crj 318 criminal procedure thomas n. davidson, j.d. indiana wesleyan university class meeting no. 1

CRJ 318 Criminal ProcedureCRJ 318 Criminal Procedure

Thomas N. Davidson, J.D.

Indiana Wesleyan University

Class Meeting No. 1

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Government v. Liberty TensionGovernment v. Liberty TensionIn a free society there is a constant tension In a free society there is a constant tension

between its government’s legitimate police between its government’s legitimate police function and its citizens’ liberty interests. It function and its citizens’ liberty interests. It has and will be with us and it will never go has and will be with us and it will never go away. It is a source of conflict that must away. It is a source of conflict that must be understood by both the police and the be understood by both the police and the population in order for it to be controlled.population in order for it to be controlled.

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American Psychological Association. (2003).American Psychological Association. (2003). Electronic references. Retrieved JanuaryElectronic references. Retrieved January 30, 2007 from 30, 2007 from http://www.apastyle.org/elecref.htmlhttp://www.apastyle.org/elecref.htmlHarris, Muriel. (2003). Harris, Muriel. (2003). Prentice Hall Prentice Hall reference guide to grammar and usage reference guide to grammar and usage (5(5thth ed.). Upper Saddle River, NJ: ed.). Upper Saddle River, NJ: Prentice Hall.Prentice Hall.

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Sources of Law: ConstitutionsSources of Law: Constitutions

Protect citizens from unreasonable Protect citizens from unreasonable governmentgovernment action. action.

USC is supreme Law of the land.USC is supreme Law of the land. 11stst 10 Amendments to USC are known as 10 Amendments to USC are known as

the Bill of Rights.the Bill of Rights. USC applied to the states through a USC applied to the states through a

process of process of IncorporationIncorporation through the through the 1414thth Amendment.Amendment.

Sources of law: ConstitutionsSources of law: Constitutions

USC provides USC provides minimumminimum personal personal protection.protection.

There is no conflict when a state There is no conflict when a state constitution provides constitution provides greatergreater personal personal protection from government action than protection from government action than the USC.the USC.

Sources of Law: StatutesSources of Law: Statutes

FederalFederal: Passed by Congress.: Passed by Congress. StateState: Passed by the General Assembly.: Passed by the General Assembly. LocalLocal: Passed by city or county councils.: Passed by city or county councils.

Sources of Law: Common LawSources of Law: Common Law

Appellate Court decisions.Appellate Court decisions. Force in their jurisdiction only.Force in their jurisdiction only. Stare decisis = adhere to precedent.Stare decisis = adhere to precedent.


US Supreme Court.US Supreme Court. Federal District Courts of Appeal – 7Federal District Courts of Appeal – 7thth

Circuit covers Indiana.Circuit covers Indiana. Indiana Supreme Court.Indiana Supreme Court. Indiana Court of Appeals.Indiana Court of Appeals.


The US Supreme Court, the Indiana The US Supreme Court, the Indiana Supreme Court, the 7Supreme Court, the 7thth Circuit Court of Circuit Court of Appeals, and the Indiana Court of Appeals Appeals, and the Indiana Court of Appeals are courts of are courts of special limited jurisdictionspecial limited jurisdiction..

The trial courts are courts of The trial courts are courts of generalgeneral jurisdiction.jurisdiction.

Sources of Law: AdministrativeSources of Law: Administrative

Three branches of government:Three branches of government:

1.1. LegislativeLegislative – create and pass laws. – create and pass laws.

2.2. ExecutiveExecutive – enforce and administer laws. – enforce and administer laws.

3.3. JudicialJudicial – interpret laws. – interpret laws. Separations of Powers – checks and Separations of Powers – checks and

balances.balances.

Sources of Law: AdministrativeSources of Law: Administrative

Legislative Legislative delegatesdelegates authority to authority to Executive Branch agencies to promulgate Executive Branch agencies to promulgate rules that have the effect of law rules that have the effect of law by passing by passing enabling statutes.enabling statutes.

Rules must be Rules must be narrowlynarrowly designed in scope designed in scope pursuant to the express mission of the pursuant to the express mission of the administrative agency.administrative agency.

Trial ProcessTrial Process

Prosecutions begin with the filing of an Prosecutions begin with the filing of an Information or Grand Jury IndictmentInformation or Grand Jury Indictment..

The person who files is the The person who files is the prosecutor prosecutor and and is filed in the name of the State.is filed in the name of the State.

The person to whom charge is filed The person to whom charge is filed against is the against is the DefendantDefendant..

ProsecutorsProsecutors

Federal: US Attorney may bring a charge Federal: US Attorney may bring a charge only through a GJ Indictment.only through a GJ Indictment.

State: Prosecutor may bring a charge State: Prosecutor may bring a charge either by filing an Information or by GJ either by filing an Information or by GJ Indictment.Indictment.

Prosecutor has absolute discretion on Prosecutor has absolute discretion on whether to bring a charge, but must have whether to bring a charge, but must have PC if he decides to bring a charge.PC if he decides to bring a charge.

Trial Process: Trial Process: JurisdictionJurisdiction

A court has no authority to decide a case A court has no authority to decide a case unless it has unless it has jurisdictionjurisdiction over the person over the person and the and the subject mattersubject matter involved. involved.


Subject matter jurisdictionSubject matter jurisdiction. The authority of a . The authority of a court to hear a particular dispute.court to hear a particular dispute.

Personal jurisdictionPersonal jurisdiction. The authority of a court to . The authority of a court to hear a dispute involving the particular parties.hear a dispute involving the particular parties.

Original jurisdictionOriginal jurisdiction. The authority of a court . The authority of a court decide the dispute in the first instance.decide the dispute in the first instance.

Appellate JurisdictionAppellate Jurisdiction. The authority of a court to . The authority of a court to review a prior decision by a previous court.review a prior decision by a previous court.


Courts of Limited jurisdiction are generally Courts of Limited jurisdiction are generally specialized courts and courts of appeals. specialized courts and courts of appeals. The Supreme Court is a court of special The Supreme Court is a court of special limited jurisdiction.limited jurisdiction.

Courts of General jurisdiction are Courts of General jurisdiction are commonly the trial courts such as Circuit commonly the trial courts such as Circuit or Superior courts.or Superior courts.

The Trial Process: The Trial Process: VenueVenue

VenueVenue refers to the county or district within a state refers to the county or district within a state or the U.S. where the lawsuit is to be tried. The or the U.S. where the lawsuit is to be tried. The venue of a lawsuit is set by statute, but it can venue of a lawsuit is set by statute, but it can sometimes be changed to another county or sometimes be changed to another county or district. For example, if a case has received district. For example, if a case has received widespread pre-trial publicity, one of the parties widespread pre-trial publicity, one of the parties may make a may make a motionmotion (request to the judge) for (request to the judge) for change of venue in an effort to secure jurors change of venue in an effort to secure jurors who haven’t already formed an opinion about the who haven’t already formed an opinion about the case. Venue also may be changed for the case. Venue also may be changed for the convenience of witnesses. convenience of witnesses.

Trial Process: Trial Process: MotionsMotions Motions are not pleadingsMotions are not pleadings but are requests for the judge but are requests for the judge

to make a legal ruling. Some of the most common pre-to make a legal ruling. Some of the most common pre-trial motions include: trial motions include:

Motion to DiscoverMotion to Discover. A motion by which one party seeks . A motion by which one party seeks to gain information from the adverse party. to gain information from the adverse party.

Motion to DismissMotion to Dismiss. This motion asks the court to dismiss . This motion asks the court to dismiss the suit because the suit doesn’t have a legally sound the suit because the suit doesn’t have a legally sound basis, even if all the facts alleged are proven true. basis, even if all the facts alleged are proven true.

Motion for Summary JudgmentMotion for Summary Judgment (sometimes called (sometimes called motion for summary disposition). This motion asks the motion for summary disposition). This motion asks the court for a judgment on the merits of the case before the court for a judgment on the merits of the case before the trial. It is properly made where there is no dispute about trial. It is properly made where there is no dispute about the facts and only a question of law needs to be decided. the facts and only a question of law needs to be decided.

Trial Process: Trial Process: DiscoveryDiscovery

To begin preparing for trial, both sides engage in To begin preparing for trial, both sides engage in discoverydiscovery. This is the formal process of . This is the formal process of exchanging information between the parties exchanging information between the parties about the witnesses and evidence they’ll present about the witnesses and evidence they’ll present at trial. at trial.

Discovery enables the parties to know before the Discovery enables the parties to know before the trial begins what evidence may be presented. It’s trial begins what evidence may be presented. It’s designed to prevent "trial by ambush," where designed to prevent "trial by ambush," where one side doesn’t learn of the other side’s one side doesn’t learn of the other side’s evidence or witnesses until the trial, when evidence or witnesses until the trial, when there’s no time to obtain answering evidence. there’s no time to obtain answering evidence.

Trial Process: Trial Process: DepositionsDepositions

One of the most common methods of discovery is One of the most common methods of discovery is to take depositions. A to take depositions. A depositiondeposition is an out-of- is an out-of-court statement given under oath by any person court statement given under oath by any person involved in the case. It is to be used at trial or in involved in the case. It is to be used at trial or in preparation for trial. It may be in the form of a preparation for trial. It may be in the form of a written transcript, a videotape, or both. In most written transcript, a videotape, or both. In most states, either of the parties may take the states, either of the parties may take the deposition of the other party, or of any other deposition of the other party, or of any other witness. Both sides have the right to be present witness. Both sides have the right to be present during oral depositions.during oral depositions.

Trial Process: Trial Process: Production & InspectionProduction & Inspection

Other methods of discovery include:Other methods of discovery include: subpoenaingsubpoenaing or requiring the other side to or requiring the other side to

produce books, records or other documents for produce books, records or other documents for inspection (a subpoena is a written order issued inspection (a subpoena is a written order issued by a court compelling a person to testify or by a court compelling a person to testify or produce certain physical evidence such as produce certain physical evidence such as records); records);

having the other side submit to a physical having the other side submit to a physical examination; or examination; or

asking that a document be submitted for asking that a document be submitted for examination to determine if it is genuine. examination to determine if it is genuine.

Trial Process: Trial Process: Jury SelectionJury Selection

Voir Dire.Voir Dire. Strike for Cause.Strike for Cause. Preemptory Challenge.Preemptory Challenge.

Trial Process: Trial Process: JuryJury Juries of six to twelve persons are selected from the jury Juries of six to twelve persons are selected from the jury

pool. The size of jury varies from state to state and pool. The size of jury varies from state to state and depends to some extent on the type of case at trial. depends to some extent on the type of case at trial.

In civil cases, especially in courts of limited jurisdiction, In civil cases, especially in courts of limited jurisdiction, the standard size in many jurisdictions is becoming six, the standard size in many jurisdictions is becoming six, which can be increased by stipulation of both parties. which can be increased by stipulation of both parties.

In misdemeanor cases there are sometimes fewer than In misdemeanor cases there are sometimes fewer than twelve jurors, though in serious criminal cases twelve twelve jurors, though in serious criminal cases twelve jurors are generally required. jurors are generally required.

The old requirement that juries be unanimous is also The old requirement that juries be unanimous is also changing. In misdemeanor and civil cases particularly, changing. In misdemeanor and civil cases particularly, states often provide for verdicts based on the agreement states often provide for verdicts based on the agreement of three-fourths or five-sixths of the jurors. of three-fourths or five-sixths of the jurors.

Jury - Indiana CriminalJury - Indiana Criminal

IC 35-37-1-1If a defendant is charged with: (1) murder, a Class A felony, a Class B felony or a Class C felony, the jury shall consist of twelve (12) qualified jurors unless the defendant and prosecuting attorney agree to a lesser number; or (2) any other crime, the jury shall consist of six (6) qualified jurors.

Indiana Challenges - CriminalIndiana Challenges - CriminalIn prosecutions for murder where the death penalty is

sought, the attorneys may challenge, peremptorily, 20 jurors.

In prosecutions for murder, where the death penalty is not sought, and Class A, Class B, or Class C felonies, the defendant may challenge, peremptorily,10 jurors.

In prosecutions for all other crimes, the defendant may challenge, peremptorily, 5 jurors. When several defendants are tried together, they must join in their challenges.

Good causes for challenge; opinion on guilt or innocence.

Trial Process: Trial Process: JuriesJuries

You will not automatically get a jury trial, You will not automatically get a jury trial, you must timely ask for one.you must timely ask for one.

Not all trials can be heard in front of a Not all trials can be heard in front of a jury:jury:

1.1. Divorce cases.Divorce cases.

2.2. Bankruptcy.Bankruptcy.

3.3. Tax court.Tax court.

4.4. Probate court.Probate court.

Trial Process: Trial Process: Opening StatementsOpening Statements

The purpose of opening statements by each The purpose of opening statements by each side is to tell jurors something about the side is to tell jurors something about the case they will be hearing. The opening case they will be hearing. The opening statements must be confined to facts that statements must be confined to facts that will be proved by the evidence, and cannot will be proved by the evidence, and cannot be argumentative.be argumentative.

Trial Process: Trial Process: EvidenceEvidence

The heart of the case is the presentation of The heart of the case is the presentation of evidence. There are two types of evidence -- evidence. There are two types of evidence -- direct and circumstantialdirect and circumstantial. .

Direct evidenceDirect evidence usually is that which speaks for usually is that which speaks for itself: eyewitness accounts, a confession, or a itself: eyewitness accounts, a confession, or a weapon. weapon.

Circumstantial evidenceCircumstantial evidence usually is that which usually is that which suggests a fact by implication or inference: the suggests a fact by implication or inference: the appearance of the scene of a crime, testimony appearance of the scene of a crime, testimony that suggests a connection or link with a crime, that suggests a connection or link with a crime, physical evidence that suggests criminal activity. physical evidence that suggests criminal activity.

Trial Process: Trial Process: Direct ExaminationDirect Examination

Lawyers for the plaintiff or the government Lawyers for the plaintiff or the government begin the presentation of evidence by begin the presentation of evidence by calling calling witnesseswitnesses. The questions they ask . The questions they ask of the witnesses are of the witnesses are direct examinationdirect examination. . Direct examination may elicit both direct Direct examination may elicit both direct and circumstantial evidence. Witnesses and circumstantial evidence. Witnesses may testify to matters of fact, and in some may testify to matters of fact, and in some instances provide opinions. They also may instances provide opinions. They also may be called to identify documents, pictures or be called to identify documents, pictures or other items introduced into evidence. other items introduced into evidence.

Trial Process: Trial Process: Cross ExaminationCross Examination

When the lawyer for the plaintiff or the government When the lawyer for the plaintiff or the government has finished questioning a witness, the lawyer has finished questioning a witness, the lawyer for the defendant may then cross-examine the for the defendant may then cross-examine the witness. Cross-examination is generally limited witness. Cross-examination is generally limited to questioning only on matters that were raised to questioning only on matters that were raised during direct examination. Leading questions during direct examination. Leading questions may be asked during cross-examination, since may be asked during cross-examination, since the purpose of cross-examination is to test the the purpose of cross-examination is to test the credibility of statements made during direct credibility of statements made during direct examination. examination.

Trial Process: Trial Process: Directed VerdictDirected Verdict

At the At the conclusionconclusion of the plaintiff's or government's of the plaintiff's or government's evidence, the lawyer will announce that the evidence, the lawyer will announce that the plaintiff or government rests. Then, when the plaintiff or government rests. Then, when the jury leaves the courtroom, the defendant's jury leaves the courtroom, the defendant's lawyer in a civil case has the option of making a lawyer in a civil case has the option of making a motion for a directed verdict, arguing that his or motion for a directed verdict, arguing that his or her client's liability has not been proven by a her client's liability has not been proven by a preponderance of the evidence. In a criminal preponderance of the evidence. In a criminal trial, the defendant's lawyer can ask for a motion trial, the defendant's lawyer can ask for a motion to dismiss the charges, arguing that the to dismiss the charges, arguing that the government has failed to prove its case. government has failed to prove its case.

Trial Process: Trial Process: Defense CaseDefense Case

The defense presents evidence in the same The defense presents evidence in the same manner as the plaintiff or state, and the manner as the plaintiff or state, and the plaintiff or government in return has the plaintiff or government in return has the right to cross-examine the defense's right to cross-examine the defense's witnesses. witnesses. Re-directRe-direct and re-cross and re-cross examination also are permitted. examination also are permitted.

Trial Process: Trial Process: RebuttalRebuttal

At the At the conclusionconclusion of the defendant's case, of the defendant's case, the plaintiff or government can present the plaintiff or government can present rebuttal witnesses or evidence to refute rebuttal witnesses or evidence to refute evidence presented by the defendant. This evidence presented by the defendant. This may include only evidence not presented may include only evidence not presented in the case initially, or a new witness who in the case initially, or a new witness who contradicts the defendant's witnesses. contradicts the defendant's witnesses.

Trial Process: Trial Process: Closing ArgumentsClosing Arguments

The lawyers’ closing arguments or The lawyers’ closing arguments or summationssummations discuss discuss the evidence and properly drawn inferences. The the evidence and properly drawn inferences. The lawyers cannot talk about issues outside the case or lawyers cannot talk about issues outside the case or about evidence that was not presented.about evidence that was not presented.

The judge usually indicates to the lawyers before closing The judge usually indicates to the lawyers before closing arguments begin which arguments begin which instructionsinstructions he or she intends to he or she intends to give the jury. In their closing arguments the lawyers can give the jury. In their closing arguments the lawyers can comment on the jury instructions and relate them to the comment on the jury instructions and relate them to the evidence.evidence.

The lawyer for the plaintiff or government usually goes The lawyer for the plaintiff or government usually goes first. The lawyer sums up and comments on the first. The lawyer sums up and comments on the evidence in the most favorable light for his or her side, evidence in the most favorable light for his or her side, showing how it proved what he or she had to prove to showing how it proved what he or she had to prove to prevail in the case.prevail in the case.

Trial Process: Trial Process: Jury InstructionsJury Instructions

The judge will advise the jury that they are The judge will advise the jury that they are the sole judge of the facts and of the the sole judge of the facts and of the credibility (believability) of witnesses. He credibility (believability) of witnesses. He or she will note that the jurors are to base or she will note that the jurors are to base their conclusions on the evidence as their conclusions on the evidence as presented in the trial, and that the opening presented in the trial, and that the opening and closing arguments of the lawyers are and closing arguments of the lawyers are not evidence. Sometimes judges will not evidence. Sometimes judges will explain what basic facts are in dispute, explain what basic facts are in dispute, and what facts do not matter to the case. and what facts do not matter to the case.

Trial Process: Trial Process: MistrialsMistrialsMistrialsMistrials are trials that are not successfully are trials that are not successfully

completed. Mistrials can occur for many completed. Mistrials can occur for many reasons: reasons:

death of a juror or attorney. death of a juror or attorney. an impropriety in the drawing of the jury an impropriety in the drawing of the jury

discovered during the trial. discovered during the trial. a fundamental error prejudicial (unfair) to the a fundamental error prejudicial (unfair) to the

defendant that cannot be cured by appropriate defendant that cannot be cured by appropriate instructions to the jury (such as the inclusion of instructions to the jury (such as the inclusion of highly improper remarks in the prosecutor's highly improper remarks in the prosecutor's summation).summation).

juror misconduct the jury's inability to reach a juror misconduct the jury's inability to reach a verdict because it is hopelessly deadlocked.verdict because it is hopelessly deadlocked.

Trial Process: Trial Process: VerdictVerdict

After reaching a decision, the jury notifies After reaching a decision, the jury notifies the bailiff, who notifies the judge. All of the the bailiff, who notifies the judge. All of the participants reconvene in the courtroom participants reconvene in the courtroom and the decision is announced. The and the decision is announced. The announcement may be made by either the announcement may be made by either the foreperson or the court clerk. foreperson or the court clerk.

Trial Process: Trial Process: AppealsAppeals

In a civil case, either party may appeal to a higher In a civil case, either party may appeal to a higher court. In a criminal case, only the defendant has court. In a criminal case, only the defendant has a right to an appeal in most states. (Some states a right to an appeal in most states. (Some states give the prosecution a limited right to appeal to give the prosecution a limited right to appeal to determine certain points of law. These appeals determine certain points of law. These appeals usually occur before the actual trial begins. usually occur before the actual trial begins. Appeals by the prosecution after a verdict are Appeals by the prosecution after a verdict are not normally allowed because of the prohibition not normally allowed because of the prohibition in the U. S. Constitution against in the U. S. Constitution against double double jeopardyjeopardy, or being tried twice for the same , or being tried twice for the same crime).crime).

Trial Process: Trial Process: Appellate ReviewAppellate Review

Affirm.Affirm. Reverse and remand.Reverse and remand. Reverse and render a new judgment.Reverse and render a new judgment.

Trial Process: Differences Between Trial Process: Differences Between Criminal and CivilCriminal and Civil

Burden of Proof.Burden of Proof. Complaint v. Information or Grand Jury.Complaint v. Information or Grand Jury. Trial brought in the name of Plaintiff v. the Trial brought in the name of Plaintiff v. the

name of the State.name of the State. Civil damages v. Criminal incarceration.Civil damages v. Criminal incarceration. Double Jeopardy v. Res Judicata.Double Jeopardy v. Res Judicata. Some criminal convictions receive Some criminal convictions receive

automatic appeal to Indiana Supreme automatic appeal to Indiana Supreme Court.Court.

Burden of ProofBurden of Proof

Criminal: Beyond a Criminal: Beyond a reasonablereasonable doubt. doubt. Commitment: Clear and convincing Commitment: Clear and convincing

evidence.evidence. Civil: Preponderance of the evidence.Civil: Preponderance of the evidence. Arrest: Probable Cause.Arrest: Probable Cause. Civil Infraction Notice to appear: Good Civil Infraction Notice to appear: Good

faith belief.faith belief. Investigatory detention: Articulatible Investigatory detention: Articulatible

suspicion.suspicion.

Presumption of innocencePresumption of innocence

Applies to criminal proceedings.Applies to criminal proceedings. One cannot be convicted of a crime One cannot be convicted of a crime

unless:unless:

1.1. Pleads guilty-admitting the truth of the Pleads guilty-admitting the truth of the allegation.allegation.

2.2. Convicted at trial (guilt proved beyond a Convicted at trial (guilt proved beyond a reasonable doubt).reasonable doubt).

Presumption of innocence Presumption of innocence

Bail is allowed so long as not excessive Bail is allowed so long as not excessive (8(8thth Amendment to USC). Amendment to USC).

If presumed innocent, why bail required If presumed innocent, why bail required at all?at all?

1.1. Guarantee presence at trial.Guarantee presence at trial.

2.2. Public safety.Public safety.

Presumption of innocencePresumption of innocence

A private employer X has a “Public Conduct” A private employer X has a “Public Conduct” clause in his employee contracts that state that clause in his employee contracts that state that behavior by employees that brings discredit to behavior by employees that brings discredit to the employer or that is inappropriate as the employer or that is inappropriate as measured by community standards whether or measured by community standards whether or not on-duty is cause for discipline up to and not on-duty is cause for discipline up to and including dismissal.including dismissal.

Employee X is arrested, but not convicted of Employee X is arrested, but not convicted of cruelty to animals and promoting illegal dog cruelty to animals and promoting illegal dog fighting. Must employer X wait to see if fighting. Must employer X wait to see if employee X is convicted in order to discipline the employee X is convicted in order to discipline the employee?employee?

INDIANA CRIMINAL APPELLATE INDIANA CRIMINAL APPELLATE PROCEDUREPROCEDURE

Everyone is entitled to at least one appeal as a Everyone is entitled to at least one appeal as a matter of law. (Ind. Const. art. 7 § 6.)matter of law. (Ind. Const. art. 7 § 6.)

A judgment carrying a sentence of death, life A judgment carrying a sentence of death, life imprisonment or a term of more than 50 years is imprisonment or a term of more than 50 years is automatically appealed directly to the Indiana automatically appealed directly to the Indiana Supreme Court. (Ind. Const. art. 7 § 4.)Supreme Court. (Ind. Const. art. 7 § 4.)

Generally, an appeal can be taken once there is Generally, an appeal can be taken once there is a final judgment. a final judgment.

PraecipePraecipe

A request for the clerk of the trial court to A request for the clerk of the trial court to assemble the record of the trial.assemble the record of the trial.

Record of the ProceedingRecord of the Proceeding

Copy of praecipe and, if used, Motion to Copy of praecipe and, if used, Motion to Correct Errors;Correct Errors;

Copies of all papers filed or offered during Copies of all papers filed or offered during the course of the trial; copy of the order the course of the trial; copy of the order book entries; and the transcript of the book entries; and the transcript of the evidence and proceedings evidence and proceedings

Appellant v. AppelleeAppellant v. Appellee

Appellant: The party who is appealing from Appellant: The party who is appealing from an adverse judgment.an adverse judgment.

Appellee: The party who is responding to Appellee: The party who is responding to the appellant, generally the winning party the appellant, generally the winning party at the trial level.at the trial level.

Motion to Correct ErrorsMotion to Correct Errors

A request that the court correct errors made A request that the court correct errors made during trial. Except in two instances, a during trial. Except in two instances, a motion to correct errors is no longer a motion to correct errors is no longer a prerequisite for filing an appeal. Bases for prerequisite for filing an appeal. Bases for the motion include: jury misconduct, abuse the motion include: jury misconduct, abuse of judicial discretion, decision not of judicial discretion, decision not supported by sufficient evidence, newly supported by sufficient evidence, newly discovered evidence, mistake, surprise, et discovered evidence, mistake, surprise, et cetera. cetera.

Writ of Habeas CorpusWrit of Habeas Corpus

A civil remedy for anyone who is illegally A civil remedy for anyone who is illegally restrained. The writ is filed in the county restrained. The writ is filed in the county where the person is held. Must state the where the person is held. Must state the party, where and who is holding him and party, where and who is holding him and why he is being held and why it is illegal. why he is being held and why it is illegal. The purpose is to test the legality of a The purpose is to test the legality of a person’s imprisonment; not whether he is person’s imprisonment; not whether he is guilty. Not part of the appeal process.guilty. Not part of the appeal process.

Post Conviction ReliefPost Conviction Relief

Generally, any person who has been sentenced Generally, any person who has been sentenced for a crime may ask for relief, in a civil for a crime may ask for relief, in a civil proceeding, from the sentence by claiming the proceeding, from the sentence by claiming the conviction violated the Constitution, the court conviction violated the Constitution, the court was without jurisdiction, sentence exceeds the was without jurisdiction, sentence exceeds the maximum authorized by law, evidence of facts maximum authorized by law, evidence of facts not previously presented, sentence has expired, not previously presented, sentence has expired, or the conviction or sentence is subject to attack or the conviction or sentence is subject to attack available under law. This petition is similar to a available under law. This petition is similar to a writ of habeas corpus. Does not take the place writ of habeas corpus. Does not take the place of an appeal. of an appeal.

Appeal Process if not taken directly to IN Supreme CourtAppeal Process if not taken directly to IN Supreme Court

Criminal Law: DefensesCriminal Law: Defenses

Infancy/Insanity/Lack of Capacity.Infancy/Insanity/Lack of Capacity. Involuntary Intoxication.Involuntary Intoxication. Mistake of Law if law not published or relied Mistake of Law if law not published or relied

upon an incorrect official statement of the law.upon an incorrect official statement of the law. Mistake of Fact (picked up a coat that looked like Mistake of Fact (picked up a coat that looked like

yours).yours). Consent.Consent. Duress (threat of serious harm, greater than that Duress (threat of serious harm, greater than that

caused, immediate & inescapable, in a position caused, immediate & inescapable, in a position through no fault of his own).through no fault of his own).

Defenses continuedDefenses continued

Self Defense.Self Defense. Necessity.Necessity. Entrapment.Entrapment. Statute of Limitations.Statute of Limitations. Immunity.Immunity. Plea Bargain (agreed to plead guilty to a Plea Bargain (agreed to plead guilty to a

lesser crime).lesser crime).

Constitutional Rights of the Constitutional Rights of the AccusedAccused

44thth Amendment: searches and seizures. Amendment: searches and seizures. 55thth : Due process, double jeopardy, & self- : Due process, double jeopardy, & self-

incrimination.incrimination. 66thth: Speedy trial, jury, public trial, : Speedy trial, jury, public trial,

confrontation, and counsel.confrontation, and counsel. 88thth: bail, fines, & cruel and unusual : bail, fines, & cruel and unusual

punishment.punishment.

IncorporationIncorporation

Prior to the 60’s the Bill of Rights restricted Prior to the 60’s the Bill of Rights restricted and regulated only the federal and regulated only the federal government.government.

Through a series of cases in the 60’s, the Through a series of cases in the 60’s, the Warren Court began incorporating USC Warren Court began incorporating USC protections to the states through the due protections to the states through the due process clause of the 14process clause of the 14thth Amendment. Amendment.

1414thth Amendment AmendmentSection. 1. All persons born or naturalized in the Section. 1. All persons born or naturalized in the

United States and subject to the jurisdiction United States and subject to the jurisdiction thereof, are citizens of the United States and of thereof, are citizens of the United States and of the State wherein they reside. No State shall the State wherein they reside. No State shall make or enforce any law which shall abridge the make or enforce any law which shall abridge the privileges or immunities of citizens of the United privileges or immunities of citizens of the United States; States; nor shall any State deprive any person of nor shall any State deprive any person of life, liberty, or property, without due process of life, liberty, or property, without due process of law;law; nor deny to any person within its jurisdiction nor deny to any person within its jurisdiction the equal protection of the laws. the equal protection of the laws.

Due ProcessDue Process

Procedural Due ProcessProcedural Due Process can be boiled can be boiled down to notice of the charges and an down to notice of the charges and an opportunity to be heard.opportunity to be heard.

Substantive Due ProcessSubstantive Due Process means the means the procedures must be in content and procedures must be in content and conducted “fairly.”conducted “fairly.”

Criminal Procedure - Warrant Criminal Procedure - Warrant RequirementRequirement

The right of the people to be secure in their The right of the people to be secure in their persons, houses, papers, and effects, against persons, houses, papers, and effects, against unreasonable searches and seizures, shall not unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or upon probable cause, supported by Oath or affirmation, and particularly describing the place affirmation, and particularly describing the place to be searched, and the persons or things to be to be searched, and the persons or things to be seized .seized .

Any search conducted without a warrant is per Any search conducted without a warrant is per se illegal unless an exception exists.se illegal unless an exception exists.

Criminal Procedure – Exceptions to the Criminal Procedure – Exceptions to the Warrant RequirementWarrant Requirement

Search incident to a lawful, custodial arrestSearch incident to a lawful, custodial arrest Voluntary consent and waiverVoluntary consent and waiver Search of a vehicle with probable causeSearch of a vehicle with probable cause Inventory after lawful impoundment of a vehicleInventory after lawful impoundment of a vehicle Stop and frisk searches (Investigatory Detention)Stop and frisk searches (Investigatory Detention) Plain view, smell & touchPlain view, smell & touch Open fieldsOpen fields Exigent circumstances - hot pursuitExigent circumstances - hot pursuit Abandoned propertyAbandoned property Protective sweepProtective sweep

Criminal Procedure – 5Criminal Procedure – 5thth Amendment Amendment

No person shall be held to answer for a capital, or No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in person be subject for the same offence to be twice put in jeopardy of life or limb; jeopardy of life or limb; nor shall be compelled in any nor shall be compelled in any criminal case to be a witness against himselfcriminal case to be a witness against himself, nor be , nor be deprived of life, liberty, or property, without due process deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, of law; nor shall private property be taken for public use, without just compensation. without just compensation.

The Exclusionary RuleThe Exclusionary Rule

Evidence obtained in violation of the 4Evidence obtained in violation of the 4thth, 5, 5thth, , or 6or 6thth (and evidence derived thereof) (and evidence derived thereof) Amendment rights is not admissible.Amendment rights is not admissible.

Rationale for the rule:Rationale for the rule: Deterrence (deter police from violating Deterrence (deter police from violating

rights).rights). Dirty hands.Dirty hands. Enforcement of the USC.Enforcement of the USC.

Criminal Procedure – Exclusionary RuleCriminal Procedure – Exclusionary Rule

Weeks v. United StatesWeeks v. United States, 232 U.S. 383 , 232 U.S. 383 (1914). First used in federal case.(1914). First used in federal case.

Mapp v. OhioMapp v. Ohio, 367 U.S. 643 (1961) Made , 367 U.S. 643 (1961) Made applicable to the states.applicable to the states.

RationaleRationale

1.1. Dirty HandsDirty Hands

2.2. DeterrenceDeterrence

3.3. Way to enforce constitutionWay to enforce constitution

Exceptions to Exclusionary RuleExceptions to Exclusionary Rule

Independent Source: Independent Source: Nix v. WilliamsNix v. Williams, 467 , 467 US 431 (1984).US 431 (1984).

Attenuation: Attenuation: Nardone v. U.S.,Nardone v. U.S., 308 U.S. 308 U.S. 338 (1939).338 (1939).

Inevitable Discovery: Inevitable Discovery: Murray v. U.S., Murray v. U.S., 487 487 U.S. 533 (1988).U.S. 533 (1988).

Good faith: Good faith: U.S. v. Leon U.S. v. Leon, 468 U.S. 897 , 468 U.S. 897 (1984).(1984).

Miranda RuleMiranda Rule

Based upon 5Based upon 5thth Amended right against Amended right against self-incrimination.self-incrimination.

Applies to custodial interrogation.Applies to custodial interrogation. Does not apply non-incriminating Does not apply non-incriminating

information such as name and address.information such as name and address.

Criminal Procedure – Miranda RuleCriminal Procedure – Miranda Rule

Custodial Interrogation.Custodial Interrogation. The person in custody must, prior to interrogation, be The person in custody must, prior to interrogation, be

clearly informed that he or she has the clearly informed that he or she has the right to remain silentright to remain silent, and that anything the person says , and that anything the person says may be used against that person in may be used against that person in courtcourt; the person ; the person must be clearly informed that he or she has the right to must be clearly informed that he or she has the right to consult with an consult with an attorneyattorney and to have that attorney and to have that attorney present during questioning, and that, if he or she is present during questioning, and that, if he or she is indigentindigent, an attorney will be provided at no cost to , an attorney will be provided at no cost to represent him or her. Additionally, the officer must ask represent him or her. Additionally, the officer must ask whether the person whether the person understandsunderstands their right and will their right and will consent to questioning.consent to questioning.

ImmunityImmunity

Transactional Immunity.Transactional Immunity. Use Immunity.Use Immunity.

Double Jeopardy Clause of the 5Double Jeopardy Clause of the 5thth AmendmentAmendment

No person shall be held to answer for a capital, or No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual land or naval forces, or in the Militia, when in actual service in time of War or public danger; service in time of War or public danger; nor shall any nor shall any person be subject for the same offence to be twice put in person be subject for the same offence to be twice put in jeopardy of life or limbjeopardy of life or limb; nor shall be compelled in any ; nor shall be compelled in any criminal case to be a witness against himself, nor be criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, of law; nor shall private property be taken for public use, without just compensation. without just compensation.

Double JeopardyDouble Jeopardy

Prohibition from being tried twice for Prohibition from being tried twice for crimes arising out of the same set of facts.crimes arising out of the same set of facts.

Prohibition from increasing a penalty ex-Prohibition from increasing a penalty ex-post facto.post facto.

Dual sovereignty. Dual sovereignty.

Burden of ProofBurden of Proof

Beyond a reasonable doubt.Beyond a reasonable doubt. Clear and convincing evidence.Clear and convincing evidence. Preponderance of the evidence.Preponderance of the evidence. Probable cause.Probable cause. Articulable suspicion.Articulable suspicion. Good faith belief.Good faith belief.

EvidenceEvidence

There are four traditional types of evidence: There are four traditional types of evidence: realreal evidence (tangible things like a weapon), evidence (tangible things like a weapon), demonstrativedemonstrative (a model or photograph), (a model or photograph), documentarydocumentary (a writing or other document), and (a writing or other document), and testimonialtestimonial (testimony by witnesses). (testimony by witnesses).

Circumstantial EvidenceCircumstantial Evidence - Testimony not based - Testimony not based on actual personal knowledge or observation of on actual personal knowledge or observation of the facts in controversy, but of other facts from the facts in controversy, but of other facts from which deductions are drawn, showing indirectly which deductions are drawn, showing indirectly the facts to be proved. the facts to be proved.

Police Ethics and MisconductPolice Ethics and Misconduct

Police Ethical ModelsPolice Ethical Models

1.1. Law.Law.

2.2. Code of conduct.Code of conduct.

3.3. Rules, regulations, & standard operating Rules, regulations, & standard operating procedures.procedures.


Police have a property interest in their Police have a property interest in their jobs.jobs.

Cannot be terminated or disciplined Cannot be terminated or disciplined without due process.without due process.


Internal InvestigationInternal Investigation

1.1. FoundedFounded

2.2. UnfoundedUnfounded

3.3. ExoneratedExonerated

4.4. Not determined.Not determined.

crj 318 criminal procedure thomas n. davidson, j.d. indiana wesleyan university class meeting no. 1

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