Criminal Procedure Questions

Answer the questions with a minimum of 300 words. Must use ALL provided material (PDF book), along with TWO additional sources to answer questions. Please use in-text citations at the beginning of EACH new paragraph to support your facts. Reference/cite in APA format: Hall, D. (2015). Criminal law and procedure (7th ed.). Stamford, CT: Cengage Learning.

1.) Should the exclusionary rule (used for evidence) also be applied to illegal arrests? Discuss the standards used by the court in U.S. v.Toscanino (p. 459).

2.) A police officer is approached by a man on the street who tells the officer that he was just robbed. The man points out the robber, who is standing in a park just across the street. Must the officer obtain a warrant to make the arrest?

3.) A police officer is approached by a man on the street who tells the officer that he was just robbed. Although he did not see where the robber fled, he knew the assailant’s name and address, as the two men “grew up together.” The officer and the victim went to the police station and completed an incident report. After a telephone call to one of suspect’s neighbors, they learned that he was at home. Must the officer obtain a warrant to make the arrest?

4.) What is a protective sweep?

Chapter 12: Searches, ­Seizures, and Arrests   447
In 2006, this decision was extended to parolees in Samson v. California,78 where
the Supreme Court held that the Fourth Amendment does not prohibit suspicionless, warrantless searches of parolees. On the continuum of punishment, the Court
noted, a parolee enjoys less privacy than probationers and only slightly more than
prisoners. Significant to the Court in Samson was the consent of the parolees, who
were given the option of remaining in prison; the large number of parolees at large;
the interest of the state in monitoring parolees for reintegration; and recidivism. The
Court pointed to the likelihood of recidivism, as opposed to the general population,
in its Knights opinion as further support for the decision to subject probationers to
greater oversight.
L
Although outside the content of this text, beI aware that so-called administrative
searches often require less than probable cause and
D a warrant to be conducted. This is
largely because the purpose of such searches is not to detect and punish criminals. InD
stead, it is to protect the public from health and welfare threats, the violation of which
are typically punished with fines, the discipliningEof a license, or a similar noncriminal
sanction. For example, warrantless inspections of
L restaurants, groceries, other highly
regulated industries, public school students, and the work areas of public employees
L even though probable cause is not
must be reasonable under the Fourth Amendment,
required for any of them.
,
Administrative Searches
In most instances, the Fourth Amendment’s reasonableness requirement is satisfied
in the administrative context if there is either (1) reasonable suspicion or (2) a comprehensive regulatory scheme in place. If the latter, T
the scheme shall define the authority
79
of inspectors, define the inspection itself, and provide
I a rationale for the inspection.
F
F
Arrest
A liberty is to be physically seized
One of the most serious interferences with a person’s
by a government. Equally, arrest plays an important
N role in effective law enforcement.
Because of the significant impact arrest has on a person’s life, the right to arrest is
Y
limited by the Fourth Amendment.
Defining Arrest
1
Generally, an arrest is a deprivation of freedom by5a legal authority. As you have already
learned, seizures by the police take two primary forms. First, at the lower end of the
6
spectrum is the Terry v. Ohio seizure. Such seizures occur whenever a person reasonably
8
believes that he or she is not free to leave. In addition,
the seizure must be as brief as
possible and be of limited intrusion to the person
detained.
The Court addressed the
T
question whether passengers of vehicles are seized during traffic stops in the 2007 case
S
Brendlin v. California.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
448   Part II Criminal Procedure
BRENDLIN V. CALIFORNIA
551 U.S. 249 (2007)
Justice Souter delivered the opinion of the Court.
When a police officer makes a traffic stop, the
driver of the car is seized within the meaning of
the Fourth Amendment. The question in this case is
whether the same is true of a passenger. We hold
that a passenger is seized as well and so may challenge the constitutionality of the stop.
L
I
Early in the morning of November 27, 2001, Deputy
D
Sheriff Robert Brokenbrough and his partner saw a
D
parked Buick with expired registration tags. In his
E
ensuing conversation with the police dispatcher,
Brokenbrough learned that an application forLrenewal of registration was being processed. The ofL
ficers saw the car again on the road, and this time
Brokenbrough noticed its display of a temporary
,
I
operating permit with the number “11,” indicating
it was legal to drive the car through November.
T
The officers decided to pull the Buick over to verify
that the permit matched the vehicle, even though,
I
as Brokenbrough admitted later, there was nothing
F
unusual about the permit or the way it was affixed.
Brokenbrough asked the driver, Karen Simeroth,
Ffor
her license and saw a passenger in the front seat,
A
petitioner Bruce Brendlin, whom he recognized
as “one of the Brendlin brothers.” He recalled N
that
either Scott or Bruce Brendlin had dropped out
Y of
parole supervision and asked Brendlin to identify
himself (footnote omitted). Brokenbrough returned
to his cruiser, called for backup, and verified 1
that
Brendlin was a parole violator with an outstanding
5
no-bail warrant for his arrest. While he was in the
6
patrol car, Brokenbrough saw Brendlin briefly open
and then close the passenger door of the Buick.
8
Once reinforcements arrived, Brokenbrough went
T
to the passenger side of the Buick, ordered him
out of the car at gunpoint, and declared him under
S
arrest. When the police searched Brendlin incident
to arrest, they found an orange syringe cap on his
person. A patdown search of Simeroth revealed syringes and a plastic bag of a green leafy substance,
and she was also formally arrested. Officers then
searched the car and found tubing, a scale, and
other things used to produce methamphetamine.
Brendlin was charged with possession and
manufacture of methamphetamine, and he moved
to suppress the evidence obtained in the searches
of his person and the car as fruits of an unconstitutional seizure, arguing that the officers lacked
probable cause or reasonable suspicion to make
the traffic stop. He did not assert that his Fourth
Amendment rights were violated by the search of
Simeroth’s vehicle, but claimed only that the traffic stop was an unlawful seizure of his person. The
trial court denied the suppression motion after finding that the stop was lawful and Brendlin was not
seized until Brokenbrough ordered him out of the
car and formally arrested him. Brendlin pleaded
guilty, subject to appeal on the suppression issue,
and was sentenced to four years in prison.
The California Court of Appeal reversed . . . By
a narrow majority, the Supreme Court of California
reversed. . . .
A person is seized by the police and thus entitled to challenge the government’s action under
the Fourth Amendment when the officer, “ ‘by
means of physical force or show of authority,’ ”
terminates or restrains his freedom of movement.
Thus, an “unintended person . . . [may be] the object of the detention,” so long as the detention is
“willful” and not merely the consequence of “an
unknowing act.” A police officer may make a seizure by a show of authority and without the use
of physical force, but there is no seizure without
actual submission; otherwise, there is at most an
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 12: Searches, ­Seizures, and Arrests   449
BRENDLIN V. CALIFORNIA
(c o nti nu e d)
attempted seizure, so far as the Fourth Amendment is concerned.
When the actions of the police do not show an
unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there
needs to be some test for telling when a seizure occurs in response to authority, and when it does not.
The law is settled that in Fourth AmendmentLterms
a traffic stop entails a seizure of the driverI “even
though the purpose of the stop is limited and the
D
resulting detention quite brief.” And although we
Dqueshave not, until today, squarely answered the
tion whether a passenger is also seized, we
E have
said over and over in dicta that during a traffic stop
an officer seizes everyone in the vehicle, not L
just the
driver. . . . The State concedes that the police
L had
no adequate justification to pull the car over, but
,
argues that the passenger was not seized and thus
cannot claim that the evidence was tainted by an
unconstitutional stop. We resolve this question
T by
asking whether a reasonable person in Brendlin’s
I
position when the car stopped would have believed
himself free to “terminate the encounter” between
F
the police and himself. We think that in these cirF
cumstances any reasonable passenger would have
A conunderstood the police officers to be exercising
trol to the point that no one in the car wasN
free to
depart without police permission.
Y a
A traffic stop necessarily curtails the travel
passenger has chosen just as much as it halts the
driver, diverting both from the stream of traffic to
1
the side of the road, and the police activity that
5 and
normally amounts to intrusion on “privacy
personal security” does not normally (and 6
did not
here) distinguish between passenger and driver. An
8 over
officer who orders one particular car to pull
acts with an implicit claim of right based on T
fault of
some sort, and a sensible person would not expect
S
a police officer to allow people to come and go
freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely
wrongdoing is not the driving, the passenger will
reasonably feel subject to suspicion owing to close
association; but even when the wrongdoing is only
bad driving, the passenger will expect to be subject
to some scrutiny, and his attempt to leave the scene
would be so obviously likely to prompt an objection
from the officer that no passenger would feel free to
leave in the first place.
It is also reasonable for passengers to expect
that a police officer at the scene of a crime, arrest,
or investigation will not let people move around in
ways that could jeopardize his safety. In Maryland
v. Wilson, 519 U.S. 408 (1997), we held that during a
lawful traffic stop an officer may order a passenger
out of the car as a precautionary measure, without
reasonable suspicion that the passenger poses a
safety risk. In fashioning this rule, we invoked our
earlier statement that “ ‘[t]he risk of harm to both
the police and the occupants is minimized if the officers routinely exercise unquestioned command of
the situation.’ ” What we have said in these opinions
probably reflects a societal expectation of “‘unquestioned [police] command’ ” at odds with any
notion that a passenger would feel free to leave, or
to terminate the personal encounter any other way,
without advance permission. . . .
Brendlin was seized from the moment Simeroth’s car came to a halt on the side of the road,
and it was error to deny his suppression motion on
the ground that seizure occurred only at the formal
arrest. It will be for the state courts to consider in
the first instance whether suppression turns on any
other issue. The judgment of the Supreme Court
of California is vacated, and the case is remanded
for further proceedings not inconsistent with this
opinion.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
450   Part II Criminal Procedure
Any seizure that extends beyond the Terry standard is an arrest. A Terry investigatory
detention may be transformed into an arrest if the person is detained for an unreasonable length of time or the police use intrusive investigatory tactics. Whether an officer
intends to arrest is not dispositive, nor is an announcement to the citizen that he or she
is or is not under arrest. The totality of the facts will determine whether the intrusion
amounts to an arrest under the Fourth Amendment.
The requirements for a Terry stop were discussed previously in this chapter. The
following is a discussion of the Fourth Amendment requirements for arrest.
The Warrant Preference
L pursuant to a valid warrant, unless an exception to the warSearches must be conducted
rant requirement can Ibe shown. Arrests are quite different. Rather than a requirement
for a warrant, in most instances, there is simply a preference for one. The “informed
D
and deliberate determinations
of magistrates empowered to issue warrants . . . are to be
preferred over the hurried
action
of officers.”80 As is the case with warrantless searches,
D
probable cause determinations by magistrates will be supported on appeal with less
E by police officers.
evidence than those made
NotwithstandingLthe preference, most arrests are made without first obtaining a
warrant. The authority
Lto make warrantless arrests has a long history. Under the common law, a law officer could arrest whenever he had reasonable grounds to believe that
, a felony. Misdemeanants who breached the peace could be
a defendant committed
­arrested without warrant if the crime was committed in the presence of an officer.
United States v. Watson, 423 U.S. 411 (1976), was the case in which the Supreme
Court recognized thatTwarrantless arrests in public places, based upon probable cause,
I Amendment. There is no constitutional requirement that
did not violate the Fourth
an officer obtain a warrant
F to effect an arrest in a public place—even if the officer
has adequate time to get the warrant prior to making the arrest. However, the Fourth
F that probable cause exist before an arrest can be made.
Amendment does require
For a warrantless arrest
A in a public place to be upheld, it must be shown that the officer who made the arrest (1) had probable cause to believe that a crime was committed,
and (2) that the personN
arrested committed that crime. As with searches and seizures, probY in a number of ways: statements from victims and witnesses,
able cause can be established
personal knowledge and observations of the officer, reliable hearsay, and informant tips.
Most, if not all, states permit officers to arrest without a warrant if there is probable
1 suspect committed a felony. States vary in their treatment of
cause to believe that the
misdemeanors, but most
5 permit warrantless arrest only for a misdemeanor committed
in an officer’s presence. Some states have a broader rule that permits the arrest of a misdemeanant, even if the6crime was not committed in the presence of an officer, provided
there is both probable8cause and an exigent circumstance.
An officer’s determination
of probable cause may later be attacked by the defenT
dant. If the officer was wrong, then the defendant may be successful in obtaining his or
S any evidence that is the fruit of the illegal arrest.
her freedom or suppressing
When an officer does seek an arrest warrant, the requirements previously discussed
concerning search warrants apply. That is, the warrant must be issued by a neutral and
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 12: Searches, ­Seizures, and Arrests   451
detached magistrate upon a finding of probable cause, supported by oath or affirmation. See Exhibit 12–5 for the formal federal arrest warrant.
Arrests in Protected Areas
So far the discussion of arrests has been confined to arrests made in public. If the arrest
is to be made in an area protected by the Fourth Amendment, such as a person’s home,
a warrant must be obtained, unless an exception exists.
Exhibit 12–5 WARRANT FOR ARREST
L
I
AO 442 (Rev. 5/85) Warrant for Arrest
D
UNITED STATES DISTRICT COURT
D
DISTRICT OF
E
UNITED STATES OF AMERICA
L
V.
L
WARRANT FOR ARREST
,
CASE NUMBER:
To: The United States Marshal
and any Authorized United States Officer T
YOU ARE HEREBY COMMANDED to arrest  I
    Name
F
F
■ Indictment ■ Information ■ Complaint ■ Order of Court ■ Violation Notice
A
■ Probation Violation Petition
N
charging him or her with (brief description of offense)
Y
and bring him or her forthwith to the nearest magistrate to answer a(n)
in violation of Title        
United States Code, Section(s)        
1
5
Signature of Issuing Officer
Date and Location
6
8
(By) Deputy Clark
Bail fixed at $
by T
S Name of Judicial Officer
Name of Issuing Officer
Title of Issuing Officer
(continued)
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
452   Part II Criminal Procedure
Exhibit 12–5 (continued)
RETURN
This warrant was received and executed with the arrest of the
above-named defendant at 
DATE RECEIVED
NAME AND TITLE OF
ARRESTING OFFICER
SIGNATURE OF
ARRESTING OFFICER
DATE OF ARREST
THE FOLLOWING IS FURNISHED FOR INFORMATION ONLY:
L
I
ALIAS: 
D
LAST KNOWN RESIDENCE: 
D
LAST KNOWN EMPLOYMENT: 
E
PLACE OF BIRTH: 
L
DATE OF BIRTH: 
L
SOCIAL SECURITY NUMBER: 
,
HEIGHT:
WEIGHT: 
SEX:
RACE: 
T
HAIR:
EYES: 
I
SCARS, TATTOOS, OTHER DISTINGUISHING MARKS: 
F


F
FBI NUMBER:            
A
COMPLETE DESCRIPTION
OF AUTO:
N

Y
INVESTIGATIVE AGENCY AND ADDRESS: 

1
5
Source: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO442.pdf
6
8
In Payton v. New York, 445 U.S. 573 (1980), it was held that a valid arrest warrant
implicitly carries withTit a limited right to enter the suspect’s home to effect the arrest,
provided there is reason
S to believe the suspect is within. Under Payton, the search must

be limited to areas where the suspect may be hiding. Because the entry is lawful, any
evidence discovered in plain view may be seized.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Copy right © 2015 Cengage Learning®.
DEFENDANT’S NAME: 
Chapter 12: Searches, ­Seizures, and Arrests   453
Arrest warrants do not authorize entry into the private property of third persons.
In the absence of consent or exigent circumstances, a search warrant must be obtained
before a search of a third person’s home or property may be conducted.81
The warrant requirement is obviated if the occupant gives consent to the search.
Exigent circumstances, such as hot pursuit, also justify warrantless entries into homes
to effect an arrest.
Misdemeanor Arrests
The authority of law enforcement officers to arrest in cases where probable cause exists
to believe an individual has committed a felony is clear. Similarly, the authority to arrest
L since the early common law. Howmisdemeanants who breach the peace has been clear
ever, whether the arrest authority extends to minor
I misdemeanors was not addressed by
the Supreme Court until 2001.
D
D
E
ATWATER V. CITY OF LAGO VISTA, ET AL.
L532 U.S. 318 (2001)
L
equipped with safety belts, a
and insurance documentation, which state law re,
In Texas, if a car is
front-seat passenger must wear one, Tex. Tran.
Code Ann. § 545.413(a) (1999), and the driver must
secure any small child riding in front. Violation
T of
either provision is ”a misdemeanor punishable by
I
a fine not less than $25 or more than $50.” Texas law
expressly authorizes “any peace officer [to]Farrest
without warrant a person found committing F
a violation” of these seatbelt laws, § 543.001, although it
A
permits police to issue citations in lieu of arrest.
In March 1997, Petitioner Gail Atwater was
N driving her pickup truck in Lago Vista, Texas, with her
Y
3-year-old son and 5-year-old daughter in the front
seat. None of them was wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer1at the
time, observed the seatbelt violations and pulled
5
Atwater over. According to Atwater’s complaint
(the allegations of which we assume to be true
6 for
present purposes), Turek approached the truck and
8
“yelled” something to the effect of “we’ve met beT for
fore” and “you’re going to jail.” He then called
backup and asked to see Atwater’s driver’s S
license
quired her to carry. When Atwater told Turek that
she did not have the papers because her purse had
been stolen the day before, Turek said that he had
“heard that story two-hundred times.”
Atwater asked to take her “frightened, upset,
and crying” children to a friend’s house nearby, but
Turek told her, “you’re not going anywhere.” As it
turned out, Atwater’s friend learned what was going
on and soon arrived to take charge of the children.
Turek then handcuffed Atwater, placed her in his
squad car, and drove her to the local police station,
where booking officers had her remove her shoes,
jewelry, and eyeglasses, and empty her pockets.
Officers took Atwater’s “mug shot” and placed her,
alone, in a jail cell for about one hour, after which
she was taken before a magistrate and released on
$310 bond.
Atwater was charged with driving without her
seatbelt fastened, failing to secure her children
in seatbelts, driving without a license, and failing to provide proof of insurance. She ultimately
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
(continued)
454   Part II Criminal Procedure
ATWATER V. CITY OF LAGO VISTA, ET AL.
pleaded no contest to the misdemeanor seatbelt offenses and paid a $50 fine; the other charges were
dismissed.
Atwater and her husband, petitioner Michael Haas, filed suit in a Texas state court under
42 U.S.C. § 1983 against Turek and respondents
City of Lago Vista and Chief of Police Frank Miller.
So far as concerns us, petitioners (whom we will
simply call Atwater) alleged that respondentsL(for
simplicity, the City) had violated Atwater’s Fourth
I
Amendment “right to be free from unreasonable
D
seizure,” . . . [the plaintiffs lost in the trial court, preD
vailed before a three-judge panel in the appellate
court, and subsequently, the full appellate courtEsitting en banc reversed the three-judge panel.]
We granted certiorari to consider whetherLthe
Fourth Amendment, either by incorporating comL
mon-law restrictions on misdemeanor arrests or
,
otherwise, limits police officers’ authority to arrest
without warrant for minor criminal offenses. We
now affirm.
T
The Fourth Amendment safeguards “the right
I
of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches
F
and seizures.” In reading the Amendment, we are
F
guided by “the traditional protections against unreasonable searches and seizures afforded byAthe
common law at the time of the framing,” since
N
“an examination of the common-law understandYon
ing of an officer’s authority to arrest sheds light
the obviously relevant, if not entirely dispositive,
consideration of what the Framers of the Amend1
ment might have thought to be reasonable.” Thus,
the first step here is to assess Atwater’s claim5
that
peace officers’ authority to make warrantless6 arrests for misdemeanors was restricted at common
8
law (whether “common law” is understood strictly
as law judicially derived or, instead, as the whole
T
body of law extant at the time of the framing).
S
(c o nti nu e d)
Atwater’s specific contention is that “founding-era
common-law rules” forbade peace officers to make
warrantless misdemeanor arrests except in cases of
“breach of the peace,” a category she claims was
then understood narrowly as covering only those
nonfelony offenses “involving or tending toward
violence.” . . .
We begin with the state of pre-founding English
common law and find that, even after making some
allowance for variations in the common-law usage
of the term “breach of the peace,” the “foundingera common-law rules” were not nearly as clear as
Atwater claims; on the contrary, the common-law
commentators (as well as the sparsely reported
cases) reached divergent conclusions with respect
to officers’ warrantless misdemeanor arrest power.
Moreover, in the years leading up to American independence, Parliament repeatedly extended express
warrantless arrest authority to cover misdemeanorlevel offenses not amounting to or involving any
violent breach of the peace. . . .
On one side of the divide there are certainly
eminent authorities supporting Atwater’s position.
In addition to Lord Halsbury, quoted in Carroll,
James Fitzjames Stephen and Glanville Williams
both seemed to indicate that the common law confined warrantless misdemeanor arrests to actual
breaches of the peace.
Sir William Blackstone and Sir Edward East
might also be counted on Atwater’s side, although
they spoke only to the sufficiency of breach of the
peace as a condition to warrantless misdemeanor
arrest, not to its necessity. Blackstone recognized
that at common law “the constable . . . hath great
original and inherent authority with regard to arrests,” but with respect to nonfelony offenses said
only that “he may, without warrant, arrest any one
for breach of the peace, and carry him before a justice of the peace.” Not long after the framing of the
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
(continued)
Chapter 12: Searches, ­Seizures, and Arrests   455
ATWATER V. CITY OF LAGO VISTA, ET AL.
Fourth Amendment, East characterized peace officers’ common-law arrest power in much the same
way: “A constable or other known conservator of
the peace may lawfully interpose upon his own
view to prevent a breach of the peace, or to quiet
an affray. . . .” The great commentators were not
unanimous, however, and there is also considerable evidence of a broader conception of commonlaw misdemeanor arrest authority unlimitedL
by any
breach-of-the-peace condition. . . . We thus
I find
disagreement, not unanimity, among both the comD
mon-law jurists and the text-writers who sought to
D
pull the cases together and summarize accepted
practice. Having reviewed the relevant English
E decisions, as well as English and colonial American
L
legal treatises, legal dictionaries, and procedure
manuals, we simply are not convinced thatLAtwater’s is the correct, or even necessarily the better,
,
reading of the common-law history. . . .
A second, and equally serious, problem for
Atwater’s historical argument is posed by the
T “divers Statutes,” M. Dalton, Country Justice ch. 170,
I be§ 4, p. 582 (1727), enacted by Parliament well
fore this Republic’s founding that authorized
F warrantless misdemeanor arrests without reference
F
to violence or turmoil. Quite apart from Hale and
A
Blackstone, the legal background of any conception
of reasonableness the Fourth Amendment’sNFramers might have entertained would have included
Y
English statutes, some centuries old, authorizing
peace officers (and even private persons) to make
warrantless arrests for all sorts of relatively minor
1
offenses unaccompanied by violence. The so-called
5 no“nightwalker” statutes are perhaps the most
table examples. From the enactment of the 6
Statute
of Winchester in 1285, through its various readop8
tions and until its repeal in 1827, night watchmen
were authorized and charged “as . . . in Times
Tpast”
to “watch the Town continually all Night, from the
S
(c o nti nu e d)
Sun-setting unto the Sun-rising” and were directed
that “if any Stranger do pass by them, he shall be
arrested until Morning. . . .”
Nor were the nightwalker statutes the only
legislative sources of warrantless arrest authority
absent real or threatened violence, as the parties
and their amici here seem to have assumed. On the
contrary, following the Edwardian legislation and
throughout the period leading up to the framing,
Parliament repeatedly extended warrantless arrest
power to cover misdemeanor-level offenses not involving any breach of the peace. . . .
An examination of specifically American evidence is to the same effect. Neither the history of
the framing era nor subsequent legal development
indicates that the Fourth Amendment was originally
understood, or has traditionally been read, to embrace Atwater’s position.
Nor does Atwater’s argument from tradition
pick up any steam from the historical record as
it has unfolded since the framing, there being no
indication that her claimed rule has ever become
“woven . . . into the fabric” of American law. The
story, on the contrary, is of two centuries of uninterrupted (and largely unchallenged) state and federal
practice permitting warrantless arrests for misdemeanors not amounting to or involving breach of
the peace. . . .
Finally, both the legislative tradition of granting
warrantless misdemeanor arrest authority and the
judicial tradition of sustaining such statutes against
constitutional attack are buttressed by legal commentary that, for more than a century now, has almost uniformly recognized the constitutionality of
extending warrantless arrest power to misdemeanors without limitation to breaches of the peace. . . .
Small wonder, then, that today statutes in all
50 States and the District of Columbia permit warrantless misdemeanor arrests by at least some
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
(continued)
456   Part II Criminal Procedure
ATWATER V. CITY OF LAGO VISTA, ET AL.
(if not all) peace officers without requiring any
breach of the peace, as do a host of congressional
enactments. . . .
Accordingly, we confirm today what our prior
cases have intimated: the standard of probable
cause “applies to all arrests, without the need to
‘balance’ the interests and circumstances involved
(c o nti nu e d)
in particular situations.” If an officer has probable
cause to believe that an individual has committed
even a very minor criminal offense in his presence,
he may, without violating the Fourth Amendment,
arrest the offender. . . .
The Court of Appeals’s en banc judgment is
affirmed.
L
I
Search Incident to Arrest and the Protective Sweep
D
As you learned earlier in this chapter, an officer may fully search an arrestee as incident
to arrest. In addition,Dthe area within the arrestee’s immediate control may also be
searched. The scope ofEa search incident to arrest, however, is limited to areas where a
weapon might be obtained by the person arrested. Clearly, a search of any room other
L
than the one where a defendant is being held is not supported by the doctrine of search
incident to arrest. L
The search-incident-to-arrest
doctrine does not consider the possibility that other
,
potentially dangerous persons may be present, but out of sight, when an arrest is made.
Must police take the risk that no other dangerous persons are on the premises when
making a lawful arrest?TThis question was answered by the Supreme Court in Maryland
v. Buie.
I
It is important to note that the protective sweep may not be automatically conducted by the police, F
unlike a search incident to arrest. An officer must have a reasonable belief, supported F
by specific and articulable facts, that a dangerous person may be
hiding in the home, before a protective sweep may be conducted. There need not be a
Ato conduct a search incident to arrest.
belief of dangerousness
A protective sweep
Nmust be limited to searching those areas where a person might
be hiding. How far this will be permitted to go remains to be seen. Justice Brennan,
Y
dissenting in Buie, made this statement:
Police officers searching for potential ambushers might enter every room including base1
ments and attics, open up closets, lockers, chests, wardrobes, and cars; and peer under
5
beds and behind furniture.
The officers will view letters, documents and personal effects
that are on tables or desks or are visible inside open drawers; books, records, tapes, and
6
pictures on shelves; and clothing, medicines, toiletries and other paraphernalia not care8 drawers or bathroom cupboards. While perhaps not a “full-blown”
fully stored in dresser
or “top-to-bottom”T
search . . . a protective sweep is much closer to it than to a “limited
patdown for weapons” or a “frisk” [as authorized by Terry v. Ohio].
S
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 12: Searches, ­Seizures, and Arrests   457
MARYLAND V. BUIE
494 U.S. 325 (1990)
A “protective sweep” is a quick and limited search
of a premises, incident to an arrest and conducted
to protect the safety of police officers or others. It is
narrowly confined to a cursory visual inspection of
those places in which a person might be hiding. In
this case we must decide what level of justification
is required by the Fourth and Fourteenth AmendL
ments before police officers, while effecting the
I
arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective
D
sweep of all or part of the premises. . . .
D
On February 3, 1986, two men committed an
E
armed robbery of a Godfather’s Pizza restaurant
in Prince George’s County, Maryland. OneLof the
robbers was wearing a red running suit. The same
L
day, Prince George’s County police obtained arrest warrants for respondent Jerome Edward
, Buie
and his suspected accomplice in the robbery,
Lloyd Allen. Buie’s house was placed under police
T
surveillance.
On February 5, the police executed theI arrest
warrant for Buie. They first had a police department
F
secretary telephone Buie’s house to verify that he
was home. The secretary spoke to a female
F first,
then to Buie himself. Six or seven officers proceeded
A
to Buie’s house. Once inside, the officers fanned out
through the first and second floors. CorporalN
James
Rozar announced that he would “freeze” the
Ybasement so that no one could come up and surprise
the officers. With his service revolver drawn, Rozar
twice shouted into the basement, ordering 1
anyone
down there to come out. When a voice asked who
5
was calling, Rozar announced three times: “this
6 a
is the police, show me your hands.” Eventually,
pair of hands appeared around the bottom8of the
stairwell and Buie emerged from the basement. He
T
was arrested, searched, and handcuffed by Rozar.
Thereafter, Detective Joseph Frolich entered
S the
basement “in case there was someone else” down
there. . . . He noticed a red running suit lying in plain
view on a stack of clothing and seized it.
The trial court denied Buie’s motion to suppress
the running suit, stating in part: “The man comes
out from a basement, the police don’t know how
many other people are down there.” . . .
It goes without saying that the Fourth Amendment bars only unreasonable searches and seizures. . . . Our cases show that in determining
reasonableness, we have balanced the intrusion
on the individual’s Fourth Amendment interests
against its promotion of legitimate governmental
interests. . . . Under this test, a search of the house or
office is generally not reasonable without a warrant
issued on probable cause. There are other contexts,
however, where the public interest is such that neither a warrant nor probable cause is required. . . .
The Terry case is most instructive for present purposes. There we held that an on-the-street
“frisk” for weapons must be tested by the Fourth
Amendment’s general proscription against unreasonable searches because such a frisk involves “an
entire rubric of police conduct—necessarily swift
action predicated upon the on-the-spot observations of the officer on the beat—which historically
has not been, and as a practical matter could not be,
subjected to the warrant procedure.” . . .
The ingredients to apply the balance struck in
Terry and Long are present in this case. Possessing an arrest warrant and probable cause to believe
Buie was in his home, the officers were entitled to
enter and to search anywhere in the house in which
Buie might be found. Once he was found, however, the search for him was over, and there was no
longer that particular justification for entering any
rooms that had not yet been searched.
(continued)
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
458   Part II Criminal Procedure
MARYLAND V. BUIE
(c o nti nu e d)
That Buie had an expectation of privacy in those
remaining areas of his house, however, does not
mean such rooms were immune from entry. In Terry
and Long we were concerned with the immediate
interest of the police officers in taking steps to assure themselves that the persons with whom they
were dealing were not armed with or able to gain
immediate control of a weapon that could unexpectL
edly and fatally be used against them. In the instant
case, there is an analogous interest of the officers
I in
taking steps to assure themselves that the house in
D
which the suspect is being or has just been arrested
D
is not harboring other persons who are dangerous
and who could unexpectedly launch an attack.E
The
risk of danger in the context of an arrest in the home
L
is as great as, if not greater than, it is in the on-thestreet or roadside investigatory encounter. . . . L
We should emphasize that such a protective
sweep, aimed at protecting the arresting officers,
if justified by the circumstances, is nevertheless
not a full search of the premises, but may extend
only to a cursory inspection of those spaces where
a person may be found. The sweep lasts no longer
than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it
takes to complete the arrest and depart from the
premises. . . .
The Fourth Amendment permits a properly
limited protective sweep in conjunction with an inhome arrest when the searching officer possesses
a reasonable belief based on specific and articulable facts that the area to be swept harbors an
individual posing a danger to those on the arrest
scene.
,
Executing Arrest Warrants
Texecuted at the officer’s discretion, whether day or night. HowArrest warrants may be
ever, common sense dictates
that warrants be served at a reasonable hour, unless an
I
exigency exists.
F 374 U.S. 23 (1963), an unannounced entry into a person’s
In Ker v. California,
home was found to beFviolative of the Fourth Amendment. Therefore, the general rule
is that officers must knock
A and announce their reason for being there. A number of
exceptions to this rule have been recognized, including
N
Y
1. When the safety of the police or others will be endangered by the announcement.
2. When the announcement will allow those inside to destroy evidence or escape.
3. When the occupants know the purpose of the officers.
1
The Court has said that the knock-and-announcement requirement applies whether
5 force or not. It is not important whether the police gain entry
the police gain entry by
through using a key, opening
an unlocked door, smashing a window, or breaking a door
6
down. Police may obtain no-knock warrants in exceptional circumstances.
8
Illegal Arrests T
Does the exclusionaryS
rule apply to people as it does to things? That is, should a defen-
dant be excluded from trial because he or she has been arrested unlawfully? Generally,
the Supreme Court has answered no.82 Therefore, the fact that a defendant is kidnapped has no bearing on whether the criminal proceeding will continue.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 12: Searches, ­Seizures, and Arrests   459
There may be an exception to this rule. If the conduct of the government is outrageous, shocking, and a gross invasion of a defendant’s constitutional rights, he or
she may be set free. This is known as a Toscanino case, named after the defendant in a
Supreme Court case involving such a claim.
UNITED STATES V. TOSCANINO
500 F.2d 267 (2d Cir. 1974)
Francisco Toscanino appeals from a narcotics conviction entered against him in the Eastern L
District
of New York. . . .
I
Toscanino does not question the sufficiency of
D
the evidence or claim any error with respect to the
D . . . is
conduct of the trial itself. His principal argument
that the entire proceedings in the district courtE
against
him were void because his presence within the terriL obtorial jurisdiction of the court had been illegally
tained. . . . He offered to prove the following: L
“On or about January 6, 1973 Francisco To,
scanino was lured from his home in Montevideo,
Uruguay by a telephone call. This call has been
placed by or at the direction of Hugo Campos
T Hermedia. Hermedia was at that time and still is a
I …
member of the police in Montevideo, Uruguay.
“The telephone call ruse succeeded in bringing
F
Toscanino and his wife, seven months pregnant at the
F
time, to an area near a deserted bowling alley in the
A
City of Montevideo. Upon their arrival there Hermedia
together with six associates abducted Toscanino.
N This
was accomplished in full view of Toscanino’s terrified
wife by knocking him unconscious with a gun.Y
…
“At no time had there been any formal or informal request on the part of the United States or
1
the government of Uruguay for the extradition of
5 to
Francisco Toscanino nor was there any legal basis
justify this rank criminal enterprise. . . .
6
“Later that same day Toscanino was brought
8 was
to Brasilia. . . . For seventeen days Toscanino
incessantly tortured and interrogated. Throughout
T
this entire period the United States government and
S
the United States Attorney for the Eastern District
of New York . . . did in fact receive reports as to its
progress. . . . [Toscanino’s] captors denied him sleep
and all forms of nourishment for days at a time.
Nourishment was provided intravenously in a manner precisely equal to an amount necessary to keep
him alive. Reminiscent of the horror stories told
by our military men who returned from Korea and
China, Toscanino was forced to walk up and down
a hallway for seven or eight hours at a time. When
he could no longer stand he was kicked and beaten
but all in a manner contrived to punish without scarring. When he could not answer, his fingers were
pinched with metal pliers. Alcohol was flushed into
his eyes and nose and other fluids . . . were forced
up his anal passage. Incredibly, these agents of the
United States government attached electrodes to Toscanino’s earlobes, toes, and genitals. Jarring jolts
of electricity were shot throughout his body, rendering him unconscious for indeterminate periods of
time but again leaving no physical scars. . . .
[Toscanino was eventually drugged and
brought to the United States to stand trial.]
Since Frisbie, the Supreme Court in what one
distinguished legal luminary describes as a “constitutional revolution,” . . . has expanded the interpretation of “due process.” No longer is it limited to
the guarantee of “fair” procedure at trial. In an effort
to deter police misconduct, the term has been extended to bar the government from realizing directly
the fruits of its own deliberate and unnecessary lawlessness in bringing the accused to trial. . . .
Accordingly, we view due process as now requiring a court to divest itself of jurisdiction over
the person of a defendant where it has been acquired as the result of the government’s deliberate,
unnecessary and unreasonable invasion of the accused’s constitutional rights.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
460   Part II Criminal Procedure
Later, the Second Circuit Court of Appeals reiterated that the Toscanino reasoning applies only to situations in which the government’s conduct is both shocking and
outrageous, as was true of the allegations in Toscanino.83 Be aware that not all courts
have followed the Second Circuit’s lead. Rather than deal with the thorny legal issue,
most courts factually distinguish their cases from Toscanino. The Supreme Court has
not yet addressed the issue.
Even though a defendant’s person may not be excluded because of an illegal arrest,
the evidence obtained pursuant to that arrest may be. For example, if there is a causal
connection between an illegal arrest and a subsequent confession, then the statement
must be excluded.84 Or, if evidence is obtained through a search incident to an illegal
arrest, it must also be suppressed.
In short, any evidence obtained as a result of an illegal
L
arrest must be excluded, unless an independent basis for its discovery can be shown by
I
the government.
D
Analyzing Fourth
D Amendment Problems
Search and seizure problems can be complex. This area of the law is highly fact-sensitive. It is also an area E
where one must be careful and precise in analysis. Often search
and seizure issues willLbe numerous in a single case, with all of the issues interrelated
and interdependent. L
Fourth Amendment analysis is ordered and sequential (Exhibit 12–6). In many
­instances, the validity, of a search or seizure will depend on the validity of an earlier
search or seizure. Therefore, if the government fails at an earlier stage, it may likely fail
again later. For example, the police arrest Barry Burglar and conduct a search incident
to arrest. During thatTsearch they discover burglar tools and other evidence of the
alleged burglary. If it Iis determined that the arrest was invalid, then the fruits of the
search incident to arrest
F must be suppressed. If the evidence discovered from the search
led to other evidence, it may also be excluded.
F evidence in stages—each stage increasing the governmenOften officers obtain
tal interest in crime prevention,
and concurrently increasing the officer’s suspicion—
A
thereby permitting a greater invasion of a person’s privacy.
N and seizure laws can be complex, do not forget to use common
Even though search
sense when analyzing Y
Fourth Amendment issues. The exceptions to the search warrant
requirement are not surprising (Exhibit 12–7); common sense tells a person that an
officer may continue to pursue a fleeing murderer into the suspect’s home without first
1
obtaining a warrant. Similarly,
it is not shocking that illegally obtained evidence may
not be used to convict5a defendant.
Two important, sometimes competing, policy objectives are at play in Fourth
6 crime detection and prevention versus the citizen’s right to be
Amendment problems:
free from intrusive governmental
behavior. Consider these concerns when contemplat8
ing Fourth Amendment
problems.
T
S
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 12: Searches, ­Seizures, and Arrests   461
Exhibit 12–6 FOURTH AMENDMENT ANALYSIS
Is there governmental
action?
No
Fourth Amendment
inapplicable
No
Fourth Amendment
inapplicable
Yes
Is there a search or seizure
intruding upon a reasonable
expectation of privacy?
Fourth
Amendment
violated
No
L
I
Yes
D
Does the Fourth Amendment
D
impose probable cause
and/or warrant requirements?
E
L
Yes
L
Were the probable
,
cause/warrant
requirements satisfied?
T
I
Was the actionF
reasonable?
F
Yes A
N
Fourth Amendment
Y
satisfied
No
Yes
Fourth
Amendment
violated
Copyright © 2015 Cengage Learning®.
1
5
6
8
T
S
No
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
462   Part II Criminal Procedure
Exhibit 12–7 SUMMARY OF WARRANT RULES AND EXCEPTIONS
SEARCHES
RULE: Pursuant to the Fourth and Fourteenth Amendments, in both federal and
state cases, a warrant to search must be obtained, unless one of the following
exceptions is established.
EXCEPTIONS and LIMITATIONS:
1. Consent
2. Terry frisks
L
4. Plain feel
I
5. Incident to arrest
D
6. Preservation ofD
evidence
7. Emergencies and
E hot pursuit
8. Borders
L
9. Motor vehicles
L
10. Vehicle inventories
,
3. Plain view
11. Prisoners, probationers, and parolees
12. Protective sweeps
T
I
14. Administrative inspections
F
ARRESTS
F
RULE: The Fourth and Fourteenth Amendments govern arrests by both federal
and state officials. Arrests
in public areas may be warrantless. Arrests made in
A
the home or other property of the defendant must be supported by either an
arrest warrant or a N
search warrant for the defendant’s person. Arrests in the
homes or other property of third parties must be supported by a search warrant
Y
authorizing the search for the defendant at the particular property.
1
5
Ethical Considerations
6
POLICE ETHICS
8
Law enforcement officers are bound by departmental rules and local,
T
state, and federal laws. The Constitution itself plays a role in defining
­police ethics. For example,
the exclusionary rule is both an evidentiary
S
rule and an ethical directive.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Copyright © 2015 Cengage Learning®.
13. Open fields
Chapter 14
Chapter Outline
The Pretrial
Process
L
I
D
D
E
L
L
,
T
I
F
F
A
N
Y
1
5
6
8
T
S
Introduction
Discovery and Investigation
of Criminal Activity
Arrest
The Complaint
Initial Appearance
Pretrial Release and Detention
Types of Release
Eighth Amendment
Detention
Preliminary Hearing
The Formal Charge
Indictment and Grand Jury
Information
Arraignment
Pretrial Activity
Discovery
Motion Practice
Pretrial Conference
Extradition and Detainers
Removal
Ethical Considerations: Lawyer
Competence and Computers
Chapter Objectives
After completing this chapter, you should
be able to:
• outline the process of a criminal case
from discovery of the criminal act to
preparation for trial.
• describe the two formal criminal
charges that are filed against defendants
in the United States.
• discuss the history, purpose, and
procedures of grand juries, and contrast
that with contemporary grand juries.
• describe and apply to fact scenarios the
law of pretrial release of defendants.
• identify the material facts and legal
issues in nearly all of the cases you
read, describe the courts’ analyses and
conclusions in the cases, and demonstrate
the ability to synthesize and think critically
about the law of the subject.
523
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
524   Part II Criminal Procedure
Introduction
What follows is an outline of the basic process a case goes through, from before ­arrest
to after trial. As previously mentioned, each state and the federal government have
different processes. The federal process is used for illustration. Exhibit 14–1 provides
a visual summary of the process. You may find it helpful to refer to it as you learn the
different stages of the process.
Exhibit 14–1
Discovery and Investigation
of Criminal Activity
L
The process begins when law enforcement officials learn of a crime that has been comI
mitted (or is to be committed). Police learn of criminal activity in two ways: They may
discover it themselves,Dor a citizen may report such activity.
Once police are D
aware of criminal activity, the pre-arrest investigation begins.
There are two objectives to this stage. First, police must determine whether a crime
E
VISUAL SUMMARY OF THE BASICL
CRIMINAL PROCESS
L
,
Charges
Dismissed
or
Dropped
Crime
Discovered
Arrest
T
I
Initial F
Appearance
F
A
N
Y
Charges
Dismissed
or
Dropped
No
Indictment
Preliminary
Hearing
Grand Jury
Investigation
Indictment
Information
Acquittal
Not Guilty
Plea
Presentence
Investigation
Sentencing
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Copyright © Cengage Learning®.
Arraignment
1
5
Guilty
Trial 6
Verdict
8
T Pleas/
Guilty
Nolo Contendere Pleas
S
Chapter 14: The Pretrial Process   525
has been committed. Second, if a crime has been committed, police attempt to
gather sufficient evidence to charge and convict the person believed to have committed the crime.
Arrest
Once adequate evidence exists, an arrest is made in most cases. However, in some misdemeanor cases a defendant is asked to come to the police station, and an arrest is not
made unless the defendant refuses. The arrest may be made without an arrest warrant
in some situations. In others, an ex parte hearing may be held to determine if probable
L
cause exists to believe that the person under investigation
committed the crime. If so,
the judge may issue an arrest warrant.
I
At the time of arrest, police ordinarily search the defendant. Once at the police
D of obtaining biographical inforstation, the defendant is “booked.” Booking consists
mation about the defendant (name, address, etc.),
D fingerprinting the defendant, and
taking the defendant’s photograph, commonly known as a “mug shot.” The defendant
E
is usually permitted to make a telephone call at this stage.
L
The defendant is then searched (sometimes deloused
and showered) and held in jail
until further arrangements are made. For minor offenses,
the
defendant may be able to post
L
bail prior to appearing before a judge. In such cases, defendants are out of jail within hours.
, at an initial appearance. During and
All others have to wait for a judge to set a bail amount
after this stage, law enforcement investigation and gathering of evidence may continue.
T
I
The Complaint
F a prosecutor, files a complaint,
At this stage, a police officer, or in some instances
which acts as the charging instrument. Fed. R. F
Crim. P. 3 states: “The complaint is
a written statement of the essential facts constituting an offense charged. It shall be
A
made upon oath before a magistrate.” The complaint need not be written upon perN and circumstantial evidence in a
sonal knowledge. That is, an officer may use hearsay
complaint. Affidavits from those who have personal
Y knowledge, such as witnesses and
arrest
■ The official taking of a
person to answer criminal
charges. This involves at
least temporarily depriving
the person of liberty and
may involve the use of
force. An arrest is usually
made by a police officer
with a warrant or for a
crime committed in the
officer’s presence.
complaint
■ A criminal complaint is
a formal document that
charges a person with
a crime.
victims, are often attached to the complaint.
When a warrant is sought to arrest a defendant, the complaint is often produced
in support of the request for a warrant. This occurs
1 at the ex parte hearing mentioned
earlier. Federal law requires that a warrant be issued if probable cause is established by
5
the complaint and its accompanying affidavits. Upon the request of the government, a
6 than an arrest warrant.1
summons (an order to appear) may be issued rather
If the defendant was arrested without a warrant,
8 the complaint serves as the charging document at the initial appearance or preliminary hearing.
T
For traffic violations and some lesser misdemeanors,
the complaint acts as both a
summons to appear in court and the charging document.
In such cases the defendant
S
appears in court on only one occasion, and the ticket is used in place of an information
or indictment. See Exhibits 14–2 and 14–3.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
526   Part II Criminal Procedure
Exhibit 14–2 Criminal Complaint
AO 91 (Rev. 5/85) Criminal Complaint
United States District Court
______________________________ DISTRICT OF ______________________________
UNITED STATES OF AMERICA
      V.
L
CRIMINAL COMPLAINT
I
CASE NUMBER:
D
(Name and Address of Defendant)
D
I, the undersigned
Ecomplainant being duly sworn state the following is true
and correct to the best of my knowledge and belief. On or about __________ in
__________ county, L
in the __________ District of __________ defendant(s) did,
(Track Statutory Language
L of Offense)
,
in violation of Title __________ United States Code,
Section(s) ______________. I further state that I am a(n) ______________ and that
this complaint is based on the following facts:
T
I
Yes   No
Continued on the attached
sheet and made a part hereof:
F
F
_____________________________
A
Signature of Complainant
N
Sworn to before me and subscribed in my presence,
Y
___________________________________ at ___________________________________
Date City and State
1
5
________________________________
________________________________
Name & Title of Judicial 6
Officer
Signature of Judicial Officer
8
Source: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO091.pdf
T
S
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 14: The Pretrial Process   527
Exhibit 14–3 SUMMONS IN A CRIMINAL CASE
AO 83 (Rev. 5/85) Summons in a Criminal Case
United States District Court
______________________________ DISTRICT OF ______________________________
UNITED STATES OF AMERICA
SUMMONS IN A CRIMINAL CASE
L
CASE NUMBER:
I
D
(Name and Address of Defendant)
D
YOU ARE HEREBY SUMMONED to appear before the United States District
E
Court at the place, date and time set forth below.
L
Place
Room
L
,
Date and Time
Before:
T
Indictment   Information   Complaint  
Violation Notice
I
Probation Violation Petition
F
Charging you with a violation of Title ______ United
F States Code, Section _______.
A
Brief description of offense:
N
Y
To answer a(n)
___________________________________
___________________________________
1
Signature of Issuing Officer
Date
___________________________________
Name and Title of Issuing Officer
5
6
8
T
S
(continued)
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
528   Part II Criminal Procedure
Exhibit 14–3 (continued)
AO 83 (Rev. 5/85) Summons in a Criminal Case
RETURN OF SERVICE
Service was made by me on:1
Date
Check one box below to indicate appropriate method of service
Served personally upon the defendant at: 

L
Left summons Iat the defendant’s dwelling house or usual place of abode
with a person of suitable age and discretion then residing therein and
mailed a copy D
of the summons to the defendant’s last known address.
Name of person
Dwith whom the summons was left:
____________________________
E

L
Returned unexecuted: 
L

,


T
I
F
I declare under penalty of perjury under the laws of the United States of
America that theF
foregoing information contained in the Return of Service
is true and correct.
A
Returned on ________________________
________________________________
N
Date
Name of United States Marshal
Y

________________________________
(by) Deputy United States Marshal
1
5
6
8 a summons see Rule 4 of the Federal Rules of Criminal Procedure
1) As to who may serve
T
Source: http://www.nvd.uscourts.gov/Files/AO_083_0109.pdf
S
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 14: The Pretrial Process   529
Initial Appearance
After arrest, the defendant is taken “without unnecessary delay” before the nearest
available federal magistrate.2 In most cases this means that a defendant will be brought
before the judge within 24 hours. However, if a defendant is arrested on a weekend, it
may be the following Monday before the defendant has the initial appearance, unless a
weekend session of court is held.
The first appearance is brief. If the arrest was executed under an arrest warrant,
it is the duty of the presiding judge to make sure that the person arrested is the person named in the warrant. The defendant is also informed of various rights, such
as the rights to remain silent and to have the assistance of counsel. If the defendant
L right to counsel is discussed more
is indigent, the court will appoint counsel. The
fully later. If the arrest was warrantless, an initial
probable cause determination
I
must occur.
D
In 1991, the United States Supreme Court examined the need for prompt probable
DIn County of Riverside v. McLaughlin,3
cause determinations in warrantless arrest situations.
the Court held that persons arrested without aE
warrant must have a probable cause
determination within 48 hours after arrest or quicker if reasonable. A defendant who
L 48 hours before a probable cause
asserts unreasonable delay, but was held less than
hearing was conducted, bears the burden of proving
L that the delay was unreasonable
under the Fourth Amendment. If a defendant is held longer than 48 hours without a
,
probable cause hearing, the burden of showing a bona fide emergency or other extraordinary circumstance falls on the government.
Time to gather additional evidence, ill will, T
or the fact that the defendant was arrested on a weekend are not sufficient to delay the probable cause determination longer
I
than 48 hours.
Finally, a preliminary hearing date is set, and
F if the defendant is in jail, the court
determines whether he or she should be released prior to trial.
F
A
N
Pretrial Release and Detention
Y A court may order many types of
In many cases, defendants are released prior to trial.
release, but the predominantly used methods are cash bail, surety bond, property bond,
and personal recognizance.
1
5
Types of Release
6 post bail. A defendant who has the
The most obvious method of gaining release is to
resources may simply pay into the court the amount
8 of the bail.
Whenever a third party, usually a professional bondsman, agrees to pay the bond
T practice is for the defendant to
for a defendant, a surety bond is created. The common
pay the surety 10 percent or more of the bond amount
S in exchange for the bondsman
making the defendant’s bail. The 10 percent is not refunded to the defendant after the
case is concluded.
bail
■ The money or property
given as security for a
defendant’s appearance
in court. The money,
often in the form of a bail
bond, may be lost if the
defendant released does
not appear in court.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
530   Part II Criminal Procedure
Some sureties require security (collateral) before a bond will be issued. Defendants
may pledge cars, houses, or other property to obtain release. This is a property bond.
For many misdemeanors and a few felonies, a defendant may be released on personal recognizance. To gain such a release, a defendant need only promise to appear.
Regardless of the type of release, courts frequently impose conditions upon the
defendant. Defendants who are arrested or caught intimidating witnesses or interfering
with the judicial process may be jailed until trial.
Eighth Amendment
The Eighth Amendment proscribes the imposition of “excessive bail.” This provision
may be applicable to L
the states through the Fourteenth Amendment. The purpose of
imposing money bail Iis to assure the defendant’s appearance at trial, not to inflict punishment. Bail set higher than necessary to accomplish this purpose is deemed excessive.4
Dsignificant discretion in setting bail and are rarely reversed.
In practice, courts have
The Supreme Court
D has held that the mere fact that a defendant cannot pay the
amount set by a court does not make it excessive. Additionally, the Court has stated
E
that not all defendants have a right to bail. Defendants who are a danger to the community or unlikely toL
appear for trial may be held without bail.
The exact meaning
L of the Eighth Amendment has not been spelled out by the
Supreme Court. Whether pretrial detention laws, especially those that create a pre, are constitutional remains to be seen.
sumption of detention,
Detention
T
The federal government
I (and presumably most states, if not all) provides for detention
of some defendants prior to trial.
Pretrial detentionFmay not be used to punish a person. To do so violates a person’s
due process right to beFfree from punishment without a fair trial. However, a defendant
may be detained if there is reason to believe that he or she will not appear for trial or if
A
he or she poses a threat to others.
N the defendant is entitled to an adversary hearing concerning
In the federal system,
pretrial detention, andYthe government must prove by clear and convincing evidence
that the defendant is either dangerous or unlikely to appear for trial.5 The adversary
hearing must be held at the initial appearance; or upon the motion of the defendant or
the government, it may
1 be continued.
Although the general rule is that the government bears the burden of proving that a
5
defendant must be detained, there are exceptions. There are two classes of presumptions
6 presumes that certain defendants will not appear for trial, and
in the federal statute. One
another presumes that8certain defendants are a danger to the community. For example,
defendants charged with crimes of violence who have a prior conviction for a crime of
T
violence, which was committed
while the defendant was released pending trial, are presumed to be dangerous
to
the
community.
It is also presumed that defendants charged
S
with drug crimes that carry 10 years or more imprisonment will flee. These presumptions also apply to many other defendants.6 The presumption is rebuttable, and the
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 14: The Pretrial Process   531
defendant has the burden of disproving it. Some question the constitutionality of such
presumptions, and it remains to be seen whether such statutes will be reversed or upheld.
Many states have statutes that require detention of persons charged with crimes
punishable by life imprisonment or death, provided that the proof of guilt is great.
Preliminary Hearing
The defendant’s second appearance before a judge is the preliminary hearing. How
this stage is handled by the states varies significantly. At the preliminary hearing, the
court determines if probable cause exists to believe
Lthe accused committed the crime. If
probable cause is found, the defendant is “bound over” to the next stage of the process.
I If probable cause is not established,
The next stage is either trial or review by grand jury.
the defendant is released.
D
If indictment by grand jury is required, the case is bound over to the grand jury.
D
The grand jury is not bound by the judge’s decision that probable cause exists; it makes
E
an independent decision whether to charge the defendant.
If grand jury review is not
required, the defendant is bound over for trial. L
The purpose of the preliminary hearing is to have an impartial third party review
L is no constitutional requirement
the facts to be sure that probable cause exists. There
7
for a preliminary hearing. However, many states, do provide for preliminary hearings.
It is common to permit prosecutors to bypass the preliminary hearing either by
submitting the case to a grand jury or by directly filing an information. Defendants
T prosecutors may demand a preoften waive the preliminary hearing. In some states,
liminary hearing over the objection of the defendant.
I
The preliminary hearing can be quite lengthy compared to a defendant’s initial apFcalled, and the attorneys are allowed
pearance. The hearing is adversarial. Witnesses are
to make arguments. Rules of evidence are applied
F in modified form, so hearsay and
illegally obtained evidence are often considered. Defendants have a right to counsel and
A
may also be allowed to cross-examine the prosecution witnesses and to present defense
N constitutional law. The other two
witnesses. The right to counsel is a matter of federal
rights are granted by state laws. The preliminaryYhearing can be an important asset to
both prosecution and defense, as it can serve as a source of discovery.
The preliminary hearing is different from the initial probable cause determination
required by County of Riverside v. McLaughlin. The
1 initial determination is constitutionally required, whereas the preliminary hearing is not. Further, although the same
5
terminology is used (i.e., probable cause), less evidence is needed to satisfy the govern6at the preliminary hearing. Probable
ment’s obligation at the initial determination than
cause at the initial hearing equates with the probable
cause required to obtain a
8
warrant, which is generally recognized as requiring less proof than does probable cause
T is the fact that the probable cause
at the later preliminary hearing. Also in contrast
hearing required by County of Riverside will likely
Sbe one-sided. That is, only the government will present evidence. Some states, however—such as California—permit defendants to present evidence at preliminary hearings.
preliminary hearing
■ The first court
proceeding on a criminal
charge, in federal courts
and many state courts, by
a magistrate or a judge to
decide whether there is
enough evidence for the
government to continue
with the case and to
require the defendant to
post bail or be held for trial.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
532   Part II Criminal Procedure
Fed. R. Crim. P. 5 requires that the date for “preliminary examination” be scheduled
at the defendant’s initial appearance. It shall be held within 10 days of the initial appearance if the defendant is in custody and within 20 days if the defendant has been released.
In federal courts and in many states, probable cause may be founded upon hearsay
evidence.8 Motions to suppress illegally seized evidence are made after the preliminary
hearing, so such evidence may be considered at the preliminary examination stage. If a
grand jury has issued an indictment, the preliminary hearing may be dispensed within
the federal system.9 Many states have a similar rule.
information
■ A formal accusation of
a crime made by a proper
public official such as a
prosecuting attorney.
indictment
■ A sworn, written
accusation of a crime,
made against a person by a
prosecutor to a grand jury.
grand jury
■ Persons who
receive complaints and
accusations of crime, hear
preliminary evidence on
the complaining side, and
make formal accusations or
indictments.
The Formal Charge
L
There are two formal charges: the information and the indictment. Informations are
I
charges filed by prosecutors.
Indictments are charges issued by grand juries. Once filed,
an information or indictment
replaces the complaint and becomes the formal charging
D
instrument.
D
Indictment and E
Grand Jury
Purpose of the Grand
L Jury
In early American history, grand juries were used to guard against unfair and arbitrary
L and to preserve the reputation of persons investigated but
government prosecutions
not indicted. The Framers
, of the U.S. Constitution believed grand jury review so important that they stated in the Fifth Amendment: “[N]o person shall be held to answer
for a capital, or otherwise infamous, crime, unless on a presentment or indictment of
T
a Grand Jury.”
Grand juries consist
I of 12 to 23 persons who are usually selected in the same
method as petit juries (juries that determine guilt or innocence). Grand juries sit for
longer periods of timeFand are called to hear cases as needed.
The primary objective
F of grand jury review is the same as that of the preliminary
hearing: to determine whether there is probable cause to believe that a target of the
A
investigation committed the alleged crime. The grand jury, therefore, was intended
to protect individualsNfrom unwarranted prosecutions. Because the grand jury proceedings are closed, individuals
investigated but not charged are not subjected to the
Y
public humiliation and damage to reputation that often results from a more public
investigation. The secondary objective of the grand jury has become its primary purpose, as defined by prosecutors:
to facilitate investigation. See Exhibit 14–4.
1
5
First, grand juries are 6
closed. The public, including the defendant, is not entitled to attend. Second, the prosecutor
runs the show before the grand jury, and the defendant has
8
no right to present evidence or to make a statement. Third, the actions of grand juries are
T are not permitted to disclose what transpires. Defendants have
secret. Those who attend
no right to know whatS
evidence is presented to a grand jury, unless it is exculpatory (tends
Procedures of the Grand Jury
to prove the defendant’s innocence). Fourth, those who testify before the grand jury are
not entitled to have counsel in the jury room.10 In most states witnesses are permitted to
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 14: The Pretrial Process   533
Exhibit 14–4 Subpoena to Testify Before Grand Jury
AO 106 (Rev. 5/85) Subpoena to Testify Before Grand Jury
United States District Court
______________________________ DISTRICT OF ______________________________
To
L SUBPOENA TO TESTIFY
BEFORE GRAND JURY
I
SUBPOENAD
FOR:
PERSON
D DOCUMENT(S) OR OBJECT(S)
Eand testify before the Grand Jury
YOU ARE HEREBY COMMANDED to appear
of the United States District Court at the place, date, and time specified below.
L
L
PLACE COURTROOM
,
DATE AND TIME
T
YOU ARE ALSO COMMANDED to bring with
I you the following document(s)
or object(s):1
F
F
Please see additional information on reverse
A
N
This subpoena shall remain in effect until you are granted leave to depart by
the court or by an officer acting on behalf of Y
the court.
CLERK DATE
(BY) DEPUTY CLERK
This subpoena is issued
on application of the
United States of America
1
5
6
NAME, ADDRESS AND PHONE NUMBER OF
8
ASSISTANT U.S. ATTORNEY
T
S
(1)
If not applicable, enter “none”
(continued)
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
534   Part II Criminal Procedure
Exhibit 14–4 (continued)
AO 110 (Rev. 5/85) Subpoena to Testify Before Grand Jury
RETURN OF SERVICE(1)
RECEIVED
BY SERVER
DATE
PLACE
SERVED
DATE
PLACE
SERVED ON (NAME)
L
SERVED BY TITLE
I
D
STATEMENT OF SERVICE FEES
D
TRAVEL SERVICES TOTAL
E
L DECLARATION OF SERVER(2)
I declare underLpenalty of perjury under the laws of the United States of
America that the,foregoing information contained in the Return of Service
and Statement of Service Fees is true and correct.
Executed on ________________ 
Signature of Server
   DateT
I
F
ADDITIONAL INFORMATION
F
A
N
Y

Address of Server
(1) As to who may
1 serve a subpoena and the manner of its service see
Rule 17(d), Federal Rules of Criminal Procedure, or Rule 45(c), Federal
Rules of Civil 5
Procedure.
(2) “Fees and mileage need not be tendered to the witness upon service of
6 on behalf of the United States or an officer or agency
a subpoena issued
thereof (Rule 8
45(c), Federal Rules of Civil Procedure Rule 17(d), Federal
Rules of Criminal Procedure) or on behalf of certain indigent parties and
criminal defendants
who are unable to pay such costs (28 USC 1825,
T
Rule 17(b) Federal Rules of Criminal Procedure).”
S
Source: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO110.pdf
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 14: The Pretrial Process   535
leave the proceeding to confer with counsel waiting directly outside. Because statements
made to a grand jury can be used later, the Fifth Amendment right to be free from selfincrimination is available to witnesses. Grand juries can overcome Fifth Amendment
claims (refusals to testify) by granting witnesses immunity from prosecution. Also, witnesses may not refuse to testify because the inquiry is the result of illegally seized evidence.
To permit refusal or exclusion would not further the objective of the exclusionary rule (to
deter police misconduct) and would substantially interfere with the grand jury process.11
Grand juries possess the power to order people to appear, to subpoena documents,
to hold people in contempt, and to grant immunity in order to procure testimony.
As a general proposition, prosecutors control grand juries. For the most part, grand
juries convene only when called by the prosecutor.
L The prosecutor decides what witnesses need to be called and who should be given immunity. Nearly all people targeted
I
(the person the prosecutor believes guilty) by prosecutors
are indicted. Many criticize
the grand jury system for this reason: The government
D has too much control over the
grand juries. The argument is reasonable when one considers the historical purpose of
D
grand jury review.
Esystem argue that grand juries have
The proponents of abolishing the grand jury
not only lost their independence, but they also now
L act to the benefit of prosecutors by
allowing discovery of information that may otherwise have been unavailable.
The Indictment
L
,
After a grand jury has completed its investigation, a vote on whether to charge is taken.
In the federal system, grand juries consist of 16 to 23 people. At least 12 must vote for
indictment.12 In many cases indictments are sealedT
until the indicted defendant is arrested.
The Constitution requires that all federal prosecutions
for capital and infamous
I
crimes be by indictment. However, if a defendant waives the right to grand jury review,
F of indictment form used in fedhe or she may be charged by information. The waiver
eral court is shown in Exhibit 14–5. Crimes punishable
by 1 year or longer in prison
F
are “infamous.”13 A defendant may not waive indictment in federal capital cases. It is
A
always proper to charge corporations by information, as imprisonment is not possible.
The United States Supreme Court has ruledNthat grand jury review is not a fundamental right; therefore, the Fifth Amendment
Y requirement for indictment is not
applicable against the states. However, many states have grand juries and require that
serious charges be brought by indictment.
Indictments must be written and state in “plain
1 and concise” terms the essential
facts constituting the offense charged.14 Indictments are liberally read, and technical
5
errors do not make them invalid. However, an indictment must contain all the essential
elements of the crime charged. If an indictment6charges more than one crime, each
crime must be made a separate count.15 Jurisdiction
8 must be noted, and the law upon
which the charge is made must be cited. It was upon this indictment that Ted Bundy
T
was prosecuted, convicted, and executed.
If a defendant believes that an indictment isSfatally deficient, it may be attacked
by a motion to quash. Indictments are not quashed because of technical errors. An
example of a valid reason to quash is failure to allege an essential element of the crime
motion
■ A request that a judge
make a ruling or take some
other action.
quash
■ Overthrow; annul;
completely do away with.
Quash usually refers to a
court stopping a subpoena,
an order, or an indictment.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
536   Part II Criminal Procedure
Exhibit 14–5 WAIVER OF INDICTMENT
AO 455 (Rev.5/85) Waiver of Indictment
United States District Court
______________________________ DISTRICT OF ______________________________
UNITED STATES OF AMERICA
V.
L
WAIVER OF INDICTMENT
I
D
CASE NUMBER:
D
I, ________, the above named defendant, who is accused of being advised of
E
L
L
the nature of the charge(s), the proposed information, and of my rights, hereby
,
waive in open court on _________________ prosecution by indictment and conDate
sent that the proceeding may be by information rather than by indictment.
T
I
F
F
A
N
Y
1
5
6
8
T
Before _____________________________
S Officer
Judicial

Defendant

Counsel for Defendant
Source: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO455.pdf
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 14: The Pretrial Process   537
charged. It is not violative of the Fifth Amendment’s Double Jeopardy Clause for a
grand jury to issue a second indictment after the first has been quashed or dismissed.
In some jurisdictions, a prosecutor may refuse to prosecute, even though an indictment has been issued. In that situation, the prosecutor must assist the jury in preparing the
document and must usually explain why a prosecution will not be maintained. In other
instances, the prosecutor must pursue the case. The former situation represents federal law;
that is, the decision on whether to prosecute falls within the purview of the federal prosecutor, who may properly refuse to sign an indictment and prosecute the case.16
L
I
Plea Bargaining
D
Statistics vary, but it is widely accepted that approximately 90 percent of all
felony cases are disposed of by guilty pleas.
D The number is probably higher
for misdemeanors. There is no question that plea bargaining greatly reduces
E
the amount of time expended on trials. Warren Burger, past Chief Justice of
L that judicial resources in the
the United States Supreme Court, estimated
United States would have to be doubled if only 20 percent of all criminal
L
cases went to trial. This conclusion was largely a matter of simple math and
,
has been criticized. In any event, plea bargaining
is an important part of the
criminal justice system. It is so important that the Supreme Court has stated
that it “is not only an essential part of the process but a highly desirable
part,” Santobello v. New York, 404 U.S. 257,T261 (1971).
In Boykin v. Alabama, 395 U.S. 238 (1969),
I it was announced that all defendants who plead guilty do so voluntarily and knowingly, the latter term
F rights that are waived by entermeaning that the defendant understands the
ing a plea of guilty.
F
The plea negotiation involves the defendant and the prosecutor. Judges
A a bargain is reached, it is predo not participate in plea negotiations. After
sented to the trial court. The court may then
N accept the agreement and sentence the defendant accordingly. With good cause, the court may also reject
Y
the agreement. Some states permit defendants to withdraw their guilty
pleas if the judge rejects the bargain. In others the judge has the discretion
of allowing the defendant to withdraw the guilty plea or sentencing the
1
defendant contrary to the bargain.
5
6
8
T
Information
The second formal method of charging someoneS
with a crime is by information. InforSources: Burger, “The State of the Judiciary,” 56 A.B.A. J. 929 (1970)
and Note, “Is Plea Bargaining Inevitable?” 97 Harv. L. Rev. 1037 (1984).
mations are filed by prosecutors without grand jury review. The current trend is away
from indictments and toward charging by information.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
538   Part II Criminal Procedure
If a defendant has been initially charged by complaint, the prosecutor must independently review the evidence and determine whether a prosecution is warranted. If
not, a prosecutor may file a nolle prosequi. If so, the information is filed.
Informations serve the same function as indictments. Under the federal rules, informations must take the same form as indictments. They must be plain, concise, and
in writing. All essential elements, as well as the statute relied upon by the government,
must be included.17 (See the sample criminal information in Chapter 4.) As is true of
indictments, informations must be filed with the appropriate court.
Defendants may seek to have defective informations quashed or dismissed. The
rules regarding defectiveness are the same for informations as for indictments. Technical errors are not fatal.L
arraignment
■ The hearing at which
a defendant is brought
before a judge to hear the
charges and to enter a plea
(guilty, not guilty, etc.).
plea
■ The defendant’s formal
answer to a criminal
charge. The defendant
says: “guilty,” “not guilty,”
or “nolo contendere”
(no contest).
plea bargain
(plea agreement)
■ Negotiations between a
prosecutor and a criminal
defendant’s lawyer, in
the attempt to resolve a
criminal case without trial.
I
D
Arraignment
D has been filed, the defendant is brought to the trial court for
After the formal charge
arraignment. This is E
the hearing at which the defendant is read the formal charge and
is asked to enter a plea.
L
Defendants may plead guilty, not guilty, or nolo contendere. By pleading guilty
a defendant admits allLthe charges contained in the charging document, unless a plea
agreement has been reached
with the government. A plea agreement, also known as a
,
plea bargain, is the product of negotiations between the prosecutor and the defendant.
It is common for the prosecution to dismiss one or more charges of a multi-count
T in exchange for a defendant’s plea of guilty. Judges are not
charge or to reduce a charge
permitted to participate
I in plea negotiations and a judge’s involvement, including urging a defendant to plead guilty, can be cause for a reversal of a conviction.18
Plea bargaining isFan important aspect of criminal procedure. More than 90 percent of all felony casesFare disposed of by pleas of guilty. Most guilty pleas are the result
of plea bargaining.
Adefendants waive a host of rights. The right to a jury trial and
By pleading guilty,
N a reasonable doubt are two of the rights waived by a guilty
to be proven guilty beyond
plea. Due to the significance
of such waivers, courts must be sure that guilty pleas are
Y
given knowingly and voluntarily. To be knowing, a defendant must understand his or
her rights and that he or she is waiving them by making the plea. The plea must be free
of coercion or duress to
1 be voluntary. Of course, the inducement of a plea bargain is not
coercion.
5 find that a factual basis exists before a plea of guilty can be acThe court must also
6 must be sufficient facts in the record to support the conclusion
cepted. This means there
that the defendant committed
the crime. A defendant has no right to plead guilty to a
8
crime he or she did not commit. The factual basis may be established by the testimony
T or by the defendant recounting what transpired. Once the
of the investigating officer
plea is taken, the courtSwill either impose sentence or set a future date for sentencing.
If a defendant enters a not-guilty plea, the court will set a trial date. In some instances, courts will set a pretrial schedule, which will include a pretrial conference date
and a deadline for filing pretrial motions.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 14: The Pretrial Process   539
Finally, a plea of nolo contendere may be entered. Nolo contendere is a Latin phrase
that translates to “I do not contest it.” The defendant who pleads nolo contendere neither admits nor denies the charges and has no intention of defending himself or herself.
Nolo contendere is treated as a plea of guilty. That is, the government must establish that a factual basis exists to believe the defendant committed the offense, and the
court accepting the plea must be sure that the plea is made voluntarily and knowingly.
In most jurisdictions a defendant may plead nolo contendere only with the court’s approval. This is true in the courts of the United States.19
The advantage of a no-contest plea over a guilty plea is that the no-contest plea
cannot be used in a later civil proceeding against the defendant, whereas a guilty plea
may be used. If the case is not disposed of by a L
plea of guilty or nolo contendere, the
parties begin preparing for trial.
I
D
Pretrial Activity
D
Discovery
E
Discovery refers to a process of exchanging information
between the prosecution and
L
defense. Discovery is not as broad in criminal cases as in civil.
L is heavily debated. Those favoring
The amount of discovery that should be allowed
broad discovery contend that limited discovery leads
, to “trial by ambush,” which is not
in the best interests of justice. The purpose of a trial is to discover the truth and achieve
justice, not to award the better game player. Proponents of this position claim that unT unfair. It is inefficient because trials
expected evidence at trial is inefficient, costly, and
often have to be delayed to give one party time toI prepare a response to the unexpected
evidence. Such tactics lead to time problems for the parties as well as the trial court. They
F may not be so at trial. If the party
may also be unfair. Evidence that was once available
surprised at trial had known about the unexpected
F evidence, other contrary evidence
could have been secured and a proper defense or response could have been prepared.
A
Finally, it appears unfair to subject defendants to the possibility of surprise when
N For example, affirmative defenses
the government is insulated from certain surprises.
must be specially pled. Intent to rely on alibi and
Y insanity defenses must be provided
to the government in most jurisdictions, often with strict enforcement of time requirements. The purpose of these rules is to prevent surprises to the government at trial.
Those who support expanded discovery feel that 1
it is unfair to place such requirements
upon defendants, but not upon the government.
5
Those opposed contend that expansive discovery increases the likelihood that de6 defendants might intimidate govfendants will manipulate the system. In particular,
ernment witnesses. Additionally, opponents contend
8 that it is easier for a defendant to
skillfully plan his or her testimony, even if false, if a defendant knows the government’s
T planned to assert an alibi but finds
entire case. For example, if a defendant originally
out through discovery that the government has aS
witness placing him at the location of
the crime, he has been provided an opportunity to change his defense. Today, discovery
in criminal proceedings is quite limited in many jurisdictions, including federal courts.
A few states have enlarged what information may be obtained prior to trial.
discovery
■ The formal and informal
exchange of information
between the prosecution
and the defense.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
540   Part II Criminal Procedure
What follows is an examination of the federal rules, as well as constitutional
requirements for discovery.
Bill of Particulars
bill of particulars
■ A detailed, formal,
written statement of
charges or claims by a
plaintiff or the prosecutor
(given upon the
defendant’s formal request
to the court for more
detailed information).
One method that defendants have to obtain information about the government’s case
is through a bill of particulars. The purpose of bills of particulars is to make general
indictments and informations more specific. Fed. R. Crim. P. 7(f ) allows district courts
to order prosecutors to file a bill of particulars.
Bills of particulars are not true discovery devices. If the charging instrument is sufficiently clear and detailed, the court will not grant a defense motion for particularizaL of particulars is intended to provide a defendant with details
tion of the charge. A bill
about the charges thatIare necessary for the preparation of a defense and to avoid prejudicial surprise at trial.20 The test is not whether the indictment is sufficiently drawn; the
D
question is whether the information is necessary to avoid prejudice to the defendant.
D
E (1) (A) states that upon request the government must allow
Fed. R. Crim. P. 16(a)
the defendant to inspect,
L copy, or photograph all prior relevant written and recorded
statements made by the defendant. This includes testimony that defendants give before
L
grand juries—an exception to the rule of secrecy of grand jury proceedings.
,
Prosecutors are required
to allow inspection of all statements made by the defendant
Statements of the Defendant
that are in the possession of the prosecution or that may be discovered through due diligence. Hence, if a defendant makes a statement to an arresting officer and the statement
is recorded or reducedTto writing, the prosecutor must allow defense inspection even
though the statement Imay be in the possession of the officer and not the prosecutor.
In addition to recorded statements and writings, the government is required to inform
F
the defendant of “the substance of any oral statement that the government intends to offer
F that statements made by a defendant that are summarized by the
in evidence.” This means
police (or other government
A agent), but not verbatim or signed by the defendant, are also
discoverable. However, such evidence is discoverable only if the prosecution intends to use
N of written and recorded statements of a defendant.
it at trial. This is not true
Y
Criminal Record of the Defendant
Fed. R. Crim. P. 16 also requires prosecutors to furnish a copy of the defendant’s crimi1 This includes not only the records known to the prosecunal record to the defendant.
tor but also those that5can be discovered through due diligence.
6
Documents and Tangible
Objects
Under Rule 16, defendants
8 are also entitled to inspect and copy photographs, books, tangible objects, papers, buildings, and places that are in the possession of the government if:
T
S
1. The item is material to preparation of the defendant’s defense, or
2. The item is going to be used by the government at trial, or
3. The item was obtained from, or belongs to, the defendant.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 14: The Pretrial Process   541
The situations in which this rule might apply are countless. For example, if the
police take pictures of the scene of a crime, this provision allows the defendant to
view and copy those pictures prior to trial. Or, if the police seize a building that was
used to manufacture drugs, the defendant can invoke this rule to gain access to the
premises.
This section of Rule 16 has a reciprocal provision. That is, defendants must allow
the government to inspect and copy defense items. However, the rule is not as broad
for government discovery. Defendants only have to permit inspection and copying of
those items intended to be used at trial.
Scientific Reports and Tests
L
All scientific reports and tests in the possession of the government (or that can be
I over to the defendant, if requested.
discovered through due diligence) must be turned
This provision includes reports and conclusions
D of mental examinations of the
defendant, autopsy reports, drug tests, fingerprint analysis, blood tests, DNA (genetic)
D
tests, ballistic tests, and other related tests and examinations.
The defendant must accord the governmentE
reciprocity, if requested. For example,
if a defendant undergoes an independent mental
L examination, the government is
entitled to review the report of the evaluator prior to trial.
Statements of Witnesses/Jencks Act
L
,
Many jurisdictions require that the prosecution, and in some the defense, provide a
list of intended trial witnesses. It is common to require additional information about
expert witnesses, such as background and reportsTthey have prepared.
In the federal system, defendants are not entitled
to inspect or copy statements
I
of prosecution witnesses prior to trial. However, a federal statute, commonly known
F a prior written or recorded stateas the Jencks Act,21 permits a defendant to review
ment after the witness has testified for the government.
Reviewing such statements
F
may prove important to show that a witness is inconsistent, biased, or has a bad
A
memory.
N
This procedure often causes trial delay, as defendants
usually request time between
direct examination and cross-examination to review
such
statements. For this reason,
Y
some federal prosecutors provide such information prior to trial. The Jencks Act is a
matter of federal statutory law and does not apply in state criminal prosecutions.
1
5
A deposition is oral testimony given under oath, not in a court. In civil procedure,
depositions are freely conducted. Upon notice to6a party or subpoena to a witness, an
attorney can call a person to testify prior to trial.8This is not so in criminal practice.
Fed. R. Crim. P. 15 allows depositions only when “exceptional circumstances” exT of an exceptional circumstance.
ist. Expected absence of a witness at trial is an example
If such a circumstance is shown, the deposition may
S be ordered by the trial court, and
Depositions
deposition
the deposition may be used at trial. Of course, both the defendant and government
have the opportunity to question the witness at the deposition.
■ The process of taking
a witness’s sworn outof-court testimony. The
questioning is usually done
by a lawyer, and the lawyer
from the other side is given
a chance to attend and
participate.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
542   Part II Criminal Procedure
Brady Doctrine
Although most discovery occurs under the authority of statutes and court rules, the
Constitution also requires disclosure of information by the government in some situations. In Brady v. Maryland, the Supreme Court announced what is now referred to as
the Brady doctrine.
Obviously, Brady applies to both state and federal prosecutions. Note that only
exculpatory evidence must be provided. Evidence that tends to prove a defendant’s innocence is exculpatory. Brady does not stand for the proposition that prosecutors must
reveal incriminating evidence to defendants. Failure to disclose to a defendant will result in reversal of a conviction if there is a reasonable probability that the likelihood of
a different result is great enough to undermine confidence in the outcome of the trial.22
L
I
D
BRADY V. MARYLAND
D
373 U.S. 83 (1962)
E
Petitioner and companion, Boblit, were found guil…