CJ227: Criminal Procedure Unit 4 Seminar Jennifer Hulvat.

CJ227: Criminal CJ227: Criminal ProcedureProcedure

Unit 4 SeminarUnit 4 Seminar

Jennifer HulvatJennifer Hulvat

This week….This week…. This week!This week!

1 DB question; quiz, seminar, Paper1 DB question; quiz, seminar, Paper Writing Assignment: Writing Assignment:

Pay attention to spelling and grammarPay attention to spelling and grammar Use APA format – one inch margins, double spaced, internal citations, Use APA format – one inch margins, double spaced, internal citations,

cover and reference pagecover and reference page Paper! (These questions must be answered)Paper! (These questions must be answered)

Since John was in custody, what are the procedural steps Since John was in custody, what are the procedural steps the police were required to take once John began to the police were required to take once John began to incriminate himself? incriminate himself?

What procedural steps must the officers perform following What procedural steps must the officers perform following John’s arrest and interview at the police station? John’s arrest and interview at the police station?

The court could choose either a preliminary hearing or a The court could choose either a preliminary hearing or a grand jury proceeding to establish probable cause for the grand jury proceeding to establish probable cause for the felony charges in this case. Compare and contrast the two felony charges in this case. Compare and contrast the two procedures. procedures.

Identify what issues the judge would take into Identify what issues the judge would take into consideration when setting bond for John. consideration when setting bond for John.

Explain what an arraignment is and what occurs during an Explain what an arraignment is and what occurs during an arraignment. arraignment.

Midterm Week Starts on Wednesday!Midterm Week Starts on Wednesday!

There’s no hurry to complete the exam…There’s no hurry to complete the exam…take your time to preparetake your time to prepare

I have no problem with you taking it I have no problem with you taking it toward the end of the unit week…please toward the end of the unit week…please prepare by reviewing the book, prepare by reviewing the book, discussions and quizzesdiscussions and quizzes

It’s open book, but be careful with that!It’s open book, but be careful with that! Timed exam….only have 3 hours; if you Timed exam….only have 3 hours; if you

submit the exam to be graded, you won’t submit the exam to be graded, you won’t be able to get back inbe able to get back in

Topic this weekTopic this week

For this week’s seminar we will examine the For this week’s seminar we will examine the three amendments to the U.S. Constitution three amendments to the U.S. Constitution that specifically deal with a defendant’s that specifically deal with a defendant’s rights: the 4th, 5th, and 6th amendments. rights: the 4th, 5th, and 6th amendments. Special focus will center on the purpose of Special focus will center on the purpose of the right to remain silent, provision of the the right to remain silent, provision of the 5th amendment, and the various provisions 5th amendment, and the various provisions of the 6th amendment including, but not of the 6th amendment including, but not limited to, right to counsel, right to confront limited to, right to counsel, right to confront witnesses, and right to a speedy trial.witnesses, and right to a speedy trial.

44thth Amendment (Review from units 1 and 2) Amendment (Review from units 1 and 2)1. The right of the people to be secure in their

a. persons, b. houses, c. papers, d. and effects against unreasonable searches and seizures, shall not

be violated, and 2. No warrants shall issue, but

a. upon probable cause b. supported by oath or affirmation and

3. Particularly describing the a. place to be searched b. and the persons or things to be seized.

Source: U.S. Constitution, Fourth Amendment

How is the 4How is the 4thth Amendment implicated at Amendment implicated at trial?trial?

Alleged violations of a defendant’s 4Alleged violations of a defendant’s 4thth Amendment rights may be challenged, Amendment rights may be challenged, pretrial, through motions to suppress pretrial, through motions to suppress evidence and motions to quash arrestevidence and motions to quash arrest

These are “pretrial” motions which are These are “pretrial” motions which are brought by the defendant prior to a brought by the defendant prior to a determination of guilt at trial.determination of guilt at trial.

Refer to the Unit 1 seminar PPT to review Refer to the Unit 1 seminar PPT to review the following:the following: What is a search?What is a search? What is a seizure?What is a seizure? What is a Terry Stop and a Terry Frisk?What is a Terry Stop and a Terry Frisk?

66thth Amendment Guarantees Amendment Guarantees Right to Counsel (discuss at length below)Right to Counsel (discuss at length below) Right to trial by juryRight to trial by jury Speedy Trial Speedy Trial Right to be present at trialRight to be present at trial

Trial may continue after it is started if defendant absents him, or her self or is Trial may continue after it is started if defendant absents him, or her self or is removed from the courtroom because of disruptive behavior.removed from the courtroom because of disruptive behavior.

Effective Assistance of Counsel Strickland v. Washington test Counsel performance was deficient. The deficient performance prejudiced the

defense. Right to a Public TrialRight to a Public Trial

Implications with the pressImplications with the press

What the 6What the 6thth Amendment Guarantees…technically! Amendment Guarantees…technically!

A trial by a jury (in most cases) A trial by a jury (in most cases) The jury to hear all of the witnesses and see all of the evidence The jury to hear all of the witnesses and see all of the evidence Presence at the trial and while the jury is hearing the case Presence at the trial and while the jury is hearing the case The opportunity to see, hear, and confront the witnesses presenting The opportunity to see, hear, and confront the witnesses presenting

the case against them the case against them The opportunity to call witnesses and to have the court issue The opportunity to call witnesses and to have the court issue

subpoenas to compel the witnesses to appear subpoenas to compel the witnesses to appear The chance to testify themselves should they choose to do so The chance to testify themselves should they choose to do so The option to refuse to testify The option to refuse to testify Access to a criminal defense lawyer. If individuals cannot afford to Access to a criminal defense lawyer. If individuals cannot afford to

hire their own criminal defense lawyer, a public defender will hire their own criminal defense lawyer, a public defender will represent them. This lawyer can act on their behalf before, during, represent them. This lawyer can act on their behalf before, during, and after the trial and after the trial

The right to cross-examine the witnesses giving testimony against The right to cross-examine the witnesses giving testimony against them them

The right to compel the state to prove its case against them beyond a The right to compel the state to prove its case against them beyond a reasonable doubt reasonable doubt

(Findlaw.com)(Findlaw.com)

Definition of IndigentDefinition of Indigent

Generally, a person who is poor, and Generally, a person who is poor, and unable to afford a lawyer;unable to afford a lawyer;

Court’s make the legal determination Court’s make the legal determination if a Defendant is indigent;if a Defendant is indigent;

Affidavit of income and expenses is Affidavit of income and expenses is completed by a Defendant and completed by a Defendant and examined by the court;examined by the court;

Order entered declaring indigent Order entered declaring indigent status or denying indigent status;status or denying indigent status;

Why is an attorney so important for Why is an attorney so important for a defendant in a criminal case?a defendant in a criminal case?

““Advising the defendant of his or her rights and Advising the defendant of his or her rights and explaining what to expect at different stages of explaining what to expect at different stages of the criminal process”;the criminal process”;

Ensuring that the defendant's constitutional rights Ensuring that the defendant's constitutional rights are not violated through law enforcement are not violated through law enforcement conduct, or in court proceedings;conduct, or in court proceedings;

Negotiating a plea bargain with the government, Negotiating a plea bargain with the government, on the defendant's behalf;on the defendant's behalf;

From arraignment to sentencing: investigating From arraignment to sentencing: investigating facts and evidence, cross-examining government facts and evidence, cross-examining government witnesses, objecting to improper questions and witnesses, objecting to improper questions and evidence, and presenting any legal defenses.” evidence, and presenting any legal defenses.” Findlaw.comFindlaw.com

Gideon v. WainwrightGideon v. Wainwright (1963) (1963)

The United States Supreme Court decided The United States Supreme Court decided that the right to assistance of counsel is that the right to assistance of counsel is ''fundamental'' and the Fourteenth ''fundamental'' and the Fourteenth Amendment does make the right Amendment does make the right constitutionally required in state courts. constitutionally required in state courts.

The Court's did not address the issue of The Court's did not address the issue of whether the right to assistance of counsel whether the right to assistance of counsel was allowed for defendants charged with was allowed for defendants charged with misdemeanors.misdemeanors.

Discussion of Discussion of GideonGideon

When does the Right to Counsel When does the Right to Counsel Attach? Attach?

At what point in the criminal process is a At what point in the criminal process is a suspect entitled to counsel? suspect entitled to counsel?

Escobedo v. Illinois Escobedo v. Illinois (1964): Right to counsel (1964): Right to counsel begins with a criminal investigation;begins with a criminal investigation;

Focus is on the process before an arrest;Focus is on the process before an arrest; Defendant is not necessarily a defendant, Defendant is not necessarily a defendant,

but a but a suspectsuspect;; How does this work?How does this work? Who determines at this stage if a Defendant Who determines at this stage if a Defendant

is indigent?is indigent?

Right to Counsel at “CRITICAL Right to Counsel at “CRITICAL STAGE”STAGE”

During questioning and investigative stage During questioning and investigative stage if defendant requests an attorney (Part of if defendant requests an attorney (Part of Miranda)Miranda)

After being charged with a crimeAfter being charged with a crime At line upAt line up Pretrial stages for identification purposesPretrial stages for identification purposes Arraignment / Preliminary HearingsArraignment / Preliminary Hearings Pretrial StagesPretrial Stages TrialTrial Appellate ProcessAppellate Process

55thth Amendment: The Right to Remain Silent Amendment: The Right to Remain Silent (Privilege against Self Incrimination)(Privilege against Self Incrimination)

55thth Amendment application to custody: Amendment application to custody: Miranda RightsMiranda Rights Custody + Interrogation = Miranda RightsCustody + Interrogation = Miranda Rights

As we discussed, this is commonly As we discussed, this is commonly misunderstood; many believe rights must be misunderstood; many believe rights must be read upon arrest….NO!read upon arrest….NO!

How is the 5How is the 5thth Amendment implicated at trial? Amendment implicated at trial? To address police violations of Miranda: Motions To address police violations of Miranda: Motions

to suppress statements made and heard prior to to suppress statements made and heard prior to trialtrial

At Trial: Defendant is At Trial: Defendant is notnot required to testify at required to testify at trialtrial

If defendant DOES choose to testify, that privilege If defendant DOES choose to testify, that privilege is WAIVED…and can’t pick and choose what is WAIVED…and can’t pick and choose what questions to answerquestions to answer

Review….5Review….5thth Amendment Amendment Protections at trialProtections at trial

The Fifth Amendment to the U.S. Constitution:The Fifth Amendment to the U.S. Constitution: gives individuals the right to refuse to answer any gives individuals the right to refuse to answer any

questions or make any statements, when to do so would questions or make any statements, when to do so would help establish that the person committed a crime or is help establish that the person committed a crime or is connected to any criminal activity. This right is also connected to any criminal activity. This right is also known as the Fifth Amendment privilege against self-known as the Fifth Amendment privilege against self-incrimination, which is invoked when someone is said to incrimination, which is invoked when someone is said to "plead the Fifth". (Findlaw.com)"plead the Fifth". (Findlaw.com)

Defendant CANNOT be forced to testify at trialDefendant CANNOT be forced to testify at trial Once defendant takes the standOnce defendant takes the stand What about compelling defendant to submit hair, urine, What about compelling defendant to submit hair, urine,

handwriting, vocal (speech exemplars) or DNA samples?handwriting, vocal (speech exemplars) or DNA samples?

Witnesses can also avail themselves of 5Witnesses can also avail themselves of 5thth Amendment Amendment

Questions, comments, concerns?Questions, comments, concerns?

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