INTRODUCTION TO THE LAW OF EVIDENCE Crim B3 INTRODUCTION TO THE LAW OF EVIDENCE Arrest & Probable Cause

OVERVIEW OF THE CRIMINAL JUSTICE PROCESS Observation or report of a crime Investigation *Arrest* Prosecution Trial Sentencing Appeal Service of sentence Release

The Beginning of the Process The criminal process most often begins with an arrest. An officer can arrest an individual only if probable cause exists.

Probable Cause Probable cause to arrest exists when— a police officer has enough evidence to lead a reasonable person to believe that a crime has been committed and that the suspect was the one who committed the crime.

The Constitutional Requirement of Probable Cause An officer possessing probable cause may arrest the suspect without a warrant, (unless the suspect is in his or her home). Alternatively, the officer can obtain a warrant from a court authorizing arrest of the suspect at home, if the officer can show sufficient probable cause.

Arrests and Probable Cause Arrests made by police on patrol are made without a warrant because of the need for a speedy response. Warrants are usually obtained during an investigation of a crime.

The Initial Role of the Prosecutor The prosecutor will decide whether or not to proceed with the charges against the defendant. After arrest, the prosecutor will file a charge against the defendant if the prosecutor is satisfied that the evidence is sufficient to support the charge and that the case is worthy of prosecution.

The Criminal Complaint The law enforcement officer has the responsibility of filing the criminal complaint whether in advance of an arrest in order to obtain an arrest warrant, or after an arrest is made without a warrant.

The Affidavit The complaint charges the defendant with a particular crime and is supported by an affidavit, a written statement sworn under oath, in which the officer states the facts within his or her personal knowledge that support the complaint.

Bail Most suspects are entitled to release after arrest and booking, either on the accused's own recognizance or on bail. In less serious cases, this release can be approved by the police. In more serious cases, a judge decides conditions for release at the initial appearance.

Plea Bargaining Following arrest, either before or after charges have been made, counsel for the accused and the prosecutor may meet and discuss the charges to be filed against the accused and whether the accused will enter a plea of guilty or not guilty. These discussions are called plea negotiations or plea bargaining. Plea negotiations resolve approximately 90 % of all prosecutions filed. Plea negotiations may result in a reduction of the original charge, which reduces the level of penalty that the judge may impose upon the accused (based on the evidence).

If charges are made, at the initial appearance— The judge will determine: (1) that the crime is properly charged (i.e., that all required elements are alleged); (2) that the right person has been named as the defendant; (3) that there is a reasonable basis (probable cause) for the charges; (4) whether the accused has or needs counsel; and (5) what bail or other conditions for release pending trial will be set.

The Preliminary Hearing The preliminary hearing is the stage in which the judge considers the prosecution's case to decide whether there is probable cause to believe the defendant committed the crimes charged. If so, the defendant is held to answer to formal charges in the form of an Information.

The Indictment or the Information The grand jury indicts. The prosecutor files an information. Each will formally charge the defendant.

The Grand Jury: A Workable Definition A grand jury is a panel of persons chosen through strict court procedures to review a criminal investigation and, in some instances, to conduct criminal investigations. Grand juries decide whether to charge crimes in the cases presented to them or investigated by them.

Felonies and Grand Juries In the federal system, felonies are still prosecuted by indictment of a grand jury. After the police investigate a crime, the case is presented by the prosecutor to the grand jury. California is one or the other, not both.

Information vs. Indictment If not brought to the grand jury, felony cases are prosecuted by the filing of a formal charge, an Information, by the prosecutor. The Information is a document on which the formal charge appears, that is signed by the prosecutor.

Automobiles Carroll Doctrine “Reduced” Expectation of Privacy Mobile (Evidence can drive away)

Vehicle Searches Pursuant to a lawful search warrant Consensual search Incidental to an arrest Seizure of the vehicle involved in crime Probable cause to believe vehicle contains seizable property

Carroll Doctrine Mobility of the vehicle Easily moved Evidence could be lost if officer attempts to secure search warrant Probable cause to believe vehicle contains items involved in a crime

Search Warrants Order signed by magistrate commanding a peace officer to search a particular place for particular property related to suspected criminal behavior.

Search Warrants Must establish probable cause for the search Warrant must be executed and returned within 10 days from date of issuance Bound by “knock and notice” requirements

Arrests The taking of a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person. (P.C. 834)

Elements of a Lawful Arrest Person who can arrest: A peace officer A private person

Probable Cause Requirements Before you can arrest a person for a suspected crime, or search for and seize objects or property, you must have probable cause. Definition Probable cause is a group of facts and the totality of circumstances that would generate a reasonable belief that the suspect has committed a crime

Probable Cause for Arrest Example After a young child’s body was found in a dry creek bed, evidence supported rape and murder. Officers questioned a known sex offender at his home based on reasonable suspicion supported by the fact that his vehicle was similar to a vehicle seen near the site where the body was found. Further investigation revealed tire track matches. He attempts to flee by. The above and other facts lead to probable cause for arrest of the suspect.

Elements of a Lawful Arrest How an arrest is made: Actual restraint of the person Submission by the person to the custody of the officer Reasonable force: The law permits an officer to use a level of force that is reasonable and necessary to arrest a suspect, prevent his escape, or overcome resistance

Peace Officer’s Authority to Arrest Warrant Arrest: A peace officer may make an arrest in obedience to an arrest warrant. An arrest warrant is an order in writing signed by a judge or magistrate, directed to and commanding a peace officer to arrest the person named in the warrant for the offense named in the warrant.

Peace Officer’s Authority to Arrest Warrantless Arrest A peace officer may make an arrest without a warrant when one of the following occurs: A crime is committed in the officer’s presence. The officer’s presence extends to what any of his five senses can detect The person committed a felony though not in the officer’s presence

Peace Officer’s Authority to Arrest Warrantless Arrest Cont. The officer has probable cause to believe a suspect has committed a felony, whether or not a felony has actually been committed. The officer has probable cause to believe the person has acted in violation of a protective order (as in domestic violence situations) The officer has probable cause to believe a juvenile has committed a misdemeanor while not in the officer’s presence