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Criminal Procedure II
University of Mississippi School of Law
Clancy, Thomas K.

Criminal Procedure II


Spring 2014

1. Class 1 – 1/23/2014

a. The Criminal Process –

i. Pre-judicial events

1. A crime!

2. Police investigation

a. Searches, seizures

b. Arrests

c. Interrogations

d. ID procedures

3. Criminal Procedure I – Investigation

a. Constitutional regulation of police practices.

ii. The Judicial process

1. Institution of criminal proceedings – pretrial events

a. Preliminary hearing

b. Indictment

c. Grand jury

d. Detention and bail

e. Venue

f. Right to speedy trial

g. Discovery

h. Double jeopardy

i. Joinder and severance

j. Plea bargaining, guilty pleas

2. Criminal Procedure II – adjudication

b. Class info:

i. DATES MATTER HERE. Put the date of the decision next to the name of the case.

c. Background info:

i. Constitution and bill of rights only explicitly related to and regulated the federal government.

ii. Incorporation through the 14th amendment.

1. Not incorporated:

a. Quartering of troops, grand jury indictment, unanimity of jury verdicts in criminal cases, excessive fines prohibition.

2. Class 2 – 1/28/14

a. (a) in general

i. book: 795-805

1. 3 [Amendment VIII]

ii. suppl (on blackboard): Bail Reform Act § 3141 (a), § 3142 (a)–(d), (g), (h), (j)

1. Rule 5 initial appearance

2. Rule 58 (b)(2)

b. (b) preventive detention

i. book: 805-21

c. Federal Rule 5 initial appearance

i. (d) procedure in felony cases

1. Judge must inform defendant of

a. Complaint, any affidavit filed with it

b. Right to counsel (retained or appointed)

c. Opportunity for pretrial release

d. Any right to preliminary hearing

e. Right not to make statement, statement held against them

2. Defendant has opportunity to consult attorney

3. Judge must detain or release

4. Usually there is no plea

ii. Analysis of federal Rule 5 initial appearance

1. Triggers right to counsel.

a. Initial appearance begin that process.

2. If it is a felony case, the next hearing is a preliminary hearing

3. The defendant has a right to make a statement, but anything can be used against him.

a. Attorney would tell him to shut up, regardless of the nature of his statement.

4. Judge decides if the person is to be detained or under what circumstances he may be released.

a. Are they going to be monitored? Can they leave the county? Are they in the care of someone?

d. Right to bail

i. Eighth amendment – excessive bail shall not be required.

1. As a general principle

2. According to the Supreme Court – there is no right to bi

ii. 1951 – Stack v. Boyle – opinion written by Chief Justice Vinson

1. “Traditional right to freedom before conviction … serves to prevent infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence secured only after centuries of struggle, would lose its meaning.”

2. There is no right to bail under the Eighth Amendment – it says that excessive bail is unconstitutional, but not that a lack of bail is unconstitutional.

iii. 1987 – United States v. Salerno – opinion written by Chief Justice Rehnquist

1. Eight protects against excessive bail, not sets bail as an absolute right.

iv. What is excessive?

1. Boyle says must be reasonably calculated to assure presence of defendant.

2. BRA says you may not impose financial condition that results in pretrial detention of person

v. Hypotheticals

1. Boston judge sets bail for 12 year old boy charged with possession of gun in

s), comply with ALL laws, medical, psychological, psychiatric.

3. Financial: post bond

a. Surety bonds –

i. bondsman puts up the money and defendant typically pays 10% for that service.

b. Unsecured bonds:

i. Only have to pay if he fails to show

c. Percentage bond

i. Defendant pays certain percentage of bond – gets it back if he shows up.

viii. Consequences of violation of conditions

1. CRIME: Failure to appear (§ 3145)

2. Bond forfeiture (§ 3146(d))

3. CRIME: committing another crime on release (§ 3147)

a. Get consecutive sentence

i. Ten year for no felony

ii. One for misdemeanor

4. Sanctions (sec. 3148)

a. Contempt of court

b. Revocation

c. Detention

5. Bail bondsman can pick you up (§ 3149) – gets money back

ix. Preventive detention: BRA

1. Permits detention if the government shows:

a. Defendant is a danger to safety of another person, community OR

b. No release conditions will reasonably assure appearance. § 3142(e)

2. Must hold hearing upon government motion when

a. Crime of violence

b. Offenses with maximum sentence of life/death

c. Drug offenses with max of 10+ years

d. Previous convicted of two or more specified crimes

e. Serious risk of flight

f. Felony involving minors (pedophiles, child pornographers)

g. Felony with firearm, dangerous weapon, etc.

h. Serious risk of obstruction of justice, intimidate/injure witness, juror