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Criminal Procedure
University of North Carolina School of Law
Mosteller, Robert P.

 I.            Introduction to the Criminal Justice Process
                   a.            Sources of law that create legal rights for criminal defendants and regulate procedures of criminal justice system
                                       i.            Federal const. creates a “floor” that establishes the minimum rights courts are free to establish their own “ceilings”
                                      ii.            Other sources of law that create rights for D’s or regulate the criminal justice process. 
                                                       1.            Case-law is
                                                       2.            One statutory source is the rules of court
                                                       3.            Also “local” sources of law such as city ordinances and municipal court rules which create rights and regulate crim. procedure.
                                    iii.            May be unclear whether person has been charged with a crime or a civil offense. When congress or state legislature labels a sanction as criminal, courts recognize this as sufficient to allow D to invoke such rights. If legislature labels it as civil this does not end the inquiry. SCOTUS has ruled that it is theoretically possible for a defendant to persuade a court to treat a proceeding as criminal despite its classification as civil. It is usually very difficult to win such an argument without strong evidence that the statutory scheme is punitive in purpose or effect. 
                   b.            Prosecution Systems
                                       i.            Multiple jurisdictions, major and minor crimes
1.                         may violate simultaneously the criminal law of multiple jurisdictions. 
                                                       2.            Double Jeopardy, multiple prosecutions for same act by different “sovereign” governments are not prohibited by constitution.
                                                       3.            It is up to the prosecutors in each jurisdiction to decide how to coordinate. A statute of limitations may bar prosecution in one jurisdiction, or that prosecution in one jurisdiction is particularly advantageous because of the penalty, the procedural rules, or some other reason.
                                                       4.            In federal and state jurisdictions, most prosecutions are for minor crimes. 
                                      ii.            The gap between law and practice
                                                       1.            SCOTUS, 6th Amendment guarantees trial counsel for indigent federal defendants in all criminal prosecutions, but guarantees trial counsel for an indigent state D only when she will receive a jail sentence. For appeals, 14th Amendment guarantees indigent D’s right to counsel only for the first appeal. D’s who seek to pursue claims in other circumstances have no federal constitutional right to counsel, although they may have such rights based on state constitutional or statutory law.
                                                       2.            have some discretion to ignore criminal acts or to arrest one person for certain crimes but not others. Prosecutors have discretion in their charging decisions, and in plea bargaining.
                    c.            Roles of prosecutors and defense counsel in various stages of criminal prosecution
                                       i.            The pre-arrest investigation stage
                                                       1.            Goal of most pre-arrest investigations is to obtain evidence that will satisfy the “probable cause” standard required for arrest.  standard does not require as much evidence as the “preponderance” standard for proving liability in civil claim but requires more than “reasonable suspicion” standard that allows police to stop, question, frisk, and briefly detain people during pre-arrest investigations. 
                                      ii.            A second goal is to obtain sufficient evidence to satisfy the “beyond a reasonable doubt” required for conviction or for guilty plea. The arrest stage
                                                       1.            Two different kinds of arrests:
                                                                         a.            Non-custodial “citation” arrest
                                                                         b.            Full-custody arrest
                                                                         d.            Both arrests require probably cause
                                                                          e.            The arrestee has obligation to respond to the citation either by pleading guilty and paying fine or appearing in court to contest guilt.
                                                                          e.            The request for a warrant must be supported by sworn affidavits describing investigation that led. The magistrate’s hearing on the police request for arrest warrant is ex parte.
                                                                          f.            Power to make full custody arrest carries other powers. Allows police to perform full search of arrestee’s person at scene and to search compartment of car when arresting a driver. Once person is in custody, more intrusive searches may be allowed. These searches may be made without probable cause, a warrantless arrest must be based on probable cause that will be reviewed by magistrate at a hearing after arrest. SCOTUS’ precedents establish 48 hrs. as normal deadline for such a hearing but some states have a 24 hr. deadline. 
                                    iii.            Booking and jailing stage
                                                       1.            Usually occurs at police station or jail. 
                                                       2.            Purpose of booking is to allow police to keep records of arrests and to obtain photographs and fingerprints of arrestees. may not be asked questions about the crime. may be allowed to post bail
                                                       3.            law or police custom may allow arrestee to phone a lawyer or friend if such calls are not allowed, indigent may not have any contact with defense counsel until the arraignment stage.
                                    iv.            Post arrest investigation stage
                                                       1.            Prosecutor may participate in same kinds of investigative activity that precedes an arrest may participate in activities that happen after arrest such as a lineup. Indigent has no per se right to have appointed counsel present during lineup. Not until the initiation of formal “adversarial judicial proceedings” does such a right to counsel exist. Nor does arrestee have right to appointed counsel present at a photographic “showup”.
                                                       2.            Prosecutor may participate “custodial” interrogation. no right to presence of counsel at this interrogation, but may invoke right to counsel by asking for a lawyer and thereby preclude further interrogation in absence of counsel.
                                     v.            Decision to bring formal charge by filing a complaint
                                                       1.            When a person is arrested, police have “charged” person in a sense
                                                       2.            Prosecution does not begin until a “complaint” is filed either by prosecutor or police
                                                       3.            In some cases officer will decide the charge should not be pursued and prosecutor can make this decision also. However, charges can be dropped much later
                                                       4.            Most often, prosecutor drops charges b/c of lack of sufficient evidence or b/c of unavailability of witnesses.
                                                       5.            Prosecutor may also change original charge or add charges.
                                                       6.            When complaint, it is filed in magistrate’s court. usually sets forth description of crime and citation to criminal code.
                                                       7.            If D is not in jail, there may be a time lapse of several days before first appearance but any D in jail must be brought “promptly” before a magistrate. If D was arrested without a warrant, validity of probably cause must be determined promptly by magistrate.
                                                       8.            misdemeanor, complaint will remain the “charging instrument”. felony, complaint will be replaced with indictment or “information.” Defense counsel usually doesn’t play role at charging stage unless retained by a client to attempt negotiation with prosecutor.
                                    vi.            Defendant’s first appearance in court
                                                       1.            First hearing before a magistrate has three purposes
                                                                         a.            Magistrate informs D of charge and typically describes Ds various rights
                                                                         b.            Magistrate must determine whether D is indigent and ask indigent D whether he wishes to be represented by appointed counsel
                                                                          c.            Magistrate sets bail. Magistrate may also release D and impose conditions on release. Some states allow a fourth function which is to review grounds for probably cause for a warrantless arrest. For misdemeanor cases triable in magistrate’s court, fifth function of 1st appearance is to ask for D’s plea on the record.
                                  vii.            Preliminary he

                        v.            Selective incorporation represents a hybrid or compromise b/w earlier analytical methods. 
                                                       1.            To determine whether a protection from BOR applies to states under selective incorporation, it is necessary to look at 1) the entirety of the right, not just as it applies to a particular set of facts and 2) whether the provision is fundamental to anglo-american jurisprudence.
                                    vi.            Court has refused to find that only two portions are expressly applicable to states through 14th amendment . 8th amendment prohibition of excessive bail and 5th amendment requirement for grand jury indictment for felony.
                   b.            Retroactivity 
ii.                     Court asserted that the benefit of a new rule would not extend to persons whose convictions became final prior to its adoption. Linkletter v. Walker, the Court thus applied the exclusionary rule in a forward looking fashion except to the extent the litigant and person who had not played out the full string of appeals.
                                    iii.            Linkletter Doctrine, could be claimed by persons whose cases still were on direct review
                                    iv.            In Stovall v. Denno, Court determined that a newly imposed requirement of counsel at lineups governed only police activity that post dated the rule.   
                                    vi.            In Teague v. Lane, retroactivity should not extend to habeas actions
                                                       1.            two limited exceptions suggested to the general prohibition on announcing or applying new rules in collateral proceedings. First, a new rule should be applied retroactively if it places “certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe.” Second, a new rule should be applied retroactively if it requires the observance of “watershed rules of criminal procedure.” 
                                  vii.            A critical determinant of retroactivity is whether a principle is driven by precedent or establishes a new rule
                                 viii.            a new rule is announced “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” 
                                     x.            Butler v. McKellar, 494 U.S. 407 (1990)
                                                       1.            Facts: After his conviction became final on direct appeal, D collaterally attacked his conviction by way of federal habeas corpus. On the same day the Fourth Circuit denied D’s rehearing petitions, SCOTUS issued decision of Roberson. In Roberson, the court held the 5th Amendment bars police-initiated interrogation following a suspect’s request for counsel in the context of a separate investigation.   
                                                       2.            Issue: Whether the rule in Roberson comes within one of the two exceptions under which a new rule is available on collateral review.
                                                       3.            Holding: The “new rule” principle validates reasonable, good faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions. Because a violation of Roberson’s added restrictions on police investigatory procedures would not seriously diminish the likelihood of obtaining an accurate determination, we conclude the Roberson did not establish any principle that would come within the second exception. AFFIRMED.
III.            The Right to Counsel
                   a.            Generally
                                      ii.            Betts v. Brady
                                                       1.            Facts: was unable to employ counsel. He requested that counsel be appointed judge advised him that this could not be done