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Criminal Procedure
University of Oklahoma College of Law
Richter, John

1.        Intro to Crim Pro: Crim Pro covers the rules and practices that govern the investigation and prosecution of crim cases. “Investigatory crim pro” refers to the rules governing police conduct (4th, 5th and 6th amendments) and “accusatory crim pro” refers to the rights of a D (5th, 14th, 6th and 8th amendments)
A.       The participants in the crim justice system
1.        Defendants: crim Ds main interest and goal is to avoid conviction
2.        Defense counsel: the basic duty of defense counsel is to serve as Ds counselor and advocate w/ courage and devotion to render effective quality representation
3.        Prosecutors: the duty of the prosecutor is to seek justice. They can decide which case and D to charge, what charges to bring and how serious a sentence to seek. The P has a duty to represent the gov’t at trial and during the investigative phase of a trial, the P may be responsible for supervising the work of police and investigators
4.        Victims: victims interests are represented by the P. Because a crime is considered to be an offense against the entire community, victims do not control the handling of crim cases
5.        Police and other law enforcement: they make the initial decision of whether to investigate a case, and whether to arrest and charge an individual w/ an offense. The focus of police officers is the safety of the community. Investigative crim pro focuses on what procedures police may use when apprehending and investigating Ds.
6.        Magistrates and judges: they are the neutral decision makers. They must ensure that D’s constitutional rights are respected (magistrate judges are appointed by district court judges)
7.        Jurors:
a.        Grand jurors: oversee investigations of cases and decide whether to return indictments against individuals for specific crimes.
b.        Trial jurors: the fact finders at trial
8.        Corrections officials: once Ds are convicted, they have the responsibility of supervising D’s incarceration or release on parole or probation
9.        Public: the primary concern for members of the public is safety, another concern is financial, and that the constitutional rights of citizens are respected
10.     Media: interest in covering crim cases and serving as a check on gov’t powers. The 1st amendment sometimes conflicts w/ D’s 6th amendment right to a fair trial
B.       Stages of the crim justice process (typical route)
1.        Pre-Arrest investigation: often time does not permit major investigations (on-scene arrests), in which case most of the investigation occurs after the suspect is in custody. (about 50% of cases). Otherwise, a lengthy investigation will typically occur before a suspect is arrested.
2.        Arrest: police have enormous discretion. They can arrest w/ or w/o a warrant. If w/o, they must file an affidavit w/ the court setting forth the probable cause for the arrest and getting a complaint to hold the D for further proceedings. When a suspect is arrested, he is taken to the station for booking
3.        Filing the complaint: in order to hold a suspect, the prosecution must file charges. The P then takes over the decision making process and has discretion as to which charges to file
4.        Gerstein review: the magistrate judge must review the P’s complaint and supporting affidavit to determine whether there is probable cause supporting the initial charges against the D. No evidentiary hearing is required
5.        First appearance/arraignment on complaint: once the P files a complaint, the D is entitled to appear before the court to be advised of the charges, have an opportunity to seek bail, and be advised of his right to retain counsel or have counsel assigned. 
6.        Grand jury or preliminary hearing: 5th amendment promises that for all fed felonies, a D is entitled to grand jury indictment. 
a.        A grand jury consists of 23 community members who listen to evidence presented by the P and decide whether there is probable cause to prosecute. If there is probable cause the grand jury issues an indictment (true bill)
b.        A preliminary hearing is used in a majority of jurisdictions to decide whether there is enough evidence to hold a D for trial, and to settle on which charges the prosecution will bring. The judge decides whether there is probable cause to bind the case over for trial
7.        Arraignment on indictment or information: once an indictment or information is filed, the D will appear for arraignment on those charges. The D will be asked to enter a plea, be advised of the charges against him, and be assigned counsel if counsel hasn’t been assigned. The court will then assign a trial date
8.        Discovery: the parties seek to examine the evidence that the other party is likely to use at trial. In the fed system, discovery of witness statements is covered by separate statutes. In state courts, comprehensive discovery statutes often cover both inculpatory and exculpatory evidence, including witness statements. All statutorily based
9.        Pretrial motions: frequently the parties will file pretrial motions regarding a variety of issues
10.     Plea bargaining and guilty pleas: more than 90% of crim cases don’t go to trial. They end w/ a guilty or nolo contendere plea. Anticipating plea bargaining, it isn’t unusual for Ps to load charges. 
a.        A guilty plea is an admission that the D committed the crime and a waiver of all the rights the D would have had at trial
                                                                         i.            You go to court to plea to make sure the D knows what is going on (not

Federalism- preserving state and local gov’ts autonomy
c.        Appropriate judicial role- should judges pick and choose? 
3.        Current law as to what is incorporated
a.        The court never did a total incorporationist approach, but from a practical perspective, it was mostly successful
b.        Duncan v. LA (1968): D was convicted of battery and sentenced to a max of 2 yrs. He had wanted a jury trial, but the LA constitution only granted jury trials in extreme cases. He was sentenced to 60 days and a fine. The court said that trial by jury in crim cases is fundamental to the US scheme of justice, and the 14th amendment guaranteed a right of jury trial in all crim cases which if they were to be tried in a fed court would come w/in the 6th amendment’s guarantee. 
                                                                         i.            Not deciding based on case at hand… Duncan was black D, a jury of his peers probably would have convicted him anyway
E.        Retroactivity: Generally crim pro decisions apply only in that case and future ones. In 2 situations the court has said it will apply retroactively
1.        Where a Court decision places a matter beyond the reach of the crim law… deciding that certain conduct can’t be criminally punished (ie. Lawrence v. TX-homosexual concuct)
2.        When it is a watershed rule
a.        In order to qualify as watershed it must meet 2 requirements
                                                                         i.            Must be necessary to prevent an impermissibly large risk of an inaccurate conviction
                                                                        ii.            The rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding (ie. Gideon v. Wainright-crim Ds have a right to counsel at trial in any case where the sentence potentially includes imprisonment)
1.        Modern court is concerned w/ Ds getting wrongly convicted
F.        Goals of criminal justice system: punishment, protecting liberty, deterrence, prevention, incapacitation.
1.        The authority comes from state and fed statutes
2.        The crim justice system is only concerned with actual damages.