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

Robert Mosteller Criminal Procedure Fall 2013
A.      General
1.        Fourth Amendment
a)       Fourth Amendment: 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 probably cause…”
2.        Fifth Amendment
a)       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.
3.        Sixth Amendment
a)       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 defence
4.        Eighth Amendment
a)       Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
B.       The Criminal Justice System
1.        Goals of Criminal Procedure
a)       Correct result + fair process
2.        Participants
a)       Defendants
(1)     Want to ensure constitutional rights are respected;
(2)     Interest to have an opportunity to zealously contest the charges against them
b)       Defense counsel
(1)     Advocate with courage and devotion and to render effective, quality representation
c)        Prosecutors
(1)     Represent victim and thus the people/community;
(2)     Duty is to seek justice not merely to convict;
(3)     Decide which cases to charge, whether to plea bargain, trial strategies and sentencing recommendations.
d)       Victims
(1)     Represented by prosecutors
(2)     Some states allow victims limited right to observe criminal proceedings
(3)     Do not control the handling of criminal cases
e)       Police
(1)     Make the initial decision of whether to investigate a case and whether to arrest and charge an individual with an offense.
(2)     Focus is on safety of community
(3)     Have enormous discretion
(4)     Investigative criminal procedure
(5)     Focuses on what procedures police may use when apprehending and investigating ∆s
(6)     Addresses rules for searches, seizures and interrogations of ∆s.
f)        Magistrates and judges
(1)     Neutral decision makers in criminal justice system.
(2)     Ensure ∆s’ constitutional rights are respected.
(3)     May review police conduct to determine if evidence should be suppressed.
g)       Jurors
(1)     Grand jurors
(1)     Oversee investigations of cases and decide whether to return indictments against individuals for specific crimes.
(2)     Trial jurors
(1)     Fact-finders in most criminal trials; decide whether there is sufficient evidence to convict a ∆.
(2)     Ordinarily have to make key credibility decisions
h)       Corrections officials
(1)     Have responsibility of supervising ∆’s incarceration or release on parole or probation.
i)         Public
(1)     Primary concern is safety but also have financial interest in ensuring that cases are efficiently prosecuted and that gov’t officials respect the constitutional rights of citizens.
j)        The media
(1)     Interest in serving as check on gov’t powers.
(2)     Sometimes interest of media easily comes into conflict with a ∆’s Sixth Amendment right to a fair trial.
C.       Stages of the Criminal Justice Process
1.        Process (typical route)
a)       Pre-arrest investigation
(1)     On-the-scene arrests
(2)     Goal= obtain evidence that will satisfy PROBABLE CAUSE standard required for both arrest & judicial validation of a decision to charge D with a crime
(3)     In most cases, police do all the investigation before Prosecutor comes into case
(4)     Defense counsel sometimes advises during pre-arrest
b)       Arrest
(1)     Non-Custodial “Citation”= need probable cause; minor crimes (traffic violations)
(2)     Full-Custody Arrest= need probable cause; forcibly detain arrestee, booking at police station, jailed or released to await P’s review and decision to charge
(3)     Warrants: most arrests are made w/out a warrant as exceptions to 4th Amend
(1)     Warrantless arrests must be based upon probable cause that will be reviewed by magistrate hearing after the arrest
c)        Booking & Jailing
(1)     Allows police to keep records
(2)     Minor crime arrests may be able to post bail and be released on their own recognizance
(3)     State/local law or police custom may allow arrestees to contact lawyer/friend
(1)     If not allowed, indigent arrestee might not have contact w/ defense counsel until arraignment
d)       Post-Arrest Investigation
(1)     Right to counsel doesn’t exist until the initiation of formal ADVERSARIAL JUDICIAL PROCEEDINGS
(2)     Miranda rights are invoked because there is a custodial interrogation
(3)     Arrestees have no right to defense counsel presence at interrogations, but can invoke right to counsel by asking for a lawyer, precluding further interrogation in counsel’s absence
e)       Filing the Complaint
(1)     Can drop (b/c of lack of evidence, witness unavailability, etc.), change or add additional charges
(2)     Prosecutors/police file complaints in a magistrate’s court (arrestee now a Δ)
(3)     Complaint contains description of crime, citation to the criminal code, and police/victim signature
(1)     Misdemeanor: complaint = “charging instrument” for prosecutor, usually tried in magistrate ct
(2)     Felony: complaint replaced w/ different instrument after proceedings and case proceeds to ct where trial will occur (ie- grand jury indictment, “information”)
f)        Gerstein Review
(1)     When the magistrate judge must review prosecution’s complaint and supporting affidavit to determine whether there is probable cause supporting initial charges against ∆.
(2)     This review is done ex parte (in the interest of one side) and is based upon the filings alone.
g)       First Appearance/Arraignment on Complaint
(1)     ∆ has right to go before magistrate judge “without unnecessary delay,” which is usually within 48 hours of ∆’s arrest (Rule 5 of FRCP).
(2)     Timing depends on custodial status and nature of the arrest.
(3)     Magistrate informs Δ of charges and describes Δ’s rights, determines whether Δ is indigent and wishes to be represented by counsel & sets bail for Δ
h)       Grand Jury or Preliminary Hearing
(1)     Grand jury
(1)     For federal felonies, ∆ is entitled to grand jury indictment (5th Amendment)
(2)     Consists of 23 members of community
(3)     No judge, nor is ∆ or his counsel required to be present
(4)     States are not bound to use grand juries nor do they have to use same procedures.
(2)     Preliminary hearing
(1)     Majority of jurisdictions use these hearings to decide whether there is enough evidence to a hold a ∆ for trial and to settle which charges prosecution will bring.
(2)     No jury is present; judge decides whether there is probable cause to “bind the case over” for trial.
(3)     This is an adversarial process (search for the truth) and both sides have opportunity to cross-examine witnessesàgives defense counsel an advantage by giving insight into P’s evidence/strategy
i)        Arraignment on Indictment or Information
(1)     Where ∆ enters guilty or not guilty plea then is advised of charges and assigned counsel (if not yet assigned)
(2)     Trial date assigned (must comply with “speedy trial”)
(3)     Plea negotiations begin; most cases are resolved by guilty plea
j)        Discovery
(1)     Process by which parties seek to examine the evidence that the other party is likely to use at trial.
k)       Pretrial Motions
(1)     Help parties define scope of their own cases and to assess the relative strength of the other side’s case.
(2)     Defense:
(1)     May seek to suppre

ovide counsel when defendant cannot afford one was not violated, and the Supreme Court cannot change that decision.
(4)     Held: To uphold the Fourteenth Amendment requirement of due process, in a capital case, if the defendant cannot afford an attorney and “is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like,” the court must assign counsel even if not requested by the defendant.
b)       Patterson v. Former Chicago Police Lt. Jon Burge (N.D. Ill. 2004)
(1)     Facts: Area 2 police officers beat and suffocated false confessions out of people and Patterson ended up serving 13 years on death row before being exonerated and filing suit against his attacking officers. Patterson was leader of a local crime group. The cops were trying to both take Patterson down and show the public that someone was paying for the murder of this old couple. The cops may have felt the ends justify the means, but for criminal procedural fairness, this is not sufficient.
E.  Application of the Bill of Rights to the States
1.        The Provisions of the Bill of Rights and the Idea of “Incorporation”
a)       General:
(1)     Incorporation of the Bill of Rights is the process by which American courts have applied portions of the U.S. Bill of Rights to the states.
(2)     Prior to the 1890s, the Bill of Rights was held only to apply the federal government.
(3)     Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments by virtue of the due process clause of the 14th Amendment.
b)       Relevant case history
(1)     Barron v. Mayor & City of Baltimore (U.S. 1833): SCOTUS held that the Bill of Rights applied only to the federal but not any state governments.
(2)     Chicago, Burlington & Quincy Railroad v. City of Chicago (U.S. 1897): Beginning of finding that at least some BOR provisions are part of the liberty protected from state interference by the Due Process Clause of the Fourteenth Amendment. SCOTUS held that Due Process Clause of 14th Amendment prevents states form taking property without just compensation.
(3)     Twining v. New Jersey (U.S. 1908): SCOTUS looked at whether a jury in state court could draw an adverse inference against a criminal ∆ for failing to testify and held that this didn’t apply to the states but stated it was possible that some of the personal rights safeguarded by the first 8 amendments against national action may also be safeguarded against state action. This case opened the door to SCOTUS applying provisions of BOR to states finding them to be included into the Due Process Clause of the Fourteenth Amendment.
(4)     Gitlow v. New York (U.S. 1925): SCOTUS said that the First Amendment’s protection of
freedom of speech applies to the states through its incorporation into the Due Process Clause and rejected the constitutional challenge to a state law that made it a crime to advocate the violent overthrow of gov’t by force or violence.
(5)     Fiske v. Kansas (U.S. 1927): SCOTUS for the first time found that a state law regulating speech violated the Due Process Clause.
(6)     Powell v. Alabama (U.S. 1932): SCOTUS found a state’s denial of counsel in a capital case denied due process, thereby in essence applying #6 to the states in capital cases. The court concluded that Due Process Clause protects fundamental rights from state interference and that this can include BOR provisions.