AN OVERVIEW OF CRIMINAL PROCEDURE

FOR STUDENTS TRAINED OUTSIDE THE UNITED STATES

INTRODUCTION

Criminal procedure is the area of law concerned with how criminal cases are investigated and prosecuted.
(Compare criminal law, which describes conduct that is prohibited and the punishments that can be
imposed.) Criminal procedure is, in essence, a set of rules to help ensure fairness and prevent
overreaching by the government. The area is probably best summarized by the Fifth Amendment to the
United States Constitution, which provides that government may not take a person’s life, liberty, or
property without due process of law. “Due process of law,” in this context, means fair procedures; the
government may not take a person’s life, liberty, or property without fair procedures.

The people of the United States had a strong interest in criminal procedure even before the country was
founded. One of the main reasons the American colonists sought freedom from British rule was to get
away from a tyrannical criminal process. The colonists were subjected to wide sweeping searches, arrests
without cause, and unfair punishments. They revolted against Britain, in a large part, to end such
oppression. When the colonists formed their own country, they built into the Constitution a number of
rules protecting the rights of persons suspected of committing crimes. (More precisely, the rights are
within the Bill of Rights—the first 10 Amendments to the Constitution, which were adopted along with
the Constitution.) Nearly half of the individual rights set out in the Bill of Rights address criminal
procedure.

The Constitution’s requirement of fairness extends throughout the entire criminal case, from evidence
gathering, to arrest, to trial, to punishment. Our overview here will track this same progression. But
before we begin, let’s briefly talk about what we will be studying.

WHAT LAW APPLIES

As already mentioned, the field of criminal procedure involves specific rights set out in the Constitution.
But the Constitution is not the only source of criminal procedure. The Constitution sets out the bare
minimum. Federal and state lawmakers are free to adopt laws providing greater protections to persons
dealing with the criminal justice system—and many have. Moreover, the United States Supreme Court
and many state supreme courts have adopted formal rules of criminal procedure that must be followed
while prosecuting criminal cases within the court systems. But it is not federal or state laws or procedural
court rules that we will be studying. For bar exam purposes, in most states (including New York and
California), the subject of criminal procedure is limited to questions about the provisions of the United
States Constitution regarding criminal procedure and the rulings handed down by the United States
Supreme Court interpreting those provisions.

You might ask, “why does the Supreme Court need to interpret the constitutional provisions?” The
answer to that question is that we treat the United States Constitution as a set of guiding principles. While
it certainly includes specific protections for criminal suspects, it was written over 200 years ago. The
authors of the Constitution could not see into the future. We allow our Supreme Court to interpret and
apply the constitutional provisions written hundreds of years ago to today’s situations.

SEARCH AND SEIZURE

The power of the government to conduct searches and seizures of persons and things is limited by the
Fourth Amendment to the United States Constitution. It provides:
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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.

There are books thousands of pages long dedicated to the study of this short provision. Our overview here
will be a little more cursory.

The Fourth Amendment includes three basic propositions:

(1) People shall be free from unreasonable searches and seizures;

(2) Warrants (e.g., search warrants, arrest warrants) must be based on probable cause; and

(3) Warrants must particularly describe the place to be searched or persons or things to be seized.

Most Fourth Amendment questions will spring from (i) the seizure of people, which includes both arrests
and other stops, (ii) the search and seizure of property, and/or (iii) confessions.

(a) Government conduct requirement

As a preliminary matter, you should note that the Fourth Amendment (and for that matter, the
entire Bill of Rights) limits government conduct. This is important for exam purposes, because a
“search” or “seizure” by a private person is not prohibited by the Constitution. For example,
suppose a man becomes suspicious because a lot of people go in and out of his neighbor’s garage
at night. One day, the man breaks into the neighbor’s garage and discovers a lab set up for
making illegal drugs. The man reports his findings to the police, who obtain a warrant to search
the garage. The man’s conduct was not a “search” for purposes of the Fourth Amendment
because there was no government conduct. However, if the man searched the garage because the
police had asked him to, he would be considered an agent of the police and his conduct would be
treated as s search for Fourth Amendment purposes.

(b) Was the seizure of the person proper?

Governmental detentions of people, including arrests, constitute seizures of the person and so
they must comply with the Fourth Amendment. The Fourth Amendment prohibits unreasonable
seizures. In many cases, to be reasonable, seizures must be pursuant to a warrant (a court order
issued by a neutral judicial officer upon a showing that probable cause exists to arrest a person).
Probable cause will be found if a government official presents to the judicial officer reasonably
trustworthy facts that would make a reasonably prudent person believe that the person named in
the warrant has committed a crime.

However, warrantless seizures of a person often are found reasonable. Whether a warrantless
seizure of a person is reasonable depends on both the scope of the seizure (e.g., is it a brief stop to
investigate or hand out a traffic ticket or was the detainee handcuffed and thrown into a squad
car?) and the level of suspicion prompting the seizure (e.g., did the police officer see a crime
being committed or did the officer merely have a good reason to suspect that criminal activity
might be happening?).

Before getting to the details regarding what is needed for a police officer to seize an individual,
we should first make clear what we mean by a seizure of a person. Most of the time, it will be
 CRIMINAL PROCEDURE OVERVIEW 3

easy to determine if a seizure has occurred based on the facts presented. A seizure occurs when a
person submits to a police officer’s show of authority or upon a police officer’s physical
application of force to the suspect. Thus, if a police officer asks a suspect to stop (e.g., by yelling,
“stop, police” or by turning on his police car’s overhead emergency lights) and the person stops,
it is as much of a seizure of the person as when a police officer chases down and grabs a suspect.
On the other hand, there is no seizure when a police officer yells, “stop” or turns on his police
car’s overhead lights and the suspect keeps running or driving.

If there is a question as to whether a seizure has occurred, we look at the totality of the
circumstances and ask whether a reasonable person would feel that he was not free to decline the
police officer’s request or to leave. You are asking yourself (because you’re as reasonable a
person as any) if you would feel you could say, “no” or walk away. For example, a plain clothes
officer walks up to A and starts asking some general questions about what he has seen. Would
that be a seizure? No. The United States Supreme Court presumes that every person would know
that she could walk away from the officer just as she could walk away from any other person
asking questions on the street. However, what if three uniformed police officers wearing guns
walk up to A, surround him, and ask him for identification and where he was the previous night?
Is there a seizure? Probably, because given the totality of the circumstances most reasonable
people would not feel they could leave in that situation.

There are varying levels of what can constitute a seizure. The most obvious is an arrest. An arrest
occurs when the police take a person into custody against his will for the purposes of
interrogation (questioning) or criminal prosecution. To be reasonable under the Fourth
Amendment, an arrest must be based on probable cause. We already discussed arrests made
pursuant to a warrant issued upon a showing of probable cause. Generally, arrests made in a
suspect’s home are reasonable only if they are made pursuant to such a warrant. However, arrests
made without a warrant can also be reasonable (and therefore constitutional) under the Fourth
Amendment if made in a public place by a police officer who has probable cause to make the
arrest. The knowledge need not be from personal observation; it can come from police bulletins,
factual circumstances, and/or the officer’s training and experience, etc. This means that probable
cause is judged by the totality of the circumstances.

There are also seizures of people that fall short of arrest, such as investigatory detentions, which
may be referred to as “stops” or “Terry stops” (in reference to the case Terry v. Ohio). Police
officers may briefly detain people for questioning even if the officers lack probable cause, so long
as they have a reasonable suspicion (more than a feeling or hunch but less than probable cause),
supported by articulable facts (an objective factual basis that can be explained in words) that
criminal activity is afoot (happening or about to happen). Whether reasonable suspicion is present
is judged by the totality of the circumstances. Note that as with probable cause, reasonable
suspicion need not always come from a police officer’s own observations; a police officer can
rely on police bulletins, the circumstances plus training, and/or an informer’s tip. However, if a
police officer relies on a tip, the tip must be accompanied by some indicia of reliability (i.e., the
informer must have been reliable in the past or there must be something in the tip that has
predictive information or otherwise indicates the informant has more than just the general
knowledge that any observer would have). Finally, while there is no specific time limit for
determining whether a stop is reasonably brief, the police should act in a diligent manner to
confirm or dispel their suspicion.

An automobile stop also constitutes a seizure—of the driver and of the passengers—for purposes
of the Fourth Amendment. Generally, an automobile stop will not be deemed reasonable unless
the officer making the stop has at least a reasonable suspicion to believe that a law has been
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violated. However, there is a significant exception: police officers can set up roadblocks without
reasonable suspicion (i) to serve special law enforcement needs related to a particular problem
pertaining to automobiles (ii) if cars are stopped on some neutral basis (e.g., every third car).
During any automobile stop, for safety reasons a police officer can order all the occupants out of
the car. Note that the fact that an officer has another motive for stopping a car—a motive for
which the officer lacks reasonable suspicion—does not render invalid an otherwise valid stop. In
bar exam essay questions, you’ll often see the argument that a police officer’s use of a minor
traffic violation was merely a pretext for investigating some other crime. It’s a losing argument.
As long as the police officer had a sufficient reason to stop a car, it doesn’t matter that the officer
had other (non-supportable) reasons for the stop as well.

(c) Was the search or seizure of property proper?

The Constitution protects not only against unreasonable seizures of people, but also against
unreasonable searches and seizures of a person’s home, belongings, etc. As with seizures of
persons, under the Fourth Amendment, searches and seizures of property must also be reasonable.
Here, too, reasonableness often requires a warrant. However, there are a number of categories of
searches that can be conducted without a warrant, so you will need to learn the warrantless search
exception categories and the requirements of each.

Before getting to the warrantless search exception categories, a preliminary matter must be
considered. The Supreme Court has adopted a policy that a person may challenge a search or
seizure on constitutional grounds only if the person’s own constitutional rights were violated; it is
not enough that a companion’s rights were violated. This requirement is known as the standing
requirement. To have standing to challenge a search or seizure, a person must have a reasonable
expectation of privacy with respect to the place searched or the item seized, or the police must
have trespassed into a constitutionally protected area. The court looks at the totality of the
circumstances to determine standing, but there are some places in which the law presumes a
person has a right to privacy. Such places include the person’s home, a place the person owned or
had a right to possess, and a place in which the person was an overnight guest. It should be noted
that a person’s home includes not only the interior of the house but also the curtilage (the land
immediately surrounding the house). Areas outside the curtilage are subject to search under the
“open fields” doctrine because they are deemed to be held out to the public (e.g., suspicious
plants growing in an open field can be searched). The police may also fly over a fenced yard,
assuming they are in legal airspace, and view what is in a person’s yard.

With the preliminary matters out of the way, we can now address the six exceptions to the
warrant requirement—the six situations in which a search without a warrant is considered
reasonable and therefore is constitutional:

 Search incident to arrest: No warrant is required for a police officer to search a person
whom the officer arrests if the arrest is constitutional (i.e., the arrest was reasonable and
based on probable cause). The rationale behind this exception is based largely on police
officer safety—we want police officers to be able to ensure that arrestees do not have
dangerous items within their reach. The search may extend to the person, areas into
which she might reach to destroy evidence or obtain a weapon (this is referred to as the
arrestee’s “wingspan”), and to a sweep of the entire area if the officers have reason to
believe that an accomplice may be present who might harm them. Police officers need
not have reason to believe that the arrestee is armed or carrying illegal substances to
conduct a search incident to arrest. However, the search must be contemporaneous with
the arrest (e.g., the search cannot be 20 minutes later).
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If the arrestee was in an automobile shortly before being arrested, special rules apply.
Officers generally may not go back and search the automobile unless the arrestee is
unsecured and may still gain access to the interior of the automobile or the officer
reasonably believes that evidence of the offense for which the person was arrested may
be found in the automobile. In this case, the wingspan includes only the passenger
compartment of the automobile. However, police officers can search the entire vehicle,
including containers in the vehicle and its trunk, if the automobile has been impounded
(taken into legal police custody) and police department policy calls for such a search.

 Automobile exception: If police officers have probable cause to believe that a vehicle
contains contraband (illegal goods), fruits (items taken during a crime) or
instrumentalities (actual weapons or items used in the perpetration of a crime), or
evidence of a crime, they may conduct a warrantless search of the automobile. The
rationale is that vehicles are mobile and that the automobile will not be available (and the
evidence will be gone) if the police have to go and get a warrant. Under this exception, to
the warrant requirement, police officers can search the entire automobile, including its
trunk and any container that could contain the object for which they are searching. So, for
example, if police officers are searching for a rifle they cannot look inside a wallet or
small purse. On the other hand, if police officers are looking for drugs, they can look
anywhere within the vehicle. Unlike searches incident to arrest, searches under the
automobile exception do not have to be contemporaneous; police officers may tow the
automobile and take it to a police station before conducting a search.

 Plain view exception: Even without a warrant, police officers can seize items that are in
plain view if (i) the officers are in a place they are legitimately allowed to be without a
warrant; (ii) they discover evidence, fruits, or instrumentalities of a crime or contraband;
(iii) they see the evidence in plain view; and (iv) they have probable cause to believe that
what they see is evidence, fruits, or instrumentalities of a crime or contraband. Law
enforcement personnel do not have to turn a blind eye to what they see. Plain view is
literally defined; it means the items are conspicuous or viewable without moving or
touching the items (e.g., police officers can’t turn around a stereo to read serial numbers).

 Consent exception: Police officers can conduct a warrantless search if they have a
voluntary consent to conduct the search. (Note that police officers need not inform people
that they have a right to refuse giving consent in order for consent to be voluntary.) Any
person with the apparent right to use or occupy the property searched may consent to a
search, and any evidence found may be used against the other owners or occupants. The
fact that the person who gave the consent was not actually authorized to do so does not
matter as long as the person was in a position that made her appear to be in a position to
consent. On the bar exam, watch for situations in which the officers should know that the
person lacked authority (e.g., “Oh, that’s my housemate’s room. I do not have a key, but
you can search it if you can open it.”) Note also, that police officers cannot act on the
consent of one occupant over the objection a second, co-occupant if the search is directed
toward the second co-occupant. (E.g., Police officers suspect that roommate A is
conducting an illegal gambling operation. They knock on the door to the roommates’
apartment. Roommate B answers, and police officers ask B if they can search the
apartment. B agrees, but upon entering, A walks into the living room and immediately
tells the officers to leave. The police officers cannot rely on B’s consent over A’s
objection.)
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 Stop and frisk: We have already discussed the first part of stop and frisk when we
discussed seizures of persons: a police officer may stop a person for investigatory
purposes if the officer has an articulable and reasonable suspicion of criminal activity.
The officer may also conduct a frisk if the officer reasonably believes that the person is
armed and presently dangerous. A frisk is a limited search of the detainee consisting of a
pat down of the detainee’s outer clothing. If during the pat down the officer determines
by an item’s plain feel that it is a weapon or contraband, the officer may reach into the
detainee’s clothing and seize the item (e.g., if an officer pats down A’s jacket and feels
the outline of a gun or crack pipe, the officer can pull out the item). However, an officer
may not manipulate an item—its nature as a weapon or contraband must be obvious.

 Hot pursuit, evanescent evidence, and emergencies: Finally, if a police officer is in “hot
pursuit” of a fleeing felon, the officer may follow the suspect into a home even without a
warrant. In such cases, there is no time to stop and get a warrant. Similarly, there is an
exception for evanescent evidence (evidence likely to disappear before officers could
obtain a warrant). Lastly, police officers can enter a home without a warrant if they are
addressing an emergency rather than performing a law enforcement function. For
example, if officers see through a window of a home that a person is being beaten within
the home, they may go to the person’s aid. Similarly, if officers follow a trail of blood to
the door of a house, they may enter the house without a warrant to see if anyone inside
needs assistance. Some states call this the community caretaker exception.

There are a few other search issues that you will need to study before the bar exam, like
administrative searches (e.g., searches of airline passenger before boarding planes) which may be
conducted without individualized suspicion, public school searches (which can be conducted by
school personnel if reasonable grounds exists for the search), and wiretapping or eavesdropping
situations.

CONFESSIONS

Confessions (statements made by a person suspected of committing a crime that somehow relate the
person to the crime) implicate (or involve) a number of constitutional provisions, which we will discuss
below individually.

(a) Fourteenth Amendment Due Process Clause

Like the Fifth Amendment Due Process Clause, which we discussed at the beginning of this
summary, the Fourteenth Amendment Due Process Clause provides that a person shall not be
deprived of life, liberty, or property without due process of law. The difference between the Fifth
Amendment provision and the Fourteenth Amendment provision is that the Fifth Amendment
provision is a limitation on the power of the federal government and the Fourteenth Amendment is a
limitation on state governments, providing that “no state shall deprive any person of life, liberty or
property without due process of law.”

Recall that what due process calls for is the use fair procedures, and this extends to the procedures for
obtaining confessions. A procedure for obtaining confessions that is unfair may violate the Fourteenth
Amendment. Under the Due Process Clause the Supreme Court has held that it is unfair to obtain a
confession through an involuntary method. A confession must be voluntary (of the suspect’s own
initiative and uncompelled) to be constitutional. Voluntariness is assessed by looking at the totality of
the circumstances, including such things as the defendant’s age, education, and mental condition, as
 CRIMINAL PROCEDURE OVERVIEW 7

well as the setting and duration of the police interrogation (e.g., a confession obtained from a
defendant after questioning the defendant for a few minutes in his home usually will be found
voluntary, but a confession obtained from a defendant who was questioned at the police station in a
locked room, under bright lights, for 18 hours without a break likely will be found to be involuntary).
Note that a confession will be found involuntary only if it is in response to official compulsion. That
the person was on drugs or was “compelled by God” to confess does not make the confession
involuntary.

(b) Sixth Amendment right to counsel

The Sixth Amendment provides that “in all criminal prosecutions . . . the accused shall have the right
to the assistance of counsel” (i.e., a lawyer). The Supreme Court has interpreted this right to apply at
“all critical stages” of a criminal prosecution after formal proceedings have begun. This means that if
a criminal suspect (now, the “defendant” since he or she has been charged with a crime) is
interrogated after being formerly charged with a crime, the defendant has the right to have an attorney
present at the interrogation. A confession obtained during an interrogation at which counsel is not
present can be invalid under the Sixth Amendment unless the defendant has waived the right to
counsel. Naturally, for a waiver to be valid, it too must be voluntary and also knowing (i.e., the
defendant must know that he is waiving the right to counsel).

Note that because the Sixth Amendment right applies only after formal charges have been made, there
is no right to counsel at pre-charge lineups and preliminary hearings. Also note while private counsel
may be retained, many people charged with crimes are poor (indigent) and counsel will be appointed
to them by the government. Note, too, that the Sixth Amendment right to counsel is offense specific.
Thus, if a defendant makes a request for counsel under one charge and is subsequently charged with
another crime, the first request for counsel does not count as a request for counsel on the second
charge.

Finally, you should understand that by their terms, the rights people have under the Bill of Rights
apply only against the federal government. This includes the Fourth Amendment search and seizure
rights, discussed above, the Sixth Amendment right to counsel we just discussed, and the Fifth
Amendment rights we will discuss below. However, under a doctrine called selective incorporation,
the United States Supreme Court has held that the Fourteenth Amendment’s requirement of fair
procedures includes certain provisions of the Bill of Rights, including the search and seizure rights,
the right to counsel, and the Fifth Amendment rights we will discuss below. Thus, these rights are
applicable against the states through the Due Process Clause of the Fourteenth Amendment.

(c) Fifth Amendment Privilege Against Self-Incrimination—Miranda

Among other things, the Fifth Amendment provides that a person shall not “be compelled in any
criminal case to be a witness against himself.” This is known as the privilege against self-
incrimination. In the case Miranda v. Arizona, the United States Supreme Court decided that this is a
very important privilege which could be diminished because of the coercive nature of police
interrogation (that is, a person will be so upset when being interrogated by police officers, that the
privilege against self-incrimination would be rendered meaningless). Therefore, the Court created a
rule to protect the privilege and offset the coercive nature of custodial police interrogation. Under
Miranda, before police officers may interrogate a suspect in their custody, the suspect must be
informed that he has the right to remain silent, anything he says can be used against him in court, he
has the right to the presence of an attorney, and that if he wants an attorney but cannot afford one, one
will be appointed for him.
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Whether a person is in custody for purposes of Miranda is determined through a two-step process. First, a
court will look to see if a reasonable person under the circumstances would feel free to terminate the
interrogation and leave. If a person’s freedom was curtailed in such a way, the court will then look to
whether the environment presents the same coercive pressures as would accompany a police station house
interrogation. The more a setting resembles a traditional arrest, the more likely a court will find the
detention custodial. Let’s think about a traffic stop—a very common situation. Would a reasonable person
feel free to leave? Clearly, no. But does the setting share the coerciveness of a stationhouse interrogation?
No—the detainee usually is in his own car and knows that shortly he’ll be on his way. Thus, an ordinary
traffic stop does not constitute custody for purposes of Miranda.

Whether a detainee is being interrogated under Miranda depends on whether someone whom the detainee
knows is a police officer does or says something that would elicit an incriminating response. Thus,
Miranda warnings need not be given before a cellmate questions a detainee—even if the cellmate is a
police informer—because the cellmate is not someone whom the detainee knows to be a police officer
(the rationale is that Miranda is intended to offset inherent police coercion and there is no such inherent
coercion if the detainee does not know that he is talking to a police officer or agent of an officer). Neither
is there a Miranda violation when a detainee spontaneously blurts something out—since a police officer
has done nothing to elicit an incriminating response. Finally, it should be noted that even though a
detainee knows that a booking officer is a police officer, ordinary booking questions (e.g., give your
name, address, height, weight, etc.) do not require Miranda warnings because such questions are not
designed to elicit an incriminating response.

If Miranda warnings are given to a detainee, the detainee has a few choices to make. He can choose to
remain silent. To do so, ironically, he must speak up—to invoke the right to remain silent under Miranda,
the suspect must explicitly and unambiguously tell the police officers that he wishes to invoke the right to
remain silent. If he does, the officers must scrupulously honor the request and immediately stop all
interrogation. Ambiguous statements (e.g., “maybe I shouldn’t talk”) or simply refusing to answer
questions (e.g., sitting silently while the police ask questions for three hours) do not count as an
invocation of the right to remain silent. Evidence obtained in violation of these rules generally is
inadmissible at trail.

Under Miranda a detainee can also choose to invoke his right to an attorney. Again, he must be explicit
and unambiguous. If the right to counsel is invoked, police officers must cease questioning until counsel
is obtained and present. Again, evidence obtained in violation of this rule generally is inadmissible at
trial.

If the detainee is given Miranda warnings and does not specifically invoke the right to remain silent or to
counsel, and instead confesses, the detainee usually will be held to have waived his Miranda rights. The
Supreme Court has held that such waivers must be knowing and voluntary, but a suspect’s choosing to
answer after receiving Miranda warnings usually is sufficient to prove a knowing and voluntary waiver.
Again, evidence obtained in violation of the above rules, generally is inadmissible at trial.

THE EXCLUSIONARY RULE

Many of the questions you will encounter in criminal procedure deal with the admissibility of evidence in
a criminal proceeding. The admissibility of evidence is regulated by the exclusionary rule. The
exclusionary rule is a judge-made doctrine that applies in both federal and state cases. Under this rule,
evidence obtained in violation of a defendant’s Fourth, Fifth or Six Amendment rights (including rights
under Miranda) will not be admissible in a criminal trial. The rationale is that if the government cannot
use evidence obtained in violation of the Constitution, law enforcement officers will be less likely to
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violate a person’s constitutional rights. To further this goal, the Supreme Court has developed an
accompanying doctrine—called the fruit of the poisonous tree doctrine—that provides that not only must
evidence obtained in violation of the Constitution be excluded, but also any evidence derived from the
unconstitutionally obtained evidence. For example, suppose police officers torture a suspect (which, of
course, violates the Constitution). As a result, the suspect admits to committing a murder and gives the
police officers a clue as to where to find the murder weapon. Under the exclusionary rule, not only will
the confession be excluded from evidence, but also the murder weapon because it is a fruit of the
poisonous tree (i.e., it would not have been found but for the unconstitutional act).

It should be noted that the exclusionary rule prohibition deals with trials, but not necessarily with other
steps in the criminal justice process. Thus, evidence that would be excluded at trial may still be used in a
grand jury hearing because the grand jury is merely deciding whether there is enough evidence, in the
aggregate, to issue an indictment (the formal written criminal charge). We want to protect the defendant
at the point his liberty is in question (which is at trial), but not hinder the entire criminal justice system.

Also, the exclusionary rule will not apply if doing so will not do much to further the rule’s purpose of
deterring police misconduct. Thus, evidence will not be excluded if the police had an independent source
for discovering the evidence (i.e., a source that was independent of the unconstitutional conduct). For
example, if police officers torture a suspect to learn the whereabouts of a kidnapping victim and they
rescue the victim, ordinarily, evidence obtained from the rescue would not be admissible in court. But if
while they were torturing the suspect, the police officers received a phone call from a person who heard
the muffled screams of a person (the victim), evidence obtained from the rescue will be admissible
because the police had a second source for discovering the victim independent of the unconstitutional
source. Similarly, the exclusionary rule would not apply if discover of the evidence was inevitable.

An intervening act of free will will also break the causal chain and allow for introduction of the evidence.
Thus, if a person is subjected to an unconstitutional arrest (e.g. one not based on probable cause), is
questioned, and is released, but the person comes back the next day and confesses, the person’s act of free
will clear the taint of the unconstitutional arrest.

Finally, note that in-court identifications typically will not be excluded merely because the defendant
was subjected to an unconstitutional detention.

CHRONOLGY OF A TYPICAL CRIMINAL CASE

Now that you know what the big admissibility issues are in Criminal Procedure, you may be wondering
when a defendant would object to potentially inadmissible evidence or what other protections are afforded
the accused. We’ll bear those questions in mind as we take a look at the chronology of a typical criminal
case:

(a) Pretrial

Under the Due Process Clause, a criminal defendant’s liberty can be restricted only on a finding
of probable cause to detain. We have seen that probable cause may already have been determined
if the arrest was pursuant to a warrant. Probable cause might also have been determined by a
grand jury. Some states have grand juries determine whether there is probable cause to prosecute
and if so the grand jury issues a charging bill (called a true bill). However, if a defendant was
arrested without a warrant or true bill from a grand jury, the defendant is entitled to a preliminary
hearing, which is an informal, nonadversarial hearing held to determine whether there is enough
evidence to hold the defendant for trial. At this point or shortly thereafter, most states will also
hold a hearing to determine whether the defendant should be released on bail (security, usually in
10 CRIMINAL PROCEDURE OVERVIEW

the form of money, given to obtain release of a defendant) or other conditions of pre-trial release.
Most states constitutions create a right to pre-trail release unless the charge is a capital offense (a
crime for which the death penalty may be imposed) or there is reason to believe that the
defendant is dangerous or will not return for trial.

After a defendant is arrested or formally charged, the Sixth Amendment provides a right to a
“speedy trial.” A determination of whether the speedy trial right has been violated is made by
evaluating the totality of the circumstances, considering the length and reason for the delay,
whether the defendant asserted his speedy trail right, and any prejudice that resulted from the
delay. The remedy for a violation is dismissal with prejudice, meaning the criminal defendant
cannot be retried for the same offense—this is something the government works hard to avoid.

Before trial the prosecutor also has a duty to disclose all exculpatory evidence (i.e., evidence that
would tend to help show that the defendant is not guilty) in her possession. Failure to do so
constitutes a due process violation that will result in the reversal of a conviction if the defendant
can prove: (i) that the evidence at issue was favorable to the defendant and (ii) prejudice has
resulted (i.e., there is a reasonable probability that the result of the case would have been different
if the undisclosed evidence had been presented at trial).

Prior to trial, the defendant will be brought into court and asked how he pleads. If the defendant
pleads guilty, he waives his Sixth Amendment right to a jury trial (discussed below). However,
the judge must determine that the guilty plea is knowing and intelligent by addressing the
defendant in open court. The judge must make sure that the defendant understands the nature of
the charge and the elements of the crime charged, the minimum and maximum penalties, and that
he has a right not to plead guilty and instead go to trial. Many cases are settled through a plea
bargain, which involves an agreement by the defendant to plead guilty in exchange for the
prosecutor reducing charges, recommending a more lenient sentence, or dropping other charges
that may be pending against the defendant. Courts look favorably upon plea bargaining because it
streamlines the process and avoids the costs associated with trial. Once the court has accepted the
plea, the defendant has the right to have the plea enforced.

(b) Trial

The trial process brings up a host of constitutional issues. The defendant has a right to:

 Public Trial: The Sixth and Fourteenth Amendments guarantee the right to a public trial,
but the right varies based on the stage of proceedings. Generally, pretrial suppression
hearings (hearing where the defense would file motions to suppress admission of
evidence based on the exclusionary rule) and voir dire proceedings (jury-selection
proceedings) are public. The press and public have a First Amendment right to attend the
trial, even when the defense and prosecution wish to close the trial; the judge would have
to determine that closure is necessary for a fair trial in order to close the trial.

 Trial By Jury: While there is no constitutional right to a jury for petty offenses or
juvenile delinquency hearings, there is such a right for serious offenses (offenses for
which six months or more of imprisonment is authorized). The defendant also has a right
to have a jury selected from a representative cross-section of the community and for that
jury to be impartial. (The cross-section requirement means that segments of the
community cannot be excluded from pool of potential jurors. For example, the pool
cannot exclude a specific minority group, or women, or lawyers.) During the voir dire
process (the process of questioning prospective jurors to determine whether something
 CRIMINAL PROCEDURE OVERVIEW 11

might inhibit their ability to render an impartial verdict), the attorneys can ask questions
about bias, racial prejudice (if an issue at trial), views on the death penalty, etc. If a trial
court refuses to exclude a potential juror for cause, either side can use a peremptory
challenge (rejecting a juror without cause) to exclude the juror. Note that the Equal
Protection Clause forbids the parties from basing peremptory strikes on a potential juror’s
race or gender.

 Right to Counsel: The defendant has a Sixth Amendment right to counsel at trial. He, of
course, can waive the right and choose to defend himself at trial, which requires making a
knowing and intelligent waiver. The judge will then decide, based on the defendant’s
emotional and psychological state, whether the defendant is competent to proceed pro se
(on his own behalf). The right to counsel includes the right to effective counsel. This
right will be found to have been violated (and therefore is a ground for setting aside a
conviction on appeal) if the defendant shows deficient performance by counsel and that
but for the deficiency, the result of the proceeding would have been different. Failure to
file timely motions to suppress evidence is a good example of the type of deficient
performance that will result in a Sixth Amendment violation. On the other hand, that the
defendant did not like counsel’s trial tactics does not constitute deficient performance and
is not a ground for setting aside a conviction.

 Right to Confront Witnesses: The Sixth Amendment gives defendants the right to
confront adverse witnesses, but the right to face-to-face confrontation is not absolute. For
example, the defendant may be asked to leave the courtroom during the testimony of a
child witness, the defendant may voluntarily leave the courtroom for any testimony, or
she may be asked to leave if she is disruptive during the proceedings. As for the actual
testimony, there are specific rules you will learn during bar review.

 High Standard of Proof: The defendant is presumed innocent unless the prosecution
proves otherwise, and the standard of proof is high. The Due Process Clause requires the
government to prove every element of the defendant’s guilt beyond a reasonable doubt.

(c) Sentencing and Punishment

Once the defendant has pled guilty or has been found guilty at trial, the case passes into the
sentencing phase. The defendant has a constitutional right to counsel during sentencing because it
is still a critical phase of the prosecution. Under the Eighth Amendment, the defendant also has
the right to not be subjected to cruel and unusual punishment. A cruel and unusual punishment
is one in which the penalty is grossly disproportionate to the seriousness of the offense
committed. Most of the Eighth Amendment cases involve imposition of the death penalty
(permissible if the jurors have discretion to consider all mitigating circumstances, but cannot be
imposed on one who was mentally retarded or a juvenile at the time the crime was committed).

(d) Appeal

There is no federal constitutional right to appeal. However, if other law (e.g., federal and state
statutes) provides for such a right, review must be equally accessible to the poor and the wealthy
or there is an Equal Protection violation. Thus, indig ent defendants must be given legal counsel
at the state’s expense during the first appeal as a matter of right and for appeals of guilty pleas.
12 CRIMINAL PROCEDURE OVERVIEW

OTHER CONSIDERATIONS

You must also bear in mind that under the Fifth Amendment a person may not be retried for the same
offense once jeopardy (the risk of conviction) attaches—this is called the prohibition against double
jeopardy. In a jury trial, jeopardy attaches at the time the jury is empanelled and sworn in. In a bench trial
(trial before a judge), it attaches when the first witness is sworn. An offense will be considered the same
unless each crime requires proof of an element that the other crime does not require. This is known as the
Blockburger test (from the case in which the test was first announced).There are exceptions you will need
to learn, such as retrial is allowed if the first trial ends in a hung jury (a jury that is split and their
positions are so divided that they cannot come to a decision).

Bar examinations also frequently test the privilege against self-incrimination. We talked about this Fifth
Amendment privilege some when we discussed Miranda, but the privilege is applicable beyond Miranda.
Under the privilege, a natural person has a right to refuse to answer questions that might incriminate him.
The privilege may be applied whenever a response may incriminate; it is not limited to use at trials. Under
the privilege, a criminal defendant may refuse to take the witness stand at trail. In all other cases, a
witness must take the stand, but can refuse to answer questions as they are asked. The privilege extends
only to testimonial evidence; it does not extend to nontestimonial evidence, such as bank records,
handwriting samples, blood samples, etc. The privilege, however, may be nullified. If the government
offers immunity from prosecution in exchange for testimony, there is no right to refuse to testify.