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Criminal Procedure II
University of Kansas School of Law
Wilson, Melanie D.

1.      Stages of Criminal Procedure
A.     Investigation
1.           Includes crimes observed by the police as well as crime reported to the police
B.     Arrest
1.           The taking of person into custody to charge with a crime. Most arrests are “on view arrests.”
a.                 There is a reasonable grounds requirement.
b.                 Alternatives to arrest include an officer issuing a “notice to appear”.
c.                  A warrant can be issued by a judge where police the can then arrest a suspect. Warrants only given when there is sufficient evidence.
d.                 The suspect will be booked (record made of their arrest) and the prosecutor will prepare a complaint.
C.     Presentation or Initial Judicial Appearance
1.           The defendant is brought before the court and informed of the charges against him and his constitutional rights, including the right to counsel, the privilege against self-incrimination, the right to trial, and the right to a jury.
2.           Misdemeanor and Felonies. Felonies often need bail which is a 10% bond. Bailed or not bailed based on courts (magistrate judge)discretion. Is there a connection to the community.
D.    Preliminary Hearing or Examination
1.           Designed to determine whether there is sufficient evidence to justify a trial. 
2.           Prosecution must provide preponderance of evidence proving there is probable cause to believe that the defendant is guilty.
3.           Defendant finds out with what evidence he is being charged with.
4.           Defendant can waive the preliminary hearing but the advantage to the hearing is that the defendant can get the case dismissed. 
5.           The Prosecution must then make a formal document of accusation called an indictment.
E.     Grand Jury
1.           Comprised of a relatively large group of citizens who receive evidence in closed proceedings from the prosecution and decide whether to prosecute. 
2.           Usually need a 2/3 or 3/4 majority to prosecute.
3.           If the grand jury finds probable cause lacking then the case is dismissed.
4.            Defendant doesn’t participate.
F.      Arraignment
1.           Defendant makes 1st official appearance and formally pleads.
2.           Safeguards are required including that the accused understands the charge and the penalties and that the plea was free from coercion and not unfairly obtained. 
3.           Judge must believe there is a reasonable basis for the plea.
4.           Pleas
a.                 Punishment is expensive so the prosecutor must choose between concentrating on important cases and dropping petty ones.
b.                 Plea bargaining: leads to prompt and largely final disposition of most criminal cases. They reduce the financial costs and increases the efficiency.
c.                  “nolo contendere” (I will not contest it) – The difference between the guilty plea and cannot be used later as an admission of guilt in a civil lawsuit.
d.                 “Not guilty” plea means that the accused denies every material allegation.
G.    Pretrial Motions
1.           Motions are requests by the defense or prosecution for rulings by the judge on particular legal issues.
2.           The most common are the motions to discharge or dismiss the case or suppress or quash evidence.
H.    Trial
1.           The adversary process by which the facts of the case and the guilt or innocence of the accused are determined.
2.           Prosecution must prove guilt without reasonable doubt.
3.           Acquittal rate is low.
4.           Presence of the jury is governed by the 6th and 14th Amendment.
5.           Voir Dire = the questioning and selecting the prospective jurors (biases).
6.           Instructions to the jury play a role.
I.       Post-Trial Motions
1.           These motions are usually unsuccessful.
J.       Sentencing
1.           Traditionally has been the province of the judge. Lately, many states make presentence reports mandatory. Although judges can choose to follow the report, most judges do follow it.
2.           Possible punishments are fines, incarceration, probation, and mental hospital.
3.           There are minimum and maximum statutory lengths or sentences and additional punishment for “habitual offender” statutes.
K.     Post-Conviction Remedies
1.           3 ways decisions can be modified or reversed
a.                 Appeal: The review by a higher court on questions of law.
b.                 Collateral Attack: Habeas Corpus: Prosecution must show the legality of the detention. Prisoner has heavy burden of showing the defects.
c.                  Executive Review: Where an executive official pardons, commutes to a lower sentence or reprieve (delayed execution.
 
2.      The Constitution in Criminal Prosecutions
A.     Criminal procedure is the study of the rules and practices associated with the use of the judicial system to resolve a dispute between 2 parties.
B.     There are several interpretations on how the Constitution should be interpreted regarding the Due Process Clause of the 14th Amendment.
1.           The Independent Content Approach: Due process clause is to be given a meaning independent of other provisions of the constitution.
2.           The Total Incorporation Approach: maintains that all of the protections of the 1st 9 amendments were made applicable to the States by virtue of the 14th Amendment.
3.           The Selective Incorporation Approach: The Court picks and chooses which of the specific protections do and do not extend to state action. Subjective, Issue by Issue basis. For example the Supreme Court has decided most protections of the Bill of Rights do extend.
a.                 In order to support a incorporation justices have used sources such as; views of society, intent of the framers, practices of the individual states, decisions of lower state and federal courts, and foreign jurisdictions.
4.           The Neo-incorporation Approach: Depends on whether the action challenged is that of the state or federal government. Ex. States don’t have to have 12 person juries.
C.     Extending Protection through State Constitutions
1.           State Courts may not construe a federal constitutional right more narrowly than mandated by the highest court. However, State courts are not precluded from interpreting their own law in a manner which recognizes a broader protection than that is minimally mandated for federal constitutional purposes.
D.    The Constitution and Private Action
1.           Qualifications to the inapplicability of the Constitution to private action are necessary.
a.                 Supreme Court willing to expand the reach of the federal constitution by the courts attributing state action to the activities of private parties. Example giving bail bondmen the right to arrest but also making them follow the rules of state officials in how they arrest.
 
3.      The 4th Amendment (Search and Seizure)
A.     “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
1.           The 4th amendment only applies if there is a search or seizure.
2.           If the suspect was not seized then he is not protected.
3.           4th amendment most often used in cases regarding illegally seized evidence
a.                 Evidence discovered that is unrelated to the purpose of the search is still admissible.
4.           4th amendment is based restrictions on the government, not obligations on the citizen.
5.           The exclusionary rule is the primary remedy of the 4th amendment (excluding evidence).
B.     The Detention Requirement
1.           2 Types of Seizure (Hodari)
a.                 Physically subdued or any physical touching.
b.                 A show of authority
                                                                                       i.                             Examples = Telling someone to halt or pointing a gun at them.
                                                                                     ii.                             Does not occur if the suspect does not yield.
2.           Must have reasonable grounds, probably cause, or reasonable suspicion.
a.                 Reasonable suspicion is a lower standard than probable cause.
3.           Seizure v. Arrest
a.                 The quintessential arrest is a seizure but not every seizure is an arrest.
b.                 A stop for investigatory purposes is not an arrest. Only need reasonable suspicion.
c.                  When a cop points a gun he is seizing but he is not arresting.
d.                 An Arrest requires either physical force or submission to the assertion of authority and taking into custody.
4.           (Drayton) A reasonable person would feel free to decline the officers request or otherwise terminate the encounter.
a.                 Based on the totality of the circumstances
b.                 The reasonable person being interpreted is the suspect.
c.                  Can NOT argue that a guilty person would never volunteer to be searched because the reasonable person test presumes innocence by the suspect.
d.                 An officer does NOT have to tell the suspect that they may refuse the search and seizure.
e.                 Not a seizure to ask for a voluntary search in a confined space as long as there was nothing coercive or confrontational about the encounter.
C.     Th

                                                   i.                                   Must be reasonable suspicion to stop (seize) the suspect at the inception
                                                                                                       ii.                                   The search must be reasonable during the seizure
a.                                   The reasonable suspicion must be based on objective specific facts
b.                                   To search a reasonably prudent officer must have reasonable grounds to believe he is in danger and then he can only perform a minimally invasive search (outer clothing looking for weapon)
                                                                                                                                             i.                                               His search to what must be for the particular weapons being sought.
                                                                                                                                           ii.                                               Whatever he finds is admissible (ex. Drugs)
                                                                                   iii.                             The more intrusive a search is the higher level of cause is needed.
                                                                                                         i.                                   Stop and Frisk = Reasonable Suspicion
                                                                                                       ii.                                   Full Blown Search a Seizure = Probable Cause
                                                                                    iv.                             Once the officer finds something in the frisk that is a crime he then has probable cause to arrest.
b.                 Informants
                                                                                       i.                             No personal observation by officer.
                                                                                     ii.                             A face-to-face informant must be reliable
                                                                                                         i.                                   The officer must try and get corroborative evidence
                                                                                                       ii.                                   Can detain someone if you have reasonable suspicion that the person has committed a past crime
                                                                                                     iii.                                   In person tips are more reliable because a crime to lie to police.
                                                                                   iii.                             Anonymous Tip
                                                                                                         i.                                   Anonymous tips are less reliable so you need…
a.                                   If the tip is sufficiently corroborated to furnish reasonable suspicion.
b.                                   Sometimes anonymous tips can be reliable (they call multiple times).
c.                                    2 separate anonymous tips would be enough.
d.                                   The corroborative evidence has to be predictive in nature, not just a description of the person.
e.                                   Anonymous tip might be so great a danger that it would allow the police to do a stop.
c.                  Cannot stop someone of reasonable suspicion just for being in a high crime neighborhood.