CJ227 Criminal Procedure Welcome to our Seminar!!! (We will begin shortly) Tonight – Unit 2 (Chapter 3 – Arrest and Custody) (Chapter 4 – Defendant’s Initial Appearance)

CJ227 Criminal Procedure - Unit 1 Mini-review In our Unit 1 seminar you learned about: –Goals of our judicial system –Foundational concepts in Crim Procedure –Venue and jurisdiction –Federal and State court system organization –The 4 th Amendment –The Exclusionary Rule –Fruit of the Poisonous Tree Doctorine

CJ227 Criminal Procedure - Unit 2 Preview Tonight we will be discussing Arrests Traffic Stops Terry Stops Other encounters Searches The defendant’s initial appearance in court

CJ227 Criminal Procedure - Unit 2 (Chapter 3) What is an arrest? What elements of probable cause must be present for an arrest? What are the different types of arrests?

CJ227 Criminal Procedure - Unit 2 (Chapter 3) Arrest – Legally, an arrest is the taking of a person into custody in the manner proscribed by law. –It is derived from the French term “arrester” meaning to stop or stay. It signifies depriving a person of their own will or liberty and binding them to become obedient to the will of the law. The probable cause elements required for an arrest are: –Facts and circumstances that would lead a reasonable person to believe that a crime has been committed –The person to be arrested committed the crime or played a role in the commission of the crime

CJ227 Criminal Procedure - Unit 2 (Chapter 3) Types of Arrest – –Private person arrest – An officer not on duty can make a private person arrest Usually requires that the crime be committed or attempted in the presence of the arresting person. –Arrest by an LEO – Arrest w/o a warrant – the most common form or arrest – Unless exigent circumstances exist, police may not enter a private home to effectuate an arrest w/o a warrant Arrest w/ warrant – preferred as it places the existence of probable cause in the hands of a neutral magistrate. Please see your text, Pg 50, for an example of an arrest warrant issued in the Scott Petersen case.

CJ227 Criminal Procedure - Unit 2 (Chapter 3) What is a Terry Stop? How does it differ from a formal arrest?

CJ227 Criminal Procedure - Unit 2 (Chapter 3) Terry Stop –From the case of Terry v. Ohio –Allows stops based on reasonable suspicion supported by articulable facts that criminal activity is ongoing. –No warrant is required. –Allows for the pat down of outer clothing for weapons only in order to protect the officer and those in the area. –Stop is only long enough to effectuate the purpose of the arrest. Note: A temporary stop or detention for mere questioning is NOT considered an arrest (applies to a person or vehicle). For more info and an excellent comparison of the differences between a formal arrest and a Terry Stop, please see the chart in your text on bottom of Pg 83.

CJ227 Criminal Procedure - Unit 2 (Chapter 3) Under common law, where was an LEO’s power of arrest? How has that changed modernly?

CJ227 Criminal Procedure - Unit 2 (Chapter 3) Originally, an LEO had to terminate their pursuit at the boundry of their jurisdiction. For example, a county sheriff had to terminate any pursuit of a criminal at their respective county line. Modernly, the Uniform Act of Fresh Pursuit allows an LEO who is in pursuit of a person who has committed a felony (and in some jurisdictions, misdemeanors too) to enter another jurisdiction to arrest the fleeing felon. –Upon arrest, the “foreign” LEO must take the arrestee to a local magistrate for a hearing to determine the lawfulness of the arrest.

CJ227 Criminal Procedure - Unit 2 (Chapter 3) What type of force is permitted in effectuating an arrest?

CJ227 Criminal Procedure - Unit 2 (Chapter 3) An LEO may use reasonable force to effect an arrest, prevent escape or overcome resistance. –Standard is what a prudent person would have used in the same or similar circumstances. Using force that is disproportionate to the resistance met can be a violation of the arrestee’s civil rights.

CJ227 Criminal Procedure - Unit 2 (Chapter 3) What are a persons rights under Miranda? What 2 conditions must exist in which Miranda warning MUST be given to a person? What is the test the court uses to determine if a suspects statements can be admitted into evidence? What are the exceptions to the Miranda requirement?

CJ227 Criminal Procedure - Unit 2 (Chapter 3) Miranda (Custody + Interrogation): –Right to remain silent –Anything said can and will be used against you in a court of law –Right to have an attorney present during questioning. –If you cannot afford an atty one will be provided at no cost. –An interrogation under Miranda is considered to be actions by the police which are designed to illicit information from the suspect. Four pronged Miranda test: –Was the statement voluntary? –Were Miranda warnings given? –Was there a waiver by the suspect? –Was the waiver voluntary and intelligently given?

CJ227 Criminal Procedure - Unit 2 (Chapter 3) Miranda exceptions: –A voluntary statement without Miranda warnings being given can be used to impeach a witness. –Undercover officer posing as a friend or other inmate does not need to give Miranda warnings. (No coercive atmosphere present). –As long as the statement is voluntarily given, fruit of the poisonous tree doctrine DNA to Miranda violations.

CJ227 Criminal Procedure - Unit 2 (Chapter 3) What are the requirements for a suspect’s admission to be admissible in court?

CJ227 Criminal Procedure - Unit 2 (Chapter 3) To be admissible in court, a suspect’s admission: –Must be given voluntarily. –Must not be obtained through force, threats, constructive threats or use of pain. –Must be given knowingly and not result of deceit, lies or deception. –If in custody, must be given Miranda warnings.

CJ227 Criminal Procedure - Unit 2 (Chapter 4) What is meant by the term “initial appearance?” What is the purpose of an initial appearance?

CJ227 Criminal Procedure - Unit 2 (Chapter 4) The US Supreme Court recognizes that every defendant has the basic right to be taken to a neutral magistrate without unnecessary delay. (Time limits vary widely but typical of state statutes is 2 days, Sundays and holidays excluded) Note: McNabb v. US Held: 6 days was too long of a time for first appearance. Not a right guaranteed under the Bill of Rights. Some jurisdictions refer to the first appearance as an arraignment

CJ227 Criminal Procedure - Unit 2 (Chapter 4) What are the steps in the pretrial process?

CJ227 Criminal Procedure - Unit 2 (Chapter 4) Steps in the pre-trial process: –Arrest –Booking –Initial appearance –Preliminary hearing –Grand Jury/prosecution indictment –Arraignment –Entry of Guilty Plea or Trial

CJ227 Criminal Procedure - Unit 2 (Chapter 4) What is meant by the complaint in a criminal trial? What is a demurrer to a complaint? What are some common reasons for the rejection of dismissal of a criminal case?

CJ227 Criminal Procedure - Unit 2 (Chapter 4) Complaint: –Sets forth the charges against the defendant –If the defendant is not in custody, it typically forms the basis for an arrest warrant to be issued. Demurrer: –Attacks the legal sufficiency of a complaint. For example: Causes of action do not form a basis for a cause of action against the defendant. The Grand Jury did not have a right to inquire into the offense charged. Facts, if true, would constitute legal justification or excuse for the crime charged.

CJ227 Criminal Procedure - Unit 2 (Chapter 4) Common reasons for the rejection or dismissal of a criminal case can include: –Evidence problems –Witness problems –Due Process problems –Plea in another case –Pre-trial diversion –Referral for other prosecution

CJ227 Criminal Procedure - Unit 2 Mini Review In this seminar, you learned about: –Arrests –Traffic Stops –Terry Stops –Other encounters –Searches –The defendant’s initial appearance in court

CJ227 Criminal Procedure - Unit 3 Preview In Unit 3 we will discuss: –Pre trial proceedings –Pre trial hearings –Arraignments –Pleas –Double Jeopardy –Witnesses –Trials (place and time) –Defendant competency …..and much much more, so I look forward to seeing everyone here next week…until then, in the words of that great TV crime fighter, Steve McGarrett, Aloha!