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Criminal Procedure
University of Oklahoma College of Law
Thai, Joseph

Criminal Procedure

University of Oklahoma

Professor Thai

Spring 2015

Criminal Procedure Contents

I. Criminal Procedure Overview

A. General Principles

B. Law Sources

C. Criminal Proceedings

II. 4th Amendment Principles

A. Government Action?

§ Actors and Standards (P.C.,

a. without warrant (U.S. v. Watson)

b. Misdemeanors w/o warrant –

i. ONLY if committed in PRESENCE of officer

ii. Can be made for even fine-only offenses (Atwater)

ii. Booking

1. Suspect file opened

2. Police Reports with Requests for Prosecution

iii. Filing Charges

1. Prosecutorial discretion – approve, deny, up/downgrade, order further investigation

2. Criminal Complaint – Filed on finding of sufficient evidence

iv. First Appearance

1. Before magistrate/judge within 48 Hours (Gerstein v. Pugh)

2. Informed of: Charges, Right to Counsel, Bail, Prelim. Hrg. Date

v. Preliminary Hearing

1. Judge hears witnesses to determine if Prob. Cause to proceed

2. Otherwise DISMISSED

vi. Information or Indictment

1. Information—

a. Post Prelim. Hearing finding of P.C., prosecutor files “information” to replace “complaint” for trial court

2. Indictment—

a. Ex parte (prosecutor only) presentation of evidence for grand jury to determine if probable cause exists

b. Required for federal felony

vii. Arraignment

1. Defendant pleads guilty, not guilty, no contest to information/indictment

2. 6th Am. Right of Counsel and Speedy Trial Attaches

a. Trigger: Learns charges against AND liberty restricted

viii. Pretrial

1. Motions to Suppress (Illegally Obtained Evidence)

2. Motions to Dismiss (Insufficiency of Evidence/Process)

3. Motion for Discovery

a. Prosecution Duty to Disclose – Documents, Tangibles, Witness Lists

i. All exculpatory evidence shared (Brady v. Md.)

b. Defense Duty to Disclose – Limited (advance notice of alibi, insanity defense, etc.)

ix. Trial

1. Jury Trial Right – All felonies and misdemeanors punishable by over 6 months in jail.

2. Confrontation Clause (6th Am.) – Defense Right to confront (cross-examine) witnesses against him, includes right to presence at trial, only for trial (Peterson v. CA)

3. Crawford Rule—Otherwise admissible hearsay may be excluded under 6th Am. Right to confrontation if “testimonial”

a. “Non-testimonial” (including police interrogation for emergency) not included. (Crawford v. WA)

4. Compulsory Process – Defense has right (but not required) to present a case

5. 5th Am. Right of Silence – Applies to states, jury instructed not to use this as evidence of guilt

6. Presumption of Innocence – innocent until proven guilty beyond a reasonable doubt (In Re Winship)

II. 4TH Amendment Principles (Initial Analysis)

a. Government Action?

i. Government Agent?

1. Government Employees

2. Private Citizens acting at Direction of Police

3. Not Pr


a. Justification–Police must be able to give specific and articulable facts as basis to suspect criminal activity

i. Requires “individualized suspicion”

ii. Level–More than a hunch, less than P.C.

b. Standard—Totality of the Circumstances Test

i. But lower fact requirement than P.C.

c. Common Applications

i. Terry Stop and Frisk

5. Special Needs–Reasonableness Standard

a. Balancing Approach—(vs. Warrant/Exception)

i. Govt Special Need vs. Level of Privacy Intrusion

b. Reduced Requirements (Below P.C)

i. Administrative Searches

ii. Border Searches (US v Flores-Montano)

iii. School Searches (NJ v TLO)

1. Veronia, Earls, Safford

c. Increased Requirements (Above P.C.)

i. Using Deadly Force to apprehend a dangerous fleeing felon (P.C. + threat assessment)

ii. Surgery to get evidence (P.C. + weighing risk)

d. No Requirements for Individualized Suspicion

i. Drug Testing with a compelling non-prosecutorial public safety need (Skinner v. Railway, Ferguson v City of Charleston)

ii. Roadblocks for Public Safety or Information Gathering (US v Edwards, MI v Sitz)

1. Martinez-Fuerte, Sitz, Edmond, Airport