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

Criminal Procedure
Fall 2012
Chapter 1. Introduction To The Criminal Justice Process
A.    Source of Law (create right for defendants + regulate the procedures)
Federal prosecution
  Federal constitutional rights—Bill of rights (4,5,6,8 Amendments, Due Process and
Equal Protection Clauses of 14 Amendment)
  Federal statutes—Federal Code of Criminal Procedure
State prosecution
  Federal constitutional rights
  State constitutional rights
  State statutes—state code of criminal procedure
  Local sources—city ordinances & municipal court rules
(Federal constitution creates a floor establishes the minimum rights; state courts establish their own higher floor establish the maximum rights.)
both federal and state jurisdictions
  case law source—judge-made rules
  statutory source—rules of court
Ø   civil offense ✖state & federal constitutional /statutory rights (only criminal defendant)
It is possible for a defendant to persuade a court to treat a proceeding as criminal despite its legislative classification as civil.
Ø    Even many precedents exist, the court’s decisions often provide sketchy guidance/ start point for analyzing, create a limited degree of uniformity in decision.
B.    Prosecution System
1.         Multiple jurisdictions, major and minor crimes
  Multiple prosecutions for the same act by different “sovereign” governments are not prohibited. It’s up to the prosecutors in each jurisdiction to decide how to coordinate the two prosecutions.
  ≤1/10 state prosecutions for felony
  1/3 federal prosecutions for felony
2.        The gap between law and practice
(1)   The criminal procedure rules on the books may not reflected in reality; a defendant’s rights may be rarely invoked or enforced. This may be the result of:
  1Defense counsel’s advice to waive these rights; lacks the resources to pursue all arguments; incompetent under ABA standards but competent under federal constitutional standards.
  2Decentralized nature of prosecution systems
   –federal system more centralized, police and prosecutors answer to a single authority
   –in state system, police and prosecutors work for different authorities.
  3Both police and prosecutors have considerable discretion
(2)   6 Amendment guarantees trial counsel for:
  –indigent federal defendants: all criminal prosecutions
  –indigent state defendants: only when will receive a jail sentence
C.    The Roles of Prosecutors and Defense Counsel
1.         The pre-arrest investigation stage
(1) Conducted by police or prosecutors with police
(2) Goal: obtain evidence that satisfy–
“probable cause” required for arrest and charge a person with a crime
  ≥“reasonable suspicion” allow police to stop, question, briefly detain
  ≤“preponderance” proving liability in a civil case
“beyond a reasonable doubt” required for conviction at trial. If cannot be obtained before arrest, can be obtained by using many investigatory techniques after arrest.
(3)  Prosecutor’s duty in investigation
  Police have engaged investigative procedures after report / arrested a person after report and investigation: obtain warrant, interview of witness, interrogation of suspect.
  Unreported crimes: supervise “sting” operations and surveillance techniques; use of grand jury and subpoenas.
(4) A defense counsel usually not play a role in pre-arrest investigation unless called upon by a client.
2.        The arrest stage
Non-custodial “citation” arrest: police issue a citation—release the arrested person
“fully-custody” arrest: forcibly detain the arrestee—“booking”—jailed / release
(1)   Police seek an arrest warrant (supported by sworn affidavits) only when is required by law.
a. Fourth Amendment’s warrant requirement
    b. a variety of exceptions authorized by Supreme Court’s precedents.
(2)   The magistrate’s hearing on the request for an arrest warrant is ex parte, defense counsel have no role to play in this procedure.
(3)  Full-custody arrest entitles police to perform a full search of the arrestee.
(4)  A warrantless arrest must be based upon probable cause that will be reviewed by a magistrate at a hearing after the arrest. Supreme Court precedents establish 48 hours deadline/ some states have 24-hour deadline.
3.        The booking and jailing stage
Place: at the police station/ jail
Purpose: keep a record of arrests/ obtain photographs and fingerprints of arrestees.
Full-custody arrest—booking èminor crimes: post “bail”
                        î lack of money/ serious crime: jailed
(an indigent arrested person may not have any contact with defense counsel until the arraignment stage.)
4.       The post-arrest investigation stage
Same kinds of investigative activity precedes an arrest
“line up”/ photographs “show up”
Miranda rights (in “custodial” interrogation) although has no right to contact with defense counsel, the arrestee may invoke the right to counsel by asking for a lawyer, and thereby preclude further interrogation in the absence of counsel.
5.        The decision to bring a formal charge by filing a complaint
(1) The prosecution does not begin until a complaint is filed.
(2) –Misdemeanor: allow police to file a complaint without prosecutor’s review
   –Felony: prosecutor review before filing a complaint
(3) The act of filing set other procedures in motion
–Misdemeanor: complaint remain the “charging instrument”(magistrate’s court)
–Felony: charging instrument (magistrate’s court

n the sufficiency of evidence—defendant may be tried again.
First appeal—indigent defendant is entitled to appointed counsel
Second appeal— indigent defendant is not provided a right to appointed counsel
13.    The post-appeal stage of “post-conviction” remedies
Once a conviction is final, state defendant pursue his claim by filing a petition, seeking “habeas corpus” or “coram nobis” relief.
May seek an evidentiary hearing on such claim, conducted as a civil proceeding, provide the indigents a right to counsel.
State defendant: state trial court èintermediate appellate court èstate supreme court èfederal district court (exhaust state remedies)
Federal defendant: federal district court
 Chapter 2. Fourteenth Amendment Due Process:
Incorporation and Retroactivity
A.    Incorporation of the Bill of Rights
  1. Several analytical methods for applying the Bill of Rights to the states:
l “fundamental rights” approach: The Bill of Rights indicate what rights are fundamental and provide a reference for measuring which state practices are so shocking to the conscience that they are inconsistent with “ordered liberty”.
l “total incorporation” approach: All the protections of the Bill of Rights applied to the states. (Hugo Black)
l “selective incorporation” approach: used by the current court
To determine, it’s necessary to look at 1the entirely of the right 2whether the provision is fundamental to Anglo-American jurisprudence.
  2. Incorporated Rights—The Court eventually incorporated almost all of the provisions of the Bill of Rights.
  3. Rights Not Fully Incorporated
1right to keep and bear arms
2right to a unanimous jury verdict
3protection against quartering of soldiers
4grand jury indictment requirement
5right to a jury trial in civil cases
6prohibition on excessive fines
  4. Same Standard with One Exception
Incorporated rights protections are all to be enforced against the State under the 14th Amendment according to the same standards that protect those rights from federal encroachment.
However there is one exception: although right to trial by jury requires a unanimous jury verdict in federal trials, it does not require a unanimous verdict in state criminal trial.