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

Advanced Criminal Procedure
Fall 2009
Professor Cateforis
Outline

I. PRETRIAL RELEASE
A. WHAT HAPPENS AFTER ARREST (can occur with or without warrant)
1. Police/Prosecutor prepares and files a complaint setting out the charges against D.
2. Initial arraignment – within 48 hours of arrest; magistrate determines whether arrestee can be released pending trial.
a. Initial step in criminal procedure where Defendant is brought before the court to hear charges and to enter a plea.

b.

See FRCP Section II, Rule 3; 5

Judicial determination of probable cause – initial appearance: appears 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. This depends on jurisdiction. In some jurisdictions, lawyers 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. Possibility for pretrial incarceration of Defendant while awaiting prosecution.
5. Initial Arraignment – Not necessarily need to have a counsel in this stage.
6. Preliminary Hearings (see page section in this outline on Judicial Case Screening, p. 6). Preliminary hearings are a “critical sage” in the criminal prosecution process, and right of counsel DOES attach. Coleman v. Alabama.
a. But states are NOT REQUIRED to have a preliminary hearing unless: Rule 5.1:
i. The defendant waives the hearing
ii. Defendant is indicted (meaning if the prosecutor gets to a grand jury first)
iii. Government files an information under Rule 7(b) charging the defendant with a felony
iv. The government files an information charging the defendant with a misdemeanor; or
v. The defendant is charged with a misdemeanor and consents to trial before a magistrate judge

B. INTERESTS AT STAKE IN THE RELEASE DECISION
1. Defendant
a. Liberty interest
b. Jailed Defendant’s ability to adequately prepare for trial is restricted
c. Jailed Defendant is likely to lose his job
d. Research indicates that Defendant who is unable to post bail is more likely to be convicted on that basis alone.
2. Public
a. Risk that Defendant might flee or hide if released pretrial
b. Release Defendant may destroy undiscovered incriminating evidence, harm or intimidate potential witnesses, or commit more 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 Defendant as a litigation matter (i.e. pressure to settle, assisting to own defense – calling people, helping to recover evidence in a particular case, etc.)
2. Traditionally, Government required the Defendant to put up a bond to ensure the Defendant’s appearance at trial
a. Think about interests at stake for Defendant vs. Public (above)
b. List of types bonds p. 766 – 67
3. After arrest, several ways for a Defendant to secure release WITHOUT appearing before a judge, bail commissioner or other magistrate of the court.
4. PRE BAIL REFORM ACT
a. Stack v. Boyle , 342 U.S. 1 (1951) p. 769 – The right to release before trial is conditioned upon the accused giving adequate assurance that he will stand trial and submit to sentence if found guilty.
b. Has to be individualized determination
c. “From the passage of judiciary act…a person arrested for a non-capital offense shall be admitted to bail.
5. FEDERAL BAIL REFORM ACT 1984 – allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions “will reasonably assure the safety of any other person and the community.”
a. Excessive bail is constitutionally protected under the 8th Amendment.

b.

See FRCP Rule 5

“A judicial officer may not impose a financial condition that results in the pretrial detention of the person.” 18 U.S.C. § 3142(c)(2)

c. This provision is to compel a magistrate who opposes a release of a Defendant to use the Act’s preventive detention provisions rather than to set bail at an unrealistically high figure. See next section.
d. Sections in 3142
i. (a) release on; OR release on conditions, – requires judicial officer to determine whether an arrestee shall be detained
ii. (b) .
iii. (c) release on conditions
iv. (d) temp detention (ignore)
v. (e) and (f) detention and detention hearing. The HEARING is to determine:
(A) Government can move for detention if:
(1) Crime of violence ; drug crime with sentence over 10 years; life/death = max sentence
(2) Previous conviction of two crimes (above, violence and 10 years)
(B) Government or court, sua sponte (without prior motion) if:
(1) There is serious risk of flight by Defendant or

(2)

Judicial Officer can make decision based on factors:
1. Nature and seriousness of the charges
2. Substantianality of the Government’s evidence against the arrestee
3. The arrestee’s background and characteristics,
4. The nature and seriousness of the danger posed by the suspect’s release 3142(g).

Defendant is risk of obstructing justice or

(3) Will interfere with witness or juror
(C) Rebuttable Presumptions (motion comes in)
(1) 3142(e) “If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or set of conditions will reasonably assure the appearance of the person as required and the safety

juana)
2. Prosecutor
a. Prosecutors are either elected or appointed by someone who is elected
b. Prosecutors control:
i. Charging Decisions – enormous discretion in selecting who to prosecute and who not to prosecute
ii. Sentencing Options
iii. Plea
iv. Victim’s advocate/public
v. Failures are big
vi. Legislatures
3. Judge
a. Control of the law
b. Jury trial

C. PROSECUTORIAL DISCRETION
1. When deciding whether or not to charge/go forward with charge, must take into consideration:
a. Supply and demand problem: limited resources. Legislatures has created tremendous pool of potential offenders, and don’t have resources to go after every person who violates something.
b. Prioritizing those threats we think are most severe (allocation of resources as well)
c. Too difficult to prove the case and convict, so decide not to go forward
d. Cost-Benefit
e. Other public mechanisms available for 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 (sovereignty exception to Double Jeopardy)
f. Making Deals with the Informants (insiders that help in catching someone else) – 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 the charges should not be brought – question is whether the public is so disserved by that.
h. Standards of the Bar (what a prosecutor can and cannot do)
i. Not obliged to present all charges which the evidence might support.
ii. Prosecutor should not bring charges
(A) When the prosecutor knows that the charges are not supported by probable cause
(B) The prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.
(C) Standard to convict is proof beyond a reasonable doubt.
(D) Number of charges: the prosecutor should not bring or seek charges greater in number or degree than can reasonably be supported by evidence at trial or then are necessary to fairly reflect the gravity of the offense.
(E) Finally, can subpoena the witness if they refuse to testify and do a bunch of other stuff with this power.
(F) Less serious offenses, prosecutor may simply decline to prosecute.
2. The Overzealous Prosecutor:
a. See prosecutor problems on p. 798-99