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Criminal Procedure
University of Kentucky School of Law
Connelly, Allison

1.      Crime. May be committed in presence of police officer. If so, police officer is free to arrest individual. If officer is not present, then the crime is followed by an investigation that leads too trial of the case.
2.      Reporting of Crime.   Police officer is free to arrest without a warrant is crime is committed within his presence.   Police get information or it is observed by police officer. If there is information reported this is usually done in some form of complaint (see next step)
3.      Complaint. Sets out facts saying crime was committed and who committed the crime. Complaint should generate a pre-arrest investigation. Complaints are taken under oath made by citizen and lots of times there is no pre-arrest investigation (particularly the case in misdemeanors).
4.      Pre-Arrest Investigation. Police collect evidence. Pre-arrest investigation will more likely happen in felonies and this is more important in felonies. Also includes questioning witnesses and talking to informants. Usually done in short period of time.
5.      Arrest. Taking person into custody and charging them with crime. It is more probable than not that a crime was committed and that this person committed it. 
a.       Law of arrest—if you are arrested illegally and search is conducted incident to that arrest that uncovers crime, this can be thrown out and excluded from evidence because the arrest was unconstitutional.  
b.      Arrest can occur with a warrant or without a warrant. No warrant needed if the crime is observed by police officer.
6.      Booking Process- right to search a person (administrative search) before they are put in a jail cell, this is done for the safety of the prisoners. This is a legal search, because institutional security outweighs persons right to privacy.   Put in NCI database. 
a.       You don’t have to be informed of Miranda Rights unless there is custodial interrogation. 
7.      Post-Arrest Investigation. Stems from efforts of police to obtain confession. 
a.       As long as police comply with Miranda, then any confession can be admitted into court. IF there is custodial interrogation and Miranda is not given or it is given improperly, then motion to suppress confession will be made and confession may be excluded.
8.      Decision to Charge. Decision rests solely in prosecutor – prosecutor has tremendous amount of discretion in determining what charge to levy and whether or not to charge at all.   There will be a complaint (post-arrest complaint). This complaint is sometimes filled out by police officer or by prosecutor based on evidence collected up to this point. 
9.      Pre-Trial Motion Practice is most important—sets scene for the rest of the trial. 
1.      TRIAL: Creation of record. Consists of transcript of record (everything written), and transcript of evidence (oral statements). Record comes from looking backward—was the arrest constitutional? Excluded? Was search unconstitutional? Was there confession? Excluded? All this occurs before trial. This becomes part of transcript of record. 
a.        Federal Constitution sets minimum protection required. State constitution can set higher protection. For a state criminal case for unreasonable search, you raise 4th Amendment, 14th Amendment to make it applicable to the states, and State Constitution. Also you would raise any statutes that could apply, and also any other applicable law.   You have to have Federal Question Jurisdiction- say that it violates state and federal constitution- to preserve the question for later so that you can raise it later.  
2.      Go to State’s Highest Court (for a murder robbery as example in class). You can only raise those matters of record here. Raise federal question here to preserve it to be able to raise it later.
3.      USSC – Because it was preserved you have federal question and therefore jurisdiction.
4.      Motion to Vacate Conviction. Defendant will allege that there was ineffective assistance of counsel – this is 6th Amendment and the 14th Amendment to incorporate it to the states. D will also raise State Constitution, because State may make test for ineffective assistance of counsel not as stringent.   You go back to same trial judge in the same county, but there is no jury.   If you lose here… conviction affirmed… then,
5.      Case goes to State’s highest court- looks at the record created at Step 4 (brand new record), because now you are proving different point- not the underlying crime. Record is created at Step 4 that has transcript of evidence and transcript of record. 
6.      USSC- petition for cert. Was attorney ineffective as defined by the 6th Amendment and 14th Amendment of the USSC? Because you said it in Step 4, it is preserved opportunity to raise a federal question.
7.      US District Court- now we have 2 records (record 1 from Trial, and record 2 from post conviction hearing). D now takes 2 records and raises federal constitutional issues in the US District Court on a petition for habeus corpus.   Now both records are combined and any constitutional issues may be attacked from trial and post conviction). These are combined and raised as one issue in Federal Court. Habeus Corpus just claims that D is being illegally detained. There CAN be a hearing which would create a 3rd record but there doesn’t have to be.
8.       If you lose you go to US Court of Appeals.  
9.      If you lose you go to USSC on petition for cert.
10. If you lose you go to parole board for clemency – based on case law, grantor or denier of clemency has to do an investigation. 
11. If you fail this you go to execution. 
1.      14th Amendment Incorporation Doctrine
a.       Text indicates that it is CLEARLY applicable to states—“nor shall any State deprive any person of life, liberty, or property, without due process of law”
b.      Courts view 14th Amendment in 3 different ways:
                                            i.            Fundamental Fairness View – 14th Amendment can mean MORE than just the Bill of Rights. Some rights can be protected against States through the 14th Amendment, even if they are not included in the Bill of Rights- test is if it is “fundamental”, OR “implicit in the concept of ordered liberty”
1.      Ex: Griswold – right to privacy is not expressly included in Bill of Rights, but the Court struck down the State law based on notion that privacy was a “fundamental right” that could not be infringed upon by the State.
2.      This view accepts SOME of the rights in the Bill of Rights, but not all. It also accepts OTHER rights not included in bill of rights- test is whether it is “fundamental”
3.      Problem with Fundamental Fairness – may be dependent upon the make up of the court and what justices at the time consider “fundamental”
                                          ii.            Total Incorporation View – Justice Black is main supporter of this view. Idea is that 14th Amendment incorporates ALL of the Bill of Rights and makes them all applicable to the states.   Incorporates ALL of BOR – nothing more and nothing less
1.      This view has never been accepted by the Court
                                        iii.            Selective Incorporation—Courts pick and choose what provisions of Bill of Rights will be applicable to the states. 
1.      Under selective incorporation, if a right is deemed to be applicable to the states, it is applicable to the FULL extent that it is applied in the Bill of Rights.
2.      Court seems to follow this approachà once a right is deemed to be fundamental, it is concluded that this provision of the Bill of Rights should be enforced against States under 14th Amendment according to the SAME standards that protect those personal rights against federal encroachment
c.       Now, all but 3 provisions in Bill of Rights have been incorporated via 14th Amendment to the states
                                            i.            Excessive Bail
                                          ii.            Right to Bear Arms
                                        iii.            Indictment by Grand Jury
2.      Application of Incorporation in context of 4th Amendment protection against unreasonable searches and seizures and 5th Amendment protection against self-incrimination
a.       Rochin v. CA – police break into house and Rochin puts pills in his mouth. Police try to pry open his mouth but could not get pills. Police take him to hospital and pump his stomach to get the pills. Stomach pumping = search of R’s body.
                                            i.            Police conduct “shocks the conscience”— 4th Amendment protection is applicable to the states via the 14th Amendment.
                                          ii.            This was unreasonable
b.      Irvine v. CA – police install wiretap in suspect’s home to overhear conversations
                                            i.            This was NOT violation of 4th amendment
                                          ii.            This limits Rochin to its facts—has to involve coercion, violence, or brutality to that person
c.       Schmerber v. CA – court took blood sample from unconscious person who was involved in fatal crash. This did NOT violate 4th Amendment.

                               iv.            Test = police may not intrude into a persons’ body unless it is justified in that it requires an individual to submit to a test and the means and procedures employed are reasonable.
d.      Mapp v. Ohio – Officers break into house and flash piece of paper that they claim was “warrant”, woman puts it in her shirt and officer struggles to get it back and removed it from her shirt. 
                                            i.            Court held that the exclusionary rule applied to states! “We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, in admissible in a state court.   à implies that Courts view the exclusionary rule as a rules of constitutional mandate
                                          ii.            Since 4th Amendment is applicable to states via the 14th, it makes sense for exclusionary rule to apply also. 
4.      Justifications for Exclusionary Rule (explained in Mapp) =
a.       Deterrence = idea to promote the guide of the constitution by removing the incentive to disregard it. Police will probably not want to violate 4th Amendment if they know that the fruit of their illegal search or seizure cannot be used.
b.      Judicial Integrity = initially this was considered more important than it now is. Now, the courts say that integrity has a limited role and deterrence is the main rationale for the rule.
5.      EXCEPTIONS to the Exclusionary Rule:
a.       Good Faith Exception for Search Warrants: United States v. Leon – Police officers executed a facially valid search warrant. Later, court said that there was no probable cause to support the warrant so the warrant was invalid. 
                                            i.            Rule = Evidence obtained pursuant to a search warrant later declared to be invalid MAY be introduced at defendant’s trial in the prosecution’s case in chief if a reasonably well-trained police officer would have believed the warrant to be valid.
1.      Limits = Only applies to cases where search warrants are used, AND a reasonably well-trained police officer would have to believe the warrant to be valid (this is an OBJECTIVE test)
                                          ii.            Exception would NOT be able to be used where—
1.      The affidavit underlying the warrant is SO lacking in probable cause that no reasonable police officer would have relied on it
2.      The warrant is so defective on its face (for example- fails to state with particularity the place to be searched or thing to be seized).
a.       Ex: Groh – warrant application stated the items to be seized, but the actual warrant did not. Judge did not notice this error and approved warrant, and police officer executed search. Evidence was EXCLUDEDà no reasonable officer could believe that a warrant that plainly did not comply with the requirement was valid (compare with Shepphard later).
3.      Police officer or government official obtaining warrant lied or misled magistrate
4.      Magistrate “wholly abandoned his judicial role”
                                        iii.            In Arizona v. Evans – the Court extended the “good faith exception” to a NON-warrant situation. Police officer arrested D after computer record showed outstanding warrant for D’s arrest (arrest warrant). Officer searched D and found marijuana (no search warrant here). Really, the arrest warrant had been quashed and the computer system had not been updated. 
1.      Court did NOT apply exclusionary ruleà there was no police misconduct here – error was made by court clerk who was supposed to update computer system. 
2.      Indicates that majority will apply Leon to non-warrant situations in VERY limited circumstances.