CJ227: Criminal Procedure Unit 4 Seminar Jennifer Hulvat

This week…. This week! 1 DB question; quiz, seminar, Paper Writing Assignment: Pay attention to spelling and grammar Use APA format – one inch margins, double spaced, internal citations, cover and reference page Paper! (These questions must be answered) Since John was in custody, what are the procedural steps the police were required to take once John began to incriminate himself? What procedural steps must the officers perform following John’s arrest and interview at the police station? The court could choose either a preliminary hearing or a grand jury proceeding to establish probable cause for the felony charges in this case. Compare and contrast the two procedures. Identify what issues the judge would take into consideration when setting bond for John. Explain what an arraignment is and what occurs during an arraignment.

Midterm Week Starts on Wednesday! There’s no hurry to complete the exam…take your time to prepare I have no problem with you taking it toward the end of the unit week…please prepare by reviewing the book, discussions and quizzes It’s open book, but be careful with that! Timed exam….only have 3 hours; if you submit the exam to be graded, you won’t be able to get back in

Topic this week For this week’s seminar we will examine the three amendments to the U.S. Constitution that specifically deal with a defendant’s rights: the 4th, 5th, and 6th amendments. Special focus will center on the purpose of the right to remain silent, provision of the 5th amendment, and the various provisions of the 6th amendment including, but not limited to, right to counsel, right to confront witnesses, and right to a speedy trial.

4th Amendment (Review from units 1 and 2) 1. The right of the people to be secure in their a. persons, b. houses, c. papers, d. and effects against unreasonable searches and seizures, shall not be violated, and 2. No warrants shall issue, but a. upon probable cause b. supported by oath or affirmation and 3. Particularly describing the a. place to be searched b. and the persons or things to be seized. Source: U.S. Constitution, Fourth Amendment

How is the 4th Amendment implicated at trial? Alleged violations of a defendant’s 4th Amendment rights may be challenged, pretrial, through motions to suppress evidence and motions to quash arrest These are “pretrial” motions which are brought by the defendant prior to a determination of guilt at trial. Refer to the Unit 1 seminar PPT to review the following: What is a search? What is a seizure? What is a Terry Stop and a Terry Frisk?

6th Amendment Guarantees Right to Counsel (discuss at length below) Right to trial by jury Speedy Trial Right to be present at trial Trial may continue after it is started if defendant absents him, or her self or is removed from the courtroom because of disruptive behavior. Effective Assistance of Counsel Strickland v. Washington test Counsel performance was deficient. The deficient performance prejudiced the defense. Right to a Public Trial Implications with the press

What the 6th Amendment Guarantees…technically! A trial by a jury (in most cases) The jury to hear all of the witnesses and see all of the evidence Presence at the trial and while the jury is hearing the case The opportunity to see, hear, and confront the witnesses presenting the case against them The opportunity to call witnesses and to have the court issue subpoenas to compel the witnesses to appear The chance to testify themselves should they choose to do so The option to refuse to testify Access to a criminal defense lawyer. If individuals cannot afford to hire their own criminal defense lawyer, a public defender will represent them. This lawyer can act on their behalf before, during, and after the trial The right to cross-examine the witnesses giving testimony against them The right to compel the state to prove its case against them beyond a reasonable doubt (Findlaw.com)

Definition of Indigent Generally, a person who is poor, and unable to afford a lawyer; Court’s make the legal determination if a Defendant is indigent; Affidavit of income and expenses is completed by a Defendant and examined by the court; Order entered declaring indigent status or denying indigent status;

Why is an attorney so important for a defendant in a criminal case? “Advising the defendant of his or her rights and explaining what to expect at different stages of the criminal process”; Ensuring that the defendant's constitutional rights are not violated through law enforcement conduct, or in court proceedings; Negotiating a plea bargain with the government, on the defendant's behalf; From arraignment to sentencing: investigating facts and evidence, cross-examining government witnesses, objecting to improper questions and evidence, and presenting any legal defenses.” Findlaw.com

Gideon v. Wainwright (1963) The United States Supreme Court decided that the right to assistance of counsel is ''fundamental'' and the Fourteenth Amendment does make the right constitutionally required in state courts. The Court's did not address the issue of whether the right to assistance of counsel was allowed for defendants charged with misdemeanors. Discussion of Gideon

When does the Right to Counsel Attach? At what point in the criminal process is a suspect entitled to counsel? Escobedo v. Illinois (1964): Right to counsel begins with a criminal investigation; Focus is on the process before an arrest; Defendant is not necessarily a defendant, but a suspect; How does this work? Who determines at this stage if a Defendant is indigent?

Right to Counsel at “CRITICAL STAGE” During questioning and investigative stage if defendant requests an attorney (Part of Miranda) After being charged with a crime At line up Pretrial stages for identification purposes Arraignment / Preliminary Hearings Pretrial Stages Trial Appellate Process

5th Amendment application to custody: Miranda Rights 5th Amendment: The Right to Remain Silent (Privilege against Self Incrimination) 5th Amendment application to custody: Miranda Rights Custody + Interrogation = Miranda Rights As we discussed, this is commonly misunderstood; many believe rights must be read upon arrest….NO! How is the 5th Amendment implicated at trial? To address police violations of Miranda: Motions to suppress statements made and heard prior to trial At Trial: Defendant is not required to testify at trial If defendant DOES choose to testify, that privilege is WAIVED…and can’t pick and choose what questions to answer

Review….5th Amendment Protections at trial The Fifth Amendment to the U.S. Constitution: gives individuals the right to refuse to answer any questions or make any statements, when to do so would help establish that the person committed a crime or is connected to any criminal activity. This right is also known as the Fifth Amendment privilege against self-incrimination, which is invoked when someone is said to "plead the Fifth". (Findlaw.com) Defendant CANNOT be forced to testify at trial Once defendant takes the stand What about compelling defendant to submit hair, urine, handwriting, vocal (speech exemplars) or DNA samples? Witnesses can also avail themselves of 5th Amendment

Questions, comments, concerns? JHulvat@Kaplan.edu AIM: Jenhulvat2 (630) 201-3307