1. Criminal Procedure Law, Community Response and Policing Written by Karmel Tanner May 2010

2. What’s Criminal Procedure? Deals with the set of rules governing the series of proceedings through which the government enforces substantive criminal law. Deals with the set of rules governing the series of proceedings through which the government enforces substantive criminal law.

3. Criminal Procedure Overview Federal Rules of Criminal Procedure first announced by the U.S. Supreme Court Federal Rules of Criminal Procedure first announced by the U.S. Supreme Court Outline the procedure for conducting federal criminal trials. Outline the procedure for conducting federal criminal trials. Incorporate and expand all guarantees in the Bill of Rights Incorporate and expand all guarantees in the Bill of Rights States have their own codes of criminal procedure States have their own codes of criminal procedure States cannot offer less protection than that guaranteed by the U.S. Constitution. States cannot offer less protection than that guaranteed by the U.S. Constitution.

4. Police Procedure Law enforcement must follow: Law enforcement must follow: The U.S. Constitution The U.S. Constitution The Federal Rules The Federal Rules The federal court system's interpretations The federal court system's interpretations Failure to follow such procedure may result in the suppression of evidence or the release of an arrested suspect. Failure to follow such procedure may result in the suppression of evidence or the release of an arrested suspect.

5. Due Process Due Process Due Process Police must make criminal defendants aware of their rights Police must make criminal defendants aware of their rights Defendants may waive their rights and statements they make can be used as evidence Defendants may waive their rights and statements they make can be used as evidence See Miranda v. Arizona, 384 U.S. 436 (1966). See Miranda v. Arizona, 384 U.S. 436 (1966).

6. No Unreasonable Searches and Seizures Fourth Amendment Fourth Amendment Law enforcement must obey this amendement Law enforcement must obey this amendement Prohibits government from performing unreasonable searches and seizures Prohibits government from performing unreasonable searches and seizures Courts usually won’t allow evidence obtained during an unreasonable search or seizure as evidence against the accused Courts usually won’t allow evidence obtained during an unreasonable search or seizure as evidence against the accused See Mapp v. Ohio, 367 U.S. 643 (1961). See Mapp v. Ohio, 367 U.S. 643 (1961).

7. How to Avoid Unreasonable Searches and Seizures Obtain a search warrant! Obtain a search warrant! Must show probable cause Must show probable cause Support with an oath or affirmation Support with an oath or affirmation Must describe where they will search and the items they will seize Must describe where they will search and the items they will seize Exceptions: Exceptions: Searches made at or near the U.S. border Searches made at or near the U.S. border Search following a lawful arrest Search following a lawful arrest Stop and frisk arrests Stop and frisk arrests Seized items are in plain sight Seized items are in plain sight Items in automobiles Items in automobiles Private individual makes the search Private individual makes the search Probable cause to find evidence Probable cause to find evidence

8. Criminal Rights: Speedy Trial Guaranteed by 6 th Amendment Guaranteed by 6 th Amendment Prosecutors must file charges and proceed with prosecution soon after arrest Prosecutors must file charges and proceed with prosecution soon after arrest Speedy Trial Act Speedy Trial Act Passed by Congress to ensure a speedy trial Passed by Congress to ensure a speedy trial Requires that a trial begin within 70 days of an indictment being filed Requires that a trial begin within 70 days of an indictment being filed

9. Criminal Rights: Impartial Jury Guaranteed by 6 th Amendment Guaranteed by 6 th Amendment Both defendant and prosecution may make juror decisions Both defendant and prosecution may make juror decisions Either side can exercise a peremptory challenge against a prospective juror Either side can exercise a peremptory challenge against a prospective juror Reasons do not have to be explained Reasons do not have to be explained Happens during the voir dire process Happens during the voir dire process Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting race-based challenges); J.E.B. v. Alabama, 511 U.S. 127 (1994) (prohibiting gender-based challenges). Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting race-based challenges); J.E.B. v. Alabama, 511 U.S. 127 (1994) (prohibiting gender-based challenges).

10. Criminal Rights: Fair Trial High Publicity Trials High Publicity Trials Minimize affects of publicity Minimize affects of publicity Implement a gag-order Implement a gag-order Eliminate outside influences Eliminate outside influences Carey v. Musladin, 549 U.S. 70 (2006 Carey v. Musladin, 549 U.S. 70 (2006 Victim’s family wore pictures of the victim during the trial Victim’s family wore pictures of the victim during the trial Defendant convicted of murder Defendant convicted of murder Is this outside influence? Is this outside influence? No clear federal rule exists regarding spectator conduct No clear federal rule exists regarding spectator conduct

11. Criminal Rights: Calling Witnesses Defendants can: Defendants can: Call their own witnesses Call their own witnesses Mount their own evidence Mount their own evidence Present their own theory of facts Present their own theory of facts Prosecution must turn over all evidence and witnesses so defendant may be prepared Prosecution must turn over all evidence and witnesses so defendant may be prepared Double Jeopardy Double Jeopardy Prohibited by the 5 th Amendment Prohibited by the 5 th Amendment States charging the same defendant with the same crime based on the same facts States charging the same defendant with the same crime based on the same facts

12. Criminal Rights: During the Trial Innocent Until Proven Guilty: Innocent Until Proven Guilty: Prosecution must show defendant is guilty beyond a reasonable doubt Prosecution must show defendant is guilty beyond a reasonable doubt Very different from a civil trial Very different from a civil trial Plaintiff must only prove a claim by a preponderance of evidence Plaintiff must only prove a claim by a preponderance of evidence Cross-examination is a criminal right derived from the 6 th Amendment Cross-examination is a criminal right derived from the 6 th Amendment See Giles v. California (07-6053) (2008). See Giles v. California (07-6053) (2008).

13. Right to Counsel Guaranteed by the 6 th Amendment Guaranteed by the 6 th Amendment If a defendant can’t afford an attorney, the government is required to provide the defendant an attorney from the Public Defender’s Office If a defendant can’t afford an attorney, the government is required to provide the defendant an attorney from the Public Defender’s Office Guaranteed access to counsel at every stage of the proceedings Guaranteed access to counsel at every stage of the proceedings Police must stop an interrogation if defendant asks for a lawyer Police must stop an interrogation if defendant asks for a lawyer Pro Se Representation: Pro Se Representation: Defendant voluntarily and intelligently chooses to waive assistance to counsel and self-represent Defendant voluntarily and intelligently chooses to waive assistance to counsel and self-represent

14. Ineffective Counsel Legal counseling must be “effective counseling” Legal counseling must be “effective counseling” Ineffective assistance may serve as grounds for a new trial Ineffective assistance may serve as grounds for a new trial Establishing Ineffective Assistance: Establishing Ineffective Assistance: Professional norms render the actual assistance received inadequate Professional norms render the actual assistance received inadequate Prove ineffective assistance caused an unfair sentence Prove ineffective assistance caused an unfair sentence

15. Pleading the Fifth Defendant does not have to provide self- incriminating testimony Defendant does not have to provide self- incriminating testimony Guaranteed by 5 th Amendment Guaranteed by 5 th Amendment Defendant does not have to take the stand Defendant does not have to take the stand If he does take the stand, a defendant can refuse to answer questions that would self-incriminate If he does take the stand, a defendant can refuse to answer questions that would self-incriminate Called “Pleading the Fifth” Called “Pleading the Fifth”

16. Trial: Arrest & Bail Law enforcement arrests a suspect Law enforcement arrests a suspect Judge sets initial bail Judge sets initial bail Specified amount of money allowing the defendant to get out of jail after initial arrest Specified amount of money allowing the defendant to get out of jail after initial arrest Bail can be refunded if defendant shows up for proper court dates Bail can be refunded if defendant shows up for proper court dates If defendant doesn’t show for court, the court keeps the bail and issues another warrant for arrest If defendant doesn’t show for court, the court keeps the bail and issues another warrant for arrest

17. Trial: Arraignment Judge calls defendant and… Judge calls defendant and… Reads charges against the accused Reads charges against the accused Asks whether the accused has access to an attorney or needs a court-appointed one Asks whether the accused has access to an attorney or needs a court-appointed one Asks the accused to plead guilty or not guilty Asks the accused to plead guilty or not guilty Decides whether to amend the initial bail amount Decides whether to amend the initial bail amount Sets the dates of future proceedings Sets the dates of future proceedings

18. Trial: Preliminary Hearing Preliminary Hearing Preliminary Hearing At the preliminary hearing, the judge determines whether enough evidence exists for the prosecution to meet its burden of persuasion. At the preliminary hearing, the judge determines whether enough evidence exists for the prosecution to meet its burden of persuasion. The burden of persuasion refers to whether the prosecution even has enough evidence to make the defendant stand trial. The burden of persuasion refers to whether the prosecution even has enough evidence to make the defendant stand trial. The defense has the right to cross examine the government witnesses during this proceeding. The defense has the right to cross examine the government witnesses during this proceeding. Under federal law, a grand jury, rather than a judge, makes this determination when the defendant faces "capital or infamous crimes" pursuant to the U.S. Constitution's Fifth Amendment. Under federal law, a grand jury, rather than a judge, makes this determination when the defendant faces "capital or infamous crimes" pursuant to the U.S. Constitution's Fifth Amendment. Unlike the other rights afforded to criminal defendants, the U.S. Supreme Court has not found the Fifth Amendment grand jury right incorporated into state law through the Fourteenth Amendment. Unlike the other rights afforded to criminal defendants, the U.S. Supreme Court has not found the Fifth Amendment grand jury right incorporated into state law through the Fourteenth Amendment.

19. Trial: Pre-Trial Hearing A pre-trial hearing is the next step in the process. A pre-trial hearing is the next step in the process. The prosecution and the defense team use the pre-trial to file motions before a judge. The prosecution and the defense team use the pre-trial to file motions before a judge. These motion usually concern whether the court should suppress certain evidence, whether certain individuals can testify, or whether the judge should dismiss all charges for lack of evidence. These motion usually concern whether the court should suppress certain evidence, whether certain individuals can testify, or whether the judge should dismiss all charges for lack of evidence.

20. Standing Trial After all these preliminary stages, the defendant stands trial. After all these preliminary stages, the defendant stands trial. Both sides offer opening statements first, although the defense can reserve their opening statement until the prosecution rests. Both sides offer opening statements first, although the defense can reserve their opening statement until the prosecution rests. The prosecution presents its witnesses and evidence first. The prosecution presents its witnesses and evidence first. Then, the defense presents its witnesses and evidence. Then, the defense presents its witnesses and evidence. After the defense rests, the defense offers a closing argument, and then the Prosecution offers the final closing argument. After the defense rests, the defense offers a closing argument, and then the Prosecution offers the final closing argument. After closing arguments, the trier of fact deliberates and returns a verdict. After closing arguments, the trier of fact deliberates and returns a verdict.

21. Sentencing for Minor Offenses Usually occurs immediately for infractions and misdemeanors Usually occurs immediately for infractions and misdemeanors Penalties include: Penalties include: Probation or fines Probation or fines Incarceration Incarceration Suspended sentence Suspended sentence Payment of restitution to the victim Payment of restitution to the victim Community service Community service Drug or alcohol rehabilitation Drug or alcohol rehabilitation

22. Sentencing for Major Crimes Evidence must be heard before sentencing occurs Evidence must be heard before sentencing occurs Judge or new juried sentencing phase trial can determine sentence, depending on the crime Judge or new juried sentencing phase trial can determine sentence, depending on the crime During a sentencing trial, the prosecution presents evidence of aggravating factors, and the defense presents evidence of mitigating factors During a sentencing trial, the prosecution presents evidence of aggravating factors, and the defense presents evidence of mitigating factors Defendants facing the death penalty has the right to a jury sentencing trial Defendants facing the death penalty has the right to a jury sentencing trial

23. Allocution Right of the defendant to directly address the judge without the help of counsel Right of the defendant to directly address the judge without the help of counsel Opportunity for defendants to show remorse in hopes of jury leniency Opportunity for defendants to show remorse in hopes of jury leniency Happens before judge announces sentence Happens before judge announces sentence Defendant may: Defendant may: Offer a personal explanation of unknown facts Offer a personal explanation of unknown facts Ask for mercy Ask for mercy Offer an apology for criminal behavior Offer an apology for criminal behavior