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Criminal Procedure: Adjudication
University of Tennessee School of Law
Wolitz, David

Adjudicatory Crim. Pro Outline
Wolitz- Fall 2013
·         Accusatory Criminal Procedure
o   Refers to the rights of defendant as a case proceeds through the criminal justice system.
§  Derived from the 5th and 14th Amendments rights to due process, 6th Amendment right to counsel and a speedy public trial, and the 8th Amendment prohibition on excessive bail and 5th amendment double jeopardy, and the rules of procedure enacted by Congress or the states.
·         Participants In The Criminal Justice System
o   Defendants
§  Will ordinarily be represented by defense counsel either retained or appointed by the court (Chapter 7).
§  Man interest is to avoid conviction.
o   Defensive Counsel
§  Advocate with courage and devotion on behalf of defendant as an officer of the court.
§  There is a right to counsel in all cases in which the defendant faces incarceration.
o   Prosecutors
§  Represent the community in criminal actions.
§  A prosecutor is an administer of justice.
§  They have great discretion. Can decide which cases and defendants to charge, what charges to bring, and how serious of a sentence to seek.
§  If the case goes to trial, the prosecutor has a duty to represent the gov’t in the proceeding. During the investigative phase of trial, the prosecutor may also be responsible for supervising the work of the police and investigators.
·         Therefore, may have to prepare warrants, issue subpoenas, and supervise grand jury proceeding.
o   Victims
§  Interest in the case are represented by the prosecutor
§  Prosecutors, not the victim, decide which cases to charge, whether to plea bargain, etc.
§  Rights at the proceeding are limited
o   Police and Other Law Enforcement Officers
§  To serve and protect the public. Sometimes, this causes a violation of rights (more for investigatory crim pro).
o   Magistrates and Judges
§  Neutral decision makers and ensure the defendants constitutional rights are respected.
§  Magistrates determine whether search or arrest warrants should be issued, whether evidence is sufficient to hold an arrested defendant, and even when bail should be granted.
§  Also may review police conduct to determine is evidence should be suppressed because of constitutional violations.
o   Jurors
§  Two Types
·         Grand Jury
o   Oversee investigations of cases and decide whether to return indictments against individuals for specific crimes.
·         Trial Jury
o   Fact-finders in most criminal trials. After listening to all the evidence, they decide whether there is sufficient evidence to convict a defendant.
o   Correction Officials
§  Supervises incarcerated defendants or their release on parole or probation.
o   Public
§  Safety and their financial interest that the process is done efficiently.
o   Media
§  Interest in covering the story and serving as a check on government powers. Sometimes their 1st amendment right conflicts with the defendant’s Sixth Amendment right to a fair trial.
·         Stages Of The Criminal Justice Process
o   Step 1: Pre-Arrest Investigation
§  Police may have to make their own observations or use the accounts of other at the scene to gather the minimal amount of information necessary to execute an arrest on the scene.
§  Where the arrest is on-the-scene, majority of investigation will occur after the suspect is in custody, such as:
·         Witness and victim interviews
·         Interrogations of the suspect
·         Identification procedures
·         Undercover follow-up investigation
·         Searches and
·          Issuance of evidence subpoena
§  Police will use investigative tools to seek formal charges against the suspect before they execute an arrest.
§  Investigative tools include but are not limited to:
·         Search warrants
·         Interviews
·         Informants
·         And evidence collection
§  A magistrate may then issue an arrest warrant, together with a formal complaint filed by the prosecution, or the prosecution will obtain an arrest warrant in conjunction with a grand jury indictment.
§  When there has been a grand jury indictment, months or years of pre-arrest investigation may occur, including witnesses testifying before the grand jury.
o   Step 2: Arrest
§  An arrest may be made with or without a warrant.
§  If the police do not use an arrest warrant, they must file an affidavit with the court setting forth the probable cause for the arrest and getting a complaint to hold the defendant for further proceedings.
§  Even if the police have an arrest warrant, the D still has the right to appear before the judge, be informed of his constitutional rights, be advised of what he is being charged with, and be assigned counsel.
§  For some minor offenses, the suspect may merely receive a citation and will not be formally arrested. A citation or summons requires that the suspect appear at a later date to answer the charges against him.
§  If the suspect is not a flight risk, an indictment may be issued along with a summons for the suspect to appear instead of an authorization for an arrest warrant.
§  If a suspect is arrested, he is taken into the police station for booking. He is then placed in a holding facility unless he is able to post bail, if granted.
o   Step 3: Filing the Complaint
§  In order to hold the suspect after the arrest, the prosecutor must file charges. If the suspect has not been indicted, the prosecutor will use a complaint to file initial charges against the suspect
§  The complaint must be supported by a showing of probable cause based on a sworn affidavit by the police officers.
o   Step 4: Gerstein Review
§  The judge must review the prosecution’s complaint and supporting affidavit to determine whether there is probable cause supporting the initial charges against the D. The review is done ex parte (without all the parties having to be present) and is based upon the findings alone. No hearing is required. Often, this will be done at the time of the D’s first appearance, so long as the first appearance is with 48 hours of the arrest as required by Riverside v. McLaughlin, 500 U.S. 44 (1991).
o   Step 5: First Appearance / Arraignment on Complaint
§  Defendant is entitled to appear before the court to be advised of the charges against him, have an opportunity to seek bail, and be advised of his right to retain counsel or to have counsel assigned. Ordinarily first appearance and 48 hours within arrest. Look at Rule 5 of the Fed. Rule of Crim. Pro
o   Step 6: Grand Jury or Preliminary Hearing
§  Grand Jury
·         5th Amendment guarantees a defendant is entitled to a grand jury on all federal felonies.
·         It serves as a check on the prosecution’s decision to file charges.
·         Consists of 23 members of the community who listen to the evidence and decide whether there is probable cause. Defense and their counsel are not entitled to be present.
·         If there is probable cause, they issue an indictment. If they do not want to indict, they issue a no bill.
·         Although some states choose to use grand juries, they are not bound to.
§  Preliminary Hearing
·         Another screening tool.
·         Judge decides whether there is probable cause to “bind the case over”
·         Constitution does not require them, but majority of jurisdictions use them.
·         Judge presiding decides whether there is enough evidence to hold a D for trial and to settle on what charges the P will bring.
·         No jury is present.
·         Both sides can present evidence and in some jurisdictions, hearsay can be sued to establish probable cause.
·         Both sides can cross-examine witnesses.
·         If the charge are rejected, the case is dismissed.
o   Step 7: Arraignment on Indictment or Information
§  Will be asked to enter a plea of guilty or not guilty, be advised of charges, be assigned counsel if counsel is not yet assigned, and set a trial date. Trial date must conform to 6th amendment speedy trial standard.
§  Must conform to any applicable Speedy Trial Act.
o   Step 8: Discovery
§  Process parties use to examine the evidence that the other party is likely to use at trial.
§  Defendants have a due process right to exculpatory evidence and evidence that may impeach the prosecution’s witnesses.
o   Step 9: Pretrial Motions
§  Parties file the motions
§  Seek to suppress evidence illegally obtained, move to change venue, and seek dismissal for speedy trial violations or problems with charges.
o   Step 10: Plea Bargaining and Guilty Pleas
§  More than 90% of all criminal cases never go to trial.
§  Vast majority in a guilty or nolo contendere (no contest)
·         Alford pleas, the subject of the previous two posts, are when a defendant proclaims his innocence but agrees to be sentenced for the crime(s) he has been charged with.
·         Nolo contendere is when the defendant does not enter a plea but agrees to accept the punishment for crimes they are charged with.  The guilt or innocence of the defendant is unknown.
§  May reduce charges in exchange for a guilty plea. Anticipating that a plea bargaining will occur, it is not unusual for prosecutors to load up charges against the defendant so that there is room to compromise during plea bargaining.
§  They must be advised of their right to counsel, right to confront witnesses, right to present evidence, right to jury, and privilege against self-incrimination.
o   Step 11: Trial
§  If they do not plead guilty, it goes to trial.
§  For a bench trial, both sides must waive the right to a jury trial.
§  Right to jury trial is guaranteed by the 6th Amendment for all serious offenses, which are described by SCOTUS as offenses carrying the possibility of more than 6 months in custody.
§  States may choose to have as small as 6 jurors for non-capital felony cases.
§  There is no constitutional

e.       Getting a Bigger Fish
                                                              i.      We won’t prosecute you if you testify against this guy we really want.
                                                            ii.      Sort of like a bargaining chip plea bargain.
f.        The overall impact of prosecuting or dropping the case.
                                                              i.      The impact on victims, their families, criminals, criminal’s families law enforcement, and all member of the broader community.
1.      Maybe its just better off for society to let this one go. We might be taking someone out of the workforce who has a good job.
2.      Maybe the defendant has kids and the crime was not very serious. We would rather them be home taking care of their children.
3.      Does justice need to be done to bring closure to the victim or their families?
g.      Political Motives
                                                              i.      May be influenced by political decisions from the legislature and individual officials who don’t want to seem “soft” on crime. Goes for DA’s too, since they are elected.
                                                            ii.      We don’t want to admit that there are political motives, but a lot of times there are political motives and political repercussions of prosecuting or not prosecuting.
·         Inmates of Attica Correctional Facility v. Rockefeller
o   Prosecutorial discretion, where the prosecutor declines to prosecute, is not subject to federal judicial review.
o   Based on the separation of powers doctrine. Prosecutors are apart of the executive branch, the court is apart of the judicial branch and that would disrupt the separation of powers.
o   Court also said basically it would be way too hard to have to come up with a standard and as a matter of policy its better to leave it to the prosecutors.
·         Limits On Prosecutorial Discretion
o   There are statutory, administrative, ethical, and constitutional limits on prosecutorial discretion.
o   Statutory and administrative
§  Prosecutors can only charge conduct that the legislature has designated as a crime by statute.
§  However, federal double jeopardy law does not prevent both state and federal charges for violation of law if there are applicable statutes unless the state has greater double jeopardy protection. Separate sovereignties.
§  Administrative guidelines, hey we don’t prosecute these cases?
o   Ethical Limits
§   The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. (EC) 7-13 of Canon 7 of the ABA Model Code of Professional Responsibility
§  Standard 3-3.9 Discretion in the Charging Decision
·         A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges when the prosecutor knows that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.
·         The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction. Factors include:
o   the prosecutor's reasonable doubt that the accused is in fact guilty;
o   the extent of the harm caused by the offense;
o   the disproportion of the authorized punishment in relation to the particular offense or the offender;
o   possible improper motives of a complainant;
o   reluctance of the victim to testify;
o   cooperation of the accused in the apprehension or conviction of others; and
o   availability and likelihood of prosecution by another jurisdiction.