Select Page

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

Criminal Procedure: Adjudication
Fall 2007 – Muller

I. The Charging Decision
a. Background terms/information.
i. Complaint. The first charging document. – Alleges a certain crime was committed, and there is probable cause to believe the ∆ committed it.
© Involves 2 distinct decisions: Whether to charge the ∆, and what he is to be charged with.
© May also set out requisite culpability standards such as mens rea.
ii. Initial Appearance.
© Confirms the ∆’s identity.
© Informs ∆ of their right to counsel.
© Inquiry into indigency – can they afford their own attorney?
© Notifies the ∆ of the charges against him.
© First point at which pre-trial release or detention is discussed. (Bail)
iii. Gerstein Hearing.
© Review of probable cause.
© Initial appearance + Gerstein hearing must occur within 48h of detention.
© If the 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. Typically, there is limited judicial review of the charging decision. This stage in criminal adjudication is fairly insulated from the judiciary with utmost discretion being vested in the prosecuting attorney. The only limitations are those protected by the Constitution, e.g. the prosecutor cannot proceed in an action without probable cause.

c. Decision not to charge. The decision not-to-charge is wholly insulated from review. This is left entirely in the prosecutor’s discretion and citizens do not have standing to compel prosecution.

d. Decision to charge. As long as the prosecutor has probable cause to believe the accused committed an offense defined by statute, the decision of whether or not to prosecute, and what charge to bring or file, generally rests entirely within the discretion of the prosecutor.
© Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation so long as the selection was not deliberately based upon an unjustifiable standard such as race, religion,

ic, and only one side is present during these proceedings ~ the prosecution.
© The Preliminary Hearing is an open proceeding where the D is present, he has the right to have counsel present, cross-examine witnesses, present evidence, etc.
g. Arraignment.
i. Formally advises the ∆ of the charges in the Indictment or Information.
ii. ∆ is notified of his procedural rights.
iii. Question of entitlement to counsel is revisited. (Indigency)
iv. Question of pretrial release/detention is revisited.
v. First instance where the ∆ is asked to enter a plea to the charges against him.
Note: Most cases are resolved with the entering of a guilty plea that is negotiated by the parties. Plea bargaining eliminates the need for trial, and only a small %age of cases actually go trial.