Criminal Procedure
I. Intro & Steps in the Process
A. What is it? → the process by which substantive criminal laws are enforced
B. 52 Basic Independent Lawmaking Jurisdictions: all have pretty much the same criminal procedural systems
1. 50 states
2. District of Columbia
3. Federal system
C. Steps in the Process: the process begins with the commission of a crime & our procedural system is a series of responses to that crime (suspected criminal behavior)
1. Pre-arrest Investigation (3 types and all you need is probable cause for an arrest)
a. Reactive Investigation: police procedures that are designed to solve specific past crimes known to the police (where law enforcement responds to the alleged commission of a crime)
(1) Outline of Reactive Investigation
(a) Look to see if a crime has actually been committed
(b) If so, who did it?
(c) Then collect evidence of the offender’s guilt
(d) Locate the offender
(e) Surveillance
(f) Confidential Informants →Example is police officers using someone who is a part of a gang or such to track down the criminals and find out more about the crime [It is easy for a police officer to make up an identity of a confidential informant in state court. In federal court, defense counsel can request the DEA file (if informant is being paid) of the anonymous source, but the court can ensure the identity of the informant by the judge looking at the DEA file].
(2) Various Investigative Techniques
(a) Interview victim(s)
(b) Interview other witnesses present when officer arrives
(c) Canvassing the neighborhood for (and interviewing) other relevant persons
(d) Interview suspects (including stop-and-frisks)
(e) Examination of crime scenes and collection of physical evidence
(f) Checking departmental records and computer files
(g) Seeking information from informants
(h) Searching for physical evidence of the crime
(i) Surveillance of a suspect to get leads
(j) Use of undercover operatives
(k) ***The type of investigative technique used depends on the facts and circumstances of each case***
b. Proactive Investigation: police procedures that are aimed at unknown, but anticipated, ongoing and future criminal activity (we’re trying to infiltrate a particular type of criminal activity or deter a particular criminal activity – infiltration is more common – more used for conspiratorial types of investigations)
(1) Various Investigative Techniques
(a) Deception is an integral part here
(b) Traditional undercover operations
(c) Decoy tactics:when police officers will pose as the John & prostitutes in a prostitution case (police officers act as decoys)
(d) Informants
(e) Examples →drug trafficking, gang activity, organized fraud activity
(f) Criticism →you might be inducing someone to commit crime or encouraging/increasing crime
c. Prosecutorial & Other Non-Police Investigation
(1) Prosecutorial Subpoenas: a court order that directs an individual to appear at a particular place at a particular time (either to testify and/or to produce documents)
(a) You can call witnesses and suspects into your office but have to abide by the prosecutorial subpoena statutes
(b) Used rarely but for specific types of cases (like cases where they’re afraid for their life if they talk – organized crime cases & cold cases)
(c) Usually to appear at grand jury (no lawyer, secret, immunity)
(d) Generally used for—-Ws will not cooperate & paper trail types of cases
2. Arrest: the act of taking a person into custody for the purpose of charging them with a crime (3 ways to effectuate an arrest)
a. Take person into full custody (usually for more serious crimes)
b. Issue an arrest warrant for purpose of taking into custody at a later time
c. Issue an appearance ticket (usually for traffic violations and misdemeanors)
3. Booking: happens in a very centralized located place within the county (like county jail); very administrative duty for law enforcement b/c now suspect who has been arrested has to be officially logged into the system
a. Full name of arrestee
b. What time suspect was brought to the jail (this is important b/c if there is a large amount of time b/w the time of arrest and the time the person was brought to jail, there is a problem!!)
c. The charge the person was arrested for (the name of the charge the officer uses to book someone is not controlling)
d. Mug-shot
e. Fingerprinting
f. Phone call
g. Interim bail
(1) Felonies & capital crimes = NO
(2) Mid & low-level felonies = YES, PROBABLY
(3) If no bond is posted = D IS HELD FOR THE ARRAIGNMENT/INITIAL APPEARANCE
(4) Place an ROR (released on your own recognizance) or a temporary bond until seen by magistrate
4. Post-arrest Investigation: the type of investigation L.E. does depends on the facts of the case; difference is that now you have the D!!!
a. Lineups/ID procedures
b. Samples (blood, handwriting)
c. Questioning
5. Decision to Charge: typically prosecutor reviews what arresting officer did and what info he has against the suspect and then determine what charges should remain
a. Police screening
b. Pre-filing prosecutor screening
c. Post-filing prosecutor screening
6. Filing the Complaint: If the decision is made to charge the suspect with a crime, a “charging document” must be filed with the court (the lower criminal court aka the district court)
a. The “complaint” →A succinct statement of the charges against the individual
(1) Date, location (venue/jurisdiction), charge(s), possible maximum penalty, statute number
(2) Must be signed by a complainant
b. Suspect is officially renamed “defendant”
c. Filing of complaint begins official court “logging” and case receives a lower criminal court number
7. Magistrate Review: If the accused was arrested w/o a warrant and remains in custody, the magistrate must make a probable cause determination (Gerstein v. Pugh) —- THIS IS VERY RARE!!!
8. Arraignment/Initial Appearance: D will be brought in front of a magistrate/judge for arraignment; initial arraignment has to take place w/in 48 hours of the arrest; this is the first time D will be in front of a judge
a. D informed of charges and usually, the following
(1) Possible maximum penalty
(2) Abbreviated form of rights
(3) Plea – guilty or not guilty
b. If not previously released, bond will be determined
c. Judge will set bond/bail
(1) Purposes
(a) To protect the public
(b) To ensure D’s future appearance
(2) Types of Bail
(a) Personal Recognizance (low-level crimes) → released on your promise to appear for all future court appearances (unsecured personal bond with non-financial conditions)
(b) 10% Bond → pay 10% of the specified amount to be released. If FTA, responsible for entire amount. Otherwise, all but 10% returned to you at end of case (trend to apply it to F&C instead of returning)
(c) Cash/Surety Bond (repeat offenders, violent crimes) → post cash or secured bond from a bondsman
(d) No Bond → growing trend—MI, it’s part of the constitution (capital crimes are crimes that carry a maximum possible sentence for life since no death penalty in MI and with these, it is not required that you have a bail amount)
(3) Examples of factors a judge will use to determine bond
(a) Criminal history
(b) FTA record
(c) Substance abuse history
(d) Mental condition
(e) Seriousness of the offense (likelihood of conviction)
(f) Employment/education
(g) Responsible community members to vouch
(h) Ties to community/flight risk
(i) Any other factors that bear on danger to public and future appearance by D
9. Preliminary Examination: The first scheduled step after the first appearance — probable-cause hearing (the first time that district court judge is going to make the determination whether or not facts establish probable cause as to 1) whether crime(s) was committed and whether 2) whether D committed those crimes)
a. All but a few of the 52 jurisdictions grant D the right to a PX within a specified period of time (Ex: MI is 14 days)
b. Judicial Determination
(1) Probable-cause as charged → bindover (district court judge will bind over D to felony trial court aka circuit court)
(2) PC to different charge → bindover with amended document
(3) PC to lesser charge/md → reassigned to magistrate/dis
t be introduced against the defendant at a federal trial if said evidence was obtained in violation of the Fourth Amendment
(2) Acknowledging that the Fourth Amendment did not contain remedial language, the Court stated that without such an exclusionary rule, the Fourth Amendment would be reduced to a mere “form of words.”
2. Wolf v. Colorado (1949)
a. Importance
(1) The Court declined to extend the exclusionary rule to the states
(2) The Court acknowledged that the security of one’s privacy against arbitrary intrusions by the police is the core of the Fourth Amendment
(3) The Court seemed to say that one of the reasons it did not need to extend the rule to the states was because several of the states had already made the choice to follow the Weeks exclusionary rule
3. Mapp v. Ohio (1961)
a. Facts: D was convicted of knowingly having had in her possession certain lewd and lascivious books, pictures and photos in violation of Ohio’s Revised Code. Ohio Supreme Court found her conviction was valid even though the evidence was unlawfully seized during an unlawful search of D’s home (there was no search warrant). HELD – all evidence obtained by searches and seizures in violation of the Constitution is inadmissible in a state court.
b. Importance
(1) The Court re-examined whether the exclusionary rule should be extended to the States
(2) “Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.
III. Miscellaneous Issues
A. Sources of Federal Decisions
1. Constitution
2. Federal Statutes
3. Federal Rules of Criminal Procedure
B. Sometimes the decisions are based are based on a concept called “Supervisory Power”
C. Supervisory Power
1. What is supervisory power? → historically, the Supreme Court suggested that the power was created by federal statute
2. Contemporary View (Article III) → confers general judicial power on the federal courts
D. Supervisory Power v. Constitutional Jurisprudence
1. Constitutional jurisprudence has national scope
2. Federal supervisory power extends only within the federal system
E. Federal Control of State Criminal Procedure
1. Supreme Court does not have state supervisory power over state criminal justice
a. Supremes can’t tell state what to do just because they don’t agree with state
b. States are still
2. Article III, Section 2
a. Supreme Court has jurisdiction over all cases arising under the Constitution
b. Therefore, the Supremes can’t control state criminal procedure to the extent that those rules are constitutionally mandated
F. What part of the Constitution is applicable to the states?
1. Originally, the Bill of Rights only applied to the federal government
2. Eventually, the Supreme Court made the Bill of Rights applicable to the states via the 14th Amendment (Duncan v. Louisiana)
G. Important Case
Duncan v. Louisiana (1968): Duncan was driving and stopped his car when he saw his cousins conversing with white boys on the side of the road. Whites stated that just before getting into Duncan’s car, one of the cousins slapped Herman Landry, one of the white boys, on the elbow. Trial judge found that the State
