Criminal_Procedure_-_NYU_School_of_Law_-_Schaffer_14 -...

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CRIMINAL PROCEDURE OUTLINE I. BASIC PRINCIPLES A.  STEPS IN THE CRIMINAL PROCESS 1.  Commission of Crime 2.  Arrest or Investigation a. Arrest precedes indictment in less complicated cases b. Investigation by grand jury in complicated cases; then arrest 3. Release a. Station house release: desk appearance date b. Not released 4. Arraignment a. Usually is first appearance after indictment; (in NY, first appearance after arrest). b.  Functions: i.  Inform of charges (sometimes police charged earlier) ii.  Enter plea, usually not guilty, to arrest charges; usually hasn’t been formal charging yet. Based on complaint by DA iii.  Set conditions for pre-trial release. A. Bail: can’t be excessive but no right to it. B. Remand to custody C. Release on Recognizance D. Personal Recognizance Payment 5. Formal Charges: Indictment a. By grand jury or prosecutor 6. Discovery 7. Jury Selection 8. Jury Trial B. EVIDENCE 1. Witnesses 2. Forensic/Physical a. Obtain through Search and seizure (4A) b. Also obtain through activities cops can do w/o touching 4A concerns 3. From D a. Arrest is seizure of person b. Rights waivable and often waived. c. Confessions, governed by 5A 4.  Exclusionary rule: when evidence seized in violation of Const, can’t be used in govt’s criminal case in chief. C. DISCRETION 1. Give great discretion to cops and prosecutors 2. Can’t draft for every contingency 3. Need discretion so can turn lower level criminals against higher ups 4. But fear abuses under discretion D.  SOURCES OF LAW 1.  US Constitution a.  BOR through 14A under incorporation doctrine i.  Till 1961, most provisions of BOR not binding on states. In 1949 ct had rejected idea of incorporation. ii.  Mapp applies holding of Weeks (couldn’t use in fed cts) to states; iii.  Gradual process of inclusion and exclusion; (Not Black view of total incorporation); Not clear what theory supports partial incorporation. iv.  Where explicit textual source, that governs over 14A general due process. b.  B/c state SC is supreme interpreter of its law, SC can’t review if there is an adequate and independent ground (AIG) under the state Const for reversal of conviction. 1
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c.  Where SC can’t tell if relying on state of fed const, will assume that relied on Constitution: increased reviewability. 2. State Constitution: New Federalism a. State Constitutions can only give more rights than federal b. Even if language of state and fed Const identical, state can interpret differently 3. Statutes, including Federal Rules of Criminal Procedure a. Presumption of constitutionality of Cong action, but this is a make-weight factor. 4. Regulations: a. Rulemaking bodies interpret statutes b b. At least in some areas, e.g. Fed. Sentencing Commission, SC has said is binding. c.
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Criminal_Procedure_-_NYU_School_of_Law_-_Schaffer_14 -...

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