CRIMINAL PROCEDURE
I. INTRODUCTION – STEPS IN THE PROCESS
A. Pre-arrest Investigations:
a. Reactive investigations → someone makes a complaint (specific crimes)
b. Proactive investigations → aimed at uncovering criminal activity that is not specifically known to the police through observations, to help prevent criminal activity. Surveillance, wiretapping, informants to create probable cause.
c. Prosecutorial investigations → subpoena power and grand jury
B. Arrest
a. Police must have probable cause
b. Warrant is not necessary to obtain an arrest
c. A warrant would be used if you are going into someone’s home without consent, offender is in another jurisdiction, to alert other jurisdictions and officers so any of them can arrest, when the prosecutor recommends it in proactive investigations.
C. Booking
a. Arresting officer will search the arrestee’s person and remove any weapons.
b. Name, time of arrival, and offense for which arrested is entered into the blotter.
c. Placed in lock-up
d. Stationhouse bail
e. Allowed one phone call
D. Post-Arrest Investigation
a. Line-ups, show-ups
b. Eyewitness identification
E. Decision to Charge
a. Usually contemporaneously with decision to arrest
b. Within 24-48 hrs. of being charged, the arrestee must be brought before a magistrate
c. Prosecutors must approve of the charges being filed against the individual (most jurisdictions)
(1) Insufficient evidence
(2) Victim is reluctant to testify
(3) Violation of the 4th Amendment
(4) Behavior does not fall within the statute
(5) Discretion
F. Filing the Complaint
a. Complaint must be signed
b. If the police officer did not personally observe the charge, must assert that the complaint is based upon information and belief.
G. Magistrate Review of Arrest (some jurisdictions)
a. Gerstein Review → if arrested without a warrant, the Magistrate must determine if there was probable cause
b. Ex parte determination → not adversarial proceeding
H. The First Appearance (arraignment)
a. Defendant is given an opportunity to be informed of the charges against him and is advised of his rights, told of the procedure, and a date is set for the preliminary hearing
b. 80% of these individuals wind up with court-appointed counsel.
c. Bail or detention component
(1) Flight risk
(2) Seriousness of the charge/ danger to community
I. Preliminary hearing
a. Defendant can waive his right to have a preliminary hearing
b. Must prove probable cause to believe that the defendant committed the crime → adversarial
J. Grand Jury review (most jurisdictions)
a. Determine whether or not to formally indict
b. Probable cause.
c. Grand jury is not bound by the magistrate’s decision.
d. Has the power to overrule the magistrate’s decision.
e. Only the prosecutor talks to the grand jury.
K. Filing of the Indictment or Information
L. Pre-trial motion
a. Suppression motions
b. Challenges to venue, indictment and charging instrument
c. Change of plea possibly
M. Plea Negotiation and Acceptance
a. Written document that governs the plea
b. In some jurisdictions, prosecutors do not entertain plea negotiations
c. If there is a plea, sentencing comes next. If not, then trial takes place.
N. The Trial
a. 5-8 mos. to a year
b. Right to jury trial for all felonies
O. Sentencing
P. Appeals
II. RIGHT TO COUNSEL
A. Powell v. Alabama (1932) → deals with the right to counsel in capital cases. For the first time, the Supreme Court held that defendants facing the death penalty are required to have counsel.
B. Gideon v. Wainwright (1963) → defined the right to appointed counsel for indigent defendants. Overruled Betts and held that the 14th Amendment incorporated the 5th and 6th. It does not incorporate excessiv
trial for indigent defendants for appellate review.
G. Rochin v. California (1952) → created the “shocks the conscience” standard where the court overturned a conviction where pills were forcefully extracted from the defendant.
H. Irvine v. California (1954) → limits Rochin to situations involving coercion, violence or brutality to the person.
I. Breithaupt v. Abram → involved an unconscious defendant whose blood sample was taken from him while he was in this condition.
a. There must be balance → individual rights against the need to protect against criminal activity.
b. What happens when there is a conflict between the two?
(1) Due process advocates → the court throws up obstacles to police efficiency – we understand that you want to control crime, but due process requires you to act in a particular way in order to ensure due process. On the other hand, with crime control jurists, they want to allow this kind of conduct to occur when it clearly appears that the defendant is guilty. This just prevents us from being efficient with crime control.
(2) Due process advocates throw a very heavy weight on the presumption of innocence; holds the prosecutor to its burden. Crime control advocates do not; instead they have a rebuttable presumption of guilt.
(3) Due process is concerned with fairness, but crime control jurists take the perspective that the constitution does not require everyone to be on the same exact plane, just a minimal opportunity to have adequate counsel.
(4) Crime control jurists look to the truth, but due process advocates are throwing up obstacles.
