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

Criminal Procedure

I. Steps of Trial
1. Arrest (usually without a charging instrument)
2. Charging Instrument comes into play
1. Citation
2. Complaint – given to magistrate detailing person and the crime
3. Indictment – product of the Grand Jury after the complaint and the formal charge in a felony if in a Indictment State.
3. Initial Appearance
1. must be done within 24-48 hours of the arrest
2. Purpose
1. to inform ∆ of crime charged with
2. get out of the hands of the police – get attorney and set bail
3. This is if felony charge, if misdemeanor then next step is arraignment.
4. Preliminary Hearing
a. If felony charge this is just to find out if enough evidence to hold ∆
b. Decision is made to formally charge –is there probable cause?
c. Bindover – if there is probable cause then….
1. Grand Jury – if Indictment State
2. Trial Court – if Information State
d. There might not be a PI hearing if there is a Grand Jury hearing or if
∆ waives.
e. Attorneys Present
1. Prosecution – can call witnesses, has to prove probable cause to charge
2. Defense does very little
f. Discovery limited by 5th Amendment
1. Prosecution must turn over exculpatory evidence
2. Difference from civil- no depositions, so they must rely on subpoena to get statement on the stand
3. ∆ will know very little at this point
5. Grand Jury (citizens group to decide if ∆ should be charged)
a. Secret proceedings – behind closed doors
b. Prosecution there only- to present evidence and prove probable cause
c. Defense is helpless- no rights, but may ask to have witnesses called or
to testify himself.
d. This is a check on def. rights- Prosecutions ethics and to make sure
Prosecution won’t charge with what they can’t prove.
6. File Indictment and Arraignment
a. Read indictment
b. ∆ enters plea (usually not guilty/plea bargaining comes later)
c. In front of trial judge
7. The Trial
a. ∆ has Constitutional right to silence/cant be called as witness
b. Presumption of Innocence
a. Check on Gov’t to prevent take away of liberty.
b. High burden of proof on prosecution.

Court System

State Federal

District Trial Level District

Circuit

Appeals Appeals

St. Sup. Ct. US Sup. Ct.

All cases start in state District Court; State has broader authority than Federal; Can get to US Sup. Ct. on appeal or Fed. District on writ of Habeas Corpus (there has to be a constitutional issue for the appeal, the Habeas id a civil suit it doesn’t move the case but it does the issue and once that is decided it goes back to that court).

II. Arrest Search and Seizure
Ø 4th Amendment – Guarantees citizens freedom from unreasonable search and seizure. Protect privacy and possessory interests of individuals. (persons, houses, papers and effects) Includes evidence and people (whether through arrest or stop and question)
A. The Exclusionary Rule
1. The Rule Itself
a. If information is obtained in violation of the 4th Amendment,
exclude it from the case.
b. Consequently, incriminating evidence left out and criminal
might go free.

ionary rule didn’t apply.
g. Other remedies won’t work to punish; must throw out good evidence to deter police behaving badly.
5. US v. Leon – Rule – Exclusionary rule does not apply to evidence seized by police who have acted in reasonable and good faith belief that the warrant was properly issued and was based on sufficient probable cause. As long as police have good faith belief in warrant any evidence obtained pursuant to it is admissible.
a. Carved out good faith exception to exclusionary rule
b. Police turned in record to judge and got warrant to go in and subsequently found drugs, trial court found warrant was supported with probable cause and later found to be invalid.
c. Trial court applied Mapp b/c informant wasn’t good probable cause.
d. Sup Ct felt need for exception b/c purpose of exclusionary rule is deterrence and if police acted in good faith and did the right job then they should not be punished.
e. The magistrate was wrong for issuing the warrant and excluding would not punish the magistrate.
f. This was a shift back to the exclusionary rule being a judicially created application rather than a constitutionally created one
g. Whether evidence is unconstitutionally obtained or unconstitutionally used makes a difference