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Criminal Procedure
Wayne State University Law School
Broughton, J. Richard

Chapter 1
Ø Federal constitutional law regulating criminal procedure, as interpreted by the Supreme Court, is commonly described as “our most important source of criminal procedure law.”
Ø There are 4 main groups responsible for the administration of the criminal justice process:
o   Police agencies: The largest group. Defined: They enforce criminal laws, and are further distinguished from the other 3 bc they have full arrest powers and can carry a weapon.
o   There is broad police discretion: Most laws allow the officer to take action if certain prereqs are met, but do not require it.
o   Prosecutors.
o   Defense Counsel.
o   Judges: Different levels – the lowest being the magistrate courts (limited jurisdiction), then felony trial courts / aka general trial courts (courts of general jurisdiction).
o   Magistrate court jurisdiction typically does not extend beyond misdemeanors. However, they often also are the ones to issue arrest warrants and search warrants.
Ø Step 1: Pre-arrest investigation. Three types: Reactive – Normal style of investigation (incident driven, after the fact): main objectives include determining that the crime was actually committed; determining who committed the crime; collecting sufficient reliable information to support the level of probability needed to arrest that person; and locating the offender so that he may be arrested. Proactive: Like a sting. Aimed at uncovering criminal activity that is not specifically known to the police. Prosecutorial investigations: Grand juries mainly perform a screening function, but sometimes they investigate. GJ investigations tend to be used in certain circumstances when normal investigations don’t work as well (pg 14).
Ø Step 2: Arrest. Once a police officer has obtained sufficient info to justify arresting a suspect, the arrest ordinarily becomes the next step in the criminal justice process. This involves taking the suspect into custody for the purpose of charging him with a crime. When they do that, they search the guy and look for any incriminating evidence. They can arrest with or without an arrest warrant. Probable cause is needed either way, but with a warrant means that it has already been shown to a judge, without means that it will be shown later.
Ø Step 3: Post-arrest investigation.
Ø Step 4: The decision to charge. For the vast majority of felony cases, the initial decision to charge a suspect with a crime is made when a police officer makes a warrantless arrest of the suspect. That decision may be reversed on internal review within the police department. However, only a small percentage get reversed. The ultimate authority rests with the prosecutor, not the police. Charging the guy has to happen pretty quick (w/in the 24-48 hrs).
Ø Step 5: Filing the complaint. After this step, the arrestee becomes the defendant. After the prosecutor decides to charge, you must file the charges with the magistrate court, which must be done prior to the arrestee’s first scheduled appearance. Called a complaint, it sets forth the allegation that the accused, at a particular time and place, committed specified acts constituting a violation of a particular criminal statute. It is signed by the complainant – either the victim or an investigating officer. 
Ø Step 6: Magistrate review of the arrest. Following the filing of the complaint and prior to or at the start of the first appearance, the magistrate must undertake what is often described as the “Gerstein review.” Named after Gerstein v. Pugh (Sup. Ct. Case), if the accused was arrested without a warrant and remains in custody (or subject to restraints on his liberty), the magistrate must determine that there exists probable cause for the offense charged in the complaint. This is not required if an arrest warrant is used, or if he was indicted by a grand jury. 
Ø Step 7: The first appearance. An arrestee who is held in custody, or who otherwise remains subject to the custodial restraints, must be presented before the magistrate court within a time period typically specified as either 24 or 48 hrs. When the person was not arrested, but issued a citation to appear, then the first appearance may happen a week or more later. The magistrate basically dells the D of the charge in the complaint, and then tells him about his rights (remain silent, lawyer, etc). In this appearance, the magistrate will also set a date for the preliminary hearing, unless the D waives his right to that hearing at that point. The most important function of the first-appearance is that the magistrate “sets bail,” or fixes the terms under which the D can obtain his release from custody pending the final disposition. 
Ø Step 8: Preliminary hearing. Where a preliminary hearing is held, it will provide (like a grand jury) a screening of the decision to charge by a neutral body. In this hearing, the neutral body is the magistrate, who must determine whether, on the evidence presented, there is sufficient evidence to send the case forward. In some jurisdictions, this can be precluded by a prosecutor if he gets an indictment by a grand jury. This is different than the first appearance, or the GJ indictment, because the preliminary hearing provides screening in an adversary proceeding in which both sides are represented by counsel. Typically, the prosecution will present its key witnesses and the defense will limit its response to the cross-examination of those witnesses. Although the D has the right to call witnesses.
o   If the magistrate concludes that the evidence is sufficient for the prosecution to move forward (basically, establishing probable cause), he will “bind the case over” to the next stage in the proceedings.
o   If the magistrate finds that the evidence supports only a lesser charge, the charge will be reduced. If the magistrate finds that the evidence is insufficient to support any charge, the prosecution will be terminated.
Ø Step 9: Grand jury review. In most jurisdictions with grand jury screening, such screening is only required in those jurisdictions requiring felony prosecutions to be instituted by an indictment (a charging instrument issued by a GJ). In most Js, the prosecution is allowed to proceed either by grand jury indictment or by information at its option. In such Js, prosecutors prefer to use the information so they are called “information” states. 18 states, the federal system, and DC currently require GJ indictments for all felony prosecutions – these are called “indictment” jurisdictions. Some only require indictments in the worst offenses (capital, life imprisonment, etc.), these are called “limited indictment” jurisdictions.
o   When a GJ is used, it functions much like a normal jury (same jury pool), but for a term that can last as long as several months. They see only the prosecutor – it meets in a closed session and hears only the evidence presented by the prosecution. The D has no right to offer his own evidence or to be present.
o   If a majority conclude that the evidence is sufficient, then they issue an in

hand, aggressive judicial intervention has the potential to create great burdens on law enforcement officials. This class therefore considers what the role of the judiciary should be in the enforcement of the criminal law.
Ø Investigative criminal procedure – what we are going to focus on. Arrest, search and seizure, etc.
Ø 4th amendment: Prohibits unreasonable searches and seizures – the right of the people to be secure in their house and effects. You have a reasonable expectation of privacy.
Ø Common law treatment of the home: It is absolutely protected. You need to have a warrant to search it. Do there have to be exceptions? Who knows. It comes down to how we read the 4th amendment – no warrants shall issue but on probable cause.
Ø Hypo: Robert is going through divorce and custody battle. He decides to have wife killed, and tries to get joe to work out the details of the murder. Joe then hires howard as a trigger man. Wife comes home in car, then howard shoots her in the head, joe and howard leave. Cops trace killing to rob and later find the other 2. What do the cops have to do? Make him aware of Miranda rights, which is only required for situations of custodial interrogation. Say they mirandize him, and he invokes his rights. Now what? Do the cops keep going, or stop. The cops have to stop questioning, that is the end. If howard says that he might need a lawyer, do they have to stop? No. He needs to say I need a lawyer. Then he must stop. If there is an ambiguous invocation of rights, then the police do not need to stop. What if the cops leave the room, come back then say that they talked to his lawyer and he said to talk. Can the cops then use a confession obtained according to the lie? Police can trick suspects, but some things may cross the line. There are limits. Could it violate 6th am? No, it is only triggered by commencing adversarial proceedings. Could it violate DP? Mabe.
Chapter 2: Nature and scope of 14th amendment DP; the Applicability of the Bill of rights to the states.
Ø The court in Palko and Adamson adopted what has been called the “fundamental rights” or “ordered liberty” interpretation of the 14th am’s DPC, and approach that prevailed until the 1960’s.
Ø This approach finds to link b/t the bill of rights and the 14th am. It just sees DP as incorporating all principles of justice “implicit in the concept of ordered liberty” or “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
As a result, if a certain provision in the Bill of rights is not necessary to justice or ordered liberty, then it is not required under the DPC of the 14th. Also, if a one of the bill of rights were held to apply to the states, it was not because it was a one of the bill of rights but bc a