CRIMINAL PROCEDURE Week 3 - Unit 3

1. CRIMINAL PROCEDUREWeek 3 - Unit 3 Professor Ann Marie Lampariello-Perez

2. Wrap Up (unit 2) • We learned about arrests with warrants and those without warrants (on-sight arrests) • We talked about immunity from arrests (consular, diplomatic, legislative, out-of-state witnesses) • We discussed “stop & frisk” which is a temporary detention by a police officer who has reasonable suspicion that a crime is being committed, is about to be committed or has been committed.

3. Wrap Up - Unit 2 (con’t) • We discussed MIRANDA WARNINGS which are based upon the case of Miranda v. Arizona. • Rights: • Remain silent • Attorney • Waiver - knowing & intelligent

4. WEEK 3 - UNIT 3GRAND JURY • Seminar Question/Topic: Discuss the initial stages of a criminal case from the filing of a complaint and the setting of bond through the arraignment. Discuss the differences between a preliminary hearing and the grand jury.

5. After FELONY Arrest… • Need a charging document which can be a complaint or an indictment. • There must be a finding by either a judge/magistrate or a grand jury indicating that charging document and the facts surrounding it are adequate to require an accused to stand trial for the offense.

6. COMPLAINT/INDICTMENT • The complaint is usually prepared by the police officer. • The indictment is prepared by the prosecuting attorney. • The complaint goes to preliminary hearing. • The indictment goes to grand jury. • ***FELONY CASES ONLY

7. Purpose of the Grand Jury or a Preliminary Hearing • To determine whether there are sufficient facts to believe that a crime has been committed and whether the accused committed it. • probable cause! • A safeguard to protect against hasty, malicious and oppressive persecution, to make sure the charge was well founded; it prevents the accused from being held on a serious charge without sufficient cause.

8. History of the Grand Jury • What are the roots of the grand jury system? common law of England & Magna Carta • What procedure did the Magna Carta establish? Before a person could be held for trial on a serious charge, the accusation had to be presented to a council of one’s peers to determine whether the charge was well founded. This group of peers became known as a grand jury, as opposed to the petit or trial jury.

9. Authority for the Grand Jury - 5th 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. (5th Amendment of the US CONSTITUTION which is applicable to state prosecutions through the 14th Amendment)

10. What happens in the Grand Jury? Describe what happens during a grand jury hearing? (witnesses questioned, evidence received; closed, secret, Defendant or his attorney not allowed to question; then vote.) Can the defendant be forced to appear? If so, does he have to answer the questions that might subject him to punishment? (yes…no) Does the vote have to be unanimous in order to return an indictment?(depends on state, but most say no) What are the criticisms of the grand jury system? (not a safeguard but a rubber stamp of prosecutor; peers?; cumbersome system and costly) Why is the grand jury kept secret? (protect witnesses; protect reputation of defendant; if defendant not present allows warrant to issue so defendant not alerted to that fact) What does the Grand Jury do? (returns a True Bill or No Bill) Proof required….Probable Cause, not proof beyond a reasonable doubt.

11. Make up of Grand Jury • 16-23 people/citizens (usually 19) • 18 years or older • Citizen of the US • Sufficient knowledge of the English language • Serve for a period of time (1 year maximum) • Each member takes an oath • A Foreman is chosen

12. Preliminary Hearing Procedure • Complaint is the written, charging document • Judge or Magistrate hears the evidence to determine if there is probable cause and whether or not the defendant should be held over for trial • Prosecutor calls witnesses and presents evidence (hearsay may be allowed) • Defendant and defense attorney get to present evidence or testimony, too.** • Defendant may waive preliminary hearing.

13. Indictment/Complaint • Contains: name of accused, crime alleged to have been committed, date and place of alleged crime, few pertinent facts about the crime • What it Does: Informs grand jury, judge and defendant of the charges against the defendant and what will be presented in evidence; if find enough evidence to hold accused, they endorse the indictment or complaint; in an indictment/grand jury situation, if accused not in custody the indictment enables judge to issue a warrant of arrest; in a preliminary hearing situation, the accused is bound over for trial and a bond hearing may be set

14. Grand Jury Procedure: • Indoctrination of Grand Jury…prosecutor reads indictment and asks for a “true bill” • Prosecutor calls witness; can enter evidence into proceeding • No judge • No defendant • Can be an investigation • Can subpoena people • Warrant issues if Defendant is not in custody (sealed indictment)

15. SETTING BOND • After a finding of probable cause, the defendant is bound over for trial (figuratively) and either an arrest warrant is issued or a bond hearing is set. • Bond hearing…determines what amount of money is sufficient to keep the defendant coming back to court. • Things to consider…job, connections to the community, family, criminal history, victims (domestic)

16. Arraignment • After bond is set (defendant posts bail or remains in jail), an arraignment is scheduled. • At arraignment, defendant goes before judge who explains what the possible penalties are for the crime he has been charged with as well as explains the constitutional right to an attorney and to have witnesses testify against him/her. • The judge asks the defendant if he/she pleads “guilty” or “not guilty.” • Pleas (guilty, not guilty, nolo contendere, NGRI/GBI… double jeopardy, former acquittal)(p. 142 ff)

17. Speed Round:Grand Jury v. Jury Trial * • Where is there a judge? • Peers? How many? • Unanimous decision? • Probable Cause v. Proof beyond a Reasonable Doubt • Witnesses & Evidence? • Sentencing v. Bound over for trial? • *Answer either: Grand Jury or Jury Trial

18. Other Topics, if time permits: • Medical Examiner - Coroner (p. 157) • Immunity (use and transactional)(p. 156 ff) • Insanity/Competant to Stand Trial (p. 165) • 6th Amendment (impartial jury of peers/venue; speedy trial (120/160 days) • Statute of Limitations - felonies/misdemeanors (p. 175)

19. Housekeeping • Paper was due yesterday from Unit 2; NO PAPER THIS WEEK! • Grading - timing; missed seminars My Posts - thinking; devil’s advocate; agreement • Read Chapters 5 & 6 of Procedures in the Justice System (e-book) • Complete Discussion Board question

20. Questions???? • Does anyone have any questions? • Thanks for participating. You have done a great job on the discussion board questions. • If you have a concern…email me at: Alampariello-perez@kaplan.edu GOOD NIGHT~Good learning this week!