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Criminal Procedure
University of Toledo School of Law
Steinbock, Daniel J.

I. Introduction to Criminal Procedure

A. In General
● The criminal process by and large is the function of the state.
● Procedure of criminal law is defined by each state but many are modeled after the federal rules of criminal procedure

B. Steps in the Process
1. Report of a crime
2. Prearrest investigation
3. Arrest—the taking of a person into custody for the purposes of charging them with a crime
4. Booking—includes the logging in of the arrest and fingerprinting
5. Decision to Charge—this decision to charge the arrestee with the crime can be made by the arresting police officer of by the prosecutor depending on the jurisdiction
6. Filing the Criminal Complaint—the complaint is a charging instrument and is usually filed in a court of limited jurisdiction
7. Arraignment on the Complaint/1st Appearance—In this stage:
a. the complaint states that a crime has been committed by the arrestee
b. the D is given a copy of the complaint and it can be read to him
c. the conditions of release if there are any are determined
d. there is in inquiry as to whether the D has an attorney
8. Review of the Sufficiency of the Arrest—This stage can take place in:
a. a preliminary hearing—an adversary hearing in front of a judge where the standard of proof is whether there is probable cause to believe that D committed the crime
b. a grand jury—the grand jury hears the evidence and determines whether or not there is probable cause
–this is not an adversary hearing, the proceedings are exparte
9. 2nd Arraignment on the Indictment—this takes place in a different court than the 1st arraignment and the D enters a plea of “guilty” or “not guilty.”
10. Pretrial Motions—most important motion for our purposes is a Motion to Suppress—this is a motion to invoke the exclusionary rules to keep certain evidence out
11. Trial
12. Sentencing
13. Appeals—there is no appeal for those acquitted and neither can the prosecution appeal an acquittal because that would fall under the Constitutional prohibition of double jeopardy
a. direct appeal—an appeal straight from the trial court to the intermediate court of appeals then to the state’s supreme court then on cert. to the USSC
b. collateral appeal—a writ of habeus corpus—was designed to test the reason for the detainment and is against the person who is detaining the detainee (prison warden)
–in this appeal the D claims that they are being held in violation of the US Constitution and is filed in the proper US Dist. Ct. even if detainee is in a state prison
–a D cannot bring a writ of habeus corpus unless his/her state resources are exhausted

II. Probable Cause

A. Foundation of Probable Cause
● The concept of probable cause comes from the 4th amendment. The two relevant clauses/prohibitions are:
1. no unreasonable searches and seizures
2. no warrants (for searches or arrests) but upon probable clause
● The probable cause requirement comes from the frustration of the British general warrants that were issued to police officers, which allowed them to search anywhere or to arrest anyone for no reason.
● Therefore, when a warrant is issued by a magistrate/judge, it must be supported by probable cause and must describe the place or person to be searched; or the person to be arrested
● An application for a warrant must include:
1. an affidavit—an affidavit sets out the facts that show there is probable cause (fair probability) to believe that a crime has been committed or will be committed;
a. and that the person to be seized committed the crime; or
b. the fruits, instrumentalities or evidence of the crime would be found at the listed location or on the named person
2. and the actual application
● After an appl

ches and seizures
2. it protects against warrants not supported by a fair probability of “X”
3. it is a fair way of balancing private interests and the interests of law enforcement in fetting out and reducing crime

E. Probable Cause and the Issue of Informants
● In Gates, the USSC abandoned the Aguilar and Spinelli two-prong test for establishing probable cause in cases of informants, in these two cases the test was:
1. the veracity/truthfulness of the informant; and
2. the informants reliability/basis of knowledge
● Instead the court ruled in favor of the “totality of the circumstances” test. In doing so the court did not abandon the two-prong test but stated that both prongs didn’t have to be satisfied. Strength in one prong can make up for weakness in another.
–The determination of an informants veracity and reliability can be established by:
1. showing the credibility of the informant through past reliability
2. showing the reliability of the informant’s information in the past
● When an informant’s information is corroborated by existing proof, there is usually probable cause.
● An informant’s name does not have to be revealed in order to establish probable cause because:
1. their identity being exposed would ruin their status as an informant
2. the statement of a police officer that he has received information from a reliable informant is enough “Nothing in the 4th Amendment requires a judge to assume the arresting officers are committing perjury”