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Criminal Procedure: Adjudication
University of North Carolina School of Law
Muller, Eric L.


Crim Pro Adjudication

Fall 2011

1. Important Amendments:

a. 4th

i. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

b. 5th

i. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

1. Privilege against self incrimination may be waived. A d who does take the witness stand is universally held to have waived his privilege as to any matters within the fair scope of cross-examination. May not plead the 5th on any cross examination within scope of his direct testimony.

2. Further, all jurisdictions agree that d may be extensively cross examined for impeachment purposes and may not plead 5th. Hobson Choice: by taking the stand, d opens himself up to cross examination about any prior convictions that shed light on his reputation for truthfulness. May also be questioned about any felony conviction not involving dishonesty if the probative value outweighs its prejudicial effect on accused.

c. 6th

i. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

d. 8th Amendment bans “excessive bail” but does not explicitly guarantee a right to bail. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

e. Discovery of Truth

i. Core value being served is truth-finding. Court is to be faithful to the belief that the harmless-error doctrine is essential to preserve the “principle that the central purpose of the criminal trial is to decide the faction question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Arizona v. Fulminante (1991)

ii. Hard to argue against pursuit of truth.

f. Adversary Adjudication

i. Our system is not pure adversary adjudication as our Judge’s do not have to simply remain as silent observer/judge, but can take actions.

ii. System should harness energy of self-interest.

iii. In the end, truth will emerge.

g. Accusatory Adjudication

i. The burden of proofàestablishing the truth or guilt rests on the state.

h. Minimizing Erroneous Convictions

i. Care far more about wrongful convictions than leaving a guilty person unpunished.

i. Minimizing the burden of accusations and litigation.

j. Lay Participation

k. Respecting the Accused’s Dignity

l. Maintaining the Appearance of Fairness

m. Achieving Equality

n. Husbanding Scarce Resources

2. Decision to Begin Formal Criminal Proceedings

a. Discretion

i. Discretionary power of law enforcement officers is largely unrestrained in any legal sense.

1. In contrast with European systems, the prevalence of the discretionary power of law enforcement to refrain from enforcement even when enforcement is appropriate.

2. Policeman and Prosecutors have discretionary power to refrain from arresting or prosecuting.

ii. This discretionary power creates a power of selective enforcement.

iii. The courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the U.S. in their control over criminal prosecutions. (Attica case) U.S. v. Cox (1965) p25

1. What we are being asked to do would violate the separation of powers.

2. Judicial incapacity to supervise prosecutions

3. Legislative intent to supervise prosecutions will also not be followed.

a. The court reads the word “required” as optional, not mandated.

b. Victim Discretion

i. If the crime charged is a misdemeanor or non-serious felony, chances are good that the case will be dismissed if the victim so desires unless specific circumstances other than the victim’s desires predominate.

ii. Factors to whether police officers defer to victim:

1. Whether or not victim was a wrongdoer in the alleged criminal event

2. Whether the victim and alleged offender are related in any way

3. Socioeconomic status

4. Victim’s underlying motive for seeking an arrest.

5. The seriousness of the crime

iii. Prosecutors and judges view stranger crimes as more serious

rcement) Yick Wo v. Hopkins

ii. To dismiss on selective prosecution grounds one must prove:

1. Member of protective group/engaging protected activity &

2. disparate impact &

3. discriminatory or insidious purpose. Oyler v. Bowles

iii. If basis of defendant’s acquittal is a legal question—gov can appeal that. Otherwise it cannot because of double jeapordy.

iv. U.S. v Armstrong (1996)–Prosecution of black defendants for crack cocaine. Claim is prosecution is singling out black crack cocaine defendants to be prosecuted federally vs state. Huge difference in penalties. 100 to 1 ratio – 1 gram of crack treated as 100 gram of powder cocaine.

1. In order to prevail on a discovery motion, must come in with “some evidence” of disparate impact & discriminatory purpose.

2. Supreme Court says not enough to get discovery.

b. Due Process (Vindictive Prosecution)

4. NC Rules of Professional Conduct

a. Can be disciplined for not following

5. ABA Standards for the prosecution

6. Presentation of a False Defense (Subin)

a. Some purport that the presentation of a false defense is justified by:

i. Right to a Defense

ii. Needs of the Adversary System

b. Our interest in not convicting the innocent permits counsel to put the state to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. U.S v. Wade

c. State interest in preventing conviction of the innocent grants criminal defense counsel freedom to discredit a witness he knows to be telling the truth against his guilty client. The search of Truth is not our only concern. Here, our concern of preventing wrongful convictions outweighs the concern for truth. Also a state interest in protecting the factually guilty from overreaching by the state.

i. Can an attorney really ever know the truth?

ii. Professor Subin thinks so.

iii. “In your capacity as an advocate you are forbidden to act on your personal knowledge of the truth, as you would do as a private person, because the adversary system could not function properly if lawyers did so.