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Criminal Procedure: Adjudication
Wayne State University Law School
Cook, Blanche Bong

Criminal Procedure – Adjudications
Professor Blanche Cook
Winter 2015
I.                   U.S. Constitution (p 1-4)
II.                The Criminal Process I (9-63)
a.      Three Ways to Charge
                                                              i.      Indictment – Something you get from a Grand Jury. Defendant has no right to go to a Grand Jury. The prosecutor and his witnesses are the only ones with the right to go to a Grand Jury and establish guilt based on probable cause. If indictment is returned against defendant, then the prosecutor has established a probable cause, and the defendant has no preliminary hearing.
                                                            ii.      Complaint – Prosecutor gets complaints from judges. Must have a preliminary hearing. The complaint will outline what the charge is and is established by probable cause. Complaints can be obtained quickly. You must bring complaint to a Grand Jury within 30 days in order to get an indictment. §3161(b) Speedy Trial Act.
                                                          iii.      Information – Ususally a situation where a defendant is cooperating with their prosecution.
b.      Failures
                                                              i.      Introduction
                                                            ii.      Investigation Failures
1.      Brown v. Mississippi
a.      Facts: Two individuals were convicted of murder, the only evidence of which was their own confessions that were procured after violent interrogation.
b.      Issue: Whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the DPC of the 14th Amendment.
c.       Holding: The majority said this was a violation of the DPC. Here, the trial equally is a mere pretence where the state authorities have contrived a conviction resting solely on confessions obtained by violence. Accordingly, the DPC requires that state action shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. The trial court was fully advised by the undisputed evidence of the way the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet, it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could be challenged in any appropriate manner.
d.      Rule: The 14th Amendment DPC is violated when a confession obtained via physical torture is used as the only evidence to convict a defendant.
                                                          iii.      Trial Failures
1.      James Goodman – Stories of Scottsboro
2.      Powell v. Alabama
a.      Facts: A group of african American boys were on a freight train through Alabama. They got into a fight with some white kids, throwing the white kids from the train. A message was sent, requesting all blacks be removed from the train. Two white girls on the train testified that they had been raped by six different black men in turn. The black men were taken into custody. The community was very hostile, as a mob met the youths when taken into custody. The trial judge appointed “all members of the bar” for the purpose of the arraignment. The defendants themselves were illiterate and ignorant. They were all tried separately, each trial lasting a day, convicted, and sentenced to death. On March 25th, 1931 the incident occurred. The grand jury returned an indictment on March 31st. April 6, 1931 was the first day of the trial. The nine defendants were broken up and had separate trials. The jury returned the verdict on all 9 defendants on the same day.
b.      Issue: Whether the defendants had sufficient counsel, and whether the DPC of the 14th Amendment had been violated.
c.       Holding: No, the defendants were not accorded the right of counsel in any substantial sense. The SC first observed that by appointing all members of the bar for the arraignment, such designation of counsel was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid. This unknown number of members would not have been given that clear appreciation of responsibility or impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar. The ignorant and illiterate status of the defendants, coupled with the hostility of the community were put in peril within the first moments of representation. Finally, the court noted that when counsel was in palce that neither the defense counsel nor the court could day what a prompt and thorough investigation might disclose as to facs as there had been no proper investigation and no opportunity to do so. Given the hostile circumstances, the illiterate status of defendants, the close surveillance, their isolation from their families, and that they stood in deadily peril of their lives, the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.
d.      Rule: Where the defendant is unable to employ counsel, and is incapable of making his own defense, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law, and that duty is not discharged by an assignment at such a time or under such circumstanes as to preclude the giving of effective aid in the preparation and trial of the case.
3.      Responsibilities of a Criminal Defense Attorney – Gerald B. Lefcourt
c.       The Norms of the Criminal Process
                                                              i.      Notes and Questions
d.      The Bill of Rights and the Fourteenth Amendment: The Incorporation Story
                                                              i.      Understanding Criminal Procedure – Joshua Dressler & Alan Michaels
                                                            ii.      Duncan v. Louisiana
1.      Facts: In October, 1966, Gary Duncan, a 19-year-old AA, was driving down a Louisiana highway when he noticed his two cousins with a group of white youths on the side of the road. He became concerned because his cousins had reported occurrences of racial incidents at a recently desegregated school. He pulled the car over, stepped out, and asked his cousins to get into the car. The white youths testified that Duncan slapped one of them at that point, while Duncan and his cousins denied it. Duncan was arrested and ultimately charged with simple battery. As it is punishable by no more than two years, a simple battery is a misdemeanor under Louisiana law and therefore not subject to trial by jury. Duncant was convicted and received a 60 day prison sentence and a fine of $150. He appealed on the grounds that the state had violated the 6th and 14th Amendments guaranteeing his right to a jury trial. The Court accepted the case under its appellate jurisdiction from the Louisiana SC.
2.      Issue: Do the 6th and 14th Amendments guarantee the right to jury trial in state prosecutions where sentences as long as two years may be imposed.
3.      Holding: The right to a jury trial for criminal offenses is deeply enshrined in both the British and US legal traditions. The right to a jury trial in criminal cases is within the 14th Amendment and therefore applicable to the states. The question for the court was whether an offense subject to two years imprisonment is a serious offense. The majority noted that in the federa

l while awaiting trial. This becomes worse if the defendant obsconds.
3.      Evidence: If a defendant is released, he may destroy incriminating evidence not yet discovered, intimidate or harm witnesses or commit other crimes while free.
c.       Bail and Other Release Mechanisms
                                                              i.      Pretrial Services Programs – Brian Mahoney
1.      The basic principall of the bail system: Courts will release a defendant if he or she can arrange to have bail bond posted in the amount of money set by the judicial officer. Courts assume that defendants released on bond will return for future court appearances rather than lose their money or pledged collateral.
a.      Historically, the person who posted bail and guaranteed the appearance of the defendant was a private individual – usually a friend, relative or employer of the accused.
b.      As the population grew, comericial bondsmen gradually replaced private sureties. For a fee, the bondsman would post the amount of the bail bond. Since the bondsman would theoretically be liable if the defendant fled, the bondsman would require defendants or their relatives to post collageral or agree to indemnify the bondsman
2.      Since the late 19th century, money bail had been the principal method used in the US to resolve the question of whether a defendant in a criminal case should be released before trial.
3.      In a jurisdiction that relies on money bail, a judicial officer sets bail in a specific amount, or alternatively, sets bail mechanically be reference to a “bail schedule” that fixes bond amounts in accordance with the seriousness of the charge. To obtain release on surety bond, the defendant has to be able and willign to pay the bondsman a nonrefundamble fee, typically 10% of the bond.
a.      Problems with the System: A defendant’s freedom hinges largely on one factor – the ability to raise money. If the defendant can raise the money, even if the charges are serious and there is a risk of flight or potential danger to the community, the defendant will be released. Conversely, a defendant unable to raise the money will stay in jail even when the charges are minor, the person’s roots in the community reduce the likelihood of flight, and release poses little threat to community safety.
4.      Changes in the Bail Process: After studies were conducted on the correlation between those who posted bail and those who failed to appear, reforms in NY started to take place. The initial reforms focused primarily on providing alternatives to the traditional surety bail system. The alternatives fall into two main categories:
a.      Release on nonfinancial conditions (sometimes characterized as “own recognizance”) that restrict the liberty of the accused in various ways.
b.      Release under “deposit bail” procedures that bypass the professional bondsman and provide for money bond (or a percentage of the bond amount, typically 10 percent) to be posted directly with the court [nearly all of which is refunded if the defendant satisfies all pre-trial release conditions.