THE PRE-TRIAL PROCESS

INITIAL APPEARANCE &PROBABLE CAUSE HEARING

INITIAL APPEARANCE Requirement

Purpose & Function

Timing Of

Features Of

INITIAL APPEARANCE Statutory Requirements

Federal Rules of Criminal Procedure, Rule 5 Texas Code of Criminal Procedure, Article 15.17

Consequences for Violation McNabb v. United States Mallory v. United States Congressional Response

Constitutional Concerns Rothgery v. Gillsepie County, Texas (2008)

PROBABLE CAUSE DETERMINATION Gerstein v. Pugh

Facts Legal Procedure Issue Holding Rationale

Requirement for hearing Purpose for 4th Amendment Determination by magistrate not required before Shift in interest following arrest

Features of hearing When adversarial pretrial hearings used More important, more procedures Full adversarial hearings not required Evaluation of credibility not valuable No one right way

PROBABLE CAUSE DETERMINATION County of Riverside v. McLaughlin

Facts Legal Procedure Issue Holding Rationale

Need for balance Why not immediate Federalism Prompt, not immediate Some delays inevitable Flexibility has limits 48 hour limit Balance Shifting

Initial Appearance Probable Cause Determination

Source of Requirement

Statutory: Fed. R. Crim. Proc. 5Tex.Code.Crim.Proc. art 15.17

Constitutional: 4th Amendment

Purpose & Function 1) Inform/Advise of charge2)Inform/Advise of right to remain silent (5th Amend) and right to counsel (6th Amend)3) Appoint counsel or being procedures4) Set bail, if appropriate

Determination of probable cause to DETAIN by a neutral magistrate

Features Informal – No formal adversarial process (no counsel, confrontation, or cross-examination)

Informal – No formal adversarial process (no counsel, confrontation, or cross-examination)

Timing “Without undue/unnecessary delay” Set by statute, some give specific time limits between 48 and 72 hours.

“Promptly" Within 48 hours absent exigent circumstances. Prior to 48 hours, burden is on the defendant to prove that the delay was unreasonable. After 48 hours, burden on prosecution to show exigent circumstances

Consequences of Violation

Depends on Statute. Some follow old McNabb/Mallory rule and exclude evidence obtain in the delay period.

Exclusionary Rule applies.

ConstitutionalConcerns

6th Amendment right to counsel 4th Amendment protection probable cause requirement

Applicable Cases Rothgery v. Gillespie County (2008) Gerstein v. PughRiverside v. McLaughlin

BAIL & PRE-TRIAL DETENTIONThe Pre-trial Process

AVAILABLE OPTIONS Pretrial Release on Bail Pretrial Release on Own Recognizance Pretrial Detention

PRE-TRIAL DETENTION No Constitutional Right to Bail

Carlson v. Landon (1952) Bell v. Wolfish (1979) Texas Constitutional Provision

Preventative Detention Statutes First Statute (D.C. 1970) Bail Reform Act of 1984 United States v. Salerno

PRE-TRIAL DETENTION United States v. Salerno

Facts Issue Holding Rationale

DUE PROCESS CLAIM Procedural vs. Substantive Due Process Substantive Challenge Procedural Challenge

EIGHTH AMENDMENT CLAIM

PRE-TRIAL DETENTION Detention Conditions

Prison Rules (Bell v. Wolfish (1979)) Unannounced Cell Searches (Hudson v. Palmer

1984))

RELEASE ON BAIL Definition Purpose & Function Constitutional Protections

Excessive Bail – Stack v. Boyle (1951) Application to States

Murphy v. Hunt (1982) Texas Constitutional Provision

Hearing Requirements Separate Hearing Type of Hearing

Factors Considered Flight Risk Dangerousness Financial Statute

RELEASE ON OWN RECOGNIZANCE Definition NYC’s Manhattan Bail Progress Texas Statutory Provision

THE PRELIMINARY HEARINGThe Pre-trial Process

PRELIMINARY HEARING Definition

Source of Requirement Lem Woon v. Oregon (1913) Federal Rules of Criminal Procedure, Rule 5.1 Texas Code of Criminal Procedure, Article 16.01

Purpose & Function Historical Perspective Preliminary Hearings & Grand Jury Additional Functions Served

PRELIMINARY HEARING STATUTES Federal Statute, Fed. R. Crim. Proc. 5.1

(a) Probable Cause Finding – If from the evidence it appear that there is probable cause to believe that the believe that an offense had been committed and that the defendant committed it, the federal magistrate shall forthwith hold the defendant to answer in the district court.

Texas Statute, Tex. Code Crim. Proc. Art. 16.01 When the accused had been brought before the

magistrate for an examining trial, that officer shall proceed to examine into the truth of the accusation made. The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense.

PRELIMINARY HEARING Timing Features

Adversarial Protections Counsel Confrontation Cross-examination

Quantum of Proof Evidentiary Requirements Discovery Function Defense Witnesses Affirmative Defenses

Effect of Finding of No Probable Cause

PRELIMINARY HEARING Relevant Case Law

Coleman v. Alabama (1970)

Myers v. Commonwealth (1973) Purpose for hearing Importance of hearing Different from PC to arrest Level of proof different More than prosecutor’s evidence Adversarial hearing required Won’t become a full blown trial

GRAND JURY Pre-trial Process

GRAND JURY Definition

Source of the Requirement Constitutional in Federal Cases Not Constitutional in State Cases

Hurtado v. California

Purpose & Function

Construction Duration Size Voting Requirements Selection of members

Equal Protection Clause – Rose v. Mitchell (1979) Fair Cross Section Requirement – Taylor v. Louisiana (1975)

GRAND JURY Features

Secrecy Exceptions to Secrecy Oath by Jurors

Rights of Criminal Defendant Right to be present Right to counsel Right to cross-examination Right to testify

Rights of Witnesses Right to not testify Right to counsel

GRAND JURY Features, cont’d

Role of the Prosecutor

Investigative Power – United States v. Calandra (1974)

Subpoenas ad testificandum duces tecum

Grand of Immunity Transactional Immunity Use (derivative use immunity)

Findings of Contempt

GRAND JURY Indictments

Contents Purposes

Informs the grand jury Provides form for charges Basis for arrest warrant Official charging instrument Notification for defendant

Variance

GRAND JURY Indictment, cont’d

Challenges Lack of Evidence Competent Evidence

Costello v. United States Misconduct by Prosecutor

Bank of Nova Scotia v. United States Unfair Selection Process

United States v. Mechanik Failure to Present Exculpatory Evidence

United States v. Williams Exclusionary Rule

United States v. Calandra

COMPARISON Determination of probable cause Nature of proceedings Parties present Special Power

ARRAIGNMENT The Pretrial Process

ARRAIGNMENT Purpose & Function

Notice Enter Plea

Available Pleas Not Guilty Guilty Nolo Contendre Not Guilty by Reason of Insanity Jeopardy Pleas

REVIEW QUESTIONS

QUESTION ONE: CRIMINAL PROCEDURE What is the difference between procedural

and substantive law?

What are the three sources of criminal procedure law?

What are the two competing concerns in criminal procedure, and why it is important to achieve a balance between the two?

QUESTION TWO: THE CONSTITUTION Name three different methods or modalities

of interpreting the constitution.

Name three individual rights (and the corresponding amendment) that are relevant to criminal procedure law.

What is judicial review and in which Supreme Court case was it established?

QUESTION THREE: COMMON LAW Name at least one of the basic principles of a

common law legal system?

What is stare decisis?

What are three basic types of appellate opinions?

QUESTION FOUR: OVERVIEW OF CRIMINAL JUSTICE PROCESS Name three stages occurring during the

“Investigative Phase”

Name three stages occurring during the “Trial Phase.”

Name two different types of appeals in the “Appeals Phase.”

QUESTION FIVE: CASELAW What was the holding of the Supreme Court

in Gerstein v. Pugh?

What issue did the Court decide in Stack v. Boyle?

What did the Supreme Court hold in Coleman v. Alabama

QUESTION SIX: INITIAL APPEARANCE Name at least three of the four things that

will typically occur during an initial appearance.

When must an criminal suspect be taken for an initial appearance?

In Rothgery v. Gillespie County, Texas, the Supreme Court held what about a defendant and his right to counsel at the initial appearance.

QUESTION EIGHT: PROBABLE CAUSE HEARING When, in what instance, is a criminal

defendant entitled to a probable cause hearing?

Why did the Supreme Court hold that a person may be arrested without a warrant (determination of pc by neutral magistrate) but not detained following arrest without one.

How did the Supreme Court define “prompt” in terms of the probable cause hearing?

QUESTION SEVEN: BAIL What are the three broad “factors” that are

considered in determine whether, or in what amount, to set bail.

Why does the denial of bail, in certain instances, not violate “substantive” due process?

How has the Supreme Court defined “excessive?”

QUESTION NINE: PRELIMINARY HEARING What is the primary function of the

preliminary hearing and what is the “source” of the requirement?

What are 2 additional functions served by the preliminary hearing, besides its primary function.

How is “probable cause” as used in context with a preliminary hearing different from “probable cause” as used in other contexts?

QUESTION TEN: GRAND JURY What is the “source” of the grand jury

requirement?

Identify two “special powers” of the grand jury.

Identify three differences between the grand jury and the preliminary hearing.