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Criminal Procedure
University of North Carolina School of Law
Rosen, Richard A.

Criminal Procedure
vCourse deals with the constitutional restraints on police – what protections are afforded to people before they walk into the courtroom. 
vWhy does Constitutional law play such a large role in regulating the activities of the police? 
o   We have a Constitution with a Bill of Rights, unlike many other
vCodes of criminal procedure are really just codified versions of the Supreme Court’s decisions. Why have the courts been allowed to do this?
o   As recent as the 1950’s, there really weren’t any rules with regard to criminal procedure. 
Goals of a code of criminal procedure:
o   Efficiency in processing criminals
o   Preserve dignity/rights of individuals
o   Minimize error – accuracy
o   Economical
o   Want the system to be fair & to be perceived as fair.
o   Protects society
vIf we wanted police to be able to make society absolutely safe, what type of restraints should we put on police? à none, or very few.
Motions to Exclude (suppression motions)- formally asking the court to disallow a certain piece of evidence because something was done or not done (i.e. – police violated your constitutional rights). 
Important to know what the procedural posture is for the various cases
Perspectives of the Criminal Justice System as a Whole
vPacker- The Courts, The Police and the Rest of Us
o   Criminal justice system is a conflict/compromise between the Due Process Model and the Crime Control Model. 
The Idea of Due Process
vThe government has a monopoly on the criminal justice system. The government is charged with conducting investigations, trials, etc. 
vThe due process clauses protect life, liberty and property – as the criminal justice system necessarily revolves around taking these things away from criminals, Constitutional protections are very important. 
v14th Amendment (1868)- guaranteed us due process – this was basically a notion of a fair system, one that values equality and gives you the opportunity to exercise your rights, etc.
vThe 14th amendment was seen as an “invitation to courts to define limits on the criminal justice system.” -Hertado v. California (U.S. 1884) was the first time that the court really accepted that invitation. 
Hertado v. California (U.S. 1884)
Defendant was charged and convicted of 1st degree murder, but he was originally charged by information rather than via grand jury indictment. Defendant claimed that the absence of a grand jury indictment for a serious crime violated his 14th Amend. right to rue process. The Fifth Amendment and, by extension, the 14th amendment held that no person
Basically, the court held that, as long as you get some process and the process is not arbitrary, you have had enough process. Here, the suspect
Still no right to an indictment- Hertado is still good law on this
Dissent (Harlan)- says that this decision will mean that the Bill of Rights will no longer apply when considering Due Process
Duncan v. Louisianna  (U.S. 1968)
Young African American boy charged with simple battery (slapping a white boy on the elbow). He asks for a jury trial but is denied and faces a bench trial with a possible sentence of 2 years in prison plus a hefty fine.
Conduct rules – rules that say what law enforcement should/shouldn’t do. This hasn’t changed much over the years. 
Decision rules- rules which tell the courts what they’re supposed to do (suppress evidence, penalize the gov’t). These rules have changed over time. 
Criminal Procedure is really a conflict between the Supreme Court and police. Really a one-way street- Court tells police what they may/may not do.
Anthony Amsterdam- The Supreme Court and the Rights of Suspects in Criminal Cases
vThe effects of the Supreme Court’s role in the criminal justice system are often misinterpreted – people think the Court hands down a decision and that police enforce it immediately. In reality, the Court is far removed from the criminal justice system. 
o   The Court lacks any real supervisory power over the practices of police- it can only review their acts and then address those acts in regard to the rights of the suspects affected by those practices.
o   The Supreme Court is uniquely unable to take a comprehensive view of criminal suspects’ rights.
Duncan was the capstone on the incorporation debate. Justice Black was very much in favor of a total incorporation approach to having the 14th amendment apply the Bill of Rights to the states. 
– Other justices (Harlan) were selective incorporationists- looked at whether the individual rights were needed to protect fundamental fairness. 
– Duncan said that, in state courts, you have the same right to a jury trial that you would have in a federal court. That is, if the eligible penalty is more than 6 months, you have a right to a jury trial. – Don’t have the right to a jury trial for “petty crimes” (prostitution, etc.)
Lewis v. United States (U.S. 1996)- tell us that the “more than 6 months” requirement of Duncan cannot aggregate. That is, if you have a 100 petty crimes with eligible penalties of less than 6 months, you are not eligible for a jury trial. 
Rules v. standards
standards- guidelines- these give courts much more discretion when interpreting & applying the law.
rules- more hard and fast
3 events of the 1950’s the led to the constitutionalization of criminal procedure
– The expansion of the due process clause
-Expansion of the habeas corpus statute- allowed the lower federal courts to hear cases looking at whether there were unconstitutional practices involved in state cases.
– More expansive interpretation of the Bill of Rights- courts became more willing to interpret the various provisions of the Bill of Rights as including more protections. 
The Right to Counsel
– Sixth Amendment- “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” 
– Our legal system has so many rules and pitfalls in it that trying to navigate it without a lawyer is almost like showing up for surgery without a doctor being there. 
Some history:
vEnglish common law denied accused felons the right to counsel.
vEarly in our nation’s history, federal law required the appointment of counsel in capital cases – many states followed suit.
Powell v. Alabama (U.S. 1932)
o   Supreme Court held that, in capital cases, the Fourteenth Amendment’s due process rights require that a defendant have the effective assistance of counsel.
o   However, Powell’s guarantee of assistance of counsel was limited to situations in which the defendant was “incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy or the like.” 
v Essentially, Powell created the special circumstances rule- a defendant must be given or at least have the ability to obtain, effective assistance of counsel if that defendant is unable to defend himself adequately.
Hamilton v. Alabama (U.S. 1962)
o   Did away with the Powell’s “special circumstances” rule with regard to capital cases. – Gave an outright requirement of counsel in capital cases. 
Johnson v. Zerbst (1938)
o   Held that there was a right to counsel in federal felony prosecutions. 
Betts v. Brady (1942)
o   Betts argued that the right to counsel set up in Zerbst extended to state courts as well as federal courts. – S

ake every offense punishable by imprisonment and then provide counsel.
“Critical Stages” of Criminal Proceedings
vColeman v. Alabama (US 1970) – Supreme Court held that the right to counsel applies at “every critical stage of a criminal prosecution.” 
o   When does a “criminal prosecution” begin?
vWhenever adversary judicial proceedings are instituted against the defendant- could be as early as the initial appearance/ formal charging (Brewer v. Williams- US 1977) and continues until the trial judge makes a final sentencing determination- Mempa v. Rhay (US 1967- where the Court held that the right to counsel is applicable at a probation revocation hearing at which the judge imposed a sentence).
vIn North Carolina, the first thing that happens when you are arrested is that you go before a magistrate. – there has been an argument that this is the commencement of judicial proceedings but this argument has not won yet.
o   Which stages are “critical?” 
vCritical apparently refers to any interaction between the defendant and the state that could adversely affect the defendant’s ability to exercise a legal right. The following have been recognized as “critical” stages:
·         Preliminary hearings (Coleman)
·         Initial appearances (Brewer)
·         Arraignments (Hamilton v. Alabama)
·         Informal meetings between defendant and representatitves of the state that are meant to get info from the defendant
o   At what point does the 6th Amendment right to counsel run out? –    à after sentencing
vMorrisey v. Brewer (U.S. 1972) – parole revocation is not part of a “criminal prosecution” but that certain “procedural protections” apply at parole revocation hearings.
·         Gagnon v. Scarpelli (U.S. 1973) – the Court held that one of the “procedural protections” alluded to in Morrisey is the right to counsel at parole or probation revocation hearings where (unlike in Mempa), sentence is not imposed at that hearing but where there are “special circumstances.”
Identification Procedures
vThere are a number of different types of identification procedures:
o   Line-ups- bunch of people shown to the witness at once; witness tells police whether or not the offender was there. 
o   Show-ups- police bring in suspect, ask witness if that’s the person they saw. 
o   Photographic ID’s- Witness is shown a picture. Sometimes an array of photos are shown. 
o   Scientific procedures- DNA / Fingerprinting etc. have much higher reliability than eyewitness identification procedures. 
vWe know that eyewitness identifications are often inaccurate. Misidentification occurs something like 40% of the time. Therefore, why not just ban eyewitness testimony? 
o   Doing so would really undercut the criminal justice system- undermine its credibility. Additionally, how would society react to a system that would not allow victims and other witnesses to testify about the offender that they knew they saw.