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
re there is one statutory right of appeal, not for discretionary secondary appeals.
D. Ross v. Moffitt (1974) → extended Douglas rule to habeas corpus proceedings.
a. These cases all speak to right to counsel, self-representation (anyone who represents themselves has a fool for a client – waiver to effective assistance of counsel), and right to fairness.
b. You have the right to self-representation, but it waives your right to effective counsel.
c. No right to choose appointed counsel.
E. Strickland v. Washington → Standard for effective assistance of counsel. Test:
(1) The defendant must show that the counsel’s performance was deficient → made errors so serious that in effect defendant had no counsel.
The defendant must show that the deficient performance prejudiced defense → so serious as to deprive the defendant the right of a fair trial, a trial whose result is reliable. Does he have to show that he would have been found not guilty? No, it has to somehow affect the outcome of the whole evidentiary issue.
