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Criminal Procedure
University of Kentucky School of Law
Welling, Sarah N.

Spring 2007 Criminal Procedure Professor Welling

I. Overview of Criminal Justice Process

A. Pre-Arrest Investigation
1) Crime Comes to Police attention
(a) Victim calls police to report incident
(b) Police see a crime occur
(c) Pro-active investigation
▪ Police are suspicious of a particular area
▪ Undercover investigations
▪ Computer runs on various data they’ve collected

2) Investigation – reactive and proactive investigations
(a) Search people and places
(b) Call informants
(c) Go undercover
(d) Etc.
▪ Much of this course focuses on what police can do as a pre-arrest investigation

B. Arrest
1) Need P/C to put them in jail
2) Police take ∆ into custody – a classic arrest
3) Booking occurs – ∆ is generally searched at police station – “inventory search”
(a) Searched
(b) Fingerprinted
(c) Put in booking cell

C. Post-Arrest Investigation
1) Can do lineups and showups
2) Collect hair and nail samples from ∆
3) Question the arrestee

D. Charging Decision
1) Generally, the factors considered are:
(a) How strong the evidence is
(b) Witness problems
(c) Other ways to deal with this other than criminal justice system
▪ Cooperation w/authorities
(d) Admissible evidence
(e) Priorities of police department
▪ Drugs used to be highest priority, now terrorism is highest priority
2) Need P/C (same std. as to arrest him, but just have another look at P/C)

E. File a complaint
1) First time a charging document is entered
(a) There may be warrants, but this is the first actual charging document
2) Lays out facts that lead authorities to believe a crime has been committed
3) Usually signed by complainant or a police officer

F. Magistrate reviews the complaint
1) Is there P/C to support the arrest?
2) The state has to justify to the judicial branch why they’re holding the person

G. First or initial appearance
1) First time the ∆ is taken before a judge
2) If arrested without a warrant, then initial appearance has to occur w/in 24 or 48 hours
(a) If police haven’t used a warrant – they’ve simply taken the person off the street – they have to take the ∆ before the judge
(b) Judge will inform ∆ of rights and charges brought
(c) If poor, the judge will appoint counsel. If they have money, they need to get their own attorney

H. Preliminary Hearing
1) Same purpose as the 1st appearance, bu

resent at this point to advise him on his plea

L. Plea Bargaining
1) Generally, the ∆ enters a plea of not guilty
2) Then they go to negotiations for a plea bargain
3) Without a conclusion, there is a trial set
4) If they come to a conclusion, the ∆ may plead guilty to an amended charging document


II. Substantive Criminal Procedure

A. Basics
1) Implicates Amendments 4, 5, and 6
(a) All of the 4th
(b) Part of the 5th
▪ Privilege against self-incrimination
▪ Deprivation of life, liberty, and property without due process of law

(c) Part of the 6th
▪ Right to counsel
▪ Right to a speedy trial

2) Bill of Rights only explicitly apply to Federal Government
(a) But 14th Am. limits the powers of the state governments
(b) The 4th, 5th, and 6th Ams. have been selectively incorporated to apply to all states as well