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



80-85% of criminal cases are state proceedings.
Some crimes are reported (stolen car), while others have to be uncovered (buying/selling drugs, prostitution, gambling). To be uncovered, investigation must occur.
Pre-trial investigation

Was crime committed?
Who committed it?
Can we prove it?


Need probable cause that the crime was committed and that the person arrested committed the crime
If probable cause exists, judge will issue a warrant
ALWAYS has to be probable cause for arrest
Probable cause and arrest can happen immediately if officer sees the crime


Make a record of the arrest (photos, fingerprints, phone call, told of charges)
Usually put into a holding place and belongings are taken

Post Arrest Investigation

Lineups, Interrogations, Waste Samples, Handwriting Samples

Decide whether to charge with crime

If there has been an arrest warrant issued in advance, this has been done already
Is there enough evidence?
Is it the kind of thing we want to prosecute (family fight at Thanksgiving dinner may be questionable)

Filing of the Complaint/Indictment

This is the formal charging
Complaint first. Then, replaced by an indictment later.

First Appearance

Defendant brought before magistrate judge
Typically has to take place within 48 hours (have to have good faith to do that)
Given your rights
Bail can be set

Preliminary hearing OR Grand Jury Review

Preliminary Hearing

Prosecution lays out case to say why should go ahead with prosecution
Prosecution may hold back some evidence because only has to meet probable cause requirement. May hold back witnesses.
Defense counsel is also present at preliminary hearing.
Key issue: Does the prosecution have enough evidence to go forward?

Grand Jury Review (Ex parte)

Done in secret
Prosecution brings in evidence
Grand jury decides to indict or not
Typically said that the grand jury will indict a ham sandwich if that is what the prosecutor wants because only the prosecutor’s side is heard

After either, if probable cause is found, D is bound over and going to trial. If not, dismissal or charge is reduced.

Filing of Indictment

If grand jury indicts, formal agreement.
If preliminary hearing, a filing of information.

Arraignment on the Indictment (or the information)

Formally brings D back in for him/her to enter plea
Set trial date, or if pleads guilty, sentencing occurs here

Before trial, discovery occurs. There is much less discovery for criminal cases than civil cases.

Traditionally, 12 jurors
Innocence is presumed
Guilt must be established beyond a reasonable doubt
About 2/3 of time Ds are convicted
After conviction, go to sentencing
Attorney can file a pre-sentencing report that allows the D’s background to be reviewed for judge to use in sentencing. Prosecutors file this to make sure the maximum sentence is issued. Defense can review and perhaps have sentence reduced. (Show crime is not as serious or client’s background is not as bad)


Be sure to file appropriate papers to get automatic appeal
Criminal Court of Appeals and The Supreme Court of Mississippi
U.S. District Court: File a civil suit here alleging Defendant is being held in violation of his constitutional rights (a writ of habeas corpus). If lose this then….
Petition 5th Circuit in New Orleans asking them to reverse TC and find his rights have been violated. If lose this then…
Petition U.S. Supreme Court on same issue

Administrate Sentence
Participants in process

Magistrates – have limited jurisdiction


Bill of Rights:

First 10 Amendments to Constitution (or argued first 8 or 12 Amendments)
BOR 1-8 are limitations on federal government. Limiting big government.
Is the government giving rights to the people or do these rights already exist and the government is merely acknowledging them?

Constitution says the people have the power.
So BOR based on idea that states are sovereign and federal government is a limited jurisdiction so as to not have a new England or create a new King George in the U.S.

4A: British used to collect taxes with a general warrant, allowing them to enter homes to check stamps on goods to be sure the people had paid their taxes. No probable cause, suspicion, or clear definition of what looking for or where, no prior judicial determination. So colonists wanted to create an amendment where this could no longer happen, and the warrant was created.
5A: Created because when colonists were charged with a crime, they were sent back to London, with no jury of their peers, and pretty much compelled to testify against themselves or else be held in contempt of court, or refusal to speak was taken as an admission of guilt. If were acquitted, were sent back to Boston for trial, so double jeopardy rule created. Right to due process.
6A: Ensures that criminal Ds are treated fairly. Ties into shipping colonists back to England and the unjust process that went along with that.
7A:Jury trial in a civil suit.
Bill of Rights and the States:

BOR did not apply to states when they were created. Only applied to federal government. (Up until the Civil War).
After Civil War, 13A, 14A, and 15A were created and some of the limitations were binding on the states.
14A: Prohibits states from taking some rights away from the people. Cannot deny privileges and immunities. Cannot deny due process of law. Essentially, this was the federal government telling the states that the federal government can dictate how the states treat their people. 14A does not cover everything the BOR says. 14A limits authority of the states. 14A made the states follow those things that were implicit in the concept of ORDERED LIBERTY. There are fundamental rights that go along with ordered liberty (List: free speech, free thought, free press, free religion, right to assemble, attorney in capital cases).
20th century development: Idea that BOR should apply to the states. Total Incorporation. 14A makes BOR applicable to the states. This argument has never been fully endorsed. But most of the BOR was made applicable to the states in 1960s.
Warren Court in 1960s changed way we look at 14A. Instead of saying, “Can we imagine a fair system without this”, they said, “Is this fundamental to the American scheme of justice.” As a result, other things became a constitutionally protected right, even in state proceedings (ex. Double jeopardy). Reshaped the way America deals with criminal subjects.
Then moved to Selective Incorporation: This right and that right of BOR made applicable to states through 14A. Makes most Amendments of BOR applicable to the states.

Duncan v. Louisiana

Facts: Duncan, a black teen in LA, found guilty of assaulting a white youth by allegedly slapping him on the elbow. Duncan sentenced to 60 days in prison and fined $150. Duncan’s request for jury trial denied.
Issue: Was State of LA obligated to provide a trial by jury in criminal case like Duncan’s?
YES. Court held that 6A guarantee of trial by jury in criminal cases was “fundamental to the American scheme of justice,” and that the states were obligated under 14A to provide such trials. Petty crimes, defined as those punishable by no more than 6 months in prison and a $500 fine, were not subject to the jury trial provision

District Attorney’s Office v. Osborne

Facts: Osborne convicted of kidnapping, assault, and sexual assault in an AK state court. After conviction, Osborne sought access to biological evidence that was used to convict him. He intended to use DNA testing that was not available at time of trial to prove he was not source. D.A.’s Office denied access. Osborne subsequently filed suit in a federal DC under 42 U.S.C. § 1983 against D.A. alleging his 14A due process rights had been violated when he was denied post-conviction access to potentially exculpatory evidence. DC granted D.A.’s motion to dismiss and Osborne appealed. 9th Circuit reversed and remanded. On remand, DC granted SJ for Osborne. D.A. appealed, arguing that Osborne need show the disclosure of evidence would “affirmatively prove that he is probably innocent” in order to gain access. Further, it argued an oral confession given by Osborne after his conviction precluded him from p

illegal drugs. Leon indicted for violating federal drug laws. Judge concluded that affidavit for search warrant was insufficient because it did not establish the probably cause necessary to issue the warrant. Thus, evidence obtained under warrant could not be introduced at Leon’s trial.
Issue: Is there a “good faith” exception to Exclusionary Rule?
YES. There is a “good faith” exception to Exclusionary Rule. Evidence seized on basis of a mistakenly issued warrant could be introduced at trial. Majority argued Exclusionary Rule is not a right, but a remedy, justified by its ability to deter illegal police conduct.
Police followed rule but warrant turned out to be faulty
Good faith reliance on an invalid search warrant is an EXCEPTION to the Exclusionary Rule
So did not have to use Exclusionary Rule here. Evidence can be admitted here.
There was nothing there to point to something they should not have done. They did all the right things under their job. Someone else messed up.
So even though there was not real probable cause, the GOOD FAITH the officers acted on makes the evidence ok to be admitted.
Not concerned about judges and magistrates like we are about police because they are neutral in the process.
Costs of the Exclusionary Rule outweighed the benefits of it in this case.
The Exclusionary Rule is costly to society because:

Guilty Defendants go unpunished and
People lose respect for the law.

The benefits of the Exclusionary Rule are uncertain.

The Rule cannot deter police in a case like this where the police act in good faith on a warrant issued by a judge

Another exception besides good faith would be a state statute

Hudson v. Michigan

Facts: Hudson convicted of drug & firearm possession in state court after police found cocaine and gun in his home. Police had search warrant, but failed to follow 4A “knock and announce” rule that requires officers to wait 20-30 seconds after knocking and announcing their presence before entering home. Trial judge ruled evidence found could not be used, but MI COA reversed based on 2 MI SC cases that created an exception to the suppression of evidence when evidence in question would have inevitably been found.
Issue: Does general rule excluding evidence obtained in violation of 4A apply to “knock and announce” rule?
NO. The general rule excluding evidence obtained in violation of 4A does not apply to “knock and announce” rule. Court ruled evidence need not be excluded when police violate “knock and announce” rule. (Exclusionary rule does NOT apply to “knock and announce” rule). Majority held Exclusionary Rule could not be invoked for evidence obtained after “knock and announce” violation, because the interests violated by the abrupt entry of the police “have nothing to do with the seizure of the evidence.” The “knock and announce” rule was meant to prevent violence, property damages, and impositions on privacy, not to prevent police from conducting a search for which they have a valid warrant.
Court also found that the social costs of Exclusionary Rule as applied to “knock and announce” rule outweighed any possible “deterrence benefits,” and that alternative measures such as civil suits and internal police discipline could adequately deter violations.
Dissent: Noted Court’s long history of upholding Exclusionary Rule. Expressed doubt that “knock and announce” violations could be deterred without excluding evidence obtained from the searches.