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

Criminal Procedure Adjudication Outline

Prof. Muller

Fall 2017

Criminal Procedure Introduction


Rules of criminal procedure are the result of our values (iceberg under water)
Costs of interpretation of the rules one way versus another
You make arguments about Israel’s Cornerstone Values when you value one over the other

Israel’s Cornerstone Values (competing)

Discovery of Truth
Commitment to adversary adjudication: Commitment to idea that the decision maker is neutral and arguments and evidence made by parties

Parties shoulder burden of fact development and presentation in a self-interested way

Argument that this is better for truth finding and increasing dignity

Insistence upon Accusatorial Burdens: How we allocate responsibility on parties (P) to change status quo

Innocent until proven guilty
High burden for P
A system can be adversary and not accusatory

Minimizing erroneous Convictions

Allocation of risk of error
We prefer that error falls on government than an innocent D

Minimizing burdens of Accusation and Litigation

Example: Double jeopardy clause

Providing Lay Participation
Respecting Dignity of Individual (D)

Some rules only explained by the dignity and autonomy of D (i.e. self-representation)

Maintaining appearance of fairness:

Public trials
Public trust and legitimacy

Achieving equality in the application of the process

Distinctions between people need to be based on real differences

Scope of Criminal Procedure Adjudication

Bail to Jail
Start at the point in a case when P needs to decide whether to charge someone

It is an ongoing set of reflections

Prosecutorial Discretion and Constraints

Need for Discretion: Growth in crime and reduction of resources

Now: Discretion is necessary because of the shear number of crimes available
Then: Early on in history not that any crimes because the commerce clause wasn’t a big deal

183 in 1875

20th Century: Huge Growth in Crimes

Today 4500 Federal crimes
Political reason: no one gets elected repealing crimes
Real world impetus: increase cyber and commerce

Decrease in resources so law enforcement has to make choices among lots of crime

Value Arguments in Favor of P Discretion

Up to date with current community values
Expenditure of resources

$$ constrained and need to make decisions on what kinds of crime are priority


Of D’s Circumstances: Some homeless, mental illness
Of Public Interest: Dovetails with #1
Of victim:
Of Crime: assault with deadly weapon- butter knife v semi automatic

Consistent with democracy

Elected officials moving agenda forward

Check on Law Enforcement – constraint on Police discretion
Legislatively Realistic

Allows flexibility
Also creates problem of due process/notice

Value arguments against P Discretion

Community Pressure
Undervaluation of or Insufficient consideration of V’s perspective
Diminished Lay participation

Decreasing role/power of grand jury

Equal protection Norms

Predictability Issues
Difference between DA’s applying laws equally

Unrestraiuned prosecutorial decisions
Discretion can’t be constrained via a judge or legislature

Types of Discretion

Legal v Equitable Discretion

Legal: Problems with evidence or other legal problem and prosecutor lets it go
Equitable: D might be having other circumstaintes in life and might be better served elsewhere or have a sympathetic story

Stuff that leads P’s Astray

Community Pressure
Collaboration with police

Types of Non-Constitutional Constraints

No Drop Policies: When DA’s have policies to never dismiss/always charge

i.e. DV, DWI
Why: Self Protective- For DV, DA might underestimate danger and also it is scary for V to make allegation

Court leave for dismissal: Once charged, P’s can’t dismiss without leave of court

Prevents harassment

nd other stuff is the same like same amount of drugs

Finding: SCOTUS interprets “some evidence” as some really good evidence.

Vindictive Prosecution

Due Process Clause Doctrine
Punishing a person for what the law allows them to do
Operates on basis of presumption rather than motive
Presumption of vindictiveness = “reasonable likelihood”
Goodwin case:

Facts: D initially charged with federal misdemeanor. D wanted trial by jury (his right). Case transferred from magistrate to fed court. Transfers to a new P/ New P sees officer was hit and decised to add charges. D claims reasonable likelihood of vindictiveness
Finding: Court says not vindictiveness because the additional charges occurred in pre-trial phase.

Reasonable likelihood is that it is a stage of negotiation and prosecutorial reflection
D needs to prove actual vindictiveness which is hard to do

Goodwin Rule: Presumption of vindictiveness can’t arise in pre-trial phase. Must prove actual vindictiveness

US v Poole case: Found presumption of vindictiveness and P overcame the presumption

Pretrial Release and Detention

What is at stake in pretrial detention

For D: trauma, lose job, danger, depression, lose home, can’t pay bills, can’t help in own defense
For P: D might not show up to trial, D might have info and be more open to plea if in jail, questions/pressure from Vs
Of people released on bail, only 75% come back for hearing

25% go missing anf require resources to find

Of felony D’s released on bail, 10% arrested for felony committed while on release