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Criminal Procedure
University of Kentucky School of Law
Lawson, Robert G.

Lawson_Criminal Procedure_ Fall 2012
Criminal Procedure Outline
Chapter 1: On Studying the Legal Regulation of the Criminal Justice Process
Section 1: The Steps in the Process
1.      Citation vs. Arrest
a.       Arrest
                                                              i.      Assuming that a criminal investigation results in a police determination that there is probable cause to believe that the suspect committed a crime, he or she may be arrested.
1.      The suspect will be taken into custody by the police and typically booked and put in jail
                                                            ii.      An arrest can be made with or without a warrant (assuming certain requirements are met)
1.      While the law prefers the use of warrants for a variety of reasons most arrests occur without a warrant
                                                          iii.      Arrest involves taking a D into custody; brings 4th into play (seizure).  Most criminal cases start with an arrest without a warrant.  No charging instrument that says what you are charged with and why. The arresting Police Officer is obligated to prepare and file a complaint.
b.      Citation:
                                                              i.       When a person is given a citation they are given a document telling them to appear at trial to respond to the charge specified in the document
1.      Mostly used for misdemeanors
2.      Complaint
a.       After a suspect is arrested and booked, a complaint is prepared by the police or a prosecutor and is filed with the court
                                                              i.      First charging instrument (starts the criminal case).
                                                            ii.      Filed without unnecessary delay
b.      A complain is a written statements of the essential facts constituting the offense charge.
c.       It serves as the charging document until either an “information” or an “indictment” is issued
d.      Key Points
                                                              i.      Filed mostly by the arresting officer
1.      Can also be the witness/victim
                                                            ii.      Used a restraint on the power of the state by requiring the state to show what caused the police to make the arrest
                                                          iii.      Becomes insignificant after the indictment/information
1.      Unlike civil trial
3.      Indictment vs. Information
a.       Indictmentàformal charging instrument  
                                                              i.      In an indictment jurisdictions the defendant cannot be brought to trial unless he or she is indicted by a grand jury
1.      The federal government is required by the 5th amendment to use the indictment system
                                                            ii.      Comes from the grand jury
                                                          iii.      Defines the crime and lays out the scope of the case
                                                          iv.      Similar to a complaint
1.      Replaces the complaint as the official charging instrument once it is introduced
                                                            v.      Charges the person
1.      The person will have to plead guilty or not guilty after an indictment is issued at a court hearing (fill in details)
b.      Informationàformal charging instrument
                                                              i.      The information is a document stating the charges against the defendant and the essential facts relating to them
1.      The information replaces the complain as the formal charging document
                                                            ii.      The 5th amendment requires an indictment in the federal system
                                                          iii.      Has not been made binding on the states b/c it has not been incorporated by the 14th amendment
                                                          iv.      Many states authorize prosecutions without an indictment by the grand jury 
1.      States can give more rights than is required by DP; CANNOT GIVE FEWER RIGHTS.
4.      Initial Appearance
a.       An arrested person must be taken “without unnecessary delay” usually with 24 to 48 hours except on weekends before a judicial officer, for a hearing called the “initial appearance.”
b.      At the hearing, the arrestee receives formal notice of the charges against her, her constitutional rights in the impending prosecution are explained to her, and a date is set for a preliminary hearing
                                                              i.       Police can’t be trusted, court is a neutral party
                                                            ii.      Commonly the judge will inform the D of his right to remain silent and warn him that anything he says in court or to the police may be used against him at trial. 
c.       If the suspect is indigent and not presently represented by counsel, a lawyer may be appointed for her at this time
d.      If the suspect was arrested without a warrant, a probable cause determination (a Gerstein hearing) is usually made at the first appearance
e.       Finally, and perhaps most significantly, the magistrate determines at this time whether the arrestee should be set free on her own recognizance, released on bail, or detained pending further proceedings
5.      Preliminary Hearing
a.       Next step after the Initial Appearance
                                                              i.      In most jurisdictions, a preliminary hearing, is held within two weeks after the arrestee’s initial appearance before the magistrate, unless the defendant waives the hearing
b.      The primary purpose of a preliminary hearing is to determine whether there is probable cause to believe that a criminal offense has occurred and that the arrestee committed it
c.       Nature- in open court; adversarial proceeding, where prosecutor must show probable cause through witnesses. Defendant is present with counsel and may rebut prosecutors’ witnesses and may call their own.
d.      Defendant is likely to attack the prosecution’s case
                                                              i.      Obstacle to the defendant b/c of the lower standard of probable cause (good reason to believe)
1.      Little motivation to make an issue out this
                                                            ii.      Another obstacle is that it happens quickly
1.      Before suspects lawyers has time to investigate the case
e.       Preliminary Hearing in Indictment Jurisdiction vs. Information Jurisdiction
                                                              i.      Indictment jurisdiction
1.      In indictment jurisdictions the preliminary hearing has diminished importance b/c the magistrate’s probable cause determination may be superseded by the actions of the grand jury (i.e., if the grand jury does not indict the defendant, she must be released, even if the preliminary hearing magistrate previously determined that there was probable cause to believe that the arrestee committed an offense)
a.       In many indictment jurisdictions, including the federal system, the preliminary hearing is not held if the defendant is indicted before the date set for the preliminary hearing 
                                                            ii.      Information Jurisdiction
1.      In information jurisdictions, once the magistrate determines that there is sufficient evidence to “bind over” the defendant for trial, the prosecutor files “information” with the trial court
a.       In the alternative, if the magistrate in an information jurisdiction does not find sufficient evidence to bind over the defendant, the complaint is dismissed and the defendant is charged
f.        Purpose: Determination whether or not they can keep the person in jail or not until the grand jury meets
g.       B/c  of the obstacles many defendants will waive this
6.      Grand Jury Proceedings
a.       In indictment jurisdictions, a person may not be brought to trial for a serious offense unless she is indicted by a grand jury or waivers her right to a grand jury hearing
b.      The grand jury meets in a closed session and hears only the evidence presented by the prosecution.  The D has no right to offer his own evidence or to be present during grand jury proceedings
                                                              i.      Grand jury proceeding completely in the hands of the prosecutor
c.       Ina grand jury proceeding, the prosecutor makes an ex parte presentation to the grand jurors, who then formally decides whether sufficient evidence was introduced
                                                              i.      If the grand jury so finds, the jury (through the prosecutor) issues and indictment a document that states the charges and the relevant facts pertaining to them
                                                            ii.      If the jury does not vote to indict the defendant, the complaint issued against the defendant is dismissed, and she is discharged
d.      Purpose is to put citizens between the state and the suspect
                                                              i.      Not much of a safe guard b/c of the ease in which prosecutors can get an indictment
1.      One famous lawyer once said, “Any competent attorney could indict a ham sandwich”
7.      Arraignment
a.       If an indictment or information is filed, the defendant is arraigned in open court
b.      At the arraignment, at which 6th Amendment right to counsel attaches, the accused is provided with a copy of the indictment or information after which she enters a plea to the offenses charged in it
c.       She may plead guilty, not guilty, nolo con

          i.       The Rule
1.      The general rule in criminal procedure is that evidence obtained in violation of the 4th may not be used against the individual whose rights were violated in obtaining the evidence
2.      Purpose (Objectives of ExR as they are built into the 4th)
a.       Protect the citizens by depriving the police of the benefits of their illegality – there is no other effective remedy here,
b.      Integrity of the court Don't want the court to act as an accomplice to illegal police behavior
                                                            ii.      The Exclusionary Rule is Not Required by the Constitution
1.      Until 1984, it was not clear whether the exclusionary rule was required by the Constitution, or was merely a judge-made method of assisting the protection of constitutionally-guaranteed rights. The Supreme Court resolved this issue in US v. Leon by holding that the rule is not required by the Constitution. Rather, it is merely a judicially-created method of deterring violations of the Fourth and other amendments.
2.      History of the Exclusionary Rule
a.       Original Federal Exclusionary Rule
                                                              i.      Weeks v. United States (1914)
1.      The SC used it supervisory authority rather than constitutional authority in mandating an exclusionary rule for federal courts.
a.      Judicially created rule of evidence, not explicit Const. requirement
                                                                                                                                      i.      THUS Congress has power to negate
2.      Created the exclusionary rule
a.       If you take evidence in violation of the 4th amendment then you cannot use it in the prosecution of the defendant
b.      The Court’s holding in Weeks was only applicable to federal prosecutions
3.      Felt it was needed to protect the 4th amendment rights of citizens
4.      Also, did the Supreme Court not want to the judiciary to be an accomplice to an illegal act
a.       If we allow this illegal evidence then we become a part of this illegality
b.      Original Rule for States
                                                              i.      Wolf v. Colorado (1949)
1.      This case was the first in which the 4th Amendment was made applicable to the states. However, the exclusionary rule was not applied to the states.
2.      The 4th amendment does not include the exclusionary rule
a.       It’s not in the constitution it’s a judicial creation
3.      Applicable to the federal government and its agents and not the states
4.      The exclusionary rule is a costly rule b/c important evidence will be excluded and guilty people will go free
a.       Almost always will be the most important evidence that is being thrown out
b.      Despite the fact that the evidence will highlight the truth
5.      B/c of the cost they want to consider other remedies for 4th amendment violations besides the exclusionary rule. Examples include
a.       Civil actions against the police
b.      Prosecution
c.       Internal police discipline
d.      Public opinion
6.      NO LONGER GOOD LAW → overruled by Mapp
a.       HELD:  4th amendment prohibition against unreasonable searches and seizures → does NOT APPLY TO STATES.
                                                                                                                                      i.      If state violates → person can sue.
c.       Mapp v. Ohio (1961)
                                                              i.      The SC expressly overruled Wolf, and we now have an exclusionary rule applicable in state courts just as it is in federal courts.
                                                            ii.      Exclusionary rule
1.      The court admits that this is a difficult issue b/c you are losing good evidence
2.      Difficulty with Wolf- the need for a unified court system between federal and state systems