Criminal ProcedureCriminal Procedure

Law, Community Response Law, Community Response and Policingand Policing

Written by Karmel Tanner

May 2010

What’s Criminal Procedure?What’s Criminal Procedure?

Deals with the set of rules Deals with the set of rules governing the series of governing the series of proceedings through which the proceedings through which the government enforces government enforces substantive criminal law. substantive criminal law.

Criminal Procedure OverviewCriminal Procedure Overview Federal Rules of Criminal Procedure first Federal Rules of Criminal Procedure first

announced by the U.S. Supreme Courtannounced by the U.S. Supreme Court Outline the procedure for conducting Outline the procedure for conducting

federal criminal trials. federal criminal trials. Incorporate and expand all Incorporate and expand all

guarantees in the Bill of Rightsguarantees in the Bill of Rights States have their own codes of criminal States have their own codes of criminal

procedureprocedure States cannot offer less protection States cannot offer less protection

than that guaranteed by the U.S. than that guaranteed by the U.S. Constitution. Constitution.

Police Procedure Police Procedure

Law enforcement must follow:Law enforcement must follow: The U.S. ConstitutionThe U.S. Constitution The Federal Rules The Federal Rules The federal court system's The federal court system's

interpretations interpretations Failure to follow such procedure may Failure to follow such procedure may

result in the suppression of evidence result in the suppression of evidence or the release of an arrested suspect.or the release of an arrested suspect.

Due ProcessDue Process

Due ProcessDue Process Police must make criminal Police must make criminal

defendants aware of their rightsdefendants aware of their rights Defendants may waive their rights Defendants may waive their rights

and statements they make can be and statements they make can be used as evidenceused as evidence

See See Miranda v. ArizonaMiranda v. Arizona, 384 U.S. 436 , 384 U.S. 436 (1966).(1966).

No Unreasonable Searches and No Unreasonable Searches and SeizuresSeizures

Fourth AmendmentFourth Amendment Law enforcement must obey this Law enforcement must obey this

amendementamendement Prohibits government from performing Prohibits government from performing

unreasonable searches and seizures unreasonable searches and seizures Courts usually won’t allow evidence Courts usually won’t allow evidence

obtained during an unreasonable search or obtained during an unreasonable search or seizure as evidence against the accusedseizure as evidence against the accused

See See Mapp v. OhioMapp v. Ohio, 367 U.S. 643 (1961)., 367 U.S. 643 (1961).

How to Avoid Unreasonable How to Avoid Unreasonable Searches and SeizuresSearches and Seizures

Obtain a search warrant!Obtain a search warrant! Must show probable causeMust show probable cause Support with an oath or affirmationSupport with an oath or affirmation Must describe where they will search and the items they Must describe where they will search and the items they

will seizewill seize Exceptions:Exceptions:

Searches made at or near the U.S. borderSearches made at or near the U.S. border Search following a lawful arrestSearch following a lawful arrest Stop and frisk arrestsStop and frisk arrests Seized items are in plain sightSeized items are in plain sight Items in automobilesItems in automobiles Private individual makes the searchPrivate individual makes the search Probable cause to find evidenceProbable cause to find evidence

Criminal Rights: Speedy Trial Criminal Rights: Speedy Trial

Guaranteed by 6Guaranteed by 6thth Amendment Amendment Prosecutors must file charges and Prosecutors must file charges and

proceed with prosecution soon after proceed with prosecution soon after arrest arrest

Speedy Trial ActSpeedy Trial Act Passed by Congress to ensure a speedy Passed by Congress to ensure a speedy

trialtrial Requires that a trial begin within 70 Requires that a trial begin within 70

days of an indictment being fileddays of an indictment being filed

Criminal Rights: Impartial JuryCriminal Rights: Impartial Jury Guaranteed by 6Guaranteed by 6thth Amendment Amendment Both defendant and prosecution may Both defendant and prosecution may

make juror decisionsmake juror decisions Either side can exercise a peremptory Either side can exercise a peremptory

challenge against a prospective jurorchallenge against a prospective juror Reasons do not have to be explainedReasons do not have to be explained Happens during the voir dire process Happens during the voir dire process

Batson v. KentuckyBatson v. Kentucky, 476 U.S. 79 (1986) , 476 U.S. 79 (1986) (prohibiting race-based challenges); (prohibiting race-based challenges); J.E.B. J.E.B. v. Alabamav. Alabama, 511 U.S. 127 (1994) , 511 U.S. 127 (1994) (prohibiting gender-based challenges).(prohibiting gender-based challenges).

Criminal Rights: Fair TrialCriminal Rights: Fair Trial

High Publicity TrialsHigh Publicity Trials Minimize affects of publicityMinimize affects of publicity Implement a gag-orderImplement a gag-order Eliminate outside influencesEliminate outside influences

Carey v. Musladin, 549 U.S. 70 (2006Carey v. Musladin, 549 U.S. 70 (2006 Victim’s family wore pictures of the victim Victim’s family wore pictures of the victim

during the trialduring the trial Defendant convicted of murderDefendant convicted of murder Is this outside influence?Is this outside influence?

No clear federal rule exists regarding No clear federal rule exists regarding spectator conductspectator conduct

Criminal Rights: Calling WitnessesCriminal Rights: Calling Witnesses

Defendants can:Defendants can: Call their own witnessesCall their own witnesses Mount their own evidenceMount their own evidence Present their own theory of factsPresent their own theory of facts

Prosecution must turn over all evidence and Prosecution must turn over all evidence and witnesses so defendant may be prepared witnesses so defendant may be prepared

Double JeopardyDouble Jeopardy Prohibited by the 5Prohibited by the 5thth Amendment Amendment States charging the same defendant with States charging the same defendant with

the same crime based on the same factsthe same crime based on the same facts

Criminal Rights: During the Trial Criminal Rights: During the Trial

Innocent Until Proven Guilty:Innocent Until Proven Guilty: Prosecution must show defendant Prosecution must show defendant

is guilty beyond a reasonable doubt is guilty beyond a reasonable doubt Very different from a civil trialVery different from a civil trial

Plaintiff must only prove a claim by Plaintiff must only prove a claim by a preponderance of evidencea preponderance of evidence

Cross-examination is a criminal right Cross-examination is a criminal right derived from the 6derived from the 6thth Amendment Amendment See Giles v. California (07-6053) (2008).See Giles v. California (07-6053) (2008).

Right to CounselRight to Counsel

Guaranteed by the 6Guaranteed by the 6thth Amendment Amendment If a defendant can’t afford an attorney, the If a defendant can’t afford an attorney, the

government is required to provide the defendant government is required to provide the defendant an attorney from the Public Defender’s Officean attorney from the Public Defender’s Office

Guaranteed access to counsel at every Guaranteed access to counsel at every stage of the proceedingsstage of the proceedings

Police must stop an interrogation if Police must stop an interrogation if defendant asks for a lawyerdefendant asks for a lawyer

Pro Se Representation:Pro Se Representation: Defendant voluntarily and intelligently chooses Defendant voluntarily and intelligently chooses

to waive assistance to counsel and self-to waive assistance to counsel and self-representrepresent

Ineffective Counsel Ineffective Counsel

Legal counseling must be “effective Legal counseling must be “effective counseling” counseling”

Ineffective assistance may serve as Ineffective assistance may serve as grounds for a new trialgrounds for a new trial

Establishing Ineffective Assistance:Establishing Ineffective Assistance: Professional norms render the actual Professional norms render the actual

assistance received inadequateassistance received inadequate Prove ineffective assistance caused an Prove ineffective assistance caused an

unfair sentenceunfair sentence

Pleading the FifthPleading the Fifth

Defendant does not have to provide Defendant does not have to provide self-incriminating testimonyself-incriminating testimony Guaranteed by 5Guaranteed by 5thth Amendment Amendment

Defendant does not have to take the Defendant does not have to take the standstand

If he does take the stand, a defendant If he does take the stand, a defendant can refuse to answer questions that can refuse to answer questions that would self-incriminatewould self-incriminate Called “Pleading the Fifth”Called “Pleading the Fifth”

Trial: Arrest & Bail Trial: Arrest & Bail

Law enforcement arrests a suspectLaw enforcement arrests a suspect Judge sets initial bailJudge sets initial bail

Specified amount of money allowing the Specified amount of money allowing the defendant to get out of jail after initial defendant to get out of jail after initial arrestarrest

Bail can be refunded if defendant shows Bail can be refunded if defendant shows up for proper court datesup for proper court dates

If defendant doesn’t show for court, the If defendant doesn’t show for court, the court keeps the bail and issues another court keeps the bail and issues another warrant for arrestwarrant for arrest

Trial: ArraignmentTrial: Arraignment

Judge calls defendant and…Judge calls defendant and… Reads charges against the accusedReads charges against the accused Asks whether the accused has access to Asks whether the accused has access to

an attorney or needs a court-appointed an attorney or needs a court-appointed oneone

Asks the accused to plead guilty or not Asks the accused to plead guilty or not guiltyguilty

Decides whether to amend the initial Decides whether to amend the initial bail amountbail amount

Sets the dates of future proceedingsSets the dates of future proceedings

Trial: Preliminary HearingTrial: Preliminary Hearing Preliminary HearingPreliminary Hearing At the preliminary hearing, the judge determines whether At the preliminary hearing, the judge determines whether

enough evidence exists for the prosecution to meet its enough evidence exists for the prosecution to meet its burden of persuasion. burden of persuasion.

The burden of persuasion refers to whether the prosecution The burden of persuasion refers to whether the prosecution even has enough evidence to make the defendant stand even has enough evidence to make the defendant stand trial. trial.

The defense has the right to cross examine the government The defense has the right to cross examine the government witnesses during this proceeding. witnesses during this proceeding.

Under federal law, a grand jury, rather than a judge, makes Under federal law, a grand jury, rather than a judge, makes this determination when the defendant faces "capital or this determination when the defendant faces "capital or infamous crimes" pursuant to the U.S. Constitution's Fifth infamous crimes" pursuant to the U.S. Constitution's Fifth Amendment.Amendment.

Unlike the other rights afforded to criminal defendants, the Unlike the other rights afforded to criminal defendants, the U.S. Supreme Court has not found the Fifth Amendment U.S. Supreme Court has not found the Fifth Amendment grand jury right incorporated into state law through the grand jury right incorporated into state law through the Fourteenth Amendment.Fourteenth Amendment.

Trial: Pre-Trial HearingTrial: Pre-Trial Hearing

A pre-trial hearing is the next step in A pre-trial hearing is the next step in the process. the process.

The prosecution and the defense team The prosecution and the defense team use the pre-trial to file motions before a use the pre-trial to file motions before a judge. judge.

These motion usually concern whether These motion usually concern whether the court should suppress certain the court should suppress certain evidence, whether certain individuals evidence, whether certain individuals can testify, or whether the judge should can testify, or whether the judge should dismiss all charges for lack of evidence.dismiss all charges for lack of evidence.

Standing TrialStanding Trial After all these preliminary stages, the defendant After all these preliminary stages, the defendant

stands trial. stands trial. Both sides offer opening statements first, Both sides offer opening statements first,

although the defense can reserve their opening although the defense can reserve their opening statement until the prosecution rests. statement until the prosecution rests.

The prosecution presents its witnesses and The prosecution presents its witnesses and evidence first. evidence first.

Then, the defense presents its witnesses and Then, the defense presents its witnesses and evidence.evidence.

After the defense rests, the defense offers a After the defense rests, the defense offers a closing argument, and then the Prosecution offers closing argument, and then the Prosecution offers the final closing argument. the final closing argument.

After closing arguments, the trier of fact After closing arguments, the trier of fact deliberates and returns a verdict.deliberates and returns a verdict.

Sentencing for Minor OffensesSentencing for Minor Offenses

Usually occurs immediately for Usually occurs immediately for infractions and misdemeanorsinfractions and misdemeanors Penalties include:Penalties include:

Probation or finesProbation or fines IncarcerationIncarceration Suspended sentenceSuspended sentence Payment of restitution to the victimPayment of restitution to the victim Community serviceCommunity service Drug or alcohol rehabilitationDrug or alcohol rehabilitation

Sentencing for Major CrimesSentencing for Major Crimes

Evidence must be heard before sentencing Evidence must be heard before sentencing occursoccurs

Judge or new juried sentencing phase trial Judge or new juried sentencing phase trial can determine sentence, depending on the can determine sentence, depending on the crimecrime During a sentencing trial, the During a sentencing trial, the

prosecution presents evidence of prosecution presents evidence of aggravating factors, and the defense aggravating factors, and the defense presents evidence of mitigating factorspresents evidence of mitigating factors

Defendants facing the death penalty has Defendants facing the death penalty has the right to a jury sentencing trialthe right to a jury sentencing trial

AllocutionAllocution

Right of the defendant to directly address Right of the defendant to directly address the judge without the help of counselthe judge without the help of counsel

Opportunity for defendants to show Opportunity for defendants to show remorse in hopes of jury leniencyremorse in hopes of jury leniency

Happens before judge announces Happens before judge announces sentencesentence

Defendant may:Defendant may: Offer a personal explanation of unknown factsOffer a personal explanation of unknown facts Ask for mercyAsk for mercy Offer an apology for criminal behaviorOffer an apology for criminal behavior