CRIMINAL PROCEDURE
Criminal Procedure – The process by which we enforce our substantive criminal laws.
COMMON STEPS OF CRIMINAL SYSTEMS:
Step 1: Investigation: G’s response to suspected crime (can trigger 4th Amdmt issues)
Step 2: Arrest – act of taking person into physical custody for purpose of charging with crime (can trigger 4th Amdmt issues)
Step 3: Booking (see “routine booking exception” to Miranda warnings)
Step 4: Post -Arrest investigation (can trigger 5th and 6th Amdmt issues)
Step 5: Decision to Formally Charge
Step 6: Filing the Complaint (Suspect –> Defendant) (formally charged)
Step 7: Magistrate Review. (Very rare).
Step 8: Arraignment (MI) or Initial Appearance (Fed.) Purpose: to Secure D’s Future Appearance
a. PR Bond or Recognizance – out on promise to return. Low level crimes or people with minor record or no record.
b. 10% Bond. Mid-level crimes.
c. Cash or surety bond. Must pay whole amount. Serious crimes or flight risks.
d. In MI, NO BOND – for capital crimes (murder or life sentence).
– To help determine bond, judge will look at: Criminal history, substance abuse history, seriousness of offense, whether employed/in school, etc. Trying to weigh whether D will appear if out on bond.
Step 9: Preliminary Hearing
– Probable cause hearing. Must occur w/in specified time. (MI = 14 days)
– Either find probable cause (PC), or if not, dismiss the case. Bind over = to trial court
Step 10: Grand Jury Review
Step 11: Filing Indictment/Information (Accusatory document filed with the trial court)
Step 12: Arraignment on the Indictment/Information.
Step 13: Pre-trial motionsObjections/requests, affirmative defenses; evidentiary & housekeeping
Step 14: Plea bargaining – Keeps criminal trial docket to a minimum.
– Can also plead no contest. Court must accept the plea agreement
Step 15: Trial (can be bench trial, but right to jury trial – 7th Amdmt?)
Def. presumed innocent, Prosecutor must prove all elements beyond a reasonable doubt, Exclusion of evidence not collected legally (4th, 5th, or 6th Amdmt issues), D’s right to testify (or not) – 5th Amdmt issue
Step 16: Sentencing
Step 17: Appeals (can trigger 14th Amdmt issue)
Step 18: Collateral Remedies (Appeal process ended = finality except for: ) Petition for habeus corpus to federal court, or civil action to overturn validly presumptive criminal conviction (collateral attack)
Power
Power for Criminal Procedure comes from:
1. U.S. Constitution
2. States – Power not assigned to fed’l Gov’t left to States
– So, 52 major criminal defense systems – Fed, D.C., 50 states.
3. Municipalities – cities have criminal ordinances for lesser crimes.
SUPERVISORY POWER
– Article III (confers gen’l judicial power to fed’l courts)
– Bill of Rights made applicable to state courts by 14th Amendment
– Constitution grants rights, and states cannot take away those rights.
– Does not give Fed’l gov’t control of state criminal systems but S.Ct. can review:
1. to the extent that rules in question are Constitutionally mandated by a
a. Fundamental right
b. Or a Federal/Constitutional question
2. Whenever States rules fall below Constitutionally-granted rights, US S.Ct. has a right to review. BUT if judge in State that affords greater protections than
By physical force or show of authority, Gov’t has restrained the liberty of a citizen. In the absence of physical force, has to be actual submission to police officer’s show of authority (Hodari D. – Has to be control over the person)
Mendenhall Factors:
1. Threatening presence of several officers
2. Display of a weapon by an officer
3. Some physical touching of the person of the citizen
4. Use of language or tone of voice indicating compliance might be compelled.
Another factor: whether police officer informed suspect of right to refuse consent (not required of PO)
PROBABLE CAUSE
Probable cause definition: common-sense, practical, day-to-day factual determination of whether or not criminal conduct existed, based on totality of circumstances
1. When, under the totality of the circumstances
2. A reasonable police officer would believe that:
3. a) a crime has been committed and suspect has committed it: PC for arrest
b) that evidence of a crime exists in a certain location in which G wants to search: PC for search
NOTES:
1. Probable cause needs to be sufficient, and police suspicion itself is not sufficient
2. Spinelli Two-Prong Test: emphasizes informant’s
a. reliability and
b. the basis of his knowledge.
Gates says in addition two prongs, need more, totality of circumstances. Add:
