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

Mosteller Crim Pro Spring 2014
Criminal Procedure, Cases, Problems and Exercises: Investigative Processes (West's Law School Advisory Board)
  I.            Introduction to the Criminal Justice Process
                   a.            Sources of law that create legal rights for criminal defendants and regulate procedures of criminal justice system
                                       i.            Federal const. creates a “floor” that establishes the minimum rights courts are free to establish their own “ceilings”
                                      ii.            Other sources of law that create rights for D's or regulate the criminal justice process. 
                                                       1.            Case-law is
                                                       2.            One statutory source is the rules of court
                                                       3.            Also “local” sources of law such as city ordinances and municipal court rules which create rights and regulate crim. procedure.
                                    iii.            May be unclear whether person has been charged with a crime or a civil offense.  When congress or state legislature labels a sanction as criminal, courts recognize this as sufficient to allow D to invoke such rights.  If legislature labels it as civil this does not end the inquiry.  SCOTUS has ruled that it is theoretically possible for a defendant to persuade a court to treat a proceeding as criminal despite its classification as civil.  It is usually very difficult to win such an argument without strong evidence that the statutory scheme is punitive in purpose or effect. 
                   b.            Prosecution Systems
                                       i.            Multiple jurisdictions, major and minor crimes
1.                         may violate simultaneously the criminal law of multiple jurisdictions. 
                                                       2.            Double Jeopardy, multiple prosecutions for same act by different “sovereign” governments are not prohibited by constitution.
                                                       3.            It is up to the prosecutors in each jurisdiction to decide how to coordinate.  A statute of limitations may bar prosecution in one jurisdiction, or that prosecution in one jurisdiction is particularly advantageous because of the penalty, the procedural rules, or some other reason.
                                                       4.            In federal and state jurisdictions, most prosecutions are for minor crimes. 
                                      ii.            The gap between law and practice
                                                       1.            SCOTUS, 6th Amendment guarantees trial counsel for indigent federal defendants in all criminal prosecutions, but guarantees trial counsel for an indigent state D only when she will receive a jail sentence.  For appeals, 14th Amendment guarantees indigent D's right to counsel only for the first appeal.  D's who seek to pursue claims in other circumstances have no federal constitutional right to counsel, although they may have such rights based on state constitutional or statutory law.
                                                       2.            have some discretion to ignore criminal acts or to arrest one person for certain crimes but not others.  Prosecutors have discretion in their charging decisions, and in plea bargaining.
                    c.            Roles of prosecutors and defense counsel in various stages of criminal prosecution
                                       i.            The pre-arrest investigation stage
                                                       1.            Goal of most pre-arrest investigations is to obtain evidence that will satisfy the “probable cause” standard required for arrest.  standard does not require as much evidence as the “preponderance” standard for proving liability in civil claim but requires more than “reasonable suspicion” standard that allows police to stop, question, frisk, and briefly detain people during pre-arrest investigations. 
                                      ii.            A second goal is to obtain sufficient evidence to satisfy the “beyond a reasonable doubt” required for conviction or for guilty plea.  The arrest stage
                                                       1.            Two different kinds of arrests:
                                                                         a.            Non-custodial “citation” arrest
                                                                         b.            Full-custody arrest
                                                                         d.            Both arrests require probably cause
                                                                          e.            The arrestee has obligation to respond to the citation either by pleading guilty and paying fine or appearing in court to contest guilt.
                                                                          e.            The request for a warrant must be supported by sworn affidavits describing investigation that led.  The magistrate's hearing on the police request for arrest warrant is ex parte.
                                                                          f.            Power to make full custody arrest carries other powers.  Allows police to perform full search of arrestee's person at scene and to search compartment of car when arresting a driver.  Once person is in custody, more intrusive searches may be allowed.  These searches may be made without probable cause, a warrantless arrest must be based on probable cause that will be reviewed by magistrate at a hearing after arrest.  SCOTUS' precedents establish 48 hrs. as normal deadline for such a hearing but some states have a 24 hr. deadline. 
                                    iii.            Booking and jailing stage
                                                       1.            Usually occurs at police station or jail. 
                                                       2.            Purpose of booking is to allow police to keep records of arrests and to obtain photographs and fingerprints of arrestees.  may not be asked questions about the crime.  may be allowed to post bail
                                                       3.            law or police custom may allow arrestee to phone a lawyer or friend if such calls are not allowed, indigent may not have any contact with defense counsel until the arraignment stage.
                                    iv.            Post arrest investigation stage
                                                       1.            Prosecutor may participate in same kinds of investigative activity that precedes an arrest may participate in activities that happen after arrest such as a lineup.  Indigent has no per se right to have appointed counsel present during lineup.  Not until the initiation of formal “adversarial judicial proceedings” does such a right to counsel exist.  Nor does arrestee have right to appointed counsel present at a photographic “showup”.
                                                       2.            Prosecutor may participate “custodial” interrogation.  no right to presence of counsel at this interrogation, but may invoke right to counsel by asking for a lawyer and thereby preclude further interrogation in absence of counsel.
                                     v.            Decision to bring formal charge by filing a complaint
                                                       1.            When a person is arrested, police have “charged” person in a sense
                                                       2.            Prosecution does not begin until a “complaint” is filed either by prosecutor or police
                                                       3.            In some cases officer will decide the charge should not be pursued and prosecutor can make this decision also.  However, charges can be dropped much later
                                                       4.            Most often, prosecutor drops charges b/c of lack of sufficient evidence or b/c of unavailability of witnesses.
                                                       5.            Prosecutor may also change original charge or add charges.
                                                       6.            When complaint, it is filed in magistrate's court.  usually sets forth description of crime and citation to criminal code.
                                                       7.            If D is not in jail, there may be a time lapse of several days before first appearance but any D in jail must be brought “promptly” before a magistrate.  If D was arrested without a warrant, validity of probably cause must be determined promptly by magistrate.
                                                       8.            misdemeanor, complaint will remain the “charging instrument”.  felony, complaint will be replaced with indictment or “information.”  Defense counsel usually doesn't play role at charging stage unless retained by a client to attempt negotiation with prosecutor.
                                    vi.            Defendant's first appearance in court
                                                       1.            First hearing before a magistrate has three purposes
                                                                         a.            Magistrate informs D of charge and typically describes Ds various rights
                                                                         b.            Magistrate must determine whether D is indigent and ask indigent D whether he wishes to be represented by appointed counsel
                                                                          c.            Magistrate sets bail.  Magistrate may also release D and impose conditions on release.  Some states allow a fourth function which is to review grounds for probably cause for a warrantless arrest.  For misdemeanor cases triable in magistrate's court, fifth function of 1st appearance is to ask for D's plea on the record.
                                  vii.            Preliminary hearing or grand jury stage
                                                       1.            Usually the first stage where indigent D will have representation
                                                       2.            May not occur for a variety of reasons.
                                                                         a.            Prosecutor may file a nolle prosequi motion to have complaint dismissed
                                                                         b.            Defense counsel may advise client to plead guilty and to waive prelim hearing in anticipation of plea
                                                                          c.            Prosecutor may decide to avoid disadvantages of a prelim hearing by seeking an indictment from grand jury
i.              provides advantages to defense counsel.  It allows defense to cross  probable cause witnesses and thereby obtain a record that may be used to impeach witnesses.  Defense may also discover prosecutor's evidence or strategy
                                                       3.            If prosecutor does go forward with prelim hearing, there are two possible routes prosecution will take, depending on requirements of state law
                                                                         a.            In majority of states, D must be bound over to trial court, where prosecutor will file an “information” which will supplant the complaint.
                                                                         b.            In other states and in federal prosecutions, D must be bound over to the grand jury so that an indictment may issue from that body and supplant the complaint. 
                                                                          c.            Latter is typically used in states that have both as options. 
                                                                         d.            Defense  does not have access to grand jury proceedings and it is rare where grand jury refuses to indict.
                                 viii.            Arraignment stage
                                                       1.            Arraignment has two functions
                                                                         a.            Judge will inform D of the felony charges
                                                                         b.            D will be asked to enter a plea to the charges on the record
                                                       2.            Once arraignment occurs, plea negotiations begin.  Prosecutor may refuse to.
                                                       4.            Most cases are resolved with a guilty plea.  If no guilty plea occurs, prosecutor may either dismiss charges or continue to investigate
                                                       5.            Prosecutor will seek discovery material from defense.   
                                                       5.            Defense may hire private investigator to assist.  May seek to have expert appointed for indigent defendant.  some jurisdictions, caps on fees appointed counsel may receive. 
                                    ix.            Pre trial motions stage
                                                       1.            Certain pretrial motions may be
                                                       2.            Small percentage of cases where motion to suppress is granted, this may result in prosecutor's filing of nolle prosequi motion to dismiss.  Double Jeopardy doesn't attach until jury is sworn in at trial.
                                     x.            Trial stage
                                                       1.            Defense counsel and prosecutor will conduct voir dire of the jury in most states, although judge does this in some state and federal courts.
                                                       2.            challenge jurors “for cause” and with “peremptory challenges”. 
                                                       3.            Small percentage end in mistrial.  SCOTUS precedents limit the right to jury trial to cases where the maximum sentence is more than six months in prison, but some states provide for this right in other cases.  unanimous jury of six is the smallest size that can be used for a criminal trial.
                                    xi.            The sentencing stage
                                                       1.            noncapital case  sentenced by trial judge, but in a small number of states jury will sentence defendant.  In capital case, jury has responsibility of
                                  xii.            Appeal Stage
                                                       1.            When D appeals conviction, this action constitutes a waiver of Double Jeopardy rights. 
                                xiii.            Post appeal stage of post conviction remedies
Once conviction is final, state D usually must pursue his claims by filing a petition in state trial court seeking state “habeas” or “coram nobis” relief
1.       D may seek an evidentiary hearing on such claims and some states provide that indigents have right to appointed counsel at this stage
2.       Most requests for evidentiary hearings are not granted
II.            Fourteenth Amendment Due Process:  Incorporation and Retroactivity
                   a.            Incorporation of the Bill of Rights
                                      ii.            In first half of 20th century, leading method for determining how and whether Bill of Rights was applicable to states through 14th amendment was the “fundamental rights” approach. 

o trial, at any critical stage of the criminal prosecution after the initiation of adversary judicial criminal proceeding.  A proceeding is a critical state of the prosecution when potential substantial prejudice to the D's rights inheres in the particular confrontation.
                                                       5.            Retained counsel must be admitted to practice in the jurisdiction in which the trial is being held, unless the trial court grant counsel special admission (pro hac vice admission)
                                                       6.            Indigent D's do not have a right to “choose” their counsel.   
                   b.            Waiver of the right to counsel
                                       i.            Iowa v. Tovar
                                                       1.            Facts:  waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a knowing, intelligent act done with sufficient awareness of the relevant circumstances.  extent to which a trial judge before accepting a guilty plea from an uncounseled D must elaborate on the right to representation.  Court asked at arraignment “did you want to represent yourself at today's hearing” of which Tovar replied “yes sir.”  Tovar then pleaded guilty.  sentencing and court inquired “Mr. Tovar, did you want to represent yourself at today's hearing” to which he replied “yes”.  convicted  a second time for OWI.  represented by counsel.  charged with OWI for a third time and represented by counsel.  Tovar filed a motion arguing that his first conviction could not be used to enhance the third charge b/c he was never made aware by the court of the dangers and disadvantages of self representation.  Court denied motion.  Iowa COA affirmed but Iowa SC reversed holding that the colloquy preceding acceptance of Tovar's first guilty plea had been constitutionally inadequate.
                                                       2.            Issue:  beyond affording the D the opportunity to consult with counsel prior to entry of a plea and to be assisted by counsel at the plea hearing, must the court, specifically:
                                                                         a.            Advise the D that waiving the assistance of counsel in deciding whether to plead guilty entails the risk that a viable defense will be overlooked, and
                                                                         b.            Admonish the D that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty?
                                                       3.            Holding:  that neither warning is mandated by the 6th amendment.  The constitutional requriement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.  a waiver of counsel as intelligent when the D knows what he is doing and his choice is made with eyes open.  The information a D must possess in order to make an intelligent election will depend on a range of case specific factors, including the D's education or sophisitcaion, the complex or easily grasped nature of the charge, and the stage of the proceeding.  If the D lacked a full and complete appreciation of all of the consequences flowing from his waiver, it does not defeat the state's showing that the information it provided to him satisfied the constitutional minimum.  In a collateral attack on an uncounseled conviction, it is the D's burden to prove that he did not competently and intelligently waive his right to the assistance of counsel.  SC of Iowa is reversed.
                                      ii.            Faretta v. California
                                                       1.            Facts:  At the arraignment judge assigned to preside at the trial appointed the public defender.  Faretta requested that he be permitted to represent himself.  Judge accepted Faretta's waiver.  later appeared that Faretta was unable adequately to represent himself.  Judge ruled that Faretta had not made an intelligent and knowing waiver and also ruled that Faretta had no constitutional right to conduct his own defense.  Judge again appointed the public defender.  Jury found Faretta guilty.  California COA affirmed.
                                                       2.            Issue:  whether a D in a state criminal trial has a constitutional right to proceed iwthout counsel when he voluntarily and intelligently elects to do so, or stated another way, whether a state may constitutionally hale a person into its criminal coruts and there force a lwayer upon him, even when he insists that he wants to conduct his own defense.
                                                       3.            Holding:  state may not constitutionally do so.  Forcing a lawyer upon an unwilling D is contrary to his basic right to defend himself if he truly wants to do so.  The right to self representation, to make one's own defense personally, is thus necessarily implied by the structure of the amendment.  When an accused manages his own defense, he relinquishes, many of the traditional benefits associated with the right to counsel.  in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits.  judgment before us is vacated.
                                                       4.            A state may, even over objection by the accused, appoint a “standby” counsel to aid the accused if and when the accused requests help and to be available to represent the accused in the event that termination of the D's self representation is necessary.  cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.
                                    iii.            Note
                                                       1.            Not only must a waiver of 6th amendment rights be knowing and intelligent, D must also be competent.  In Godinez v. Moran, the standard of proof on the issue of whether a D is competent to waive his or her right to counsel is precisely the same as required to demonstrate competency to stand trial.  whether he has the ability to understand the proceedings.