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Criminal Procedure
University of Mississippi School of Law
Rychlak, Ronald J.

Crim. Pro I outline, Prof. Ronald Rychlak, Fall 2012
Textbook:  Kamisar, LaFave, Israel, King, Kerr, and Primus's Basic Criminal Procedure: Cases, Comments and Questions, 13th
ISBN: 9780314911667
CH 1 Studying the Legal Regulation of the Criminal Justice Process
I.            Chapter objectives
a.        “criminal justice process” is the process through which the substantive criminal law is enforced
b.        Three features of the criminal justice process discussed in this chapter:
                                                   i.      The relationship of any particular procedure to the overall structure of the process,
                                                  ii.      The potential for diversity in legal regulation from one jurisdiction to another, and
                                                iii.      The potential for substantial administrative diversity, even within a single jurisdiction
II.            Steps in the process
a.        Overview of the procedural steps that carry the process from start to finish in an individual case
                                                   i.      There is no “standard” set of procedures that are potentially applicable to all cases in all jurisdictions
                                                  ii.      This overview concentrates on the procedural steps adopted in a substantial majority of the 52 lawmaking jurisdictions (50 states, D.C., and the federal system)
1.        Minority positions will not be noted
                                                iii.      This overview is limited to the processes applied to non-capital felony cases
1.        For the most part, felonies are those crimes punishable by incarceration of a term of more than one year, while misdemeanors are crimes punishable by incarceration of less than a year, or not subject to incarceration as a penalty
a.        DUI and drug possession are the top two offenses (measured by number of arrests)
                                                 iv.      Difference between “sworn officers” and “civilian” personnel is the authority to make arrests and to carry weapons
b.        Step 1: Pre-arrest investigation
                                                   i.      Investigation, by police or prosecutor, is the initial administrative stop in the processing of what eventually will become a felony prosecution
1.        Vast majority of pre-arrest investigations are undertaken entirely by the police
                                                  ii.      Reactive investigation
1.        Aimed at solving a past crime
2.        “Incident driven” or “complaint responsive” style of policing
a.        Example: police receive a citizen report of a crime, or witness the crime themselves, or discover physical evidence that a crime has been committed, and then proceed to initiate an investigation to that “known crime”
3.        Depending on the information that initially identifies the crime, the pre-arrest investigative activity will have one or more of the following objectives:
a.        Determining that the crime actually was committed
b.        Determining who committed the crime
c.        Collecting evidence sufficient to support the arrest of the offender (and if readily available, additional evidence that will be sufficient to support a trial conviction), and
d.        Locating the offender so that he may be arrested
4.        Wide variety of investigative activities:
a.        Interviewing of victims
b.        Interviewing of other witnesses present when the officer arrives at the crime scene
c.        Canvassing the neighborhood for (and interviewing) still other persons with relevant information
d.        The interviewing of suspects, which may require a physical stopping of the suspect on the street and frisking of the suspect for possible weapons
e.        Examining the crime scene and collecting physical evidence (including possible forensic evidence) found there (and where the offenses involved physical contact with the victim, also collecting possible forensic evidence from the person of the victim)
f.         Checking departmental records and computer files
g.        Seeking information from the informants
h.        Searching for physical evidence of the crime in places accessible to the suspect and seizing any evidence found there
i.         Surveillance of a suspect (including electronic surveillance) aimed at obtaining leads to evidence or accomplices, and
j.         Using undercover operatives to gain information from the suspect
5.        Note, in general, investigations do not involve the use of scientific methods of investigation (like CSI stuff)
                                                iii.      Proactive investigation
1.        Aimed at placing the police in a position to respond to an unknown but anticipated ongoing or future crime
2.        This approach is facilitated by computer programs which use data-mining to identify high crime areas that are particularly troublesome (“hot spots”) and the characteristics of both repeat victims and high-rate offenders
3.        A variety of different procedures may be used in a proactive investigation, with the choice of procedure largely tied to the specific objective of the investigation
a.        Deception is a common element of many proactive procedures
                                                                                                                           i.      Police go under cover
                                                                                                                          ii.      Use of informants
                                                                                                                        iii.      Surveillance through stakeouts, covert patrols, and electronic monitoring
b.        Intrusive confrontations
                                                                                                                           i.      Designed to place police in a position where they can observe what otherwise would be hidden or to elicit nervous or unthinking incriminatory responses that will provide a legal grounding for taking further investigative action (like an arrest or stop)
                                                                                                                          ii.      Heavy field interrogation
c.        In general, such proactive investigative procedures are mote resource intensive, more intrusive, arguably more likely to foster community opposition, and clearly pose more legal problems than typical reactive investigative procedures
                                                 iv.      Prosecutorial investigations
1.        Not all pre-arrest investigations are conducted by police
2.        For certain types of crimes, the best investigatory tool is the subpoena
a.        Court-order directing a person to appear at a particular proceeding for the purpose of testifying and presenting specified evidence within his possession
b.        Subpoena authority typically is available for the general investigation of crime only through the grand jury
                                                                                                                           i.      However, since the grand jury is made up of lay persons who rely on the legal expertise of the prosecutor, the grand jury investigation essentially becomes an investigation by the prosecutor
3.        Grand jury investigations tend to be used where:
a.        Witnesses will not cooperate with police
                                                                                                                           i.      Witnesses can be compelled by subpoena to testify before the grand jury and given immunity to replace their self-incrimination privilege should they refuse to testify on that ground
b.        The critical evidence of the crime is likely to be a “paper trail” buried in voluminous records of business dealings
                                                                                                                           i.      Where police may lack probable cause for obtaining the documents through a search, the subpoena can be used to require production of such records
c.        The area of investigation is especially sensitive, reflecting a strong need to keep the ongoing investigation from the public or to ensure public confidence in the integrity of the investigation
                                                                                                                           i.      Grand jury secrecy requirements
4.        Criminal investigations presenting such special needs tend to deal with crimes of public corruption, misuse of economic power, or widespread distribution of illegal services or goods
c.        Step 2: Arrest
                                                   i.      Once a police officer has obtained sufficient information to justify arresting a suspect (i.e., probable cause to believe that the person has committed a crime), the arrest ordinarily becomes the next step in the criminal justice process
1.        By “arrest” we refer to the act of taking a person into custody for the purpose of charging him with a crime
a.        This involves the detention of the suspect (by force if necessary) for the purpose of first transporting him to a police facility and then requesting that charges be filed against him
2.        When there is no immediate need to arrest a suspect, an officer may seek to obtain an arrest warrant (a court order authorizing arrest) prior to taking the person into custody
a.        To obtain a warrant, the police must establish, to the satisfaction of, say, a magistrate, that there exists probable cause to believe that the prospective arrestee committed the crime for which he will be arrested
                                                                                                                           i.      The vast majority of arrests for felonies are made without first seeking a warrant (and are therefore described as “warrantless arrests”)
3.        While the arrest is part of the charging process, it contributes to the investigation
a.        It can provide significant evidence through what is described as the “search incident to the arrest”
                                                                                                                           i.      Contemporaneous with the arrest, the arresting officer usually will search the arrestee’s person and remove any weapons, contraband, or evidence relating to a crime
                                                                                                                          ii.      In some instances, this search authority can extend to containers carried by the arrestee, his vehicle, and his residence or office
d.        Step 3: Booking
                                                   i.      After arrest and search incident to arrest, arrestee will be transported to a police station or “holding facility”
                                                  ii.      “Booking” is a clerical process
1.        The name of arrestee, time of arrival, and offense for which he was arrested will be logged into the “blotter” or “log”
2.        Felony arrestees ordinarily will be photographed and fingerprinted, and sometimes DNA samples will be taken
3.        Once booking is complete, arrestee will be allowed one phone call
4.        After call, arrestee will be put in “lockup” pending his subsequent presentation at a first appearance
e.        Step 4: Post-arrest investigation
                                                   i.      Arrestee can be put in lineup (viewed in a group) or showup (viewed individually)
                                                  ii.      Police can obtain identification exemplars from arrestee (handwriting samples, hair samples, etc.) to compare with evidence from scene of crime
                                                iii.      Police can question arrestee (subject to arrestee’s knowledge of rights and waiver of them)
f.         Step 5: The decision to charge
                                                   i.      For the vast majority of felony cases, the initial decision to charge a suspect with a crime is made when a police officer makes a warrantless arrest of the suspect
                                                  ii.      The ultimate authority over charging rests with the prosecutor, rather than the police
1.        A prosecutor’s decision not to go forward on a charge requires a different processing action depending upon whether that decision is made:
a.        Prior to the filing of a complaint
                                                                                                                           i.      A decision not to proceed at this stage results in the complaint not being filed and the release of the arrestee from police custody without any judiciary involvement
b.        After the complaint is filed, and prior to the filing of an indictment or information, or
                                                                                                                           i.      A decision not to proceed at this second stage commonly occurs in connection with the prosecutor’s review of the case against the defendant prior to presenting it to a magistrate at a preliminary hearing or to a grand jury
                                                                                                                          ii.      Decision is formalized in a prosecution motion before the magistrate to withdraw the complaint or, if in front of a grand jury, asking the grand jury to vote against indicting, which terminates prosecution
c.        After the filing of the indictment or information
                                                                                                                           i.      A decision not to proceed further at this third stage requires a prosecutor’s nolle prosequi motion, which must be approved by the trial court
2.        Prosecutorial review of the police charging decision prior to the filing of the complaint must occur in a short time span, as the arrested defendant must be brought before the magistrate within 24 or 48 hours and the complaint must have been filed at that point
                                                iii.      Where the prosecutor in the initial screening process decides in favor of criminal prosecution, other decisions must also be made:
1.        Was the proposed charge set at the correct level
2.        Should arrestee be charged with all possible offenses
3.        Should multiple arrestees be charged together or separately, etc.
g.        Step 6: Filing the complaint
                                                   i.      Assuming the police decided to charge and that the decision is not overturned in a pre-filing prosecutorial review, the next step is the filing of charges with the magistrate court, which must be done prior to the arrestee’s scheduled first appearance
                                                  ii.      The initial charging document is commonly referred to as the complaint
1.        Complainant usually will be the victim or the investigating officer
                                                iii.      With the filing of the complaint, the arrestee officially becomes a “defendant” in a criminal prosecution
h.        Step 7: Magistrate review of the arrest
                                                   i.      Following the filing of the complaint and prior to or at the start of the first appearance, the magistrate must undertake what is often described as the “Gerstein review”
1.        As prescribed by the SCOTUS decision of Gerstein v. Pugh, if the accused was arrested without a warrant and remains in custody (or is subject to restraints on his liberty as a condition of stationhouse bail), the magistrate must determine that there exists probable cause for the offense charged in the complaint
a.        Ex parte determination based on the information that would have been used to issue an arrest warrant
b.        If the magistrate finds that probable cause has not been established, she will direct the prosecution to promptly produce more information or release the arrested person
2.        Since a judicial probable cause determination already has been made where an arrest warrant was issued, a Gerstein review is not required in such cases (or in cases where the arrestee was indicted by a grand jury prior to his arrest)
i.         Step 8: The first appearance
                                                   i.      An arrestee who is held in custody, or who otherwise remains subject to custodial restraints, must be presented before the magistrate court within a time period typically specified as either 24 or 48 hours
1.        This hearing is known as a “first appearance,” “initial presentment,” “preliminary arraignment,” or “arraignment on the complaint”
2.        Where the accused person was not arrested by the police, but issued a citation, the 24-48 hour timing requirement does not apply and the first appearance may be scheduled a week or more after the issuance of the citation
                                                  ii.      Magistrate will inform defendant of:
1.        Right to remain silent
2.        Right to counsel
a.        Where the felony defendant is not represented by counsel at the first appearance, the magistrate must make certain that the defendant is aware of his right to counsel, even state-funded if defendant cannot pay
3.        Charges against him
4.        Nature of the proceedings
5.        The defendant always will be informed of at least the very next proceeding in the process, which usually will be a preliminary hearing
6.        Magistrate will also set a date for the preliminary hearing
7.        One of the most important fist-appearance functions of the magistrate is to fix the terms under which the defendant can obtain his release from custody pending the disposition of the charges against him
a.        “setting bail”
b.        Many jurisdictions have a “preventive detention” exception to the setting of bail for certain types of felonies
                                                                                                                           i.      Here, upon a necessary finding of danger or likely flight, the magistrate does not set release terms, but instead orders that the defendant continue to be held in custody pending final disposition of the charges
j.         Step 9: Preliminary hearing
                                                   i.      Preliminary hearing is sometimes called a preliminary “examination”
                                                  ii.      Preliminary hearing is to be held within a specified period (typically a week or two if the defendant does not gain pre-trial release and within a few weeks if released)
1.        Hearing can be waived or not used
                                                iii.      In jds where the preliminary hearing is held, it will provide, like grand jury review, a screening of the decision to charge by a neutral body
1.        In the preliminary hearing, that neutral body is the magistrate, who must determine whether, on the evidence presented, there is sufficient evidence to send the case forward
2.        The hearing provides screening in an adversary proceeding in which both sides are represented by counsel
                                                 iv.      If the magistrate concludes that the evidence presented is sufficient for the prosecution to move forward, she will “bind the case over” to the next stage of the proceedings
1.        In an indictment jd, the case is bound over to the grand jury
2.        In a jd that permits the direct filing of an information, the case is bound over directly to the general trial court
                                                  v.      If the magistrate finds that the evidence supports only a lesser charge (i.e., misdemeanor) then the charge will be reduced
                                                 vi.      If the magistrate finds that the evidence is insufficient to support any charge, the prosecution will be terminated
k.        Step 10: Grand jury review
                                                   i.      Majority: prosecution is not allowed to proceed either by grand jury indictment or by information at its option
                                                  ii.      18 state minority, federal system, and D.C. require grand jury indictments for all felony prosecutions
                                                iii.      4 state minority have “limited indictment” requiring prosecution by indictment only for their most severely punished offenses (capital, life imprisonment, or both)
                                                 iv.      Grand jury is selected randomly from the same pool of prospective jurors (the “venire”) as the trial jury
1.        Unlike the trial jury, it sits not just for a single case, but for a term of one to several months
2.        Grand jury meets in closed sessions and hears only the evidence presented by the prosecution
a.        The defendant has no right to offer his own evidence or to be present during grand jury proceedings
3.        If the majority of the grand jurors conclude that the prosecution’s evidence is sufficient, the grand jury will issue the indictment requested by the prosecutor
a.        Indictment will set forth the offenses charged, and the grand jury’s approval of that charge will be indicated by its designation of the indictment as a “true bill”
4.        If the majority of the grand jury refuses to approve the proposed indictment, the charges against the defendant will be dismissed
l.         Step 11: The filing of the indictment of information
                                                   i.      If the indictment is issued, it will be filed with the general trial court and will replace the complaint as the accusatory instrument in the case
                                                  ii.      Where a grand jury indictment is either not required or had been waived, an information will be filed with the trial court
1.        Like the indictment, the information is a charging instrument which replaces the complain, but it is issued by the prosecutor rather than the grand jury
m.      Step 12: Arraignment on the information or indictment
                                                   i.      After the indictment or the information has been filed, the defendant is arraigned – he is brought before the TC and informed of the charges against him, and asked to enter a plea of guilty, not guilty, or, as is permitted in some circumstances, nolo contendere (a plea in which the defendant accepts a judgment of conviction, but does not admit to guilt)
1.        At arraignment, most people enter not guilty pleas
2.        However, ultimately, most people wind up changing their plea to guilty
                                                  ii.      When the defendant enters a plea of not guilty at the arraignment, the judge will set a trial date, but the expectation is that the trial will not be held
n.        Step 13: Pre-trial motions
                                                   i.      Broad range of objections must be raised by a pre-trial motion
                                                  ii.      While some pre-trial motions are made only be defendants who intend to go to trial, other motions may benefit as well defendants who expect to plead guilty in the end
o.        Step 14: Guilty plea negotiation and acceptance
                                                   i.      Guilty pleas in felony cases most often are the product of a plea agreement under which the prosecution offers certain concessions in return for the defendant’s plea
1.        The offering of concessions lies in the discretion of the prosecutor
                                                  ii.      Where a plea is entered as the result of an agreement with the prosecutor, that agreement must be set forth on the record before the TC
1.        The trial judge will review the agreement to ensure that its terms are within the law, but cannot second-guess its soundness as a matter of criminal justice policy
a.        The TC’s primary responsibility in accepting a guilty plea is to ensure that the defendant understands both the legal consequences of entering a guilty plea and the terms of the plea agreement
                                                                                                                           i.      If that understanding is present, and there exists a factual basis for the plea, the plea will be accepted and a date set for sentencing
p.        Step 15: The trial
                                                   i.      Assuming that there has not been a dismissal and the defendant has not entered a guilty plea (or nolo contendere plea), the next step is trial
                                                  ii.      There are several distinguishing features that are either unique to criminal trials or of special importance in such trial:
1.        The presumption of defendant’s innocence
2.        The requirement of proof beyond a reasonable doubt

               ii.      Reasoning: A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond a reasonable doubt. But [o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.***The State accordingly has more flexibility in deciding what procedures are needed in the context of post-conviction relief.***The question is whether consideration of Osborne’s claim within the framework of the State’s procedures for post-conviction relief “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” or “transgresses any recognized principle of fundamental fairness in operation.” Medina v. California.
V.            Section 4: The Federal Courts’ “Supervisory Power” Over the Administration of Federal Criminal Justice
a.        McNabb v. United States (1943)
                                                   i.      “While the power of thus Court to undo convictions in state courts is limited to the enforcement of those ‘fundamental principles of liberty and justice’ secured by [14A D/P]”, the standards of federal criminal justice “are not satisfied merely by observance of those minimal historic safeguards.” Rather, “[i]n the exercise of its supervisory authority over the administration of criminal justice in the federal courts, [this Court has] formulated rules of evidence to be applied in federal criminal prosecutions.”
b.        Note: In cases not involving questions of judicial procedure or a statutory violation, the federal courts lack the authority to exclude evidence or to dismiss a prosecution unless the government’s conduct violated the Constitution
c.        United States v. Payner, 447 U.S. 727 (1980)
                                                   i.      Facts: An IRS investigation into the financial activities of American citizens in the Bahamas focused on a certain Bahamian bank. When an official of that bank visited the US, IRS agents stole his briefcase for a time, removed hundreds of documents from the briefcase and photographed them. As a result of this “briefcase caper,” defendant Payner was convicted of federal income tax violations. Because Payner lacked “standing” to challenge the “briefcase caper” under the Court’s 4A precedents, the federal district court invoked its supervisory power to exclude the tainted evidence.
                                                  ii.      Holding: A 6-3 majority (J. Powell for the Court) held that that the supervisory power :does not authorize a federal court” to exclude evidence that did not violate the defendant’s 4A rights
1.        So since, Payner’s 4A rights were not the ones who were violated – but instead it was the bank official’s rights which had been violated – the evidence against Payner was allowed to stand
d.        United States v. Hastings, 461 U.S. 499 (1983)
                                                   i.      In the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying the supervisory powers are threefold:
1.        To implement a remedy for violation of recognized rights,
2.        To preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, and
3.        As a remedy designed to deter illegal conduct
                                                  ii.      Supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since by definition, the conviction would have been obtained notwithstanding the asserted error
e.        Notes and Questions
                                                   i.      Why has the effort to impose “extra-constitutional” standards on federal law enforcement officials, best illustrated by McNabb and its progeny, fared so badly in recent decades?
1.        According to Bennett Gershman:
a.        First, the supervisory power requires judges to impose on government officials their own notions of ‘good policy’
                                                                                                                           i.      The judiciary has resisted this invitation
b.        Second, supervisory power increasingly has been viewed as an unwarranted judicial intrusion into the exclusive domain of a coordinate branch of the government
c.        Finally, once supervisory power became subservient to the harmless error rule, it became largely irrelevant
VI.            Section 5: Trends and Counter-trends: The “New Federalism in Criminal Procedure” and New Limitations on State Rights Protections
a.        A state supreme court bent on providing the accused with greater protection than that said to be required by the federal constitution must be careful to make it clear that it is resting its ruling on an “separate, adequate and independent” state grounds
                                                   i.      Michigan v. Long, 463 U.S. 1032 (1983)
1.        When the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.
2.        Thus, in order to insulate its decision from SCOTUS review, the state court, to quote Long again, must indicate “clearly and expressly” that its ruling is based on “separate, adequate and  independent” state grounds
b.        A factor that could severely curtail the New Federalism, however, is the hostile reaction of state citizens to their state court’s activism
VII.            Section 6: Due Process, Individual Rights and the War on Terrorism: What Process is Constitutionally Due a Citizen Who Disputes His Enemy-Combatant Designation?
a.        Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
                                                   i.      Facts: Hamdi was a US citizen living in Afghanistan at the time of 9/11. Congress had passed [after 9/11] a resolution authorizing the President to “use all necessary and appropriate force” against “nations, organizations or persons” that he determines “planned authorized, committed or aided” in the 9/11 attacks. (Authorization for Use of Military Force [AUMF]). Thereafter the President ordered the Armed Forces to subdue the Taliban. At a time when American forces were engaged in active combat, Hamdi was seized and turned over to the US as a Taliban fighter. He was taken to GITMO, but once it was determined that he was a US citizen, he was taken to a naval brig in the US. In detaining Hamdi, the government took the position that he was an “enemy combatant” who had fought against the US and its allies, and that his status as such justified the US in holding him indefinitely without bringing any formal charges against him. Hamdi’s father filed a habeas corpus action, claiming that the US was holding him in violation of the 5A and the 14A, as well as in contravention of the Non-Detention Act (18 USC §4001(a), which forbids imprisonment or detention of an American citizen except pursuant to an Act of Congress.
                                                  ii.      Holding: There was no majority opinion. A plurality opinion by O’Connor concluded that the initial detention of Hamdi was authorized by the AUMF, and that the Non-Detention Act was satisfied because Hamdi was being held pursuant to an Act of Congress – the AUMF. O’Connor rejected the government’s argument that Hamdi could be held indefinitely without formal charges or proceedings
                                                iii.      J. Souter dissent (w/ J. Ginsburg) disagreed with the plurality that if Hamdi’s designation as “enemy combatant” were correct, his detention, at least for some time, was authorized by the AUMF. Souter stated that not only was the detention unauthorized by the AUMF, but it was forbidden by the Non-Detention Act and Hamdi was entitled to immediate release
                                                 iv.      J. Scalia dissent (w/ J. Stevens) stated that absent suspension of the writ of habeas corpus by Congress, an American citizen accused of waging war on his own country could not be imprisoned indefinitely; he had to be prosecuted for treason or some other crime. The AUMF did not suspend the writ. Absent suspension of the writ by Congress, the Executive’s assertion of military exigency is not sufficient to permit detention without charge
                                                  v.      J. Thomas Dissent: Thomas was the only Justice who believed that Hamdi’s habeas corpus challenge should fail. He maintained that the Executive Branch had acted “with explicit congressional approval” and that Hamdi’s detention “falls squarely within the Federal Government’s war powers.”
b.        Rasul v. Bush, 542 U.S. 466 (2004) (J. Stevens)
                                                   i.      Ruled that US courts have jd under the same habeas corpus statute involved in Hamdi to consider challenges to the legality of the detentions of foreign nationals captured abroad and imprisoned at a US naval base at GITMO, Cuba.
1.        The Court held that the then existing statutory scheme vested the US District Court in DC, with statutory habeas corpus jd to review that lawfulness of the GITMO detainees’ incarceration as enemy combatants
                                                  ii.      Significantly, however, the Court left open the question of what substantive rights the detainees might assert
                                                iii.      Neither did this case make clear whether its opinion would apply to prisoners detained by the IS in foreign locations other than GITMO, on which the US has a permanent lease
                                                 iv.      J. Scalia dissent (joined by C.J. Rehnquist and J. Thomas) maintained that the federal courts lacked statutory jd to review the GITMO detentions at all