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

Criminal Procedure
Professor Muller
Fall 2010
I. Charging decision
A.    Background
1.            Complaint – First charging document; alleges a certain crime was committed and that there is probable cause to believe defendant committed it.
a)    Two distinctions: whether to charge defendant and what he is charged with.
b)    May also set out culpability standards.
2.            Initial appearance:
a)    Confirms defendant’s identity
b)    Informs defendant of right to counsel
c)    Inquiry into indigence – can they afford attorney?
d)    Notifies defendant of charges against him
e)    First point at which pre-trial release or detention discussed.
3.             Gerstein Hearing (probable cause hearing)
a)     Review of probable cause
b)    Initial appearance + Gerstein hearing must occur within 48 hours of detention
c)    If person is detained pursuant to an arrest warrant, a Gerstein hearing is not required since a magistrate has already made an independent determination of probable cause.
B.    Judicial review
1.            Limited judicial review of the charging decision. This stage in criminal adjudication is insulated from judiciary with utmost discretion vested in prosecuting attorney. Only limitations are those protected by Constitution, like no proceeding without probable cause.
C.   Decision not to charge
1.            Wholly insulated from review. Left to prosecutor’s discretion and citizens cannot compel prosecution.
D.   Decision to charge
1.            As long as prosecutor has probable cause to believe accused committed an offense defined by statute, the decision of whether or not to prosecute, and what charge to bring or file, generally rests within prosector’s discretion.
a)    Within limits set by legislature valid definition.
E.   Case screening
1.            This is the point where the determination is made whether or not case should proceed.
a)    Federal cases>Grand Jury – considers the question of probable cause and whether there was offense and defendant committed it. 
(1)          If yes, they’ll return indictment setting out the charges against defendant. This true bill replaces initial complaint. 
(2)          If no, the case won’t proceed. 
b)    State cases>preliminary hearing – a magistrate considers the question of probable cause, and whether there was offense and defendant committed it.
(1)          If yes, the trial judge “binds the case over” for trial.
(2)          Prosecutor files an “Information” to replace initial complaint.
c)    Differences between the two:
(1)          Grand Jury is an ex parte proceeding, insulated from the public and one one side is present.
(2)          Preliminary hearing is an open proceeding where defendant is present, has rights to counsel, cross-examine witnesses, present evidence, etc.
d)    Purpose of both is to see if there’s enough evidence to go to trial.
F.    Arraignment
1.            Formally advises defendant of the charges in the indictment or information.
2.            Defendant notified of procedural rights.
3.            Question of entitlement to counsel revisited
4.            Question of pre-trial release revisited
5.            First instance when defendant asked to enter a plea
6.            After arraignment, defendant puts for motions to:
a)    Dismiss indictment
b)    Suppress
c)    Limine (focused on early trial rulings on admissibility of evidence)
d)    Sever or join
G.    Right to counsel (not grounded in 6th Amendment but in equal protection and due process clauses)
1.            Not an affirmative right to waive counsel but an affirmative right to self-represent.
a)    Defendant may represent himself if:
(1)          He’s competent and able to understand the proceedings, can assist in his own defense. 
(2)          Assertion of right is knowing, intelligent and voluntary.
(3)          There has been a colloquy between the defendant and the judge – where the judge believes defendant understands the charges, punishments and understands the complexities of self-representation.
2.            The right to have counsel does not extend to using perjury. To seek relief, the movant must establish both serious attorney error and prejudice. 
a)    Movant must establish that the assistance rendered by counsel was constitutionally deficient in that “counsel made errors so serious that counsel was not functioning as counsel guaranteed by 6th amendment.”
b)    Must be established that the claimed lapses in counsel’s performance rendered at trial were unfair so as to undermine confidence in the outcome of the trial.
3.            6th Amendment inquiry as to whether the attorney’s conduct was “reasonably effective.”
a)    Reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable and professional assistance.
b)    Duty of loyalty to a client is limited to legitimate, awful conduct compatible with the very nature of a trial as a search for truth.
c)    Counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.
d)    Announced intention of a client to commit a crime is not included within confidences which attorney is bound to respect.
e)    Right to affective assistance of counsel comes from 6th amendment.
f)Standard for constitutional ineffectiveness:
(1)          Deficient attorney performance
(2)          Prejudice
A.     Criminal charges are very disruptive in people’s lives, stigmatizing and expensive to defend against. Enforcement discretion arises from a lack of resources. Prosecutors are obliged to refrain from prosecuting a charge that they know is not supported by probable cause.
B.    Inmates of Attica Correction Facility v. Rockefeller
1.            Plaintiffs were present and former inmates of the prison, as well as the mother of an inmate killed in a 1971 uprising. They alleged that some officers killed inmates without provocation and assaulted prisoners unnecessarily. 
a)    Plaintiffs wanted relief in the form of an impartial investigation and for the U.S. Attorney to investigate the allegations – courts do not normally overturn discretional decisions of federal prosecuting authorities. 
2.            The court said forced prosecution removes discretion. If the U.S. Attorney’s office doesn’t want to order prosecutors to pursue the case then that’s its prerogative. 
C.    Yick Wo. v. Hopkins
1.            Wo found guilty of violating ordinance that prohibited doing laundry without a city permit. Wo alleged that the city was denying permits to Chinese residents even though they were qualified to have them.
2.            SCOTUS said this was a 14th Amendment violation and violated the Equal Pro

ays Due Process violated when there is a “realistic likelihood of a vindictive motive.”
(1)          Person should be able to pursue statutory right of a trial de novo without fear of being charged with a more serious crime.
5.             United States v. Goodwin
a)     After expressing interest in plea bargaining, defendant decided to plead not guilty and request jury trial. While misdemeanor charges were pending in District Court, he was indicted and convicted in federal court on a felony charge arising from same incident. 
(1)          Goodwin wanted to put aside verdict on grounds of prosecutorial vindictiveness. 
(a)                Due Process Clause prohibits government from bringing more serious charges against defendant after he has invoke his right to a jury trial unless the prosecutor presents evidence that the increased charges couldn’t have been brought before defendant exercised right to trial.
(2)          Court held that no Due Process violation was established…there was never an initial trial in this case unlike the others.
6.             United States v. Jenkins
a)    Woman was trying to cross U.S./Mexico border with undocumented aliens in her car. She said she was paid both times and wasn’t charged at the time. Three months later, she was apprehended at the border as a passenger in the car with marijuana. She said she was paid to drive the car, which she believed contained aliens, across the border.
(1)          She tells story on the stand for marijuana case. The jury retires and the prosecutor gets indictment for the two instances of smuggling aliens. She moves to dismiss on notion of vindictive prosecution. She was exercising right to testify and was punished for it – these were completely NEW charges.   
b)    If presumption of vindictiveness is present for someone testifying about crime X and they are charged with crime Y, they are immunized. If they testify they invoke Due Process.
(1)          Court here said the government’s state reasons for the new charges didn’t overcome presumption of vindictiveness. SCOTUS may have ruled differently, as the prosecutor likely just realizes he has a pre-proven case.
7.             United States v. Turner
a)     Prosecution of L.A. gangs, claim on selective prosecution based on race.
(1)          Court held that their discovery request was impermissible because the gang members didn’t meet the sine qua non attendant to a selective prosecution claim.
(2)          Defendants were targeted because of involvement in dangerous street gangs, not because of their race.  
(3)          Correlation between gang membership and race doesn’t make prosecutor’s actions illegal.
8.             United States v. Tuitt