Chapter Eleven Arrest and Beyond Introduction n Arrest

Chapter Eleven Arrest and Beyond

Introduction n Arrest occurs after the police: n n Develop probable cause Obtain an arrest warrant The arrest process is important because it is the gateway to the entire system After the arrest, there are several important steps in the criminal process Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 2 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Probable Cause n The key requirement for an arrest is that it be based on probable cause n n Probable cause exists below absolute certainty and above a reasonable suspicion Probable cause is important because, without it, an arrest or search will be considered deficient Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 3 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

The Exclusionary Rule n Evidence obtained in violation of the Constitution during an illegal arrest, search or other process, cannot be used in a criminal trial n The Constitution does not specify how this right is to be enforced n n n Boyd v. United States Weeks v. United States Silverthorne Lumber Co. v. United States Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 4 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

The Exclusionary Rule n n The Lasting Impact of Mapp v. Ohio Arguments for and against the Rule n The debate surrounding the exclusionary rule centers on three important issues: n n n Whether the rule deters police misconduct Whether the rule imposes unnecessary costs on society Whether alternative remedies are effective and should be pursued Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 5 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

The Exclusionary Rule n Exceptions to the Exclusionary Rule n The good faith exception n n when police officers make an honest and “good faith” mistake during searches and seizures, subsequently obtained evidence can be admissible The impeachment exception n If the prosecution seeks to use evidence for the purpose of impeaching a witness, it will be considered admissible for that purpose n Walder v. United States Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 6 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

The Exclusionary Rule n Extensions of the Exclusionary Rule n The fruit of the poisonous tree doctrine n n The Silverthorne Lumber Co. was convicted on contempt charges for failing to produce documents during the course of an illegal search n The Court reversed the conviction The Supreme Court has also taken steps to limit the doctrine n Independent source exception n Inevitable discovery exception n Purged taint exception Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 7 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Initial Appearance n Once a person is arrested and booked, they are brought before a magistrate n n The initial appearance is designed to serve a number of purposes In Gernstein v. Pugh, the Court ruled that a probable cause hearing is required either before or promptly after arrest Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 8 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Pretrial Release n An arrestee is eligible if they do not pose a significant risk of flight n The Eighth Amendment states that “excessive bail shall not be required” n n Protection against excessive bail does not apply to the states Pretrial Release Hearing n n Stack v. Boyle United States v. Salerno Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 9 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Pretrial Release n Mechanisms for Release (or Continued Detention) n Bail Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 10 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Pretrial Release BOX 11 -3 COMMON TYPES OF BAIL n Cash Bail: The defendant, or someone else on the defendant's behalf, pays the full bail amount out of pocket. n Secured Bail: The defendant must pay a specified amount or post security in order to be released. Security can include property. n Unsecured Bail: The defendant is not required to pay money but must sign a bond guaranteeing that he or she will return for future court appearances. A fine is imposed if the defendant fails to appear. n Conditional Bail: In lieu of paying cash, the defendant is ordered to satisfy some specific condition (e. g. , complete drug treatment) in exchange for being released before trial. n Release on Recognizance: The defendant is not required to pay money but must sign a bond guaranteeing that he or she will return for future court appearances Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 11 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Pretrial Release n The bail decision can be problematic n n Judges set bail according to the nature of the offense in question, not according to the accused’s ability to pay If the defendant cannot afford to post bail, he or she may turn to a professional bail bondsman n The bondsman system gives power to private citizens to determine who gets released or who stays in jail n A number of alternative bail release mechanisms have been developed Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 12 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Pretrial Release n Release on Recognizance n n The accused is released with the assumption that he or she will show up for scheduled court hearings n Reserved for individuals posing a minimal risk of flight Manhattan Bail Project The Bail Reform Act Preventive Detention n n Denial of bail to “dangerous” persons charged with certain offenses for up to 60 days Federal Bail Reform Act of 1984 Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 13 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Pretrial Release n The Bail Decision n n Flight Risk n Stack v. Boyle n Courts in the News: Bounty Hunters Dangerousness n n Courts can deny bail or set the amount relatively high due to perceived dangerousness Financial Status n Courts often take into account the accused’s financial status in making a bail decision Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 14 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Charging the Offender n Charging in Grand Jury Jurisdictions n The Framers of the Fifth Amendment favored grand jury indictments n n A clear sentiment among the framers that government should be kept in check Over time, the grand jury has become highly dependent on the actions of the prosecutor Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 15 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Charging the Offender n Grand Jury Composition n People are selected for grand juries through subpoena n n A list of potential grand jury members is complied n Known as the “venire” People are selected from the list to serve Special steps need to be taken to ensure the list of potential grand jurors is fair and impartial Grand jury size and voting requirements vary by state Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 16 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Charging the Offender n Grand Jury Proceedings n Intensely secretive n n n United States v. Rose Grand jury proceeding disclosure to the defense is rare Grand juries have significant investigative authority n n n Can subpoena witnesses and documents Can hold uncooperative witnesses in contempt Can extend grants of immunity to witnesses in exchange for their testimony Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 17 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Charging the Offender n The Indictment n The grand jury’s charging document n n The prosecutor presents the government’s case to the grand jury members The grand jury takes a vote on whether or not there is enough evidence to merit a criminal charge A sufficient number of votes will “return an indictment” (also known as a true bill) The true bill is delivered to the court n Can sometimes be “sealed” in order to keep the charges from the defendant Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 18 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Charging the Offender n The Preliminary Hearing n In lieu of an indictment, prosecutors may opt to charge by information n n If the prosecutor charges via information, a preliminary hearing may be necessary The preliminary hearing is intended to prevent malicious prosecution and ensure there are substantial grounds for prosecution Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 19 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Charging the Offender n The Constitution does not require a preliminary hearing n Whether a preliminary hearing is required typically depends on a jurisdiction’s method of filing criminal charges n n A prosecutor can secure an indictment or proceed by information Accused individuals can, and often do, waive their preliminary hearings Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 20 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Charging the Offender n The Probable Cause Requirement n n The prosecutor has the burden of proving that the case be handed over to a grand jury or go to trial Procedural Issues n n n The finding of probable cause may be based on hearsay evidence The exclusionary rule does not “technically” apply in preliminary hearings There are restrictions to cross-examining witnesses Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 21 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Charging the Offender n Double Jeopardy n Double jeopardy occurs when, for the same offense, a person is: n n Re-prosecuted after acquittal Re-prosecuted after conviction Subjected to separate punishments for the same offense Double jeopardy does not apply in separate sovereigns Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 22 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Charging the Offender n The Blockburger Rule n n A complicated issue concerns the definition of “same offense” Blockburger v. United States n n The Supreme Court developed a test to determine if there were two offenses or only one Became known as the Blockburger Rule n Two offenses are considered separate if each offense requires proof of an element the other does not Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 23 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Arraignment n The purpose of arraignment is to formally notify the defendant of the charge lodged against him or her n At arraignment the defendant enters one of three pleas: n Guilty n Requires allocution (defendant explains what was done and why) n Not guilty n Nolo contendere Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 24 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Discovery n Discovery is the process whereby both parties to a case learn of the evidence that the opposition will present n Rule 16 of the Federal Rules of Evidence provides the defendant may “discover”: n n n Written statements or transcriptions of oral statements The defendant’s prior criminal record Forms of real evidence considered “material” n e. g. documents and photographs Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 25 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Discovery Box 11 -3 Examples Of Prosecution Discovery INFORMATION SUBJECT TO DISCLOSURE n Defendant’s oral statement. Upon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial. n Defendant’s written or recorded statement. Upon a defendant’s request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following. Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 26 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Discovery Box 11 -3 Examples Of Prosecution Discovery INFORMATION SUBJECT TO DISCLOSURE (continued) n Defendant’s prior record. Upon a defendant’s request, the government must furnish the defendant with a copy of the defendant’s prior criminal record that is within the government’s possession, custody, or control if the attorney for the government knows—or through due diligence could know—that the record exists. n Documents and objects. Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items. n Reports of examinations and tests. Upon a defendant’s request, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment. Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 27 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Discovery n Forms of Discovery n Discovery is part of the pretrial process n n If new witnesses become available during the course of a trial, it can take place later Discovery by the Defense n n The defense learns the nature of the prosecution’s case The defense only needs to raise reasonable doubt in the minds of the jurors Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 28 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Discovery n Discovery by the Prosecution n Relatively limited due to the constitutional rights enjoyed by criminal defendants n n The defense can not be compelled to provide the prosecution with incriminating information Williams v. Florida n n n Alibis are not considered self-incriminating Prosecution should be notified if the defendant intends to plead not guilty by reason of insanity or self-defense Defense is not required to reveal if the defendant will testify Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 29 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Discovery n Nonreciprocal Discovery n There are some circumstances where the prosecution is required to supply information to the defense, but not vice-versa n n e. g. the prosecutor’s duty to disclose exculpatory evidence and to preserve evidence Brady v. Maryland Arizona v. Youngblood Court in the News: What Really Happens When You Expunge a Criminal Record Today? Courts and the Criminal Justice System in America, 1 st edition Larry J. Siegel, Frank Schmalleger, John L. Worrall 30 © 2011 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.