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: Examine in detail the role of the grand jury and the powers that are bestowed to this entity. Special focus will center on the nature of the secretive proceedings of the grand jury and how this entity differs from a trial jury.

5. Purpose of the Grand Jury • 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.

6. 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.

7. Present Day Authority for the Grand Jury • 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)

8. 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; then vote.) Can the defendant be forced to appear? If so, does he have to answer the questions that might subject him to punishment? 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)

9. 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

10. Grand Jury Procedure • Indictment (charge) is written by prosecutor • Witnesses are called • Closed proceeding • Probable cause, NOT proof beyond a reasonable doubt • Unanimous decision is NOT required (little more than majority - usually 12 of 19) • Return: True Bill of Indictment or No Bill

11. Indictment • 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 of charge about which they will receive evidence; if find enough evidence to hold accused, they endorse the indictment; if accused not in custody the indictment enables judge to issue a warrant of arrest; indictment serves as the accusatory pleading that sets the trial in motion; it informs the defendant of the charges against him

12. 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)

13. Other considerations: • Criticism of Grand Jury proceedings: rubber stamp of the prosecution; not a safeguard of the accused • If no grand jury = PRELIMINARY HEARING (judge, probable cause finding, witnesses, evidence) • *BOTH meet the same purpose…Due Process Clause of the 14th Amendment/5th Amendment

14. 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?

15. Other Topics, if time permits: • Medical Examiner - Coroner (p. 157) • Immunity (use and transactional)(p. 156 ff) • Pleas (guilty, not guilty, nolo contendere, NGRI/GBI… double jeopardy, former acquittal)(p. 142 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)

16. Housekeeping • NO PAPER THIS WEEK! • Grading - timing; missed seminars & Weekly Topic • My Posts - thinking; devil’s advocate; agreement

17. 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!