Criminal Procedure

Do NowIn July 2014, two New York City police officers approached Eric Garner, who had been suspected of selling cigarettes without the required license, and tried to arrest him. When Garner resisted, one officer put Garner into a chokehold. Garner, who suffered from asthma and heart problems, went into cardiac arrest. He was rushed to the hospital, where he died. Garner’s family filed a wrongful death claim against the City of New York, who later agreed to pay the Garner family $5.9 million in exchange for dropping the lawsuit. Many say that multimillion dollar settlements like this are necessary to deter police brutality. Critics say that expensive settlements effectively shift the punishment away from police and onto taxpayers, making it harder for the government to provide necessary public services, like repairing roads and bridges. What do you think? Explain.

The Arrest• The first step in the criminal process is the arrest• An arrest takes place when a person suspected of a crime is

taken into custody• An arrest is considered a seizure under the Fourth

Amendment, which requires that seizures be reasonable

The Arrest• The first step in the criminal process is the arrest• An arrest takes place when a person suspected of a crime is

taken into custody• An arrest is considered a seizure under the Fourth

Amendment, which requires that seizures be reasonable• A person can be taken into custody by a police officer in one of

two ways:1)with an arrest warrant issued by a judge, OR2)without a warrant if there is probable cause

• Someone who is taken into custody under circumstances in which a reasonable person would not feel free to leave is considered to be under arrest, whether or not s/he is told that

Arrest Warrant• An arrest warrant is a court order commanding that the person

named in it be taken into custody• A warrant is obtained by filing a complaint before a judge • The person filing the complaint is generally a police officer but

may be a victim or a witness• The person making the complaint must be also describe and

swear to the facts of the alleged crime• If the judge finds probable cause to believe that the accused

has committed a crime, s/he will issue a warrant• On many occasions, police do not have time to get a warrant, and will make a warrantless arrest in public based on probable cause

Probable Cause• Probable cause to arrest means having a reasonable belief that a

specific person has committed a crime• This belief may be based on much less evidence than is necessary to

prove a person guilty at trial• e.g. Police receive a radio report of a bank robbery. An officer sees

a man matching the description of a bank robber waving a gun and running away from the bank. The officer would have probable cause to stop and arrest the man, but that evidence alone would likely not be enough to

convict him of the crime• There is no exact formula for probable cause – police must use their own best judgment as to what is reasonable under the circumstances

Profiling• In recent years, courts have allowed police to use a drug

courier profile to help establish probable cause for arrest• Drug courier profiles are often based on commonly held notions

of the typical age, race, personal appearance, behavior, and mannerisms of drug couriers

• Police often use the profile to provide a basis to stop and question a person

• Critics say that it is unfair to use such factors in determining probable cause

• They argue that individualized suspicion should be required to establish probable cause

• Others believe that drug cases present unique law enforcement problems and that profiling is necessary to stop drug trafficking

Tips• Information provided to police by private citizens can be used to

obtain an arrest warrant• Police use tips from informants to establish probable cause if

they can convince a judge that the tip is reliable• In determining the reliability of an informant’s tip, a judge will

consider1.whether the informant has provided accurate statements in

the past2.how the informant claims to have obtained the information3. Whether the police can corroborate (confirm) the informant’s tip with information from other sources

Take 5 minutes to read the following scenario and answer the questions below:

Police receive a tip that a drug dealer named Armand will be travelling by train from New York City to Washington, D.C., sometime on the morning of 9/14. The informant describes Armand as a tall man with brown hair and a thick beard. He also tells police that Armand has a habit of walking fast and that he will be carrying cocaine in a brown leather bag. The police have received reliable information from this informant in the past. On the morning of 9/14, the police watch all passengers arriving from New York. When they see a man who fits the description – tall man, brown hair, thick beard, carrying a brown leather bag, and walking fast – they arrest him. A search of the bag reveals a large quantity of cocaine.

a.Do you think the police had probable cause to arrest Armand? Explain.

b.Should the police have obtained a warrant before arresting Armand? Why or why not?

c.Assume the police have not received a specific tip but they know that crack cocaine is being brought regularly on trains from one city to another by teenagers hired by older drug dealers. They see a 16 year old male arriving by train. He is alone and is carrying a small canvas bag. Should the police be able to stop and question him? Under what circumstances should they be able to search or arrest him?

With your tablemate…

Do Now•Pick up “Unlucky Couple” worksheet from the cart•Do aforementioned worksheet•“Main Street” = Eastmark Parkway

Stops• A police officer does not need probable cause to stop and

question a person on the street• The officer does need reasonable suspicion to believe that

the person is involved in criminal activity, however• Reasonable suspicion is based on less evidence than probable

cause, but it must be more than just a hunch• If the officer has reasonable suspicion that the person is armed and dangerous, s/he may do a limited pat-down of the person’s outer clothing – a stop-and-frisk – in order to remove any weapons the person may be carrying

Stops• An officer can always go up to anyone and ask to talk to

them – even without having probable cause or reasonable suspicion

• The person can always decline to talk and the officer is not legally allowed to take the person’s silence or departure into account in determining probable cause

or reasonable suspicion• In all states, however, if the person runs from the police when being approached, this gives the officer reasonable suspicion to stop them again, at point which the person is NOT free to walk away

Stops• The most common kind of arrest happens when

people do not realize they are being arrested at all• When a police officer pulls a car over for violating

traffic laws, the driver is technically under arrest because s/he is not free to leave• The arrest is usually very brief and typically ends

when a citation or warning is given• The Supreme Court has ruled that police can order all passengers out of a car when making a lawful traffic stop

• The media suggest that much of a police officer’s work involves deadly force

• In reality, only a small percentage of interaction between police and the public involves the use of force

• When force is used, it usually doesn’t involve a weapon• An officer can use as much force as is reasonably necessary to make an

arrest• Most police departments limit the use of deadly force to incidents involving dangerous suspects• In Tennessee v. Garner, Supreme Court ruled that “deadly force may not be used unless it is necessary to prevent escape, and the officer has probable cause to believe the suspect poses a significant threat of serious physical harm to the officer or others”

Deadly Force

Excessive Force• If a police officer uses too much force or makes an unlawful arrest,

the accused may bring a civil action seeking monetary damages for a violation of the federal Civil Rights Act

• The government can also file a criminal action against the police • Many local governments also have processes for handling citizen

complaints about police misconduct • A police officer is never liable for a false arrest simply because the person arrested didn’t commit the crime• Instead, it must be shown that the officer acted maliciously or had no reasonable grounds for suspicion of guilt • If an arrest is later ruled unlawful, the evidence obtained as a result of the arrest may not be used at trial

Search and Seizure• The Constitution doesn’t explicitly grant a “right to privacy”• However, the Fourth Amendment sets out the right to be free from

“unreasonable searches and seizures” and establishes conditions under which search warrants may be issued

• This right limits the power of government – not the actions of private citizens• Balanced against the reasonable expectation of privacy is the police’s need to

collect evidence against criminals and protect society from crime• In reviewing whether the police acted reasonably in conducting a search, courts carefully consider the “totality of the circumstances”• Traditionally, courts found searches and seizures of private homes to be reasonable only when authorized by a valid warrant• Today, warrantless searches are considered lawful as long as they are reasonable

Search and Seizure• The Supreme Court has sometimes used the concept of

reasonable expectation of privacy to determine if a search was reasonable

• In one case, the Supreme Court found that a person did not have a reasonable expectation of privacy in garbage left in a plastic bag for pickup on the curb in front of his house – police were allowed to search it without a warrant

• The Fourth Amendment is 54 words long, but case law stemming from the Fourth Amendment

issues totals thousands of pages• Supreme Court decisions have established the basic rules of search and seizure, but also carved out many exceptions

Search and Seizure• Once someone is arrested, it is up to the courts to decide whether

any evidence found in a search was legally obtained• If a court finds that the search was unreasonable, the evidence

found in the search cannot be used at the trial against the defendant – this is called the exclusionary rule

• Critics argue that the exclusionary rule allows criminals to walk free based on police mistakes• They suggest allowing evidence to be admitted, but also allowing criminals to sue police in civil court for rights violations• Defenders of the exclusionary rule argue that it is necessary to deter police from trampling Constitutional rights

Do Now In your notebook, state whether or not you think a Fourth Amendment violation occurred in each of the following scenarios. Be prepared to explain your answer to the class.

1. The police see Mariat standing at a bus stop on a downtown street, in an area where there is extensive drug dealing. They stop and search her and find drugs in her pocket.

2. After Isaac checks out of a hotel, the police ask the hotel manager to turn over the contents of the garbage bin, where they find notes planning a murder.

3. A student informs Mr. FritzMiller that Allanah is selling drugs on school grounds. Mr. FritzMiller opens Allanah’s locker with a master key, finds drugs and calls the police.

4. Josiah’s ex-girlfriend breaks into his house and looks through his desk for love letters. Instead she finds drugs, which she turns over to the police.

5. Athena is seen shoplifting in a store. Police chase her into her apartment building and arrest her outside of the closed door of her apartment. A search of the apartment reveals a large quantity of stolen merchandise.

6. Josh is suspected of receiving stolen goods. The police go to his house and ask Melissa, his sister, if they can search the house. Melissa gives them permission, and they find stolen items in Josh’s room.

Search Warrants• A search warrant is a court order• It is obtained from a judge who is convinced that there is

a bona fide (genuine) need to search a person or place• Before the judge issues a warrant, a police officer must

file an affidavit – a sworn statement of facts and circumstances – that provides the probable cause to believe that a search is justified• Any warrant that a judge issues must specifically describe the person or place to be searched and the particular things to be seized.

Search Warrants• Once the search warrant is issued, the search must be conducted within

the period of time specified on the warrant• In some states (including Arizona), the search must be conducted only in

the day time, unless the warrant expressly states otherwise• A search warrant does not authorize a general search of everything in the

specified place• e.g. If the police have a warrant to search a house for stolen 20 inch

TV’s, they police may not look in desk drawers, envelopes, or other places where TV’s couldn’t possibly be hidden

• However, police can seize evidence related to the case AND any other illegal items that are in plain view while properly conducting a search • e.g. While walking through the house searching for 20 inch TV’s, police see drugs on a table. The drugs can be seized and used as evidence against the defendant.

Knock and Announce• When police have a warrant to search a house, the Fourth

Amendment’s reasonableness requirement usually means that they must knock, announce their purpose and authority (“It’s the police!”), and request admission

• This is called the knock and announce requirement• Police generally can’t enter a house forcibly – even with a search

warrant – until they have met the knock and announce requirement• The Supreme Court has allowed for “no-knock” entries when

circumstances present a threat to the officer or where evidence would likely be destroyed if advance notice were given• In 2006, the Supreme Court allowed the use at trial of evidence obtained after police entered a house without following knock and announce rules

Searches Without a Warrant • Searches of private homes usually require a warrant• However, the courts have recognized some situations in which searches are reasonable and may be legally conducted without a warrant

Search Incident to a Lawful Arrest• A search that is part of a lawful arrest is considered reasonable• This allows the police to search a lawfully arrested person and

the area immediately around them for hidden weapons or for evidence that might be destroyed

• This is called a grab area search• If the arrest occurs next to or in the accused’s car, police may

also search the passenger compartment of the car, but usually not the trunk

• The Supreme Court has also allowed a protective sweep through an arrested person’s home in search of other people who could be armed

Consent• When a person voluntarily agrees, the police may conduct a search

without a warrant and without probable cause• Normally, a person may grant permission to search only his or her own

belongings or property• In some situations, however, one person may legally allow the police to

conduct a search of someone else’s property• e.g. One resident of a home can give consent to a search of the

common areas of the home, but not the bedrooms of other residents• Parents, however, can give consent to search their minor children’s bedrooms

• In 2006, the Supreme Court ruled that one spouse cannot give consent to a warrantless search of the home when the other spouse is present and objects to the search

Do Now

Answer in your notebook:

As we discussed yesterday, the exclusionary rule requires that any evidence that law enforcement officials acquire by violating an accused person’s 4th Amendment rights not be admitted as evidence at trial. Do you think this is a good rule? Explain.

Border and Airport Searches• Customs agents are authorized to search all personal items of people

entering the country without a warrant and without probable cause• Body searches or searches conducted away from the border by customs

agents are allowed only where there is reasonable suspicion of criminal activity

• Because of the danger of terrorist activities, security personnel and airlines are permitted to search all carry- on luggage and to search all passengers with metal detectors

• Since the September 11, 2001 terrorist attacks, these searches can take place several times from the moment a passenger enters the airport until s/he boards the plane• The rationale behind this is that people have a reduced expectation of privacy in these settings

Plain View• If an object connected with a crime is in plain view and

can be seen from a place where an officer has a right to be, it can be seized without a warrant• e.g. If an officer legally stops a car, and sees illicit

drugs lying on the passenger seat, s/he may seize it without a warrant• If the officer sees drugs through the window of a

house, however, s/he may NOT enter without a warrant• If the officer gains legal entrance to the house and

sees drugs in plain view, s/he may seize them without a warrant

Hot Pursuit

• Police officers in hot pursuit of a suspect are not required to obtain a search warrant before entering a building they have seen the suspect enter• It is also lawful for the police to seize evidence found in plain view during hot pursuit of a suspected felon• Whether this applies to non-felons is less clear

Emergency Situations

• In certain types of emergencies, search warrants are not required• E.g. Searching a building after a bomb threat, entering a

house after smelling smoke or hearing screams, and other situations in which the police don’t have time to get a warrant• Warrantless searches are also allowed if police have

probable cause to believe that failure to enter immediately will result in destruction of evidence, escape of the suspect, harm to the police or another individual inside or outside the building

School Searches• The Supreme Court has granted school authorities very broad

discretion to search students and their possessions• In New Jersey v. TLO (1985), an assistant principal suspected a

student of violating the public high school’s rule against smoking• The principal searched the student’s purse and found marijuana• The Supreme Court acknowledged that the student had a

reasonable expectation of privacy in her purse, but it upheld the search as lawful

• Instead of requiring that the school have probable cause (as would be the case in a normal criminal search), the court held that the school authority only needs to have a reasonable suspicion that the search will turn up evidence that the student is violating school rules or the law

School Searches• Under the justification that the government has a compelling

interest in stopping drug use by young people, courts have given schools wide discretion in devising ways to combat the problem

• E.g. Courts allow schools to search student lockers on the theory that lockers belong to the school and that students do not have a reasonable expectation of privacy in property owned by the school

• Most courts have also allowed drug sniffing dogs and their handlers to enter schools to search for drugs• However, courts have usually been reluctant to allow strip searches of students suspected of drug use, finding these searches to be unreasonable

Suspicionless Searches• Searches and seizures are usually considered unreasonable if

there is no individualized suspicion of a crime• E.g. Police can’t search everyone gathered at a street corner

if they suspected that only one of them possessed evidence of a crime

• They can only search the person on whom their individual suspicion is focused so that the privacy rights of the others are protected

• The Supreme Court has recognized some limited circumstances in which the individualized suspicion requirement isn’t needed: Sobriety checkpoints and Border Patrol interior checkpoints

Racial Profiling• Racial profiling is the inappropriate use of race as a factor in

identifying people who may break or have broken the law• Profiling can take the form of inappropriate police action based on

ethnicity, national origin, or religion as well as race• Profiling occurs when, for example, an airport security guard selects

a person who appears to be of Middle Eastern ancestry to be searched solely because of his appearance

• Critics of racial profiling, including civil rights advocates and some police professional organizations, say that

it violates the people’s constitutional right to equal protection before the law• They also say it is an ineffective law enforcement tactic, it reinforces racial stereotypes, and creates negative relations between police and citizens

With your tablemate…Take 4 minutes to determine whether inappropriate racial profiling was used in making each of the following decisions. Give your reasons.

a. Two African American men are driving over the speed limit on a highway where police know drugs are being transported to a part of the city with a large African American population. A police officer stops them for speeding, and then conducts a complete search of their car, including their trunk, to look for drugs. They do not find any drugs.

b. After a terrorist attack by Islamic extremists, the government decides to use more telephone wiretaps to gather information in communities that have mosques.

c. A man reports overhearing two Spanish-speaking men in a coffee shop planning to rob a specific jewelry store the next day. The witness could not see the men’s faces and does not know their names. The next day the police go to the store and question two “Latino-looking” men who are sitting in a car outside.

d. A woman entering the United States holds a passport from a country with which the United States was recently at war. A customs agent detains her for questioning.

Do NowAnswer in your notebook:

Prescription drug abuse is rampant at Safford Middle School: some students have been illegally selling prescription drugs to their classmates and several students have experience near-fatal overdoses while at school. One day, a student name Brett tells the principal that a classmate, Marissa, is in possession of prescription-strength ibuprofen pills. A search of Marissa’s day planner and pockets reveal more of the pills. Marissa tells the principal that the day planner belongs to another classmate named Savana, and that Savana had given her the pills. Savana is called to the principal’s office, where her backpack and personal items are searched but nothing is found. Savana is then sent to the school nurse, who has Savana strip completely naked so all of her clothes can be searched. Savana later sues the school district for violating her 4th amendment rights. Do you think she should win? Explain.

Interrogations and Confessions• After an arrest is made, it is standard police practice to question, or

interrogate, the accused• These interrogations often result in confessions or admissions of guilt,

which can later be used as evidence at trial• Balanced against the police’s need to question suspects are the

constitutional rights of people accused of a crime• The Fifth Amendment provides citizens with a protection against self-

incrimination• This means that a suspect has a right to remain silent and cannot be

forced to testify against herself at trial• This protection rests on a basic legal principle: the government bears the

burden of proof• Suspects are not obliged to help the government prove they committed a

crime or to testify at their own trial• Under the Sixth Amendment, a person accused of a crime has the right to

the assistance of an attorney

Interrogations and Confessions

• The Supreme Court has held that a confession is not admissible as evidence if it is not voluntary and trustworthy

• This means that using physical force, torture, threats, or other techniques that could force an innocent person to confess is prohibited

• In Escobedo v. Illinois, the Supreme Court said even a voluntary confession is inadmissible if it

is obtained after the defendant’s request to speak to an attorney is denied• The Court reasoned that if Escobedo had been able to talk to his attorney, he may have been able to avoid incriminating himself

Miranda Rights• Although some defendants might ask for an attorney, others might not be

aware of their right to remain silent or their right to have a lawyer present during questioning

• In 1966 the Supreme Court was presented with a situation like this in Miranda v. Arizona

• In its decision, the Court ruled that Ernesto Miranda’s confession was inadmissible because officers had obtained it without

informing Miranda of his right to a lawyer and his right to remain silent• As a result of this case, police are now required to inform people taken into custody of the so-called “Miranda Rights” before questioning begins• Failure to give Miranda warnings does NOT affect the validity of an arrest• The police have to give Miranda warnings only if they want to use statements from the accused at the trial

Miranda Exceptions• In New York v. Quarles (1984), the Supreme Court carved out a

“public safety” exception to the Miranda rule• In that case, a police officer who was arresting a rape suspect in a

grocery store asked the suspect where his gun was before reading him his rights

• The suspect then pointed to a nearby counter, where the gun was found

• Quarles (the suspect), tried to have this gun suppressed, but the Court held that police may ask questions related to public safety before advising suspects of their rights

• The Court has also limited the impact of the Miranda rule by strictly requiring that the suspect be in a condition of custodial interrogation before the warnings are needed

• This means that the person is in custody (not free to leave) and is being interrogated by police

Do Now – Answer in your notebook:

In 1995, teenagers Michael Alvarado and Paul Soto attempted to steal a truck in a shopping-mall parking lot in Santa Fe Springs, California. Alvarado approached the passenger side of the door and Soto, holding a .357 Magnum, approached the driver. The driver refused to give Soto the keys, so Soto shot and killed him. Alvarado then helped Soto hide the gun. Both Alvarado and Soto were convicted of second-degree murder and robbery. Alvarado was convicted mostly because of incriminating statements he made about his involvement in the shooting during a two-hour interview with a police detective about a month after the murder. At the time of the interview, Alvarado was a 17-year-old high school student. The detective contacted Alvarado's mother, who agreed to bring him to the police station for questioning. When Alvarado arrived with his parents, the detective denied the parents' request to remain with their son during the interview. While they waited in the lobby, Alvarado was questioned alone. During the two-hour session, the detective twice asked Alvarado if he wanted to take a break, which he did. Alvarado admitted to his role in the killing, and at the end of the interview, went home. Alvarado was never told that he had a right to remain silent, to talk to a lawyer before answering questions, or to leave the police station.

In your opinion, should Alvarado’s statements be suppressed (not be admitted as evidence) because of the officer’s failure to read him his Miranda rights? Explain.

Pretrial Proceedings

• After an arrest, the accused is normally taken to a police station for booking, the formal process of making a police record of the arrest

• At this time, the accused is asked to provide information, (e.g. name, address, etc.)

• Then s/he is usually fingerprinted and photographed• In certain circumstances, the police are allowed to take fingernail

clippings, handwriting samples, urine samples, and blood samples for possible DNA analysis

• Within a limited period following arrest and booking, the accused must appear before a judge or magistrate• At this appearance, the judge explains the defendant’s rights and advises him of the exact nature of the charges• The defendant has an attorney appointed or is given the opportunity to obtain one• The judge may also set bail

Booking

• In a misdemeanor case, the defendant is asked at the initial appearance before the judge to enter a plea of guilty or not guilty

• In a felony case, the defendant is informed of the charges and advised of his rights, but does not enter a plea until a later stage called the arraignment

• In some jurisdictions, the defendant may be entitled to a preliminary hearing to determine if there is probable cause to believe that a crime was committed and that the

defendant committed it• The most important part of the initial appearance is deciding whether the defendant will be released from custody, and if so, under what conditions

Initial Appearance

• An arrested person can usually be released after putting up an amount of money known as bail, directly to the court

• The purpose of bail is to assure the court that the defendant will return for trial• Defendants have a constitutional right to bail in every case except for the most

serious cases (e.g. murder)• The court may require the accused to pay the entire amount, or in some places,

the defendant can be released after paying just a portion of the total amount (e.g. 10%)

• If a person released on bail fails to return, the court keeps the money• If the defendant doesn’t have the money, a bond company may put up a bail

bond in exchange for a fee• E.g., a defendant with bail set at $2,000 can be released after paying $200 to the bond company• If a bond is posted, the bond company will be required to pay the amount of the bond to the court if the defendant doesn’t report for trial

Bail

• The Eighth Amendment states that “excessive bail shall not be required,” but doesn’t define “excessive”

• In many cases, low-income people can’t come up with bail• Some people consider this unfair, and some courts and

legislatures have developed programs to release defendant without requiring any money

Bail

• Sometimes a court finds a person trustworthy enough to be released from jail without posting bail

• This person is said to be released on his or her personal recognizance• To be eligible for release on personal recognizance, the defendant must

a) promise to return, AND b) be considered a low risk of failing to show up for trial

• In determining the likelihood of a defendant’s return, judges consider factors such as the circumstances of the offense and the accused’s family and community ties, financial resources, employment background, and criminal history

Personal Recognizance

• Courts may also set other conditions to ensure the return of the defendant, e.g.• placing the defendant in the custody of a third

party (e.g. a mental health facility or a family member), OR requiring the defendant to • maintain or get a job• live at a certain address, • report his or her whereabouts on a regular basis, OR• wear a tracking device

Conditional Release

• Despite the advantages of bail, there can be problems releasing defendants before trial, even though they haven’t yet been found guilty of a crime

• Statistics indicate that a large number of defendants commit crimes while out on bail

• Some people argue that getting out on bail should be more difficult• In 1984, Congress passed the Bail Reform Act, which can prevent

someone from being freed on bail if s/he is charged with a federal felony offense and believed to be dangerous

• For this to occur, there must be a hearing, and the person being denied bail must have been convicted of a felony more than once.

• While the Supreme Court has upheld the Bail Reform Act as constitutional, most states have not adopted similar legislation

Problems with Pretrial Release

• Supporters of pretrial release say that it prevents punishment prior to conviction and gives defendant the freedom to help prepare their cases

• They also claim that the U.S. justice system rests on the presumption that defendant are innocent until proven guilty and that

setting high bail or holding a person in jail before trial contradicts that presumption

Defending Pretrial Release

Do Now•Rejoin your groups and finish the Pretrial Release Worksheet

• Name: Michael D. McKenna Age: 19• Charge: Assault• Residence: 412 Pine Street; lives alone; parents are in prison• Employment: Waiter; earns $400 per week• Education: 10th grade• Criminal record: Six juvenile arrests (possession of marijuana, illegal possession of firearms, and four burglaries); convicted of firearms charge and two burglaries; spent two years in juvenile facility.• Comment: Arrested after being identified as assailant in a street fight. Alleged leader of a street gang. Police consider him dangerous. No indication of drug usage.

• Name: Chow Yang Age: 34• Charge: Possession of stolen mail and forgery• Residence: 5361 Texas Street; lives with his wife and two children by a

prior marriage.• Employment: Works 30 hours per week at a service station; earns

minimum wage.• Education: 8th grade• Criminal record: Nine arrests, mostly vagrancy and drunk and disorderly conduct. Two convictions: (1) driving while intoxicated (fined and lost license) and (2) forgery (completed two years’ probation).• Comment: Arrested attempting to cash a stolen Social Security check. Has a drinking problem

• In some states, a defendant will proceed to trial for a misdemeanor based on a prosecutor’s information – a document that details of the nature and circumstances of the charge

• The information is a formal criminal charge filed with the court by the prosecutor without the aid of a preliminary hearing or a grand jury

• Information is based on the evidence a prosecutor collects during her preliminary investigation that suggests the defendant committed the crime

• A defendant charged with a misdemeanor is not entitled to a preliminary hearing or a subsequent grand jury review

• A few states also use the information system in felony prosecutions

Information

• A preliminary hearing is a screening process used in about half of the states• It is used in felony cases to determine whether there is enough evidence to

require the defendant to stand trial• At a preliminary hearing, the prosecutor is required to establish before a judge

that a crime probably has been committed and that the defendant probably did it

• In most of these states, the defendant has the right to be represented by an attorney, to cross-examine prosecution witnesses, and to call favorable witnesses

• If enough evidence supports the prosecutor’s case, the defendant will proceed to trial

• If the judge finds no probable cause to believe that a crime was committed or that the defendant committed it, the case may be dismissed

• Dismissal of a case at a preliminary hearing does not always mean that the case is over

• The prosecution may still submit the case to a grand jury for further review of the charges

Preliminary Hearing

Grand Jury• A grand jury is a group of 16 to 23 people who must decide whether there

is enough evidence that a person has committed a crime and should stand trial

• The Fifth Amendment requires that before anyone can be tried for a serious crime in federal court, there must be a grand jury indictment, a formal charge of criminal action

• About half of the states regularly use grand juries instead of a preliminary hearing for serious crimes

• Some states use both procedures• To get an indictment, a prosecutor presents evidence to convince the

members of a grand jury that a crime has been committed and that there is probable cause to believe that the defendant committed it

• Nether the defendant nor his attorney has a right to appear before a grand jury

• A judge isn’t present and the rules of evidence don’t apply• The prosecutor isn’t required to present all the evidence s/he has or to call

up witnesses

Grand Jury• Historically, the grand jury was seen as a guardian of the

rights of the innocent• If a majority of the grand jurors don’t think that sufficient evidence has been presented, no indictment will be issued, and the complaint against the defendant will be dismissed• In some instances, the grand jury system has protected citizens from being harassed by the government

Pleading• After an indictment or information is issued, the defendant must

appear in court to enter a plea• If s/he pleads guilty, the judge sets a date for sentencing• If s/he pleads not guilty, the judge will set a date for trial and ask

what kind of trial s/he wants: a bench trial (trial by judge), or a jury trial

• Nolo contendere is a plea in which the defendant doesn’t admit guilt but also doesn’t contest the charges – it’s equivalent to pleading guilty

• The only advantage of pleading nolo contendere is that it can’t be used as evidence in a later civil trial based on the same facts

• After a nolo contendere plea, the defendant proceeds directly to the sentencing phase

Pretrial Motions• An important preliminary proceeding is the pretrial motion• A motion is a formal request that a court make a ruling or take

some other action• Common pretrial motions include:• Motion for discovery of evidence – a request by the

defendant to examine, before trial, certain evidence in the possession of the prosecutor

• Motion for a continuance – a request for more time to prepare the case

• Motion for change of venue –a request to change the location of the trial to avoid community hostility, for the convenience of witnesses, or for other reasons

• Motion to suppress evidence – a request that certain evidence not be allowed to be presented in the trial

Exclusionary Rule• As you already know, the Fourth Amendment protects citizens

against “unreasonable searches and seizures” by the government

• But it doesn’t say what happens if the police violate the amendment

• To enforce the amendment, the Supreme Court has determined that any evidence illegally seized by law enforcement officials cannot be used to convict the accused at trial –

this is called the exclusionary rule• The rule also applies to evidence obtained from illegal questioning of the accused

Exclusionary Rule• The exclusionary rule is used by criminal defense lawyers when

they file a motion to suppress evidence• If the judge agrees that the evidence was obtained illegally, it

will be suppressed• However, this does not mean the evidence will be returned to

the defendant• e.g. If the police illegally seize cocaine while arresting Maddie,

the cocaine won’t be given back to her• In fact, illegally obtained evidence or confessions may be used at other stages of the process, such as a probable cause or sentencing hearing

Exclusionary Rule • The exclusionary rule has been used in federal

courts since 1914• It wasn’t extended to state courts until the 1961

Supreme Court case Mapp v. Ohio• Since Mapp, courts have modified and reevaluated the exclusionary rule, but the basic premise remains

• The exclusionary rule doesn’t prevent the arrest or trial of a suspect• But in some cases, it does mean that people who committed a crime

might go free• This could happen because when an important piece of evidence is

excluded from the trial, the prosecutor may not have enough other evidence to obtain a conviction

• As a result, such a case is often dismissed or the defendant is acquitted

• Because of this, the exclusionary rule is very controversial• Many people claim that it is a legal loophole that allows dangerous

criminals to go free• They also point out that many other countries have no such rule;

instead, those countries punish the police for violating citizens’ rights

Exclusionary Rule

• Others say the rule is necessary to safeguard our rights and to prevent police misconduct

• The two major arguments in support of the rule are judicial integrity and deterrence

• Judicial integrity is the idea that courts should not be parties to law-breaking by the police

• Deterrence means that police will be less likely to violate a citizen’s rights if they know that illegally seized evidence will be thrown out of court

• Police are sometimes more concerned with arrests than with convictions• They might make arrests primarily to seize contraband, to gather information, or to disrupt criminal activity, regardless of whether the evidence can legitimately be used to convict the suspect of a crime.

Exclusionary Rule

Do NowAnswer in your notebook:

Do you think the exclusionary rule is absolutely necessary to deter police from violating constitutional rights? If not, explain.

If yes, should the exclusionary rule be applied in EVERY case or should there be exceptions? If not, explain.

If so, under what circumstances should the exclusionary rule not apply? Explain.

Exclusionary Rule Exception • In U.S. v. Leon, the Supreme Court established a “good faith”

exception to the exclusionary rule, • In Leon, police were looking for evidence related to a homicide• The judge who approved the search warrant signed a warrant

normally used to conduct searches for drugs• The officers didn’t look at the warrant after it was issued• Technically, the warrant didn’t meet the requirement of

describing “with particularity” the items to be seized• The Court held that the “exclusionary rule should not apply to bar evidence obtained by police acting in reasonable reliance on a search warrant, issued by a detached and neutral magistrate, that is later found to be invalid”

Plea Bargaining

• More than 90% of criminal cases never go to trial• Most defendants plead guilty before trial• In minor cases, such as traffic violations, the procedure for

pleading guilty is simple: the defendant signs a form waiving the right to appear in court and mails the court a check for the amount of the fine

• In major cases, guilty pleas result from a process of negotiation among the person accused of the crime, the defense attorney, and the prosecutor• This process is called plea bargaining

• Plea bargaining involves granting certain concessions to the defendant in exchange for a plea of guilty

• Typically, the prosecution will allow the defendant to plead guilty to a less serious charge or recommend a lighter sentence on the original charge in exchange for a guilty plea

• Because prosecutors are often burdened with heavy caseloads, they have an incentive to offer a plea bargain to a defendant in order to save the time and cost involved in a trial

Plea Bargaining

• Defense attorneys are important in any negotiation of a guilty plea• They must consult with their clients and agree only to what the

clients want• Low-income defendants who have public defenders or court-

appointed attorneys may be at a disadvantage, as these attorneys often don’t have the same amount of time to work on their cases as private attorneys do

• When accepting a guilty plea, the judge must decide whether the plea was made freely, voluntarily, and with knowledge of all the facts

• A judge has the power to reject a plea• Once a defendant pleads guilty, withdrawing the guilty plea is extremely difficult

Plea Bargaining

Plea Bargaining• Critics argue that plea bargaining allows dangerous criminals

to get off with light sentences• Others argue that a prosecutor with a weak case can use the

plea bargaining system to unfairly influence a defendant to accept a lesser charge instead of risking a longer sentence

• Victims of crime argue that their rights are completely overlooked in the plea bargaining process that occurs between the prosecutor and the defendant

• Some jurisdictions have abolished or limited plea bargaining• Supporters of plea bargaining argue that without it, the criminal

justice system will be overwhelmed by the increase in cases coming to trial

• Others say that eliminating plea bargaining will provide greater justice because the government will drop weak cases, and defendants will still plead guilty when the government’s case is very strong

• A plea bargain is really a contract between the prosecutor and the defendant

• If the defendant fails to live up to the terms of this contract (e.g. by not testifying against a co-defendant) the

prosecutor can withdraw the plea bargain offer• Similarly, if the prosecutor fails to live up to the terms of the agreement, the defendant can ask the judge to enforce it

Plea Bargaining

Take 3 minutes to read the following scenario and answer the question below:

Marty, who is 22 years old, is arrested and charged with burglarizing a warehouse. He has a criminal record, including a previous conviction for shoplifting and two arrests for auto theft. The prosecutor has evidence placing him at the scene of the crime but no other physical evidence linking him to the crime. Because of his record, if Marty is convicted, he could face up to 10 years in prison. Marty’s defense attorney tells him that the prosecutor will reduce the charge to petty larceny, carrying a one-year suspended sentence and community service, in exchange for a guilty plea.

If you were Marty, would you plead guilty to the lesser charge? Why or why not?

With your tablemate…

Take 2 minutes to read the following scenario and answer the question below:

The governor of a large state is charged with corruption by federal prosecutors. The case attracts widespread media attention. This is a first offense for the governor, who had previously been the attorney general of her state. Her defense lawyer meets with the prosecutors seeking a plea agreement. The defense wants either a reduced charge (a misdemeanor), the promise of a sentence that does not require jail time(probation), or both, in exchange for a guilty plea.

As a prosecutor, what factors would you consider in making your decision? Explain.

With your tablemate…

Do NowAnswer in your notebook:

The federal court system and most state courts require a unanimous verdict to convict someone of a crime. This means that even if 11 out of 12 jurors vote to convict, the defendant still won’t be found guilty. Do you think this is fair? Why or why not?

Trial

• People accused of crimes cannot have their life or liberty taken without due process of law

• Due process means that an accused person has a right • to a jury trial in public and without undue delay• to be informed of their rights and of the charges

against them• to confront and cross-examine witnesses• to compel witnesses to testify on their behalf• to refuse to testify against themselves, and• to be represented by an attorney

• Taken together, these rights make up the overall right to a fair trial

Due Process

• The right to a jury trial in criminal cases is guaranteed by the Sixth Amendment – this applies to all federal and state courts

• A jury is not required in every case – in fact, juries are not used very often

• Jury trials are also not required for certain minor offenses — generally, those punishable by less than six months in prison

• Defendants can also waive their right to a jury trial and instead have their cases heard by a judge in a bench trial• In some states, waivers occur in the majority of cases that are tried

Right to a Jury Trial

• Jury panels are selected from voter registration lists or driver’s license rolls and are supposed to be generally representative of the local community

• In federal courts, juries consist of 12 persons• While many states also use 12-person juries, they are not

required to do this by the U.S. Constitution – the Supreme Court has ruled that only six jurors are required

• Juries in federal courts must reach a unanimous verdict before finding a person guilty • The Supreme Court has found that this not Constitutionally required in state courts, but most states require unanimous verdicts anyway

Jury Review

• Once the potential jurors for a case are assembled, the prosecutor and defense lawyer select the members of the jury through a process called voir dire

• Either lawyer can request that a potential juror be eliminated for some specific reason by using a for-cause challenge (e.g. if a juror knew the defendant or the victim in the case)

• Each side also has a limited number of peremptory challenges, which do not have to be based on a

specific reason• In some cases each party hires consultants to help them make judgments about which prospective jurors are most likely to be favorable to their side

Jury Review

• The Supreme Court has ruled that attorneys can’t exclude prospective jurors from serving on a jury solely because of their race, gender, or national origin

• Preventing discrimination in the selection of jurors has been a challenge for the justice system

• Supreme Court decisions indicate that criminal trials with juries selected in a discriminatory manner harm the defendant,

injure the persons removed from the jury for discriminatory reasons, and damage society in general• In the U.S., the right to trial by jury is considered a fundamental right • Most countries around the world, however, do not have jury trials

Jury Review

• The Sixth Amendment provides a right to a trial without “unnecessary delay,” but doesn’t define this

• The federal government and some states have set specific time limits within which a case must be brought to trial

• If a person does not receive a speedy trial, the case may be dismissed

• Defendant often waive their right to a speedy trial because of the unavailability of an important witness or because they need more time to prepare their cases

• Before dismissing a case, courts will consider the reasons for the delay and whether the defendant was free on bail or in jail during the pretrial period

Right to a Speedy Trial

• Defendants in criminal cases have a right to compulsory process for obtaining witnesses

• This means that the defendant can get a subpoena—a court order—requiring a witness to appear in court to testify

• Without this basic right, defendants would have a hard time establishing a defense

• The Sixth Amendment provides people accused of crimes with the right to confront (be face to face with) the witnesses against them and to ask them questions through cross-examination

• Although a defendant has the right to be present in the courtroom during all stages of the trial, the Supreme Court has said that this right may be restricted if the defendant becomes disorderly or disruptive

• In these instances, a judge has the power to remove the defendant from the courtroom, to cite him or her for contempt of court, or, in extreme circumstances, to have the defendant bound and gagged

Right to Confront Witnesses

• The right to confrontation is sometimes modified for child witnesses, especially in abuse cases• Many courts in these cases install closed-circuit television cameras• This practice enables the child to testify on camera in a room separate from the

one in which the defendant is located and reduces the potential for additional harm to the child

Child Witnesses

Answer in your notebook:

Crawford and his wife went to a man’s apartment, where a fight broke out between Crawford and the man. The man was stabbed during the fight, after which he called the police. Crawford was arrested later that night and charged with attempted murder. The police interrogated him and his wife separately. Crawford claimed that the man had attempted to rape his wife and that he acted in her defense. His wife’s story, which the police tape-recorded, did not match his. State law where he lived did not allow one spouse to testify in a criminal case against the other spouse without that spouse’s consent. Crawford did not agree to have his wife testify at his trial. However, the prosecutor played a tape-recording of what she told police. Crawford was then convicted of attempted murder. On appeal, Crawford argued that use of this tape recording violated his Sixth Amendment right to confront a witness against him because there was no way to cross-examine the recording.

In your opinion, how should this case be decided? Explain.

Do Now

• Freedom from self-incrimination means that you cannot be forced to testify against yourself in a criminal trial

• This right comes from the Fifth Amendment and can be exercised in all criminal cases

• Defense attorneys may counsel their clients not to take the stand for their own protection

• In addition, the prosecutor is forbidden to make any statement drawing the jury’s attention to the defendant’s refusal to testify• While defendants in a criminal case have a right not to testify, they also have a right to take the stand and testify if they want (in some other countries, defendants in criminal cases are required to testify)

Freedom From Self-Incrimination

• A defendant does not have to answer an inappropriate question if her attorney objects to it and the judge sustains, or agrees with, that objection

• This is true for all witnesses, but once a defendant takes the stand, the prosecutor can use anything she says to elicit contradictory and harmful statements that can be used against her

• Related to the right against self-incrimination is the concept of immunity

• Being granted immunity means that a witness cannot be prosecuted based on information provided in a testimony

• A person with immunity must answer all questions – even those that are incriminating

• Prosecutors often use immunity laws to force people to testify against co-defendants or others involved in the crime

Freedom From Self-Incrimination

Take 5 minutes to discuss the following:

a. Suppose you are a defense attorney. What are the advantages and disadvantages of having a criminal defendant testify at trial?

b. If you were a member of the jury in a criminal trial, what would you think if the defendant refused to testify? Would you be affected by the judge’s instruction not to draw any conclusion from this?

c. If a defendant is forced to stand in a lineup, give a handwriting sample, or take an alcohol breath or urine test, does this violate the privilege against self-incrimination?

d. Do you think that U.S. law should be changed so that defendants are required to testify in criminal cases? Explain.

In your table groups…