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

Robert P. Mosteller
Criminal Procedure
Fall 2013
Chapter 1  Introduction
A.      Source of Law
1.      Federal
United States Constitution—Bill of rights (4,5,6,8,14 Amendment)
Federal statutes—Federal Code of Criminal Procedure
2.      State
United States Constitution
State constitutions
State statutes
·           Federal constitution creates a floor establishes the minimum rights; state courts are free to establish their own higher floor establish the maximum rights.
·           Person charged with civil offense is not entitled to state and federal constitutional and statutory rights (reserved for criminal defendants). However, it is possible for a defendant to persuade a court to treat a proceeding as criminal despite its legislative classification as civil.
3.      Both federal and state
Judge-made rules—derive from supervisory authority
B.      Prosecution System
1.      Multiple jurisdictions
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.
2.      Major and minor crimes
·           Most prosecutions are for minor crimes.
¡   ≤ 1/10 state prosecutions for felony
¡   1/3 federal prosecutions for felony
·           Misdemeanor is not entitled to preliminary hearing, grand jury review, pretrial discovery, or jury trial.
·           Minor crimes may be tried in municipal court before a magistrate.
3.      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. Because:
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.      Stages of A Criminal Prosecution
1.     The pre-arrest investigation stage
(1)    Practices: search and seizure; interrogation; identification
(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)   A defense counsel usually not play a role in pre-arrest investigation unless called upon by a client.
2.     Arrest
(1)  General
·         Require probable cause.
·         Police seek an arrest warrant only when is required by law.
¡  In warrantless arrest, a magistrate at a hearing will review the probable cause after the arrest. Supreme Court precedents establish 48 hours deadline/ some states have 24-hour deadline.
·         The magistrate’s hearing on the request for an arrest warrant is ex parte, defense counsel have no role to play in this procedure.
(2)  Type
①    Non-custodial “citation” arrest:
·       Typically for minor offenses
·       police issue a citation
·       release the arrested person after giving the citation
②    “fully-custody” arrest:
·       Even for minor offenses, police have the discretion to perform full-custody arrest
·       Take to police station/jail for “booking”: keep a record of arrests/ obtain photographs and fingerprints of arrestees.
·       Entitles police to perform a full search of the arrestee
·       Minor crimes: post “bail” and released to wait outcome
Lake of money/ serious crime: jailed
·       An indigent person may not have any contact with defense counsel until the arraignment stage.
3.     The post-arrest investigation stage
·           Same kinds of investigative activity as that precede an arrest: witness interviews, interrogations
·           “line up”/ photographs “show up”
¡   Miranda rights (in “custodial” interrogation) although has no right to the presence of 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.
4.     Filing a complaint
(1)   Misdemeanor: allow police to file a complaint without prosecutor’s review
Felony: prosecutor review before filing a complaint
(2)   Filed in magistrate’s court
(3)  The act of filing set other procedures in motion
(4)  complaint
·           Misdemeanor: complaint remain the charging document—tried in magistrate’s court
·           Felony: charging document will be replaced with different instrument in trial court
¡  Grand jury—indictment
¡  Other cases—information
5.     First appearance before the magistrate
(1)   Five purpose
①    inform defendant of charges and describe various rights
②    determine whether defendant is indigent and whether need counsel
③    determine whether the arrestee should be released on bail or detained pending further proceedings.
④    review the grounds for probable cause for a warrantless arrest
⑤    (misdemeanor only) ask for defendant’s plea on the record
(2)   Although indigent defendants will not be represented by appointed counsel, retained counsel may participate in the hearing.
6.     Preliminary hearing and grand jury proceeding
(1)  Purpose:

1.      Overview
(1)  Background: The first ten amendments to the United States Constitution—Bill of Rights—were designed to limit the power of the federal government rather than that of the state government. However, vast majority of criminal prosecutions conducted by state police officer. Consequently, the provisions of the Bill of Rights do not directly apply in most criminal cases.
(2)  The Fourth Amendment imposes limits on state action
Section 1: No state shall (i) make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; (ii) nor shall any State deprive any person of life, liberty, or property, without due process of law; (iii) nor deny to any person within its jurisdiction the equal protection of the laws.
(3)  Incorporation debate
To what extent does the Fourteenth Amendment Due Process Clause incorporate the Bill of Rights and impose upon the states the same restrictions?
2.      Incorporation theories
(1)  Total incorporation
Justice Hugo Black—All the protections of the Bill of Rights applied to the states.
(2)  Fundamental rights
The Due Process Clause has an independent potency. It does not incorporate any provisions of Bill of Rights. Instead, it requires states to honor “principle of justice so rooted in the traditions and consciences of our people as to be ranked as fundamental.”
(3)  Selective incorporation—current majority view
To determine whether a protection from the Bill of Rights applies to the states, it is necessary to look at:
①the entirety of the right
②whether the provision is fundamental to Anglo-American jurisprudence
If the right applies to the states, all aspects of the right will apply to state case as it applies to every federal case.
3.      The Court eventually incorporated almost all of the provisions of the Bill of Rights.
①The 4th Amendment freedom from unreasonable searches and seizures
②The 5th amendment privilege against self-incrimination
③The 5th amendment guarantee against double jeopardy
④The 6th amendment right to counsel
⑤The 6th amendment right to a speedy trial
⑥The 6th amendment right to confront witnesses
⑦The 6th amendment right to an impartial jury
Only a handful of Bill of Rights protections remain unincorporated:
Fifth Amendment’s grand jury indictment requirement