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THE PRE-TRIAL PROCESS
INITIAL APPEARANCE &PROBABLE CAUSE HEARING
INITIAL APPEARANCE Requirement
Purpose & Function
Timing Of
Features Of
INITIAL APPEARANCE Statutory Requirements
Federal Rules of Criminal Procedure, Rule 5 Texas Code of Criminal Procedure, Article 15.17
Consequences for Violation McNabb v. United States Mallory v. United States Congressional Response
Constitutional Concerns Rothgery v. Gillsepie County, Texas (2008)
PROBABLE CAUSE DETERMINATION Gerstein v. Pugh
Facts Legal Procedure Issue Holding Rationale
Requirement for hearing Purpose for 4th Amendment Determination by magistrate not required before Shift in interest following arrest
Features of hearing When adversarial pretrial hearings used More important, more procedures Full adversarial hearings not required Evaluation of credibility not valuable No one right way
PROBABLE CAUSE DETERMINATION County of Riverside v. McLaughlin
Facts Legal Procedure Issue Holding Rationale
Need for balance Why not immediate Federalism Prompt, not immediate Some delays inevitable Flexibility has limits 48 hour limit Balance Shifting
Initial Appearance Probable Cause Determination
Source of Requirement
Statutory: Fed. R. Crim. Proc. 5Tex.Code.Crim.Proc. art 15.17
Constitutional: 4th Amendment
Purpose & Function 1) Inform/Advise of charge2)Inform/Advise of right to remain silent (5th Amend) and right to counsel (6th Amend)3) Appoint counsel or being procedures4) Set bail, if appropriate
Determination of probable cause to DETAIN by a neutral magistrate
Features Informal – No formal adversarial process (no counsel, confrontation, or cross-examination)
Informal – No formal adversarial process (no counsel, confrontation, or cross-examination)
Timing “Without undue/unnecessary delay” Set by statute, some give specific time limits between 48 and 72 hours.
“Promptly" Within 48 hours absent exigent circumstances. Prior to 48 hours, burden is on the defendant to prove that the delay was unreasonable. After 48 hours, burden on prosecution to show exigent circumstances
Consequences of Violation
Depends on Statute. Some follow old McNabb/Mallory rule and exclude evidence obtain in the delay period.
Exclusionary Rule applies.
ConstitutionalConcerns
6th Amendment right to counsel 4th Amendment protection probable cause requirement
Applicable Cases Rothgery v. Gillespie County (2008) Gerstein v. PughRiverside v. McLaughlin
BAIL & PRE-TRIAL DETENTIONThe Pre-trial Process
AVAILABLE OPTIONS Pretrial Release on Bail Pretrial Release on Own Recognizance Pretrial Detention
PRE-TRIAL DETENTION No Constitutional Right to Bail
Carlson v. Landon (1952) Bell v. Wolfish (1979) Texas Constitutional Provision
Preventative Detention Statutes First Statute (D.C. 1970) Bail Reform Act of 1984 United States v. Salerno
PRE-TRIAL DETENTION United States v. Salerno
Facts Issue Holding Rationale
DUE PROCESS CLAIM Procedural vs. Substantive Due Process Substantive Challenge Procedural Challenge
EIGHTH AMENDMENT CLAIM
PRE-TRIAL DETENTION Detention Conditions
Prison Rules (Bell v. Wolfish (1979)) Unannounced Cell Searches (Hudson v. Palmer
1984))
RELEASE ON BAIL Definition Purpose & Function Constitutional Protections
Excessive Bail – Stack v. Boyle (1951) Application to States
Murphy v. Hunt (1982) Texas Constitutional Provision
Hearing Requirements Separate Hearing Type of Hearing
Factors Considered Flight Risk Dangerousness Financial Statute
RELEASE ON OWN RECOGNIZANCE Definition NYC’s Manhattan Bail Progress Texas Statutory Provision
THE PRELIMINARY HEARINGThe Pre-trial Process
PRELIMINARY HEARING Definition
Source of Requirement Lem Woon v. Oregon (1913) Federal Rules of Criminal Procedure, Rule 5.1 Texas Code of Criminal Procedure, Article 16.01
Purpose & Function Historical Perspective Preliminary Hearings & Grand Jury Additional Functions Served
PRELIMINARY HEARING STATUTES Federal Statute, Fed. R. Crim. Proc. 5.1
(a) Probable Cause Finding – If from the evidence it appear that there is probable cause to believe that the believe that an offense had been committed and that the defendant committed it, the federal magistrate shall forthwith hold the defendant to answer in the district court.
Texas Statute, Tex. Code Crim. Proc. Art. 16.01 When the accused had been brought before the
magistrate for an examining trial, that officer shall proceed to examine into the truth of the accusation made. The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense.
PRELIMINARY HEARING Timing Features
Adversarial Protections Counsel Confrontation Cross-examination
Quantum of Proof Evidentiary Requirements Discovery Function Defense Witnesses Affirmative Defenses
Effect of Finding of No Probable Cause
PRELIMINARY HEARING Relevant Case Law
Coleman v. Alabama (1970)
Myers v. Commonwealth (1973) Purpose for hearing Importance of hearing Different from PC to arrest Level of proof different More than prosecutor’s evidence Adversarial hearing required Won’t become a full blown trial
GRAND JURY Pre-trial Process
GRAND JURY Definition
Source of the Requirement Constitutional in Federal Cases Not Constitutional in State Cases
Hurtado v. California
Purpose & Function
Construction Duration Size Voting Requirements Selection of members
Equal Protection Clause – Rose v. Mitchell (1979) Fair Cross Section Requirement – Taylor v. Louisiana (1975)
GRAND JURY Features
Secrecy Exceptions to Secrecy Oath by Jurors
Rights of Criminal Defendant Right to be present Right to counsel Right to cross-examination Right to testify
Rights of Witnesses Right to not testify Right to counsel
GRAND JURY Features, cont’d
Role of the Prosecutor
Investigative Power – United States v. Calandra (1974)
Subpoenas ad testificandum duces tecum
Grand of Immunity Transactional Immunity Use (derivative use immunity)
Findings of Contempt
GRAND JURY Indictments
Contents Purposes
Informs the grand jury Provides form for charges Basis for arrest warrant Official charging instrument Notification for defendant
Variance
GRAND JURY Indictment, cont’d
Challenges Lack of Evidence Competent Evidence
Costello v. United States Misconduct by Prosecutor
Bank of Nova Scotia v. United States Unfair Selection Process
United States v. Mechanik Failure to Present Exculpatory Evidence
United States v. Williams Exclusionary Rule
United States v. Calandra
COMPARISON Determination of probable cause Nature of proceedings Parties present Special Power
ARRAIGNMENT The Pretrial Process
ARRAIGNMENT Purpose & Function
Notice Enter Plea
Available Pleas Not Guilty Guilty Nolo Contendre Not Guilty by Reason of Insanity Jeopardy Pleas
REVIEW QUESTIONS
QUESTION ONE: CRIMINAL PROCEDURE What is the difference between procedural
and substantive law?
What are the three sources of criminal procedure law?
What are the two competing concerns in criminal procedure, and why it is important to achieve a balance between the two?
QUESTION TWO: THE CONSTITUTION Name three different methods or modalities
of interpreting the constitution.
Name three individual rights (and the corresponding amendment) that are relevant to criminal procedure law.
What is judicial review and in which Supreme Court case was it established?
QUESTION THREE: COMMON LAW Name at least one of the basic principles of a
common law legal system?
What is stare decisis?
What are three basic types of appellate opinions?
QUESTION FOUR: OVERVIEW OF CRIMINAL JUSTICE PROCESS Name three stages occurring during the
“Investigative Phase”
Name three stages occurring during the “Trial Phase.”
Name two different types of appeals in the “Appeals Phase.”
QUESTION FIVE: CASELAW What was the holding of the Supreme Court
in Gerstein v. Pugh?
What issue did the Court decide in Stack v. Boyle?
What did the Supreme Court hold in Coleman v. Alabama
QUESTION SIX: INITIAL APPEARANCE Name at least three of the four things that
will typically occur during an initial appearance.
When must an criminal suspect be taken for an initial appearance?
In Rothgery v. Gillespie County, Texas, the Supreme Court held what about a defendant and his right to counsel at the initial appearance.
QUESTION EIGHT: PROBABLE CAUSE HEARING When, in what instance, is a criminal
defendant entitled to a probable cause hearing?
Why did the Supreme Court hold that a person may be arrested without a warrant (determination of pc by neutral magistrate) but not detained following arrest without one.
How did the Supreme Court define “prompt” in terms of the probable cause hearing?
QUESTION SEVEN: BAIL What are the three broad “factors” that are
considered in determine whether, or in what amount, to set bail.
Why does the denial of bail, in certain instances, not violate “substantive” due process?
How has the Supreme Court defined “excessive?”
QUESTION NINE: PRELIMINARY HEARING What is the primary function of the
preliminary hearing and what is the “source” of the requirement?
What are 2 additional functions served by the preliminary hearing, besides its primary function.
How is “probable cause” as used in context with a preliminary hearing different from “probable cause” as used in other contexts?
QUESTION TEN: GRAND JURY What is the “source” of the grand jury
requirement?
Identify two “special powers” of the grand jury.
Identify three differences between the grand jury and the preliminary hearing.