Select Page

Criminal Procedure
Wayne State University Law School
Mogill, Kenneth M.

CRIMINAL PROCEDURE 1 – Prof Mogill – Winter 2002
 
PROBLEMS: CH 1– #4, #6, #7, #9, #11, #12, #15, #19, #22, #23, #24, #26, #34, #35, #38, #41, #43, #44 (automobile exception only), #45, #48, #49 (variations 1 & 2 only), #50, #51, #52, #54, #57, #58, #59
 
PROBLEMS: CH 2 — #2 (4TH Amend. issues only) , #3, #7, #8, #9, #11, #13, #15, #20, #23, #24, #29, #31, #32
PROBLEMS: CH 3 — #6, #8, #10
PROBLEMS: CH 4 — #1 (4TH Amend. issues only)
PROBLEMS: CH 5 — #2, #3
PROBLEMS: CH 7 — #2, #4, #10, #13, #14, #16, #18, #22, #23
 
INTRODUCTION
 
            “The history of American freedom is in no small measure, the history of procedure.”
 
“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.”
 
 
CLASSROOM INFORMATION
·          HAVE A HEALTHY DISRESPECT FOR THE WRITTEN WORD: regardless of the content of the written words, discern what actually is intended & what actually is taking place in the case.
 
FINAL EXAM
·          Open book
·          Grading based on: knowledge of cases & analysis & REASONING SKILLS & PERSUASIVENESS AS CRITICAL FACTORS IN ASSESSMENT
 
MICH STATE CONSTITUTION
·          1ST POLITICAL JURISDICTION IN THE WORLD TO ABOLISH THE DEATH PENALTY
 
 
CH 1.   AN OVERVIEW OF THE CRIMINAL JUSTICE PROCESS p 12
 
      THE STEPS IN THE PROCESS p 12
 
            STEP 1 (THE REPORT OF THE CRIME) THROUGH STEP 18 (POSTCONVICTION REMEDIES) p 13
 
Crime Committed / Police Notified
 
Police Investigate
Investigation may include interviewing victim, witnesses, suspects; collecting physical evidence; visiting, viewing, photographing, measuring crime scene; identifying suspects; through line-ups … etc.
 
Police Make an Arrest (or Request a Warrant)
When a crime is committed in a police officer’s presence — or the officer has probable cause to believe that certain misdemeanors or any felony was committed that the officer did not see happen — an officer may arrest a suspect on the spot w/out an arrest warrant. The officer will later submit a charging/warrant request to the Prosecuting Attorney, suggesting potential charges to be authorized.
 
Warrant/Charging Request Reviewed by Prosecuting Attorney
Most cases begin w/ a warrant request. This is generally the first time that the Prosecuting Attorney’s office is involved in a case, unless a prosecutor reviewed a search warrant or visited the crime scene. At this stage, the Prosecutor determines whether a person should be charged w/ a crime and, if so, what the crime should be. The Prosecutor must thoroughly review all reports & records concerning the case, including witness statements. The Prosecutor also reviews the suspect’s prior criminal or traffic record. Occasionally, the reviewing Prosecutor sends the case back to the police to conduct additional investigation.
 
Warrant Issued
The Prosecutor can issue a charge if he or she reasonably believes that probable cause exists that the suspect committed the offense. But, most reviewing Prosecutors apply a higher standard — whether the charge can be proved beyond a reasonable doubt at trial w/ the information known at that time.
 
Suspect Arrested (if not already in custody)
The delay between the crime date & the defendant’s arrest on an authorized charge can take any length of time (e.g., if the defendant’s whereabouts are unknown, or if the defendant has left the State of Michigan).
 
District Court Arraignment
This is the first court appearance for any misdemeanor or felony. Once arrested & charged w/ a felony, the suspect appears in District Court for arraignment. The defendant is told what the charge(s) is (are) & the maximum penalty if convicted, & is advised of his constitutional rights to a jury or bench trial, appointed attorney, presumption of innocence, etc. The charging document is called a Complaint. The conditions & amount of bond are determined by the judge. In some cases — generally based on the nature of the charge — the Judge imposes conditions on the bond, such as “no contact” w/ the victim. Bond is set in almost every case, but it is up to the defendant’s own resources to post the bail money, which allows him to be released.
All further pre-trial procedures are determined by whether the defendant is charged w/ a felony or misdemeanor:
Misdemeanor
 
At a misdemeanor arraignment, the defendant will be given a chance to enter a plea to the charge: plead guilty, plead not guilty, or stand mute (i.e., remain silent, which is treated by the court as if the defendant pled not guilty). If the defendant pleads guilty or no contest, the Judge may sentence the defendant on the spot or may reschedule the case for a sentencing date, which will give the probation DEPT time to prepare a pre-sentence report including background information about the defendant & the crime, make a sentencing recommendation, etc. If the defendant stands mute or pleads not guilty, the case will be scheduled for a pre-trial conference.
 
Pretrial Conference — All misdemeanor cases are scheduled for a meeting between an Assistant Prosecuting Attorney & the defendant (or his attorney) to determine whether the case will go to trial or be resolved w/ a plea. These meetings focus on resolving the case short of trial. The Judge & witnesses are not directly involved in misdemeanor pre-trial conferences. If a plea bargain is going to be offered by the Prosecutor, it is done here.
 
Pretrial Proceedings — Many other events can occur prior to trial. Depending on the nature of the case, there may be pre-trial hearings on Constitutional issues (confessions, searches, identification, etc.). The issues are presented to the Court through written “motions” (e.g., Motion to Suppress Evidence, etc.). The judge must determine whether evidence will be admitted or suppressed at the defendant’s trial, whether there is some legal reason why the defendant should not be tried, or decide other ground rules for trial.
Felony
 
At a felony arraignment in District Court, the defendant does not plead guilty or not guilty. He is advised of his right to a preliminary examination w/in 14 days of the arraignment. The arraigning judge may also consider a defendant’s request for a court-appointed attorney at this time.
 
Pre-Exam Conference — Some courts schedule a “Pre-Exam Conference” several days before the scheduled Preliminary Examination. The Pre-Exam Conference operates like a misdemeanor pre-trial conference, as a meeting between the Prosecutor & defendant (or his attorney) to see if the case can be resolved w/out the need to subpoena witnesses for the “Prelim”.
 
Felony Preliminary Examination — This is a contested hearing before a District Court Judge, sometimes called a “probable cause hearing”, held w/in 14 days after arraignment. The Prosecutor presents witnesses to convince the Judge that there is at least probable cause to believe that the charged crime(s) was (were) committed & that the defendant committed the crime(s). B/c the burden of proof is much less than at a trial, the Prosecutor generally does not call all potential witnesses to testify at the “prelim”; generally, the victim & some eye witnesses plus some of the police witnesses testify. The defendant, through his attorney, can cross-examine the witnesses & present his own evidence (including witnesses). If probable cause is established, the defendant is “bound over” (i.e., sent to) Circuit Court for trial. If the Judge decides that there is not probable cause that the defendant committed the charged crime(s), the judge can bind the case over on different charges, can reduce the charges to misdemeanors for trial in District Court, or can dismiss charges. A defendant can give up his right to a Preliminary Examination. Most felonies arrive in Circuit Court after such a “waiver”.
 
Circuit Court Arraignment — After the case is sent to Circuit Court, the defendant is again arraigned (given formal notice of the charges against him or her). The charging document is called an Information. He or she is again advised of his/her constitutional rights, & enters a plea to the charge (guilty, not guilty or stand mute).
 
Pre-Trial Conference — The Circuit Court may schedule a meeting between an Assistant Prosecuting Attorney & the defendant’s attorney to determine whether the case will go to trial or be resolved w/ a plea.
 
Pretrial Proceedings — The Circuit Court Judge may be called upon to resolve various pre-trial issues, some of which determine whether the case will continue to a trial, be resolved w/ a plea, or be dismissed; whether evidence will be admissible at trial; etc.
 
Trial (Jury or Bench/Judge)
A trial is an adversary proceeding in which the Prosecutor must present evidence to prove the defendant’s guilt beyond a reasonable doubt. The defendant is not required to prove his or her innocence or to present any evidence, but may challenge the accuracy of the Prosecutor’s evidence.
Both the defendant & the Prosecutor (representing the People of the State of Michigan) have the right to a trial by a jury. Sometimes, both sides agree to let a Judge listen to the evidence & decide the case w/out a jury; this is called a “bench trial”. In a jury trial, the jury is the “trier of fact”; in a bench trial, the judge is. After the evidence is presented, the judge or a jury will determine whether the evidence proved that the defendant committed the crime.
Here is a general outline of the steps in a jury trial:
1.       residents of the local county are randomly selected from a Secretary of State list of licensed drivers, & are summoned to the Court as potential jurors;
2.       a blind draw selects twelve people from that group in felonies (six in District Court misdemeanors);
3.       Voir Dire: the Judge, Prosecutor & defense attorney question the jurors about their backgrounds & beliefs;
4.       the attorneys are permitted a limited number of “peremptory” challenges to various jurors (or an unlimited number of challenges for good cause);
5.       after twelve (or six) acceptable jurors remain, the Judge administers an oath to the jury & reads basic instructions about the trial process, etc.;
6.       the Prosecutor gives an opening statement to outline the People’s case & evidence to the jury;
7.       the defense may give a similar opening statement, or wait until later in the trial;
8.       the Prosecutor calls witnesses, which the defense may cross examine;
9.       the People close their proofs;
10.   the defense may call witnesses, if it wants, & the Prosecutor may cross-examine them;
11.   the defense rests;
12.   the Prosecutor may present “rebuttal” witnesses/evidence to challenge evidence presented by the defendant during his proofs;
13.   the Prosecutor rests;
14.   occasionally, the trial judge will let the defense present “sur-rebuttal” witnesses to respond to the Prosecutor’s rebuttal witnesses’ testimony;
15.   the Prosecutor presents a closing summary to the jury;
16.   the defense attorney presents a closing summary to the jury;
17.   the Prosecutor may present a rebuttal argument to the jury to respond to the defendant’s attorney’s closing summary;
18.   the judge gives the jury detailed legal instructions about the charged crimes, the deliberation process, etc.;
19.   the jury deliberates & returns a verdict.
A criminal case jury verdict must be unanimous.
 
Pre-Sentence Investigation & Report
The court’s probation DEPT prepares a report for the judge summarizing the crime, & the defendant’s personal & criminal backgrounds. Generally, the victim is contacted for a recommendation of sentence. The probation officer concludes the report w/ a recommended sentence.
 
Sentence
Sentencing in Michigan varies w/ the crime & can be the most confusing part of the criminal process. Most often, sentences are at the judge’s discretion. The judge will consider the information in the pre-sentence report (subject to factual corrections by the parties), additional evidence offered by the parties, comments by the crime victim, & other information relevant to the judge’s sentencing decision. For felonies, the Circuit Court judge will consult “sentencing guidelines” (originally established by the Michigan Supreme Court, but now applicable by recent “Truth in Sentencing” laws). The sentencing guidelines factor in aspects of the defendant’s criminal conduct & his prior record, to determine the minimum jail/prison sentence. The judge may consider different alternatives, such as a fine, probation, community service, a sentence to jail or prison, or a combination. The judge must also order the defendant to make restitution to any victims who have suffered financial harm.
 
Appeals
Appeals from the District Court are heard in the Circuit Court. Appeals from a Circuit Court or Probate Court order are heard in the Michigan Court of Appeals. Appeals from Court of Appeals decisions are heard in the Michigan Supreme Court.
There are three kinds of appeals: (1) interlocutory, (2) of right, & (3) by leave.
 
Interlocutory appeal: occurs when a party tries to appeal a judge’s decision before the case has come to trial or before a trial is finished.
Appeal of right: occurs after a final order has been entered by the trial court (either a sentencing order, or an order dismissing the charge). A recent amendment to the Michigan Constitution has eliminated most appeals of right when a defendant pleads guilty. Most appeals of right now focus on the sentence imposed.
Appeal by leave of the court: occurs when an appeal of right is not available (e.g., b/c an available appeal of right was not filed on time). The appellate court has the discretion to reject the appeal or can “grant leave”.
 
If the appellate court grants leave to appeal, the defendant & Prosecutor file briefs that summarize the case facts, frame the legal issues to be decided, & present persuasive written arguments (supported by constitutional, statutory or prior case decision authority). Either party can request that the case be scheduled before the appellate court judges for oral argument. The appellate court will eventually issue a written opinion (or several opinions, if the justices disagree). Not all appellate opinions are “published” (i.e., printed in official “reporter” services, such as Michigan Reporter or Michigan Appellate Reporter). The legal analysis & conclusions in published opinions are given greater precedential authority than “unpublished” opinions.
 
 
CH 2.   THE NATURE & SCOPE OF 14TH Amend. DUE PROCESS; RETROACTIVITY; FEDERAL “SUPERVISORY POWER”; STATE RIGHTS PROTECTIONS p 34
 
“ORDERED LIBERTY” – “FUNDAMENTAL FAIRNESS,” “TOTAL INCORPORATION”, “SELECTIVE INCORPORATION” THEORIES p 34
 
INCORPORATION
·          An Amend. has not been incorporated until the US Sup Ct specifically applies it to the states.
·          The Court asks if the right is part of due process, if the Court finds that it is, then that right is incorporated.
 
RETROACTIVITY
·          If the Court finds a particular practice unconstitutional, they must decide who may take advantage of the ruling.
 
DUNCAN V LOUISIANA 1968 p 35
·          6TH Amend. RIGHT TO TRIAL BY JURY IS BINDING ON STATES THROUGH 14TH Amend. INCORPORATION.
 
BALDWIN V NEW YORK p 37
·          Appellant arrested & charged w/ “jostling” in violation of N.Y. Penal Law, a misdemeanor punishable by maximum term of one year imprisonment. He filed a pretrial motion for a jury trial, which was denied under the mandate of N.Y.C. Crim. Ct. that all trials in that court shall be w/out a jury.
 
·          Appellant was convicted & sentenced to imprisonment for the maximum term. The state court of appeals affirmed conviction, rejecting appellant’s argument that § 40 was unconstitutional insofar as it denied him an opportunity for jury trial.
 
·          On appeal, the court reversed conviction, w/out reaching a majority as to the grounds for its decision. Noting that U.S. Const. amends. VI & XIV allowed “petty” offenses to be tried w/out a jury, 3 members of the court concluded that no offense punishable by more than six month’s imprisonment could be deemed “petty.” Two members of the court stated that, pursuant to the language of U.S. Const. art. III, § 2, cl. 3, & U.S. Const. amend. VI, the constitutional guarantee to a jury trial applies in all criminal prosecutions, w/out distinction between petty & serious offenses.
 
·          NO OFFENSE CAN BE DEEMED “PETTY” FOR PURPOSES OF DISPENSING w/ 14TH & 6TH Amend. RIGHTS TO JURY TRIAL, WHEN MORE THAN 6 MONTHS INCARCERATION IS AUTHORIZED AS PUNISHMENT.
 
·          DEFENDANT CHARGED w/ ANY OFFENSE WHICH MAY RESULT IN 6 MONTHS OR MORE INCARCERATION, HAS A RIGHT TO A JURY TRIAL.
 
WILLIAMS V FLORIDA p 37
·          6 PERSON JURY IN CRIMINAL CASES DOES NOT VIOLATE THE 6TH AMEND

rize the arrest or the search & thus the exclusionary rule did not apply; &
 
(6) the evidence should not have been suppressed b/c it was obtained from a search incidental to the arrest.
 
ILLINOIS V KRULL 1987   p 144
·          Respondents, operators of a wrecking yard, were arrested & charged w/ various criminal violations of the state’s motor vehicle statutes after a police detective discovered several vehicles in the wrecking yard were stolen. The trial court granted respondents’ motion to suppress seized evidence on the basis that a state statute that permitted officers unbridled discretion in their searches was unconstitutional. The state appellate court vacated the ruling & remanded for a determination of the detective’s good faith reliance on the statute. On remand, the state trial court upheld its earlier ruling, & the state supreme court affirmed. The court granted certiorari & reversed & remanded, holding that the
 
·          evidence obtained was subject to the exclusionary rule under U.S. Const. 4th Amend. good-faith exception, b/c the detective relied, in objective good faith, on the statute which appeared to legitimately allow warrantless administrative search of defendant business.
 
·          the statute was not clearly unconstitutional, & therefore, the detective was not expected to question the judgment of the legislature that passed the law.
 
UNITED STATES V CACERES p 146
·          Respondent met w/ GOV’T agent in connection w/ an audit of respondent’s income tax returns. Respondent offered agent a personal settlement in exchange for a favorable resolution of the audit. 3 subsequent conversations w/ respondent were monitored by GOV’T through electronic surveillance. 2 of the conversations were not monitored in accordance w/ (IRS) regulations requiring justice DEPT approval. Criminal charges were filed against respondent for bribing an IRS agent.
 
·          Respondent moved to suppress the taped conversations, which was granted. On appeal, a reversal was entered as to the 3rd tape on the basis that adequate authorization had been obtained. Certiorari was granted to decide whether evidence obtained in violation of IRS regulations could be admitted at respondent’s criminal trial. The court reversed judgment in favor of GOV’T & held that
 
·          all taped conversations were admissible against defendant at criminal trial b/c none of defendant’s constitutional rights were violated, either by the actual recording or by the agency violation of its own regulations, & the exclusionary rule was not applicable.
 
NOTES ON THE “DIMENSIONS” OF THE EXCLUSIONARY RULE p 146
 
            UNITED STATES V CALandRA 1974   p 146
·          court reversed appellate judgment holding that the exclusionary rule could be invoked by a witness before the grand jury to bar questioning based on evidence obtained in an unlawful search & seizure. Respondent grand jury witness had successfully moved the district court to suppress evidence against him allegedly obtained in violation of his 4th Amendment rights. The district court ordered the evidence suppressed & ruled that respondent was not required to answer any of the grand jury’s questions based on the suppressed evidence.
 
·          The court reversed, declining to extend the exclusionary rule to grand jury proceedings. The court concluded that allowing a grand jury witness to invoke the exclusionary rule would unduly interfere w/ the effective & expeditious discharge of the grand jury’s duties. In particular, suppression hearings would halt the orderly progress of an investigation & might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective. Further, any incremental deterrent effect which might be achieved by extending the exclusionary rule to grand jury proceedings was uncertain at best.
 
·          THE EXCLUSIONARY RULE DOES NOT APPLY TO GRand JURY PROCEEDINGS
 
            PENNSYLVANIA BOARD OF PROBATIONS & PAROLE V SCOTT   1998   p 147
·          Defendant found to have violated his parole based on evidence seized during an improperly conducted search.
 
·          exclusionary rule of 4th amend. does not apply to parole revocation proceedings.
 
·          The exclusionary rule does not extend to proceedings other than criminal trials.
 
·          A parolee is not entitled to all due process rights to which a criminal defendant is entitled as the parole revocation proceedings adopted by the states were informal, administrative proceedings.
 
·          The states had an overwhelming interest in maintaining informal, administrative parole revocation procedures, & application of the exclusionary rule would disrupt such proceedings. The deterrent effect of the exclusionary rule against unreasonable searches & seizures in parole revocation settings was marginal.
 
ONE 1958 PLYMOUTH SEDAN V PENNSYLVANIA   1965 p 148
·          automobile owner claimed police officers that arrested him acted w/out probable cause when they stopped him b/c his car was quite low in the rear.
 
·          The warrantless search & seizure that revealed cases of liquor that not bearing tax seals, in contravention of the law, was therefore unconstitutional. The Commonwealth maintained that the forfeiture proceeding was considered a civil proceeding in the state & that the U.S. Const. amend. IV, did not apply to civil proceedings.
 
·          The court determined that the automobile, which was the subject of the forfeiture, was only a derivative contraband & was not a contraband per se. There was nothing criminal in possessing an automobile in the state. The court held that
 
·          the exclusionary rule is applicable to forfeiture proceedings.
 
UNITED STATES V JANIS   1976 p 148
·          The court reversed a judgment in favor of defendant taxpayer on its tax refund claim & dismissing petitioner United States’ counterclaim for an unpaid tax assessment b/c
 
·          the exclusionary rule created to deter law enforcement agents from violating U.S. Const. amend. IV did not forbid the use in a federal civil proceeding of evidence seized by a state criminal law enforcement agent, since the deterrent effect on an offending officer would be too attenuated.
 
·          The court held that empirical studies had not shown that excluding from federal civil proceedings evidence unlawfully seized by a state criminal enforcement officer would be likely to deter the conduct of the state police such that the deterrence would outweigh the societal costs of excluding accurate evidence. Accordingly, the court declined to extend the exclusionary rule to such civil proceedings.
 
·          THE EXCLUSIONARY RULE DOES NOT APPLY TO CIVIL PROCEEDINGS.