Crim Pro Outline
Warrant – arrest – 1st Appearance (warrant and bail)– Preliminary Hearing – Grand Jury – Pretrial (motions, arraignment, pleas) – Trial – Appeal – Habeas Corpus
I. Introductory notes
A. Less than 6 months sentence does not require a federal jury unless extra punishment (loss of professional license) makes a jury necessary.
B. Appealable or reversible error must be substantial to undermine faith in factual determination
C. Access to federal appeal or habeas corpus requires a constitutional error.
D. 4th amendment claim litigated in state court cannot be reexamined by the federal trial courts under habeas.
1. Exclusionary rule created in Weeks
2. In Mapp?, the exclusionary rule was read into the constitution to control the states.
II. Pretrial Release / Bail
A. Constitutional limitations
1. Right to bail not greater than that usual for serious crimes without an evidentiary showing
2. Presumption against money bail if defendant would be unable to pay or obtain bond
3. Right to release if necessary to trial preparation
4. Right to counsel unclear
5. Split burden of proof
6. This right has not been incorporated through the 14th Amendment
B. Preventative detention
C. Primary considerations
1. whether the defendant will appear in court
a. Production of evidence of flight by prosecution
b. Production of evidence of community ties on defense
2. whether the defendant is a danger to himself or the community.
D. Secondary considerations
1. community ties
2. income level
E. Limitations
1. Bail set at an amount higher than the amount reasonable calculated to assure appearance in court is excessive under the 8th amendment.
2. The right to pretrial release exists for all noncapital offenses unless unreasonable.
3. No right to counsel at bail proceedings.
4. Burden of proof on prosecution.
F. Pugh v. Rainwater
1. Equal protection standards require a presumption against money bail and in favor of those forms of release which do not condition pretrial freedom on an ability to pay. (not binding)
G. Types of bail
1. Summons is promise to appear
2. Recognizance is promise to appear with penalty for failure to appear
3. Secured bond is when another person promises to pay the penalty if the person does not appear; bondsmen usually charge a percentage of the fee to the actual defendant.
4. Bail always has promise to appear and promise of good behavior pending trial.
H. Preventative detention
1. US v. Salerno (US 1987)
a. If no pretrial release conditions will reasonably assure appearance in court and safety of any other person and the community, pretrial detention is constitutional.
b. Clear and convincing evidence standard
c. Pretrial detention is regulatory not penal
d. Balance government interest with personal liberty interest
e. Release “would endanger the welfare and safety of the United States.”
III. Prosecutorial discretion
A. Challenges
1. Decision not to prosecute
a. Prosecutorial discretion stems from separation of powers
b. Grand jury does have right to some access to prosecutor, but they cannot force attorney to prosecute
c. Varying views on power of prosecutor to nolle prosequi
d. Once prosecution has commenced, prosecutorial discretion must be balanced against defendants interests and public interest
e. Grand jury in most jurisdiction can initiate prosecution on their own
f. State attorney general can overrule state prosecutor’s decision
g. Probably no private prosecution
h. Special prosecution due to conflict, complexity, and pu
s.
c. The primary (and sometimes only recognized) purpose of PH
d. 5-10% rate of dismissal is typical
2. Discovery
a. Possibly most valuable discovery tool for defense
b. Level of discovery varies for several reasons
i. Whether hearsay is allowed
ii. Whether bindover standard is minimal
iii. Whether prosecution generally presents much of the case
iv. Whether defendant is limited to direct rebuttal on cross
v. Whether D is willing to take tactical risk of presenting evidence
c. Importance depends on other state discovery rules
3. Future impeachment
a. Cross of less prepared P witnesses
b. Could be costly for D if overboard
4. Perpetuation of testimony
a. Can help both P or D, but mostly P
b. Exception to hearsay as prior testimony
c. Opportunity for cross examination is sufficient to meet confrontation clause challenge
d. Bail, plea bargaining, and evidence challenging opportunities
B. Why waive PH?
1. Don’t let prosecutor practice
2. Don’t anger victim
3. No press
4. Less time before trial
5. No testimony from government witnesses on the record
6. Plea bargaining chip
7. Even if D waives, P may require PH
C. Federal System
1. Feds have to have indictment; states do not. However, some states have both preliminary hearing and indictment.
