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

·                      “Investigatory criminal procedure” (4A, 5A, and 6A)
·                      “Accusatory criminal procedure”
o         5A and 14A – right to due process
o         6A – right to counsel and a speedy public trial
o         8A – prohibit excessive bail and dbl jeopardy; the rules of procedure enacted by Congress or the states
The Participants in the Criminal Justice System
1.     Ds
o         Opportunity to zealously contest charges
o         Ordinarily represented by counsel – appointed or retained
2.     Defense Counsel
o         Represent Ds in criminal actions
o         Basic duty defense counsel owes to administration of justice and as officer of the ct is serve as D’s counselor and advocate w/courage and devotion and to render effective, quality representation
o         S Ct recognizes right to assistance of counsel in all cases in which D faces incarceration
3.     Prosecutors
o         Prosecutors represent the community in criminal actions
o         Fed’l prosecutors represent U.S. and are assigned by local U.S. Atty’s Office or Dep’t of Justice
o         City or district atty, and county prosecutor represent local jurisdiction; State atty gen’l represent state at large
§     Most state prosecutors are elected, unlike U.S. Atty
o         Duty of prosecutor is to seek justice, not merely to convict; represent the gov’t
o         Prosecutors enjoy great discretion in the exercise of their duties; can decide which cases and Ds to charge, what charges to bring, and how serious a sentence to seek
o         During investigative phase of trial, may responsible for supervise work of police and investigators
§     May require prepare search warrants, issue subpoenas, and supervise grand jury proceedings
4.     Vs
o         Vs’ interest are represented in criminal cases by the prosecutor
o         Prosecutors decide which case to charge, whether to plea bargain, trial strategies, even sentencing recommendations
o         Crimes are considered offense against entire community and not just individual Vs
5.     Police and Other Law Enforcement Officers
o         Ensure public safety, investigating allegations of crimes, apprehending individuals responsible
o         Make initial decision of whether to investigate a case, and whether to arrest and charge individual w/an offense
o         Investigative criminal procedure addresses rules for searches, seizures, and interrogations of Ds
o         Primary fed’l law enforcement agencies: Fed’l Bureau of Investigation (FBI), the Secret Service, the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco and Firearms (ATF), the Bureau of Customs and Borders Prosecution (CBP), Immigration and Customs Enforcement (ICE), and Securities and Exchange Commission (SEC)
6.     Magistrates and Judges
o         Neutral decision-makers in criminal justice system
o         Duty to ensure D’s const’l rights are respected
o         Magistrates determine whether issue search or arrest warrants, whether there sufficient evidence to hold an arrested D, and whether grant bail
o         Both may review police conduct to determine whether suppress evidence b/c const’l violations
o         Judges supervise criminal trials
7.     Jurors
o         Two types of jurors: grand jurors and trial jurors
o         Grand jurors oversee investigation of cases and decide whether to rtn indictments against individuals for specific crimes
o         Trial jurors, by contrast, are fact-finders in most criminal trials; a/f listen all evidence, decide whether there sufficient evidence to convict D
8.     Corrections Officials
o         Responsibility of supervising D’s incarceration or release on parole or probation
9.     Public
o         Primary concern is safety
o         Financial interest in ensure cases efficiently processed, and gov’t officials respect const’l rights of citizens
10.    Media
o         Interest in covering criminal cases and serve as check on gov’t powers
Stages of the Criminal Justice Process
Step 1: Pre-Arrest Investigation
·                      Officers may make own observations, use accts of others at scene, to gather min amt of info necessary to execute arrest
·                      For on-the-scene arrests, majority of investigation occur a/f suspect already in custody
·                      Lengthy investigation will typically occur b/f suspect arrested
·                      Police use investigative tools, such as search warrants, interviews, informants, and evidence collection to seek formal charges against suspect b/f execute arrest

unity, listen to evidence presented by prosecution and decide whether PC to prosecute D
o         No judge in grand jury, nor D or defense counsel entitled to be present
o         Prosecutor gen’lly directs grand jury operations –
§     If there PC, issue indictment or “true bill” if not, “no bill”
o         Also have power investigate cases by calling witnesses or issuing subpoenas
·                      Although some states choose to use grand juries in felony prosecutions, not bound to do so by 5A
·                      Also, need not use same procedures as fed’l grand juries
o         Unlike fed’l grand juries, some states may limit type of evidence grand juries may hear, or give defense greater opportunity to present evidence to grand jury
·                      Another mechanism to screen cases b/f trial is the preliminary hearing
o         Const’n not req’s preliminary hearings, but majority of juris’n use to decide whether there enough evidence to hold D for trial, and to settle on which charges the prosecution will bring
o         Preliminary hearing differ from grand jury proceeding
o         No jury present
o         Judge presiding over the hearing decides whether there PC to “bind the case over” for trial
o         Although procedures differ by jurisdiction, both sides gen’lly given opportunity to present evidence
o         In some juris’n, hearsay evidence can used to establish PC
o         Both sides have opportunity to cross-examine witnesses
o         Preliminary hearing gibes D preview of prosecution’s case
o         If prosecution not establish PC for particular charge, ct can reject that charge
o         If all charges rejected, ct may order case dismissed
o         If D bound over for trial, ct replace complaint w/formal info charge D w/offenses will face at trial
Step 7: Arraignment on Indictment or Info