Criminal Procedures CRJ 302

1. Criminal ProceduresCRJ 302 Dr. Thomas Luzinski

2. Luzinski’s “Rule of Law” • Justice never occurs on the Streets! • Justice always occurs in a court room and usually sometime after a police officer has done something to someone on the streets. • Therefore, justice is never the job of police officer, it is the job of a Judge in Court. • Therefore, it is safe to say that cops have no role in Justice! • These misunderstandings create a tension • In that to the extent police officers want the courts to punish the people they arrest, the cops must conform their “street justice” to the expectations of the legal system.

3. Criminal Procedure is defined in Samaha's Text as: • The methods that the government uses to detect, investigate, apprehend, prosecute, convict, and punish criminals. •  This authority sets a minimal federal standard that states must abide by, in what are called parallel rights that must be guaranteed to all citizens. •  Yet, the States are free to pass and enforce laws in ways that exceed minimal federal standards, and in fact, local experimentation in the methods of criminal procedure is encouraged. • The question is…by what way and how are “federal standards” set, and by whom or what? • That is what this course is all about!

4. Part I: To begin, the Role of our Legal System • Protect individual liberties • Adapt to change • Maintain stability • Punish wrongdoers • Ensure justice • Resolve disputes • Where does the Legal System Come from? • Well, it comes from many places…. • To start with, we have the United States Constitution

5. What is a Constitution? • First and foremost…it’s a set of documents • It’s the “mother” of all our law, that’s what is the U.S. Constitution • It is the agreement by which our nation governs itself • U.S. Constitution • Establishes the Federal government • Protects rights of we individuals from governmental intrusion • The U.S. Constitution and Supreme Court interpretations of it are the ultimate source of authority in criminal procedure.

6. Like a Mother Hen, it is the Constitution that defines the relationship between Federal and State governments • It sets itself as the supreme legal authority and the states as inferior legal authorities! • It allows for the establishment of the state governments • Incidentally, this means the creation of the individual state constitutions • Which may curtail rights beyond those provided by the U.S. Constitution • The “framers” did not intend the Federal Constitution to direct the activities of what was conferred to the States as their power. • Criminal justice process was one of those powers reserved by the States to run as they saw fit.

7. How does the Constitution affect Criminal Procedure? One way is “the Due Process Clause(s)” • The words "due process" are mentioned two times in the Constitution, in Amendment V and Amendment XIV. • In both cases, it is left undefined, and scholars have exhausted most literalist attempts at interpreting it since in the case of the 5th, it might have referred to being sailed back to England for trial, and in the case of the 14th, it might have meant voting privileges for freed slaves, both of which are obviously narrow interpretations of a phrase that goes back to the Magna Charta (but is also undefined there). • It is generally agreed upon by most scholars that the founding fathers hoped that the meaning of due process would evolve and expand to meet the needs of an ever-advancing society (at least according to opinions expressed in Adamson v. California 332 U.S. 46 1947). • The most recent expression of due process is contained in Rochin v. California 342 U.S. 165 1952 which involved stomach pumping.

8. Another way is the “Supremacy Clause” • This is a section of the Constitution: Article VI that establishes the states cannot take any action that interferes with the U.S. Constitution. • It makes the Constitution the Supreme Law of the land. It was significantly expanded by two landmark cases: • Marbury v. Madison (1803) which set up the principle of judicial review, giving the judicial branch the power to review statutes and determine if they violated the Constitution; • And McCulloch v. Maryland (1819) which declared the power of the Supreme Court to nullify or invalidate any state law. • This means that legislators, including the U.S. Congress, should take responsibility for determining the constitutionality of laws passed rather than passing anything they want and then finding out later what's Constitutional or not.

9. Supremacy Clause: As a result there were times in which the State Courts acted improperly and the USSC intervened. In which case, the Federal system was invoked by way of appeals and the below rulings by the USSC ensued, affecting the way in which the States conducted their criminal justice processes: • Search & Seizure --Wolf v. Colorado 1949 (4th) • “Exclusionary Rule” --Mapp v. Ohio 1961 (4, 5, 6, 8 &14th) • Self-incrimination --Malloy v. Hogan 1964 (5th) • Assistance of Counsel Gideon v. Wainwright 1963 (6th) • Confrontation of Witness --Pointer v. Texas 1965 (6th & 14th) • Compulsion of Witness Washington v. Texas 1967 (6th) • Speedy Trial --Klopfer v. N. Carolina 1967 (6th & 14th) • Cruel & Unusual Punishment --Robinson v. California 1962 (8th)

10. We also have what is referred to asIncorporation vs. Fundamental Fairness Doctrines Fundamental Fairness Doctrine • This is a doctrine that came out of Powell v. Alabama 287 U.S. 45 1932 and Brown v. Mississippi 1936. • Both cases were landmark cases, the first one being the famous "Scottsboro Boys" case and the second one known for ending physical coercion of confessions. • Both cases elicited some famous passages by famous Justices, the notion of "ordered liberty" by Justice Cardozo, and the notion of "shock the conscience" by Justice Frankfurter. Incorporation Doctrine • This is a doctrine that was the topic of much discussion in the 1960s, and in fact, set the stage for much of the Warren Court's policing of police practice (e.g., Mapp and Miranda). • It calls for a greater degree of procedural regularity among the states because it holds that the 14th Amendment "incorporates" all the Bill of Rights. In time, the Court accepted the notion of selective incorporation, and impacting the states on a case by case basis.

11. Criminal Procedures are also affected by non Constitutional processes. • There is also a feature of our legal system called “Common Law” • This is law made by judges in their written decisions • It is the “accumulation of precedent” • Why only in written decisions? • Because past court decisions become the new settled rules for future cases • This is called precedent for deciding future cases. • Lower courts must follow the precedent established by higher courts. • Federal & State courts must follow the decisions of the US Supreme Court.

12. Also, we have Statutory Law • This is the Law enacted by Legislative bodies or Statute law : • i.e. Written law enacted by elected Federal and/or state legislatures to establish certain courses of conduct. • E.g., US Congress, Wisconsin State legislature • And – we must discuss what is referred to as Ordinances“Laws” enacted by local government bodies. • E.g. Your city council

13. There is also a feature of our legal system which is referred to as “Administrative Law” • This is the Law promulgated by administrative agencies to run Administrative Bodies… • E.g, Internal Revenue Service, FBI, Registry of Motor Vehicles Administrative Law is the source of Public Agency Authority • Administrative agencies are created by federal or state legislation that: • Establishes the specific agency, • Delegates certain limited powers to the agency, and • Defines the scope of the agency’s authority

14. Classifications of Law for the purposes of our study • Crimes • Criminal and Civil law • Substantive and Procedural law

15. Yeah, but what exactly is a Crime? • A crime is a legal wrong prohibited by the “State’s” criminal law or statute • It can be Federal Statute or State Statute • It is prosecuted by the “State” in a formal court proceeding in which a criminal sanction or sentence may be imposed.

16. OK, but what does Civil Mean then…? • In a civil matter, the controversy is between two or more "people" (including individuals, businesses or government agencies). • The typical result is an award of a money judgment to be paid by one party to the other. • The judgment is imposed to make the aggrieved person "whole" for the harm that has been caused by the other. • The judgment in a civil matter does not include imposition of a criminal sentence.

17. Crimes are always a violation of Federal or State Statutory Law • Crimes are never Civil matters! • Therefore municipal codes are not crimes and not subject to criminal procedures. • For the purposes of this course, a Crime will be defined as any violation of Federal Statute (law) or State Statute (law)

18. Classification of Crimes • Felonies and Misdemeanors (Federal or State) • Felonies are those violations of Federal or State Statutes • They will result in a penalty of incarceration in a prison (not jail) for one year (or more) • And assessments of fines of $1,000 dollars (or more), • Or both incarceration and fines. • Misdemeanors are any less than that

19. Examples of Felony Crime • Homicide (murder), Aggravated Assault, Sexual Assault, Burglary, Motor Vehicle Theft, Arson, Bank Robbery, Kidnapping and Skyjacking. • These are the UCR Part I Crime Classifications

20. Misdemeanors • Generally speaking, lesser violations of Federal or State Statute.  • They usually result in penalties of less than one year's incarceration and less than $1,000 fines (and both).  • For instance… • Marijuana Possession, Simple Theft, Disorderly Conduct, Criminal Damage to Property and Simple Battery constitute most misdemeanors.

21. Some Binaries:Criminal Law • Concerns behavior so threatening that society outlaws it altogether • Government prosecutes wrongdoer • If found guilty, government punishes wrongdoer

22. On the other hand, Civil Law, for the most part… • Concerns rights and duties between parties • Wronged or injured party prosecutes the wrongdoer • If wronged or injured party prevails, wrongdoer ordered to remedy harm done to injured party

23. To this Point, I have been discussing what is collectively referred to as Substantive Law • Substantive law defines the actual law set down by the legislature such as elements of a crime, penalties to be imposed, rules of evidence, etc.

24. On the other hand and the basis of this course is what is referred to as Procedural Law • Procedural law is the Rules of the Court and its many Actors to include the Police • They establish the process for settling disputes among Court actors • It is the established methods and practices used to resolve criminal cases • Before and after the arrest

25. More on Procedural Law • Procedural law provides the “roadmap" that the case will go through (whether it goes to trial or not). • Oftentimes, the map is set like a Garmin Nuvi. • Othertimes, the map has to be drawn as the case proceeds its way through the system. • Procedural law determines how a proceeding concerning the enforcement of Substantive law will occur. • The rules of criminal procedure are designed to ensure that an accused is given due process of law.

26. Taken together… • Substantive Law defines how the facts in the case will be handled, as well as how the crime is to be charged. In essence, it deals with the "substance" of the matter. • Substantive law • Defines the actual law set down by the legislature such as elements of a crime, penalties to be imposed, rules of evidence, etc.

27. Procedural Law provides the process that the case will go through, on a case by case basis. • Procedural law determines whether or not the matter goes to trial. • Procedural law defines the manner in which the criminal case and its trial will be handled.

28. Summarizing…Substantive and Procedural Criminal Law • Substantive Law Defines • Acts that are subject topunishment, and specifying the punishments for such offenses. • Substantive law answers the “what do I do questions”

29. Procedural Criminal Law defines: • The procedures that criminal justice officials must follow in enforcement, adjudication and correction. • It answers the “how do I do it ” questions • Procedural Criminal Law also involves examining Criminal Defenses Involving Justification or Excuse, such as: • Consent • Self-defense • Entrapment • Double Jeopardy • Mistake, compulsion and necessity • Bad Police work

30. The Constitutional requirement that all persons be treated fairly and justly by government officials. 5th and 14 Amendment references This means that an accused person can and must be arrested, prosecuted, tried, and punished in accordance with procedures prescribed by law. At both the State and Federal levels. Procedural Law relies on Procedural Due Process

31. PCL involves the Bill of Rights • First ten amendments to the U.S. Constitution • Purpose is to prevent government from usurping the personal freedom of citizens • Applied to state actions through the use of the Due Process clause of the 14th Amendment

32. The right of the people to be secure in theirpersons, houses, papers, and effects, against unreasonable searches and seizures, shall not beviolated, and no warrants shall issue, but uponprobable cause, supported by oath or affirmationand particularly describing the place to be searched, and the persons or things to be seized. The most pertinent CPL AmendmentsThe 4th Amendment reads:

33. PCL involves the “Exclusionary Rule”“Fruits of the Poisonous Tree” Doctrine • Not part of the U.S. Constitution or Bill of Rights • A rule formulated by the federal courts • Enforces the principles of the 4th, 5th, 6th, 8th and 14th amendments • Compels the exclusion of evidence that is illegally obtained by the authorities • Yet, there is no reference existing in the US Constitution to the “Exclusionary Rule”

34. PCL involves the 5th Amendment • Safeguard against Self Incrimination • The “Miranda” Decision

35. PCL involves the 6th Amendment • Right to speedy and public trial • Right to impartial jury • Right to be informed of charges • Right to confront adverse witnesses • Right to be provided assistance of counsel

36. Prohibits excessive bail and fines Prohibits cruel and unusual punishment PCL involves the 14th Amendment Used to hold states to similar standards as the federal government. PCL involves the 8th Amendment

37. Part II: Criminal Procedures in Action • The courts recognize (in law) three actions that police officers engage in: • Stops • Detentions • Arrests • Stops require you legal support, the Cops can stop and “talk” to anyone they want. • Detentions require REASONABLE SUSPICION especially if they general PROBABLE CAUSE to Arrest someone. • Arrests always require PROBABLE CAUSE

38. The “Reasonable Person” Standard • The Reasonable Person Standard is a theoretical construct, or an Ideal used by Judges in the Courts • The reasonable person is a legal fiction of the common law representing an objective standard against which any individual's conduct can be measured. • The court’s will use the standard to hypothetically measure what police officers should do in matters that demand their attention such as stops, detentions and arrests. • It is also used to determine if a breach of the standard has occurred, provided a duty of care can be proven.

39. Reasonable Person Standard is used by the Courts… • It exists for the courts to apply a sense of Rationality and Understanding to the actions taken by the Police • Concerning especially their involvement with and in the Fourth Amendment. • The Reasonable Person Standard is: • One who is Fair, Proper, Just, Moderate and Suitable under the Circumstances.

40. The Reasonable Person Standard and “Reasonable Suspicion” • RS is specific and articulable facts which taken together with objective and reasonable inferences, form a basis for suspecting that a particular person is, was or is about to engage in criminal activity. • While the Courts have never specifically defined Reasonable Suspicion, they have set some guidelines for analysis.

41. It is simply put - A police officer's observations, given the "totality of the circumstances," • Which must lead to a suspicion that the particular individual being stopped is engaged in wrongdoing to be Reasonable! • The Criminal Procedural Rules recognized as appropriate by the Courts allow the Police to stop us if they generate Reasonable Suspicion about our behavior.

42. To warrant the intrusion on protected privacy rights that a “stop” entails: • The officer's suspicion must have a particularized and objective basis. • When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.   • Therefore, Reasonable Suspicion is series of a quantity and a quality of subjective observations and conclusions a Police Officer makes that a crime is or may be being committed.  • It will vary from case to case.

43. The series of quantified and qualified informational elements can be described as being direct and or indirect in nature • The Courts have never provided the Police with an exact number, or a description of the quality of observations and conclusions the Officers must attain, for a consistently favorable ruling from them.

44. These observations and conclusions serve as the basis for the Officer to legally stop and temporarily detain an individual for investigative purposes • The investigative purpose is to determine if or not a crime has indeed been committed.  

45. Terry V. Ohio USSC 1968“Terry Stop and Frisk”Warrantless Searchaka“Pat Downs”

46. To understand what happened in Terry, we first to understand a little bit about Probable Cause, Arrests, Searches and Detentions • In this case, to understand what Terry is, we must first understand what it is not… • The 4th Amendment to the US Constitution proposes that Probable Cause is a series of Facts that would lead a Reasonable Person to believe that a Crime has been, is, or will be committed and that the person arrested is the perpetrator. • It was the intend of the “Framers” of the Constitution to limit police searches and seizures to actions that always involved a warrant. • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

47. So, the Fourth Amendment • Protects the people’s right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures • It requires that warrants be gotten first, to search places and to seize people and things, which must be supported by probable cause and must be issued on information given under oath or affirmation to a judge! • Probable Cause is the “reasonable belief” that a crime has been committed and that the person of investigative interest probably did it!

48. Probable Cause the existence of Facts based on Knowledge • Probable Cause is a 4th Amendment and absolute Constitutional requirement for the Government to Arrest People • PC must lead to the knowledge based on the Reasonable Belief that a Crime has been • Or is being or is about to be Committed • And that the Person Arrested is the Perpetrator.

49. An arrest is a 4th Amendment Legal Seizures of People and the Deprivation of their Civil Rights based on Probable Cause. • Arrests are made for only one reason and that is to present the arrested Person to a Judge, Court Commissioner or Magistrate.

50. An Arrest is a Legal Detainment of individuals to answer to Criminal Charges • However sometimes an Arrest can be made for Civil Demands.  • Arrest Probable Cause is the existence of facts, circumstances and or issues that would lead a Reasonable Person to believe in the Guilt in the Arrested Party.