1. Criminal Procedure 4-2

2. Objectives Know the rights a person has when arrested Identify what amendments contain these rights List and define the common defenses to criminal charges

3. Major objective of the Constitution  Is to protect individuals from certain actions of the federal government  Believe it is better to give individuals too much liberty than to allow the government too much power

4. Why is it important for individuals to have protection from certain governmental actions?

5. What rights does someone who has been arrested have?

6. Why is it important to have an attorney present if you are suspected of committing a crime or are arrested?

7. In order to be arrested… There must be probable cause That there must be reasonable belief that a crime was committed and you committed it. There must be probable cause That there must be reasonable belief that a crime was committed and you committed it.

8. Probable Cause Standard by which police has authority to make an arrest Conduct a personal property search Or to obtain a warrant for arrest Standard by which police has authority to make an arrest Conduct a personal property search Or to obtain a warrant for arrest

9. Warrant Warrant - is an order describing the person to be arrested and the charge made Issued by the judge Directs law enforcement to make an arrest and bring that person before the court Can make an arrest with or without Warrant - is an order describing the person to be arrested and the charge made Issued by the judge Directs law enforcement to make an arrest and bring that person before the court Can make an arrest with or without

10. When can an officer arrest? The officer has reasonable ground to believe that a warrant for your arrest has been issued. You committed or attempted to commit a crime in the presence of the officer The officer has reasonable grounds to believe that a crime has been committed and that you are the person who did it The officer has reasonable ground to believe that a warrant for your arrest has been issued. You committed or attempted to commit a crime in the presence of the officer The officer has reasonable grounds to believe that a crime has been committed and that you are the person who did it

11. When being arrested... Police must inform a person of the charge Miranda Warning Police must inform a person of the charge Miranda Warning

12. Your Rights in the Criminal Justice System Your Rights with Police: Miranda Rights - a criminal suspect's rights during police interrogations. Search and Seizure - protection from unreasonable searches and unlawful arrests. Your Rights with Police: Miranda Rights - a criminal suspect's rights during police interrogations. Search and Seizure - protection from unreasonable searches and unlawful arrests.

13. Your Rights in the Courtroom: Right Against Self-Incrimination - the government can't force individuals to make statements that would implicate them in a crime. Right to Counsel - criminal defendants have the right to legal representation by a qualified and competent attorney. Right to Speedy Jury Trial - the government must bring a defendant to trial in a reasonable amount of time. "Double Jeopardy" Protections - with a few important exceptions, the government can't prosecute individuals for the same crime twice. Defendants in a criminal case have the right to confront the witnesses against them. Right Against Self-Incrimination - the government can't force individuals to make statements that would implicate them in a crime. Right to Counsel - criminal defendants have the right to legal representation by a qualified and competent attorney. Right to Speedy Jury Trial - the government must bring a defendant to trial in a reasonable amount of time. "Double Jeopardy" Protections - with a few important exceptions, the government can't prosecute individuals for the same crime twice. Defendants in a criminal case have the right to confront the witnesses against them.

14. Your Rights if Convicted Right to Counsel - 1st Appeal - defendants have a right to an attorney for an appeal as well as at trial. No Cruel & Unusual Punishment - the sentences handed out by the criminal justice system cannot be unduly harsh. Prisoners' Rights (Civil Rights Center)- a defendant's rights in the criminal justice system does not end after sentencing. Right to Counsel - 1st Appeal - defendants have a right to an attorney for an appeal as well as at trial. No Cruel & Unusual Punishment - the sentences handed out by the criminal justice system cannot be unduly harsh. Prisoners' Rights (Civil Rights Center)- a defendant's rights in the criminal justice system does not end after sentencing.

15. Rights When Someone is Arrested/Accused Basic rights of a citizen are stated in the 4th 5th 6th 8th Basic rights of a citizen are stated in the 4th 5th 6th 8th

16. Rights When Arrested May not be compelled to testify against themselves Cross examine witnesses Represented by a lawyer (provided by state) Right to remain silent May not be compelled to testify against themselves Cross examine witnesses Represented by a lawyer (provided by state) Right to remain silent

17. Miranda Rule Developed to protect individuals Fifth Amendment right against self-incrimination Ensures that people in custody realize they do not have to talk to the police - attorney If not given before questioning, or if police continue to question a suspect after he/she indicates in any manner a desire to consult an attorney before speaking - statements generally are inadmissible Developed to protect individuals Fifth Amendment right against self-incrimination Ensures that people in custody realize they do not have to talk to the police - attorney If not given before questioning, or if police continue to question a suspect after he/she indicates in any manner a desire to consult an attorney before speaking - statements generally are inadmissible

18. Amendment IV The Fourth Amendment to the U.S. Constitution protects citizens and criminal suspects from unreasonable searches of their property and persons, and prohibits police officers from making unlawful arrests ("seizures"). Unreasonable Search and Seizures Unlawful Arrests

19. Your Rights: Search and Seizure

20. A law enforcement officer's physical apprehension or "seizure" of a person, by way of a stop or arrest; and Police searches of places and items in which an individual has a legitimate expectation of privacy -- his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples. A law enforcement officer's physical apprehension or "seizure" of a person, by way of a stop or arrest; and Police searches of places and items in which an individual has a legitimate expectation of privacy -- his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples. In the criminal law realm, Fourth Amendment "search and seizure" protections extend to:

21. When Does the Fourth Amendment Apply? The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others: An individual is stopped for police questioning while walking down the street. An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle's trunk. An individual is arrested. Police officers enter an individual's house to place him or her under arrest. Police officers enter an individual's apartment to search for evidence of crime. Police officers enter a corporation's place of business to search for evidence of crime. Police officers confiscate an individual's vehicle or personal property and place it under police control. The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others: An individual is stopped for police questioning while walking down the street. An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle's trunk. An individual is arrested. Police officers enter an individual's house to place him or her under arrest. Police officers enter an individual's apartment to search for evidence of crime. Police officers enter a corporation's place of business to search for evidence of crime. Police officers confiscate an individual's vehicle or personal property and place it under police control.

22. However, in most instances a police officer may not search or seize an individual or his or her property unless the officer has: A valid search warrant; A valid arrest warrant; or A belief rising to the level of "probable cause" that an individual has committed a crime. A valid search warrant; A valid arrest warrant; or A belief rising to the level of "probable cause" that an individual has committed a crime.

23. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...; nor shall any person be subject for the same offence to be twice put in jeopardy...; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. DUE PROCESS, DOUBLE JEOPARDY, SELF INCRIMINATION No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...; nor shall any person be subject for the same offence to be twice put in jeopardy...; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. DUE PROCESS, DOUBLE JEOPARDY, SELF INCRIMINATION

24. Amendment VI Rights for defendants during a criminal prosecution: including the right of the accused to confront their accusers. “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him”. SPEEDY TRIAL, TRIAL BY JURY, THE RIGHT TO CONFRONT WITNESSES, COUNSEL

25. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. PROHIBITS AGAINST EXCESSIVE BAIL AND FINES AND CRUEL AND UNUSUAL PUNISHMENT

26. ANY EVIDENCE... Obtained in violation of the accused’s 4, 5, 6 Amendment rights - is not admissible Detour police from conducting warrantless searches and following other improper procedures Obtained in violation of the accused’s 4, 5, 6 Amendment rights - is not admissible Detour police from conducting warrantless searches and following other improper procedures

27. Miranda Warnings You have the right to remain silent. If you do say anything, what you say can be used against you in a court of law. You have the right to consult with a lawyer and have the lawyer present during questioning. If you cannot afford a lawyer, one will be appointed for you if you so desire. If you choose to talk to the police officer, you have the right to stop the interview at any time. You have the right to remain silent. If you do say anything, what you say can be used against you in a court of law. You have the right to consult with a lawyer and have the lawyer present during questioning. If you cannot afford a lawyer, one will be appointed for you if you so desire. If you choose to talk to the police officer, you have the right to stop the interview at any time.

28. When Miranda Warning is Required If a person is in custody (deprived of his/her freedom) the police must give a Miranda warning if they want to question the suspect and use the suspect’s answers as evidence at trial. If the person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. Police can question witnesses at crime scenes without reading them their Miranda rights, and should a witness implicate themselves in the crime during that questioning, their statements could be used against them later in court. If a person is in custody (deprived of his/her freedom) the police must give a Miranda warning if they want to question the suspect and use the suspect’s answers as evidence at trial. If the person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. Police can question witnesses at crime scenes without reading them their Miranda rights, and should a witness implicate themselves in the crime during that questioning, their statements could be used against them later in court.

29. More info! If a person hasn’t yet been arrested, the police may question the person and use the answers in court without first providing the Miranda warning. Do not have to respond to questions Fifth Amendment - guarantees the “right to silence” If a person is a suspect - consult a attorney - decline politely If a person hasn’t yet been arrested, the police may question the person and use the answers in court without first providing the Miranda warning. Do not have to respond to questions Fifth Amendment - guarantees the “right to silence” If a person is a suspect - consult a attorney - decline politely

30. When police officers question a suspect in custody without first giving the Miranda warning, any statement or confession made is presumed to be involuntary, and cannot be used against the suspect in any criminal case. Any evidence discovered as a result of that statement or confession will likely also be thrown out of the case.

31. Example Suppose Dan is arrested and, without being read his Miranda rights, is questioned by police officers about a bank robbery. Unaware that he has the right to remain silent, Dan confesses to committing the robbery and tells the police that the money is buried in his backyard. Acting on this information, the police dig up the money. When Dan's attorney challenges the confession in court, the judge will likely find it unlawful. This means that, not only will the confession be thrown out of the case against Dan, but so will the money itself, because it was discovered solely as a result of the unlawful confession.

32. Criminal Trial Evidence must establish guilt beyond a reasonable doubt The majority of evidence supports the guilty verdict Trial by jury Found guilty only if all the jurors vote to convict Evidence must establish guilt beyond a reasonable doubt The majority of evidence supports the guilty verdict Trial by jury Found guilty only if all the jurors vote to convict

33. Burden of Proof The duty of establishing the truth of the matter, the duty of proving a fact that is in dispute

34. Plaintiff A person who brings a lawsuit

35. Defendant The person against whom an action is brought

36. Preponderance of Evidence The degree of proof required in most civil actions. It means that the greater weight and value of the credible evidence, taken as a whole belongs to one side in a lawsuit rather to the other side. In other words, the party whose evidence is more convincing has a preponderance of evidence on its side and must, as a matter of law, prevail in the lawsuit because it has met its burden of proof. The degree of proof required in most civil actions. It means that the greater weight and value of the credible evidence, taken as a whole belongs to one side in a lawsuit rather to the other side. In other words, the party whose evidence is more convincing has a preponderance of evidence on its side and must, as a matter of law, prevail in the lawsuit because it has met its burden of proof.

37. Beyond a Reasonable Doubt The degree of proof required to convict a person of a crime Innocent until proven guilty beyond a reasonable doubt The degree of proof required to convict a person of a crime Innocent until proven guilty beyond a reasonable doubt

38. Defenses to Criminal Chargers Name and describe the two categories of defenses to criminal charges and give several examples of each

39. How did the Miranda Warning come about? Why must police officers be very careful in the way that they arrest and question accused individuals?

40. What is a DEFENSE? Is a legal position taken by an accused to defeat the charges against him or her

41. Defenses to Criminal Charges The State must prove defendant is guilty beyond a reasonable doubt Even if it looks as if the defendant is guilty - can escape criminal liability The State must prove defendant is guilty beyond a reasonable doubt Even if it looks as if the defendant is guilty - can escape criminal liability

42. Defenses to Criminal Charges Defense Allows the defendant to escape liability Two types of defenses 1. Procedural 2. Substantive Defendant must produce the evidence to support any defense Defense Allows the defendant to escape liability Two types of defenses 1. Procedural 2. Substantive Defendant must produce the evidence to support any defense

43. Procedural Defenses Defenses based on problems with the way evidence is obtained or the way the accused person is arrested, questioned, tried or punished.

44. Procedural Defenses Signed a confession - threatened by police Not advised of rights Signed a confession - threatened by police Not advised of rights

45. Procedural Defenses Evidence can not be introduced due to procedural defenses.

46. Substantive Defenses Defenses that disprove, justify, or excuse the alleged crime.

47. Substantive Defenses These types of defenses discredit the facts Eye Witness In hospital/school when crime occurred Self defense Criminal insanity Immunity These types of defenses discredit the facts Eye Witness In hospital/school when crime occurred Self defense Criminal insanity Immunity

48. Self Defense Is the use of force that appears to be reasonably necessary to the victim to prevent death, serious bodily harm, rape or kidnapping.

49. Self Defense Extends to Family members and others to whom one has a legal duty to protect May not use deadly force if non-deadly force appears reasonably sufficient Only non-deadly force may be used to recover property Extends to Family members and others to whom one has a legal duty to protect May not use deadly force if non-deadly force appears reasonably sufficient Only non-deadly force may be used to recover property

50. Self Defense Can not set deadly traps May not shoot a thief who is fleeing Can not set deadly traps May not shoot a thief who is fleeing

51. Criminal Insanity Generally exists when the accused does not know the difference between right and wrong because of a verifiable mental disease or defect

52. Criminal Insanity Defense must prove insanity Criminal insanity = no criminal intent Defense must prove insanity Criminal insanity = no criminal intent

53. Immunity Is the freedom from prosecution even when one has committed the crime charged. No prosecution or a less serious charge grant immunity to a witness who may hold key knowledge about a crime Is the freedom from prosecution even when one has committed the crime charged. No prosecution or a less serious charge grant immunity to a witness who may hold key knowledge about a crime

54. Immunity One criminal may be granted immunity in exchange for an agreement to testify about the criminal conduct of several other criminals. Removes - against self incrimination district attorney's mission is to obtain convictions - in the interest of seeking the truth One criminal may be granted immunity in exchange for an agreement to testify about the criminal conduct of several other criminals. Removes - against self incrimination district attorney's mission is to obtain convictions - in the interest of seeking the truth

55. Name the two defense categories and give an example of each Procedural Defense Substantive Defense Procedural Defense Substantive Defense

56. Punishment Any penalty provided by law and imposed by a court

57. Punishment Discipline the wrongdoer Punishment should also detour others from similar behavior. Discipline the wrongdoer Punishment should also detour others from similar behavior.

58. Punishment Criminal statutes set maximum limits for punishment May remove criminals from society Range from fines to imprisonment to death Criminal statutes set maximum limits for punishment May remove criminals from society Range from fines to imprisonment to death

59. Plea Bargain An accused person agrees to plead guilty to a less serious crime in exchange for having a more serious charge dropped. Voluntarily gives up the right to a public trial to avoid the risk of greater penalty if convicted. An accused person agrees to plead guilty to a less serious crime in exchange for having a more serious charge dropped. Voluntarily gives up the right to a public trial to avoid the risk of greater penalty if convicted.

60. Plea Bargain Outcome of trial is unpredictable Gives prosecution and defense some control over the result 90% of convictions come from negotiated pleas Outcome of trial is unpredictable Gives prosecution and defense some control over the result 90% of convictions come from negotiated pleas

61. Plea Bargain Defendants’ Benefit Reducing uncertainty associated with trial and avoiding harsher punishment Receive lighter sentence Save attorney fees Have fewer or less serious offenses on record Charge dismissed Avoid publicity Keep others out of the case Reducing uncertainty associated with trial and avoiding harsher punishment Receive lighter sentence Save attorney fees Have fewer or less serious offenses on record Charge dismissed Avoid publicity Keep others out of the case

62. Plea Bargain Prosecutors’ Benefit/Incentives Crowded calendars - judges don’t have time Jails are over crowded - before they complete their sentence - offenders who are not likely to do much jail time leads to fewer problems with overcrowding Less work/quicker Spend time and resources for more important cases No case is ever a slam dunk - long and expensive Offer a deal to someone whom, though guilty, has given testimony about a co-defendant or helped resolve some other troubling case Eliminate the risk of an acquittal Crowded calendars - judges don’t have time Jails are over crowded - before they complete their sentence - offenders who are not likely to do much jail time leads to fewer problems with overcrowding Less work/quicker Spend time and resources for more important cases No case is ever a slam dunk - long and expensive Offer a deal to someone whom, though guilty, has given testimony about a co-defendant or helped resolve some other troubling case Eliminate the risk of an acquittal

63. Assignment Sheet 4-2 Go over 4-2 Go over