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Criminal Procedure II
University of Mississippi School of Law
Mason, Donald R.

Criminal Procedure II: Adjudication- Mason- Fall 2010

Introduction (Chapter 1)

Acusatory phase- Have the government and the defense

Adjudicatory phase- Determine whether someone commits the crime or not

Goals of Criminal Procedure: a) Fair process and b) Just result

Key Provisions of the Bill of Rights
4th Amendment- Search and Seizure
5th Amendment- Grand jury, double jeopardy, self-incrimination, due process
6th Amendment – Speedy and public trial, arraignment, confrontation, process, assistance of counsel
8th Amendment- Excessive bails or fines, cruel and unusual punishment

Participants in the Criminal Justice System
a) Defendant
Main interests: To not get convicted, to receive a fair trial
b) Defense Counsel
Role: To aid the litigation process
How resources affect defense counsel’s performance: We do not have
enough resources invested in criminal defense
Caps are placed on the time spent on case because of pay grade
How zealous defense counsel should be: Stay within the Rules of Law
Represent the client’s best interest
Who prosecutor represents: The State
Duties of the prosecutor: To seek justice
Must interact directly with every other person in the process
d) Victims
Special concerns they have about the procedure: Protection, being heard,
understanding the process, need for information

Old model: They virtually have no role in the system
They were used as witnesses and to serve as evidence

New model: Focus on needs of crime victims
Some say crime victims should be given more say in what happens in the case
Now there are requirements to notify the victims when something is going to happen

e)Law Enforcement
f) Magistrates and Judges
g) Jurors
They represent the community
h) Corrections Officers
i) Public
j) Media

Stages of Criminal Justice System
1) Pre-Arrest Investigation – Can have extradition, procure witnesses, etc.
2) Arrest (or “surrender”)
3) Initial Appearance (inform of charges; set bail; advise of rights) – Not everyone is entitled to bail
4) Post-arrest investigation
5) Filing of complaint (screening and diversion)
6) Gerstein review (PC determination)- Principle of probable cause determination to hold someone
7) (First/Initial) Appearance (“preliminary arraignment”) on complaint
8) Preliminary Hearing on Grand Jury- Charging mechanism; Not everyone has one; No jury; Acts as a mini-trial
Why a Prosecutor would want to go to a grand jury
– To cover himself
– Way to share responsibility
– Testimony can be used as impeachment evidence
– Showing strength of case to facilitate discussions
– May also do this to test the case and test witnesses
– Non-trial manner in which to do this
9) Indictment on Information
10) Arraignment- Person brought before trial court; Possibly face trial; More formal process; Read the criminal charges against the defendant; Ask the defendant about having/needing an attorney; Asks the defendant how he pleads to criminal charges; Decides whether to alter bail amount or release on own recognizance; Announces date of future proceedings
11) Bail review
12) Discovery
13) Pretrial motions
14) Plea negotiation
15) Plea proceeding
16) Pretrial conference
17) Trial motions and notices
18) Trial (bench or jury)- Not everyone has a right to a jury trial; This is a waivable right
19) Verdict
20) Post-trial motions
21) Pre-sentence investigation
22) Sentencing hearing- Judgment and conviction is entered at this point
23) Reconsideration of sentence
24) Direct appeal
25) Collateral remedies
26) Violations of probation or parole/ Revocation hearings
27) Forfeitures of seized/forfeitable property
28) Other/ “collateral” consequences- License sanctions, loss of public benefits

Purpose of Procedural Rules and Role of Counsel
– 1) Correct result
– 2) Fair process

Powell v. Alabama
– White women accused black men of rape on a train
– Most certainly black men would be sentenced to death
– Case went through 2 rounds of appeals
– Served collectively 100 years in prison
– Evidence pretty strong that they did not commit the crimes

– c) Merits, strengths, and weaknesses of case – Likelihood of success
– d) Need for defendant’s cooperation
– e) Defendant’s background
– f) Impact on victims, law enforcement, community
– g) Other

In some jurisdictions, standards are developed to give better understanding of making decisions
– Generally reflect ethical principles

Many jurisdictions citizen complaints must be subjected to prosecutorial review before they are brought forth

Prosecution – Must make a decision to prosecute or not to prosecute

Inmates of Attica v. Rockefeller
– Why didn’t prosecutors indict?
– Who should have the power to make the decision?
– What inherent biases are there in the charging process?

People argued that prosecutors should be compelled to pursue prosecution of crimes
– Government declined to compel prosecutor to act

ABA Standard – Prosecutor should not be compelled by his or her supervisor to prosecute a case in which he or she has a reasonable doubt about the guilt of the accused

Decision to Seek Dismissal
– Prosecutor’s options?
– Timing?

Limits on Prosecutorial Discretion
– Statutory and Administrative Limits
– Ethical Limits
– Constitutional Limits
– Bill of Attainders
– Ex post facto clause
– Equal Protection clause
– Due Process clause

Selective/ Discriminatory Enforcement
– Violates Equal Protection Clause
– Prosecute because of speech, race, religion, or other arbitrary classification
– Presumption: Prosecutors exercise discretion in good faith

Standard: Espoused in Wayte/Armstrong
– Discriminatory Effect: Compare others “similarly situated”
– Discriminatory purpose