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Criminal Procedure
University of Oklahoma College of Law
Coyne, Randall T.

Criminal Procedure Outline
Coyne-Spring 2010
Criminal Procedure: The rules and practices that govern the investigation and prosecution of criminal cases.
·         Investigatory criminal procedure: Rules governing police conduct in investigating a case.
·         Accusatory criminal procedure: Rights of a D as a case proceeds through the crim justice system.
Participants in the criminal justice system:
·         Ds: Interest in insuring constitutional rights are respected. Often have lawyers for this reason. Main int is avoiding conviction.
·         Defense counsel: Basic duty is to be counselor and advocate for D. SC recognizes a right to counsel in all cases where D faces prison.
·         Prosecutors: Federal – US attorneys; local – city attorneys, DAs, and county prosecutors, state – state AG. Duty is to seek justice regardless of whether this means acquittal or conviction.
·         Victims: Represented by prosecutors. Prosecutors, not victims, decide which cases to charge. Because crimes are considered against community at large and not just victim, victims don’t control handling of criminal cases.
·         Law enforcement officers: Focus on safety of community.
·         Magistrates and judges: Neutral. One aspect of their role is to ensure D’s constitutional rights are respected when issuing search/arrest warrants.
·         Jurors:
o   Grand jurors: Decide whether to return indictments.
o   Trial jurors: Fact-finders in most crim trials. Decide when there is enough ev to convict.
·         Corrections officials: Supervise D’s incarceration or release on parole/probation once convicted.
·         Public: Interest in public safety.
·         Media: Serve as check on gov powers.
Stages of criminal trial:
1.      Pre-arrest investigation
2.      Arrest: Police have enormous discretion. With or without a warrant. For minor offenses, a citation instead of arrest is appropriate.
3.      Filing the complaint: Must be supported by PC based on sworn affid by law enforcement officer(s).
4.      Gerstein review: Magistrate reviews filings alone—no evidentiary hearing is required—to find if there is PC. This review is done ex parte. Often done at time of D’s first appearance as long as the first appearance is within 48 hrs (McLaughlin).
5.      First appearance/arraignment on complaint: Once P files complaint, D is entitled to appear before ct to be advised of charges, seek bail, and be advised of right to retain counsel of have one assigned. Ordinarily occurs within 48 hours of arrest.
6.      Grand jury or preliminary hearing:
o   Grand jury: 5th requires grand jury indictment for all federal felonies. Serves as minimum check on prosecutor’s decision to bring charges. GJ consists of 23 members who listen to evidence presented by the prosecutor to decide if there is PC to bring charges. There is no judge and D or D’s counsel are not entitled to be present. If PC is found it gets a “true bill,” if not it gets a “no bill.” Some states use them for felonies but they are not required to do so under 5th.
o   Preliminary hearing: Not required by Constitution, but a majority of jurs use them to decide if there is enough ev to hold a D for trial, and to settle on what charges P will bring. No jury is present. The judge presiding over the hearing decides if there is PC to “bind the case over” for trial. Procedures differ by jur, but both sides are generally given an opportunity to present ev during a prelim hearing. In some jurs hearsay is admissible. As an adversarial process, both sides can X witnesses.
7.      Arraignment on indictment or information: At arraignment, D will typically be asked to enter a plea, be advised of the charges, and be assigned counsel if counsel hasn’t been assigned already. A trial date will then be set which must comply with constitutional stds for a speedy trial.
8.      Discovery: The process by which parties seek to examine the ev the other party is likely to use at trial.
9.      Pretrial motions
10. (Plea bargaining and guilty pleas: Over 90% of criminal cases never go to trial. Vast majority end in guilty or nolo contendere (no contest) pleas.
11. Trial
12. Sentencing
13. Appeals and habeas corpus
Patterson, Plaintiff v. Former Chicago Police Lt. Jon Burge
·         Talks about this Aaron Patterson guy getting tortured until he confessed.
Bill of Rights
·         4th: no unreasonable search and seizures, and no warrants without PC supported by oath of affirmation.
·         5th: GJ for fed felonies; no double jeopardy; not required to testify against self; general grant of DP.
·         6th: speedy and public trial by impartial jury in state and district where crime was committed. D must have opportunity to confront adverse witnesses. Right to counsel.
·         8th: Prohibits cruel and unusual punishment and excessive bail/fines.
Incorporation of BoR to states:
·         RULE: rights are incorporated if they are so fundamental that they must be included in DP, not simply because they are in BOR (Twining).
o   Iterations of the incorporation test @ 22.
§ “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” (Powell).
§ “basic to our system of jurisprudence” (In re Oliver).
§ “a fundamental right, essential to a fair trial” (Gideon v. Wainwright).
·         List of stuff incorporated @ 22.
·         Gitlow incorporated freedom of speech from 1st.
·         Powell incorporated 6th in capital cases.
·         In Palko, Cardozo said double jeopardy doesn’t apply to states because it doesn’t violate “fundamental principles of liberty and justice.”
·         Adamson said 5th’s prohibition on P’s commenting on a D’s failure to take stand was not incorporated.
·         Total incorporationists wanted all of BOR incorporated. Justices Black and Douglas. Total incorporationists lost, but practically they won.
·         Selective incorporationists thought only some were sufficiently fundamental. Cardozo said rights should be incorporated if “neither liberty nor justice would exist if they were sacrificed.” He said the DP Clause of 14th included “principles of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental” and that were therefore “implicit in the concept of ordered liberty.” Selective incorporationists prevailed, but practically most of BOR has been incorporated.
·         Incorporation debate centered on 3 issues: original intent of framers of 14th, federalism, and appropriate judicial role.
·         All of BOR has been incorporated now except 5 provisions (24):
o   (1) 2nd’s right to bear arms is not incorporated (Presser).
o   (2) 3rd’s right to not have soldiers quartered in a person’s home has not been addressed, but would surely be incorporated if it was.
o   (3) 5th’s right to GJ indictment in crim cases is not incorporated (Hutardo).
o   (4) 7th’s right to jury trial in civil cases is not incorporated (Bombolis).
o   (5) 8th’s prohibition on excessive fines has not been addressed.
·         Incorporated BOR provisions can apply differently to states. E.g. states don’t have to have 12 person juries (Williams v. Florida); states can allow non-unanimous jury verdicts in crim cases (Apodaca; Johnson v. Louisiana). Basically everything other than those 2 exceptions applies the same. (24)
Retroactive application of crim pro decisions (26-27): Not applied retroactively to decided cases, unless:
1.      SC decision places a matter beyond reach of crim law—makes certain behavior unpunishable (Lawrence v. Texas), OR
2.      A “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding” (Whorton v. Bocking). Very narrow exception. Two requirements:
a.       (1) The rule must be necessary to prevent an impermissibly large risk of an inaccurate conviction, and
b.      (2) The rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.
Searches and Seizures
4th Amendment. Applies to gov officials, but, like all of BOR, it does not apply to purely private conduct.
4th requires:
·         Probable cause
·         Particularity
·         Oath of affirmation
·         Reasonableness
·         ? another I missed ?
What is a search?
Exclusionary rule: Evidence gathered by unreasonable search and seizure is kept out of court. Use a motion to suppress.
Katz v. United States
·         Issue is whether electronic eavesdropping w/o physical trespass is a search w/in meaning of 4th?
·         Telephone convos heard by FBI using a bug placed on outside of a public phone booth D made calls from.
·         Search is listening in, seizure is the recording

a search because users know they must convey #s to phone cos, phone cos have facilities for recording those #s, and phone cos do record #s for legitimate business purposes.
·         BUT, Congress passed a law limiting the use of pen registers in 1986 (77).
Dog sniffs
Illinois v. Caballes
·         Guy was stopped for traffic violation and a K9 unit stopped by to sniff and alerted (PC) so they searched the car and found drugs.
·         RULE: No reasonable expectation of privacy from dog sniffs because dog sniffs only reveal contraband and there is no legitimate privacy interest that society is prepared to consider reasonable in contraband. The Court distinguishes this from Kyllo where the thermal imaging could detect lawful activity too.
o   BUT, a seizure for lawful purposes (stop to give traffic ticket here) can become unlawful if prolonged beyond time reasonably required for the purpose.
o   Reliability: Significant that the Court finds that dog sniffs are reliable because if they weren’t they would basically be like thermal imaging in that they would reveal legal stuff too. Thus, Souter’s dissent argues that dog sniffs aren’t reliable.
The Requirement for Probable Cause
Probable Cause is generally the std used by judges to issue warrants and by cops searching w/o a warrant (82). BUT, exceptions…later below
·         DEFINITION of PC: whether TOC before the officer are such to warrant a man of prudence and caution in believing there is a fair probability the offense has been committed. Objective. More than RS, but less than preponderance. Also, see Coyne Tab E.
·         PC in Context: (1) arrest àPC that an offense has been committed and the person to be arrested committed it. (2) search à PC that seizable evidence will be found in the place to be searched.
Illinois v. Gates—tip letter to get a warrant (PC)
·         Here they put Gates under surveillance to show veracity. It showed substantial veracity. But the details that were confirmed were perhaps innocent details. So, SC notices that under A-S there probably isn’t PC because veracity is only of possibly innocent details and no basis of knowledge was shown. So SC makes a new test.
·         Replaces the Aguilar-Spinelli 2-pt test with a TOC test for probable cause.
o   TEST: TOC requires the judge to look at all the circumstances, including “veracity” and “basis of knowledge” from Aguilar-Spinelli, and determine if there is a fair probability that evidence of the crime can be found at the particular place. No actual showing of criminal activity is required.
·         Regarding tips particularly, the Court says there needs to be more than just conclusory affidavits (86). The court cannot merely ratify the bare conclusions of others.
·         In this case, the Court found that the tip letter had been corroborated in major part by surveillance, so there was PC.
Maryland v. Pringle
·         Car was stopped for speeding and driver consented to a search that found drugs in the back seat. The cops arrested all 3 occupants on drug charges. Later Pringle, the front-seat passenger, admitted the drugs were his.
·         Pringle argues his admission resulted from an unlawful arrest because there was no particularized PC to arrest all the occupants of the car.
·         Ct looks to TOC and finds that a reasonable police officer had PC to believe that any/all occupants had knowledge/dominion/control over the drugs so they could legally arrest them all.