CRJ 318 Criminal Procedure Thomas N Davidson J

CRJ 318 Criminal Procedure Thomas N. Davidson, J. D. Indiana Wesleyan University Class Meeting No. 1 www. thinblueline. ws/students

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Government v. Liberty Tension In a free society there is a constant tension between its government’s legitimate police function and its citizens’ liberty interests. It has and will be with us and it will never go away. It is a source of conflict that must be understood by both the police and the population in order for it to be controlled.

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Concise & Bias-Free Orderly Presentation of Ideas. Ø Punctuation marks. Ø Transitional words. (then, next, after, while) Ø Cause-effect links. (therefore, consequently, as a result) Smoothness of Expression. Ø Ø Use of verb tenses. Noun-stings. (tangled strings of several nouns “Early childhood thought disorder misdiagnosis” “Misdiagnosis of thought disorders in early childhood”)

Format 8 ½ x 11 in. Ø White paper. Ø Every component double-spaced. Ø One inch margins all around. Ø Title page. (Your name, instructor, course name, & date. ) Ø Each paragraph longer than a single sentence, but not too long. Ø Explain necessary abbreviations. Ø Citations included where necessary. Ø

Format Ø Font size 12. (Courier, Courier New, Times Roman, Times New Roman, Helvetica, and Palatino. ) Ø Do not justify the right margin. Ø Number all pages including Title Page. (Upper right hand corner with 2 or 3 words of title 5 spaces to left. ) Ø No abstract. Ø Citations. (APA format. ) Ø Reference Page. (APA format. )

Format Reference page. Ø Any source listed on reference page must be cited in the body of the paper. Ø Spell journal titles out in full. Ø List in alphabetical order. Ø Double-space all entries. Ø Hanging indent format.

Reference Page: Example Reference Format (Every line is double spaced. ) American Psychological Association. (2003). Electronic references. Retrieved January 30, 2007 from http: //www. apastyle. org/elecref. html Harris, Muriel. (2003). Prentice Hall reference guide to grammar and usage (5 th ed. ). Upper Saddle River, NJ: Prentice Hall.

Sample Title Page (Center text on paper. ) Title of paper Student’s name Course # Submission date I have read and understand the plagiarism policy as outlined in the syllabus and the sections in the Student Bulletin relating to the IWU Honesty/Cheating Policy. By affixing this statement to the title page of my paper, I certify that I have not cheated or plagiarized in the process of completing this assignment. If it is found that cheating and/or plagiarism did take place in the writing of this paper, I understand the possible consequences of the act/s, which could include expulsion from Indiana Wesleyan University. Statement of Academic Honesty

Statement of Academic Honesty Be sure to include the Statement of Academic Honesty on the cover page of all your assignments: I have read and understand the plagiarism policy as outlined in the syllabus and the sections in the Student Bulletin relating to the IWU Honesty/Cheating Policy. By affixing this statement to the title page of my paper, I certify that I have not cheated or plagiarized in the process of completing this assignment. If it is found that cheating and/or plagiarism did take place in the writing of this paper, I understand the possible consequences of the act/s, which could include expulsion from Indiana Wesleyan University.

Header Sample Page Layout Indent 5 spaces Page # Double-space throughout paper 12 Point Font One inch margins Do NOT right justify

Subsequent cite in same P do not include year. Citations First cite in P: Author’s name & Date of publication Place period after cite

Sample Reference Page Hanging indents Double-spaced

http: //www. indwes. edu/ocls/style_guide. html

Sources of Law: Constitutions Ø Protect citizens from unreasonable government action. Ø USC is supreme Law of the land. Ø 1 st 10 Amendments to USC are known as the Bill of Rights. Ø USC applied to the states through a process of Incorporation through the 14 th Amendment.

Sources of law: Constitutions Ø USC provides minimum personal protection. Ø There is no conflict when a state constitution provides greater personal protection from government action than the USC.

Sources of Law: Statutes Ø Federal: Passed by Congress. Ø State: Passed by the General Assembly. Ø Local: Passed by city or county councils.

Sources of Law: Common Law Ø Appellate Court decisions. Ø Force in their jurisdiction only. Ø Stare decisis = adhere to precedent.

Sources of Law: Common Law Ø US Supreme Court. Ø Federal District Courts of Appeal – 7 th Circuit covers Indiana. Ø Indiana Supreme Court. Ø Indiana Court of Appeals.

Sources of Law: Common Law Ø The US Supreme Court, the Indiana Supreme Court, the 7 th Circuit Court of Appeals, and the Indiana Court of Appeals are courts of special limited jurisdiction. Ø The trial courts are courts of general jurisdiction.

Sources of Law: Administrative Ø 1. 2. 3. Ø Three branches of government: Legislative – create and pass laws. Executive – enforce and administer laws. Judicial – interpret laws. Separations of Powers – checks and balances.

Sources of Law: Administrative Ø Legislative delegates authority to Executive Branch agencies to promulgate rules that have the effect of law by passing enabling statutes. Ø Rules must be narrowly designed in scope pursuant to the express mission of the administrative agency.

Trial Process Ø Prosecutions begin with the filing of an Information or Grand Jury Indictment. Ø The person who files is the prosecutor and is filed in the name of the State. Ø The person to whom charge is filed against is the Defendant.

Prosecutors Ø Federal: US Attorney may bring a charge only through a GJ Indictment. Ø State: Prosecutor may bring a charge either by filing an Information or by GJ Indictment. Ø Prosecutor has absolute discretion on whether to bring a charge, but must have PC if he decides to bring a charge.

Trial Process: Jurisdiction A court has no authority to decide a case unless it has jurisdiction over the person and the subject matter involved.

Trial Process: Jurisdiction Subject matter jurisdiction. The authority of a court to hear a particular dispute. Ø Personal jurisdiction. The authority of a court to hear a dispute involving the particular parties. Ø Original jurisdiction. The authority of a court decide the dispute in the first instance. Ø Appellate Jurisdiction. The authority of a court to review a prior decision by a previous court. Ø

Trial Process: Jurisdiction Ø Courts of Limited jurisdiction are generally specialized courts and courts of appeals. The Supreme Court is a court of special limited jurisdiction. Ø Courts of General jurisdiction are commonly the trial courts such as Circuit or Superior courts.

The Trial Process: Venue refers to the county or district within a state or the U. S. where the lawsuit is to be tried. The venue of a lawsuit is set by statute, but it can sometimes be changed to another county or district. For example, if a case has received widespread pre-trial publicity, one of the parties may make a motion (request to the judge) for change of venue in an effort to secure jurors who haven’t already formed an opinion about the case. Venue also may be changed for the convenience of witnesses.

Trial Process: Motions are not pleadings but are requests for the judge to make a legal ruling. Some of the most common pretrial motions include: Ø Motion to Discover. A motion by which one party seeks to gain information from the adverse party. Ø Motion to Dismiss. This motion asks the court to dismiss the suit because the suit doesn’t have a legally sound basis, even if all the facts alleged are proven true. Ø Motion for Summary Judgment (sometimes called motion for summary disposition). This motion asks the court for a judgment on the merits of the case before the trial. It is properly made where there is no dispute about the facts and only a question of law needs to be decided. Ø

Trial Process: Discovery To begin preparing for trial, both sides engage in discovery. This is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial. Ø Discovery enables the parties to know before the trial begins what evidence may be presented. It’s designed to prevent "trial by ambush, " where one side doesn’t learn of the other side’s evidence or witnesses until the trial, when there’s no time to obtain answering evidence. Ø

Trial Process: Depositions One of the most common methods of discovery is to take depositions. A deposition is an out-ofcourt statement given under oath by any person involved in the case. It is to be used at trial or in preparation for trial. It may be in the form of a written transcript, a videotape, or both. In most states, either of the parties may take the deposition of the other party, or of any other witness. Both sides have the right to be present during oral depositions.

Trial Process: Production & Inspection Other methods of discovery include: Ø subpoenaing or requiring the other side to produce books, records or other documents for inspection (a subpoena is a written order issued by a court compelling a person to testify or produce certain physical evidence such as records); Ø having the other side submit to a physical examination; or Ø asking that a document be submitted for examination to determine if it is genuine.

Trial Process: Jury Selection Ø Voir Dire. Ø Strike for Cause. Ø Preemptory Challenge.

Trial Process: Jury Juries of six to twelve persons are selected from the jury pool. The size of jury varies from state to state and depends to some extent on the type of case at trial. Ø In civil cases, especially in courts of limited jurisdiction, the standard size in many jurisdictions is becoming six, which can be increased by stipulation of both parties. Ø In misdemeanor cases there are sometimes fewer than twelve jurors, though in serious criminal cases twelve jurors are generally required. Ø The old requirement that juries be unanimous is also changing. In misdemeanor and civil cases particularly, states often provide for verdicts based on the agreement of three-fourths or five-sixths of the jurors. Ø

Jury - Indiana Criminal IC 35 -37 -1 -1 If a defendant is charged with: (1) murder, a Class A felony, a Class B felony or a Class C felony, the jury shall consist of twelve (12) qualified jurors unless the defendant and prosecuting attorney agree to a lesser number; or (2) any other crime, the jury shall consist of six (6) qualified jurors.

Indiana Challenges - Criminal In prosecutions for murder where the death penalty is sought, the attorneys may challenge, peremptorily, 20 jurors. In prosecutions for murder, where the death penalty is not sought, and Class A, Class B, or Class C felonies, the defendant may challenge, peremptorily, 10 jurors. In prosecutions for all other crimes, the defendant may challenge, peremptorily, 5 jurors. When several defendants are tried together, they must join in their challenges. Good causes for challenge; opinion on guilt or innocence.

Trial Process: Juries Ø Ø 1. 2. 3. 4. You will not automatically get a jury trial, you must timely ask for one. Not all trials can be heard in front of a jury: Divorce cases. Bankruptcy. Tax court. Probate court.

Trial Process: Opening Statements The purpose of opening statements by each side is to tell jurors something about the case they will be hearing. The opening statements must be confined to facts that will be proved by the evidence, and cannot be argumentative.

Trial Process: Evidence The heart of the case is the presentation of evidence. There are two types of evidence -- direct and circumstantial. Ø Direct evidence usually is that which speaks for itself: eyewitness accounts, a confession, or a weapon. Ø Circumstantial evidence usually is that which suggests a fact by implication or inference: the appearance of the scene of a crime, testimony that suggests a connection or link with a crime, physical evidence that suggests criminal activity.

Trial Process: Direct Examination Lawyers for the plaintiff or the government begin the presentation of evidence by calling witnesses. The questions they ask of the witnesses are direct examination. Direct examination may elicit both direct and circumstantial evidence. Witnesses may testify to matters of fact, and in some instances provide opinions. They also may be called to identify documents, pictures or other items introduced into evidence.

Trial Process: Cross Examination When the lawyer for the plaintiff or the government has finished questioning a witness, the lawyer for the defendant may then cross-examine the witness. Cross-examination is generally limited to questioning only on matters that were raised during direct examination. Leading questions may be asked during cross-examination, since the purpose of cross-examination is to test the credibility of statements made during direct examination.

Trial Process: Directed Verdict At the conclusion of the plaintiff's or government's evidence, the lawyer will announce that the plaintiff or government rests. Then, when the jury leaves the courtroom, the defendant's lawyer in a civil case has the option of making a motion for a directed verdict, arguing that his or her client's liability has not been proven by a preponderance of the evidence. In a criminal trial, the defendant's lawyer can ask for a motion to dismiss the charges, arguing that the government has failed to prove its case.

Trial Process: Defense Case The defense presents evidence in the same manner as the plaintiff or state, and the plaintiff or government in return has the right to cross-examine the defense's witnesses. Re-direct and re-cross examination also are permitted.

Trial Process: Rebuttal At the conclusion of the defendant's case, the plaintiff or government can present rebuttal witnesses or evidence to refute evidence presented by the defendant. This may include only evidence not presented in the case initially, or a new witness who contradicts the defendant's witnesses.

Trial Process: Closing Arguments The lawyers’ closing arguments or summations discuss the evidence and properly drawn inferences. The lawyers cannot talk about issues outside the case or about evidence that was not presented. Ø The judge usually indicates to the lawyers before closing arguments begin which instructions he or she intends to give the jury. In their closing arguments the lawyers can comment on the jury instructions and relate them to the evidence. Ø The lawyer for the plaintiff or government usually goes first. The lawyer sums up and comments on the evidence in the most favorable light for his or her side, showing how it proved what he or she had to prove to prevail in the case. Ø

Trial Process: Jury Instructions The judge will advise the jury that they are the sole judge of the facts and of the credibility (believability) of witnesses. He or she will note that the jurors are to base their conclusions on the evidence as presented in the trial, and that the opening and closing arguments of the lawyers are not evidence. Sometimes judges will explain what basic facts are in dispute, and what facts do not matter to the case.

Trial Process: Mistrials are trials that are not successfully completed. Mistrials can occur for many reasons: Ø death of a juror or attorney. Ø an impropriety in the drawing of the jury discovered during the trial. Ø a fundamental error prejudicial (unfair) to the defendant that cannot be cured by appropriate instructions to the jury (such as the inclusion of highly improper remarks in the prosecutor's summation). Ø juror misconduct the jury's inability to reach a verdict because it is hopelessly deadlocked.

Trial Process: Verdict After reaching a decision, the jury notifies the bailiff, who notifies the judge. All of the participants reconvene in the courtroom and the decision is announced. The announcement may be made by either the foreperson or the court clerk.

Trial Process: Appeals In a civil case, either party may appeal to a higher court. In a criminal case, only the defendant has a right to an appeal in most states. (Some states give the prosecution a limited right to appeal to determine certain points of law. These appeals usually occur before the actual trial begins. Appeals by the prosecution after a verdict are not normally allowed because of the prohibition in the U. S. Constitution against double jeopardy, or being tried twice for the same crime).

Trial Process: Appellate Review Ø Affirm. Ø Reverse and remand. Ø Reverse and render a new judgment.

Trial Process: Differences Between Criminal and Civil Ø Burden of Proof. Ø Complaint v. Information or Grand Jury. Ø Trial brought in the name of Plaintiff v. the name of the State. Ø Civil damages v. Criminal incarceration. Ø Double Jeopardy v. Res Judicata. Ø Some criminal convictions receive automatic appeal to Indiana Supreme Court.

Burden of Proof Ø Criminal: Beyond a reasonable doubt. Ø Commitment: Clear and convincing evidence. Ø Civil: Preponderance of the evidence. Ø Arrest: Probable Cause. Ø Civil Infraction Notice to appear: Good faith belief. Ø Investigatory detention: Articulatible suspicion.

Presumption of innocence Ø Ø 1. 2. Applies to criminal proceedings. One cannot be convicted of a crime unless: Pleads guilty-admitting the truth of the allegation. Convicted at trial (guilt proved beyond a reasonable doubt).

Presumption of innocence Ø Ø 1. 2. Bail is allowed so long as not excessive (8 th Amendment to USC). If presumed innocent, why bail required at all? Guarantee presence at trial. Public safety.

Presumption of innocence A private employer X has a “Public Conduct” clause in his employee contracts that state that behavior by employees that brings discredit to the employer or that is inappropriate as measured by community standards whether or not on-duty is cause for discipline up to and including dismissal. Employee X is arrested, but not convicted of cruelty to animals and promoting illegal dog fighting. Must employer X wait to see if employee X is convicted in order to discipline the employee?

INDIANA CRIMINAL APPELLATE PROCEDURE Everyone is entitled to at least one appeal as a matter of law. (Ind. Const. art. 7 § 6. ) Ø A judgment carrying a sentence of death, life imprisonment or a term of more than 50 years is automatically appealed directly to the Indiana Supreme Court. (Ind. Const. art. 7 § 4. ) Ø Generally, an appeal can be taken once there is a final judgment. Ø

Praecipe A request for the clerk of the trial court to assemble the record of the trial.

Record of the Proceeding Ø Copy of praecipe and, if used, Motion to Correct Errors; Ø Copies of all papers filed or offered during the course of the trial; copy of the order book entries; and the transcript of the evidence and proceedings

Appellant v. Appellee Ø Appellant: The party who is appealing from an adverse judgment. Ø Appellee: The party who is responding to the appellant, generally the winning party at the trial level.

Motion to Correct Errors A request that the court correct errors made during trial. Except in two instances, a motion to correct errors is no longer a prerequisite for filing an appeal. Bases for the motion include: jury misconduct, abuse of judicial discretion, decision not supported by sufficient evidence, newly discovered evidence, mistake, surprise, et cetera.

Writ of Habeas Corpus A civil remedy for anyone who is illegally restrained. The writ is filed in the county where the person is held. Must state the party, where and who is holding him and why he is being held and why it is illegal. The purpose is to test the legality of a person’s imprisonment; not whether he is guilty. Not part of the appeal process.

Post Conviction Relief Generally, any person who has been sentenced for a crime may ask for relief, in a civil proceeding, from the sentence by claiming the conviction violated the Constitution, the court was without jurisdiction, sentence exceeds the maximum authorized by law, evidence of facts not previously presented, sentence has expired, or the conviction or sentence is subject to attack available under law. This petition is similar to a writ of habeas corpus. Does not take the place of an appeal.

Appeal Process if not taken directly to IN Supreme Court

Criminal Law: Defenses Infancy/Insanity/Lack of Capacity. Ø Involuntary Intoxication. Ø Mistake of Law if law not published or relied upon an incorrect official statement of the law. Ø Mistake of Fact (picked up a coat that looked like yours). Ø Consent. Ø Duress (threat of serious harm, greater than that caused, immediate & inescapable, in a position through no fault of his own). Ø

Defenses continued Ø Self Defense. Ø Necessity. Ø Entrapment. Ø Statute of Limitations. Ø Immunity. Ø Plea Bargain (agreed to plead guilty to a lesser crime).

Constitutional Rights of the Accused Ø 4 th Amendment: searches and seizures. Ø 5 th : Due process, double jeopardy, & self- incrimination. Ø 6 th: Speedy trial, jury, public trial, confrontation, and counsel. Ø 8 th: bail, fines, & cruel and unusual punishment.

Incorporation Ø Prior to the 60’s the Bill of Rights restricted and regulated only the federal government. Ø Through a series of cases in the 60’s, the Warren Court began incorporating USC protections to the states through the due process clause of the 14 th Amendment.

14 th Amendment Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Due Process Ø Procedural Due Process can be boiled down to notice of the charges and an opportunity to be heard. Ø Substantive Due Process means the procedures must be in content and conducted “fairly. ”

Criminal Procedure - Warrant Requirement 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. Ø Any search conducted without a warrant is per se illegal unless an exception exists. Ø

Criminal Procedure – Exceptions to the Warrant Requirement Ø Ø Ø Ø Ø Search incident to a lawful, custodial arrest Voluntary consent and waiver Search of a vehicle with probable cause Inventory after lawful impoundment of a vehicle Stop and frisk searches (Investigatory Detention) Plain view, smell & touch Open fields Exigent circumstances - hot pursuit Abandoned property Protective sweep

Criminal Procedure – 5 th Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Exclusionary Rule Evidence obtained in violation of the 4 th, 5 th, or 6 th (and evidence derived thereof) Amendment rights is not admissible. Rationale for the rule: Ø Deterrence (deter police from violating rights). Ø Dirty hands. Ø Enforcement of the USC.

Criminal Procedure – Exclusionary Rule Weeks v. United States, 232 U. S. 383 (1914). First used in federal case. Ø Mapp v. Ohio, 367 U. S. 643 (1961) Made applicable to the states. Rationale 1. Dirty Hands 2. Deterrence 3. Way to enforce constitution Ø

Exceptions to Exclusionary Rule Ø Independent Source: Nix v. Williams, 467 US 431 (1984). Ø Attenuation: Nardone v. U. S. , 308 U. S. 338 (1939). Ø Inevitable Discovery: Murray v. U. S. , 487 U. S. 533 (1988). Ø Good faith: U. S. v. Leon, 468 U. S. 897 (1984).

Miranda Rule Ø Based upon 5 th Amended right against self -incrimination. Ø Applies to custodial interrogation. Ø Does not apply non-incriminating information such as name and address.

Criminal Procedure – Miranda Rule Custodial Interrogation. Ø The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says may be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent him or her. Additionally, the officer must ask whether the person understands their right and will consent to questioning. Ø

Immunity Ø Transactional Immunity. Ø Use Immunity.

Double Jeopardy Clause of the 5 th Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Double Jeopardy Ø Prohibition from being tried twice for crimes arising out of the same set of facts. Ø Prohibition from increasing a penalty expost facto. Ø Dual sovereignty.

Burden of Proof Ø Beyond a reasonable doubt. Ø Clear and convincing evidence. Ø Preponderance of the evidence. Ø Probable cause. Ø Articulable suspicion. Ø Good faith belief.

Evidence There are four traditional types of evidence: real evidence (tangible things like a weapon), demonstrative (a model or photograph), documentary (a writing or other document), and testimonial (testimony by witnesses). Ø Circumstantial Evidence - Testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts to be proved. Ø

Police Ethics and Misconduct Police Ethical Models 1. Law. 2. Code of conduct. 3. Rules, regulations, & standard operating procedures.

Police Ethics and Misconduct Ø Police have a property interest in their jobs. Ø Cannot be terminated or disciplined without due process.

Police Ethics and Misconduct Internal Investigation 1. Founded 2. Unfounded 3. Exonerated 4. Not determined.