/statutory language/facts – initial appearance/counsel is appointed/bail set/48 hours – determination of PC – prelim hearing w/D’s right to counsel or GJ/5th A(determines PC) – indictment – info/discovery/motions – plea or trial/guilty, no contest, Alford plea (innocent but taking the bargain instead of risking it)
a. 8th Amendment – prohibits excessive bail
i. Applies to feds only – non-capital offenses
ii. NOT incorporated to states, but they usually have their own statute dealing with it, so no DPC attack/violation
iii. NO punishment before conviction
iv. No 6th Amendment right to counsel at the bail hearing (NOT A CRITICAL STAGE)
v. No absolute const’l right to bail – just that it isn’t EXCESSIVE
vi. Purpose is to ensure D returns for trial – set bail based on this goal
vii. Must decide bail on case by case basis – individualized suspicion
viii. Stack/Boyle – FACTORS judge considers in determining bail: (BRA 3142(g))
1. Nature of offense
2. Weight of evidence
3. Financial ability of D
4. Character of D
a. Criminal history
b. Community ties/involvement
c. Employment
d. Education
e. Physical/mental health/condition
5. Whether D was on probation, parole, etc.
6. Family
7. Danger to community if released
ix. Judge must order release on bail unless:
1. Flight risk – POE standard
2. Danger to community safety – CCE
x. US/Salerno – D denied bail entirely b/c of fear that they might commit future crimes upon release; challenged BRA
1. Balance D’s interest v. Govt interest
a. D’s interests:
i. Assist in defense
ii. Keep job
iii. Stress on family
iv. Bail reinforces presumption of innocence
b. Govt interests:
i. Protecting community safety – CCE standard
ii. Ensuring D is available for trial
iii. Preserve evidence and protect witnesses
iv. Prevent flight of D – POE standard
c. 3rd party custodians:
i. Bail Bondsmen
ii. Social Services
1. If there is a pretrial person/agency asking questions of accused, this info cannot be used at trial b/c of 5th A violation (using info from un-counseled D)
2. Types of Bail:
a. Non- financial
i. ROR – release on own recognizance
1. Judge trusts that you will show up for trial & not danger to community
ii. Conditional Release (BRA 3142 (c)(1)(b))
1. Supervised release by pretrial services agency
2. Drug/alcohol testing & treatment
3. Get/maintain job
4. Restrict travel
5. No guns
6. No crimes
7. Curfew
8. No contact with witnesses/jurors
iii. Temporary Detention/Pretrial detention
1. Must have hearing first to determine detention when:
a. Crime of violence, drug crime (w/10 yr sentence or more) or if max sentence can be life/death, or if previous conviction of 2 crimes, Serious flight risk, may obstruct justice, interfere with witness/jurors
b. D committed above offense when on release
c. 5 yrs hasn’t lapsed since prior conviction of crime listed in (a)
d. PC for either drug offense w/10 yrs min or gun offense
b. Financial: Post bond
i. Surety bonds: bondsman puts up $$
1. D pays 10% for service
2. Bondsman can come after you if you don’t show
ii. Unsecured bonds: only have to pay if D fails to show
iii. Percentage bond: D pays % of bond – get it back when he shows
3. Consequences of Failure to Appear
a. Charges as separate time w/separate sentence
b. Forfeit bond
c. Did D commit crime upon release?
i. Consecutive sentencing
1. 10 yrs extra for felony
2. 1 yr for misdemean

l Screening/Preliminary Hearings
i. Prelim Hearings – REQUIRED in Federal proceedings except for “petty offenses”
1. Exceptions:
a. D waives
b. D indicted
c. D charged with misdemeanor by way of info
2. Timeline: Hearing must be w/in:
a. 10 days after D’s initial appearance – if in custody
b. 20 days – if not in custody
i. So govt has 10-20 days to indict and avoid PH altogether
c. Time can be extended for ‘good cause’
3. Purpose – to determine PC and fix bail
4. Process of PH
a. D can cross examine
b. D can introduce evidence
i. Hearsay and illegally obtained evidence (usually inadmissible)
5. If NO PC = complaint dismissed
a. Can later refile as GJ indictment
ii. Coleman/AL
1. Preliminary Hearing is a ‘critical stage’ when dealing with 6th A right to counsel violations
a. ‘Critical Stage’ of prosecution = will D suffer substantial prejudice w/o counsel at this stage? Will absence of counsel detract from right to fair trial?
i. Lawyer’s skilled examination & cross ex may expose weaknesses in pros case showing lack of PC
ii. Interrogation can be used to impeach at trial or preserve testimony
iii. Discovery of strengths/weaknesses of pros case to create defense
iv. Bail arguments, psych exam necessity
b. Nothing from PH can be used at trial; Errors that happen here will be ‘harmless BRD’ and will be remanded back to CT to decide ‘harmless error’.
e. Grand Jury Screening/Venire (Fed Rule Crim Pro 6)
i. Federal Rules require PH unless D has been indicted, so if Pros can get to GJ 1st they can skip PH.
ii. 5th A protection: No person held to answer for capital/infamous crime unless indictment of GJ
1. NOT incorporated to states by 14th A, so no DP violations