Churgin_CrimPro_Fall_2010.docx
1 General Principles
1.1 Due Process Clause
The 5th Amendment applies to the federal government, and the 14th Amendment applies to the states
Two-part analysis:
Is there a protected interest?
What process is due?
1.1.1 Substantive Due Process
Protection of fundamental interests
Criticized for leaving a lot up to the judiciary
There is a violation of substantive due process when an action violates notions of what is right
It is so awful that the legislature or the executive cannot do it
1.2 Equal Protection Clause
The first step is to determine if there is a fundamental interest or a suspect classification
If not, only a rational basis is needed to support the distinction
If yes, a compelling state interest must be shown to justify the distinction
1.3 Contempt
Civil contempt – put in custody until you do what you were told to do
Criminal contempt – fixed term for some violation
1.4 Supreme Court Review
Supreme Court review of criminal matters must implicate issues of the US Constitution
If a decision is based on an interpretation of the state’s constitution, there is no basis for review by the Supreme Court
If the interpretation offers a defendant broader protection than the US constitution, the Supreme Court cannot overrule it on the grounds that the US Constitution offers less protection
1.5 Supervisory Powers of Judges
These powers are invoked when there is an issue of general fairness, as opposed to due process which is invoked when there is an issue of fundamental fairness
1.6 Retroactivity
New Supreme Court rulings are not usually retroactive
A case must be in the direct line of appeal of the criminal conviction
Habeas corpus is collateral
2 The Initial Appearance & Detention
The initial appearance serves limited functions:
Inform the defendant of the charges against him
Warn him of his right to be free from self-incrimination
Make arrangements for appointment of counsel if the defendant asserts indigency
Make arrangements for pretrial release or detention
Conduct a preliminary hearing
2.1 Charging Instrument
A complaint may be filed charging the defendant with an offense, but in felony and serious misdemeanor prosecutions, it only serves the interim function of formalizing the charge before an indictment or information is filed
Information
Created by a prosecutor
Indictment
Issued by a grand jury
Used in the federal system, but the requirement has not been incorporated onto the states
2.2 Probable Cause Determination
A probable cause determination is a finding that there is probable cause to believe the suspect has committed a crime
This involves a determination that a crime was committed, and that there is an indication that the particular defendant was the perpetrator
The 4th Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest
The constitutional right to a probable cause determination only attaches when a defendant is detained pending adjudication
It is not applicable if the defendant is seen by a judge when arrested and released on bail
A determination of probable cause must be made by a neutral judicial officer, but it need not be an adversarial determination nor even involve a hearing
A clerk is not the equivalent of a judicial officer
In Gerstein, the Supreme Court indicated that the probable cause determination was not a critical stage requiring appointment of counsel
If more than a probable cause determination is made (i.e. an initial hearing) it is not clear whether it is a critical stage because, in Rothgery, the Supreme Court did not speak to this when it determined that the initial hearing triggers attachment of the right to counsel
Typical process:
The judicial officer reviews the information from the prosecutor (may also include a police report)
The defendant is not involved in the determination or aware of it
Done mostly on paper
It is rare for the ruling not to be favorable to the prosecutor
The right is minimal—it involves a judicial officer looking over the shoulder of the prosecutor
Exceptions:
A grand jury indictment is automatically a finding of probable cause
An arrest warrant involves a finding of probable cause when it is issued by a judge
Recourse for violation:
The issue may be raised to obtain a probable cause determination
This does not occur much in practice
If convicted, the point is moot
The Supreme Court has held that illegal arrest or detention does not void a subsequent conviction
You have the right to file a federal civil rights action if the arrest or detention was illegal, but this has nothing to do with the conviction itself
The determination must be made within 48 hours of detention
No extensions even for holidays (absent extreme circumstances)
The burden is upon the government to justify it by showing the existence of a bona fide emergency or other extraordinary circumstances
A determination may not be prompt, even within 48 hours, if it was delayed unreasonably
This would include delay to gather additional evidence, delay based on ill will, or delay for delay’s sake
2.3 Right to Counsel
The 6th Amendment right to counsel attaches upon a defendant’s initial appearance in front of a judicial officer
This also triggers the state’s obligation to appoint counsel within a reasonable time once an indigent defendant makes such a request
2.4 Vienna Convention on Consular Relations
This treaty requires the local consular post to be notified and the national must be notified of his right to speak to a consular official
The Supreme Court has held that this is an agreement between nations and it does not provide individuals with a right for relief
2.5 Extradition
Where there is probable cause, neither a governor nor a state court may intervene to prevent extradition to another state
If there is probable cause, the individual must be sent to the requesting state
This is based upon notions that we are all citizens of the US, and that no one state should tell another state that it does not like how they are doing things
International extradition involves negations concerning the level of charge to be sought, unlike in the domestic situation
3 Bail & Preventive Detention
3.1 Bail
Types of bail:
Bail bond
A bondsman puts up a bond that is supposed to be backed by assets
The bondsman promises the appearance of the defendant in court
Money
The defendant can pay the full amount or put up equivalent property
Release-on-recognizance
Indicates that the jurisdiction believes you pose a low risk of failure to appear
Released solely on the promise to appear
It has been viewed that the sole legitimate function of bail is to assure that the defendant will appear for trial
When bail is set, alternatives should be considered
The Equal Protection Clause may bar the pretrial incarceration of an indigent defendant whose appearance for trial could be reasonably assured by other alternatives
Bail must be based upon what is necessary to assure the appearance of the specific defendant when that is the justification provided
Bail set to an amount higher than what is reasonably calculated to fulfill the purpose of assuring appearance at trial may be found excessive
Additional conditions may be imposed upon the issuance of bail or release on recognizance to ensure appearance
Violation of these conditions can lead to revocation of pretrial release
Violation can be a basis for contempt of court
Preventive detention may be acceptable if it is deemed necessary to protect the safety of others
Whether to impose bail and the amount to be imposed is committed to the discretion of the trial court
It is based on many factors, and it usually will be upheld on appeal
Some courts may place the burden on the prosecution with respect to the defendant’s likelihood to appear, while the burden on showing community ties may be placed on the defendant
3.1.1 Rebuttable Presumption for Drug Offenses
Congress was concerned that money from illegal activities could be easily obtained to post bail and flee
Guidelines were created whereby it could be determined that bail could not be set high enough in certain drug cases to ensure appearance
The statute has been construed by the Supreme Court such that it is not a conclusive presumption that cannot be defeated
It means that the judge has to keep in the back of his mind the fact that, from time to time in drug cases, people put up large amounts of money and flee
It is an additional factor to be considered in the normal test
3.1.2 Nonrefundable Portion of Bail
If the procedures are reasonable, it likely will not violate procedural due process to require that a portion of the bail imposed be nonrefundable
Since there is no fundamental interest or suspect classification involved in a system that applies to all defendants, only a rational basis is required (not hard to find)
The Supreme Court has held that it is an administrative charge, and it is not equivalent to making a defendant pay for their prosecution, and it is not an issue of fundamental fairness or liberty
3.1.3 Issues with the Bail System
Indigent defendants may not be able to afford bail, and therefore they may languish in jail
Most of the time there is no additional jail sentence once the trial is complete because defendants are sentenced to time served
This sentence may seem exaggerated compared to the typical sentence, and it may affect decisions made in potential subsequent criminal litigation
Some courts have ruled that it is unconstitutional to jail a defendant for failure to pay bail when the offense does not authorize incarceration
There have been concerns that bondsmen being a source of corruption, and their involvement may reduce the effectiveness of bail in ensuring the defendant’s appearance
Prosecutors often find that it is tedious work to have bonds forfeited, so no one bothers to recover them or to ensure that they are good in the first place
3.2 Preventive Detention
This is utilized when there is concern that a defendant may be dangerous and may commit crimes while released on bail
It may be authorized as an initial matter for certain serious offenses
It may also be imposed when the defendant has violated conditions of pretrial release
This may be invoked at the discretion of the judge, or certain factual matters may have to be proven beyond a reasonable doubt
It may involve a hearing
Ther
s to scrutinize the sufficiency of the evidence and the wisdom of bringing charges before the suspect is put to the deprivation of liberty
The standard has been equated to a motion for directed verdict for the defendant
There is no constitutional right to a preliminary hearing
The Supreme Court has held that, if a preliminary hearing is provided, it is a critical stage and counsel therefore must be appointed for an indigent defendant
Failure to provide counsel is subject to harmless error analysis
No jurisdiction provides for a preliminary hearing where there has been a grand jury indictment
The preliminary hearing, where it exists, can be stopped if a grand jury indictment is obtained
Reasons for a preliminary hearing:
Grand juries are not always in place to obtain an indictment
There may be a need to have witness testimony preserved
It may be more reliable than when trial comes around
There may be questions that need to be clarified by witnesses (test their testimony)
If a victim may be unwilling to testify this can be determined at the preliminary hearing
Not worried about witnesses or victims being cross-examined
It may encourage plea negotiations
Process:
The process varies since there is no constitutional requirement
Some may allow the defense to use the hearing for discovery, and others may not
The right of the defendant to call witnesses may be limited
The defendant may or may not be allowed to present defenses
There are less formal evidentiary rules
In some cases hearsay evidence may be relied upon
Usually before a different judge than will ultimately preside over the trial
The burden of persuasion varies depending on the jurisdiction
Usually the burden is a preponderance of the evidence that a crime was committed and the defendant was the perpetrator
The preliminary hearing can serve as a safety valve early in the process
If a preliminary hearing dismisses the charges, it does not prevent a subsequent prosecution for the same offense
In most jurisdictions it will not prevent the prosecutor from securing an indictment
The ability of the prosecution to charge by information is less settled
In some jurisdictions the prosecutor is limited to the offense for which the defendant is bound over, while in others the hearing is limited to determining whether there is probable cause to believe that some crime has been committed
5.1 Issues for Defense Counsel
May believe that you can undercut the prosecution’s case by cross-examination
However, the standard imposed on the prosecutor is lower at this stage than at trial
The presentation might have a stronger impact if introduced for the first time in front of the jury
Arguing the issue at this stage may give the prosecution more information about defense strategy
If the witness has left the jurisdiction, the prosecutor may ask to read the testimony from the preliminary hearing
Confrontation Clause argument will fail if this is the basis of an objection at trial
A defense counsel that doesn’t cross-examine at the preliminary hearing runs this risk
There is an exception to the Confrontation Clause if the testimony is from a prior judicial hearing where there was an opportunity for cross-examination
A record is now more common because it has been held to be a critical stage
The defense counsel faces the risk that testimony will be preserved and used at trial for impeachment
The defense may use the hearing as an opportunity to cross-examine prosecution witnesses and gain discovery
The preliminary hearing is an extension of rights to the defendant that comes with consequences
6 Grand Jury
The 5th Amendment guarantees the right to an indictment by a grand jury for any crime whose punishment may exceed one year in the federal system
New allegations cannot be added except by the grand jury, and the defendant cannot be convicted on the basis of evidence proving matters not alleged in an indictment
The defendant may be convicted on the basis of facts which constitute the offense, but which are less than the total facts alleged in the indictment
Operation of grand juries is a matter of local law in states where they are provided for because the constitutional requirement has not been made applicable to the sta
