AN OVERVIEW OF CRIMINAL PROCEDURE

INTRODUCTION

Criminal procedure deals with the set of rules governing criminal proceedings and requires a study of the
protections given by the Constitution to persons accused of committing a crime. The Constitution
provides the minimum protections given to criminal defendants, but states can offer greater protections.

Most of what the average person knows about the rules of criminal procedure was learned from
television. Television shows have informed the American public that under Miranda they “have the right
to remain silent, anything [they] do or say can be used against [them] in a court of law, that [they] have
the right to an attorney, and that if [they] cannot afford an attorney one will be appointed for [them].” But
the study of criminal procedure is so much more than that. It requires understanding the delicate
balancing of society’s need for order and the rule of law against the rights of individuals who stand
accused of a crime. It requires understanding not only what a person’s rights are, but also how and when
the rights apply—and at what cost. It’s a fascinating area of study, yet very straightforward in terms of
what you need to know for the bar exam.

WHAT LAW APPLIES

Criminal procedure is rooted in the protections of the United States Constitution provided to individuals
against the government. Many of the first eight Amendments to the Constitution deal with the rights of
the criminally accused—the prohibition against unreasonable searches and seizures, the right to a speedy
trial, the right to a jury trial, the right to confront witnesses, the right to have legal counsel present, and
the right to not testify against oneself. While by their terms these rights apply only against the federal
government, the United States Supreme Court has held that most of the rights are also applicable against
the states through the Due Process Clause of the Fourteenth Amendment. However, these rights are not
applicable against private citizens acting in their own capacity. That is, the prohibition against
unreasonable searches and seizures does not prevent your neighbor from unreasonably searching and
seizing your property (although other laws—such as laws against trespass and stealing—might be
applicable to private persons).

In addition to the rights coming from the Constitution, the Supreme Court has made additional rules to
ensure that specific rights are protected. Two such rules are the exclusionary rule and the holding in
Miranda v. Arizona, which will be discussed in detail below.

UNDERSTANDING CRIMINAL PROCEDURE

Many of the questions you will encounter in criminal procedure deal with the admissibility of evidence in
a criminal proceeding, so that is our starting point. The admissibility of evidence is regulated by the
exclusionary rule. The exclusionary rule is a judge-made doctrine that applies in both federal and state
cases. Under this rule, evidence obtained in violation of the defendant’s Fourth, Fifth, or Sixth
Amendment rights will not be admissible in a criminal trial. The rationale is that if the government cannot
use evidence obtained in violation of the Constitution, law enforcement officers will be less likely to
violate a person’s constitutional rights. To further this goal, the Supreme Court has developed an
accompanying doctrine—called the fruit of the poisonous tree doctrine—that provides that not only must
evidence obtained in violation of the Constitution be excluded, but also any evidence derived from the

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unconstitutionally obtained evidence. For example, suppose police officers torture a suspect (which, of
course, violates the Constitution). As a result, the suspect admits to committing a murder and gives the
police officers a clue as to where to find the murder weapon. Under the exclusionary rule, not only will
the confession be excluded from evidence, but also the murder weapon, because it is a fruit of the
poisonous tree (i.e., it would not have been found but for the unconstitutional act).

It should be noted that the exclusionary rule prohibition deals with trials but not necessarily with other
steps in the criminal justice process. Thus, evidence that would be excluded at trial may still be used in a
grand jury hearing, because the grand jury is merely deciding whether there is enough evidence, in the
aggregate, to issue an indictment (a formal, written criminal charge). We want to protect the defendant at
the point his liberty is in question (which is at trial), but not hinder the entire criminal justice system.

SEARCH AND SEIZURE

Most admissibility issues will spring from (i) the seizure of people, which includes both arrests and other
stops, (ii) the search and seizure of property, and/or (iii) confessions.

(a) Was the seizure of the person proper?

The Fourth Amendment provides that people should be free in their persons from unreasonable
searches and seizures. Governmental detentions of people, including arrests, constitute seizures of
the person and, as such, they must comply with the Fourth Amendment. In many cases, to be
reasonable, seizures must be pursuant to a warrant (a court order issued by a neutral judicial
officer upon a showing that probable cause exists to arrest a person). Probable cause will be
found if a government official presents to a judicial officer reasonably trustworthy facts that
would make a reasonably prudent person believe that the person named in the warrant has
committed a crime or is committing a crime for which arrest is authorized by law.

However, warrantless seizures of a person can be found reasonable. Whether a warrantless

seizure of a person is reasonable depends on both the scope of the seizure (e.g., Is it a brief stop to
investigate or hand out a traffic ticket, or was the detainee handcuffed and thrown into a squad
car?) and the level of suspicion prompting the seizure (e.g., Did the police officer see a crime
being committed, or did the officer merely have a good reason to suspect that criminal activity
might be happening?).

Before getting to the details regarding what is needed for a police officer to seize an individual,
we should first make clear what we mean by a seizure of a person. Most of the time, it will be
easy to determine if a seizure has occurred based on the facts presented. A seizure occurs when a
person submits to a police officer’s show of authority or upon a police officer’s physical
application of force to the suspect. Thus, if a police officer asks a suspect to stop (e.g., by yelling
“Stop, Police!” or by turning on a patrol car’s overhead emergency lights) and the suspect
complies, it is as much of a seizure as when a police officer chases down and grabs a suspect. On
the other hand, there is no seizure when a police officer yells “stop” or turns on a patrol car’s
overhead lights and the suspect keeps running or driving.

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If there is a question as to whether a seizure has occurred, we look at the totality of the
circumstances and ask whether a reasonable person would feel that he was not free to decline the
officer’s request or to leave. You are asking yourself (because you’re as reasonable a person as
any) if you would feel you could say “no” or walk away. For example, a plainclothes police
officer walks up to A, identifies himself, and starts asking some general questions about what A
has seen. Would that be a seizure? No. The United States Supreme Court presumes that every
person would know that she could walk away from the officer just as she could walk away from
any other person asking questions on the street. However, what if three uniformed police officers
wearing guns walk up to A, surround her, and ask her for identification and where she was the
previous night? Is there a seizure? Given the totality of the circumstances, most reasonable people
would not feel they could leave in that situation.

There are varying levels of what can constitute a seizure. The most obvious is an arrest. An arrest
occurs when the police take a person into custody against his will for the purposes of
interrogation (questioning) or criminal prosecution. To be reasonable under the Fourth
Amendment, an arrest must be based on probable cause. We already discussed arrests made
pursuant to a warrant issued upon a showing of probable cause. Generally, arrests made in a
suspect’s home are reasonable only if they are made pursuant to such a warrant. However, arrests
made without a warrant can also be reasonable (and therefore constitutional) under the Fourth
Amendment if made in a public place by a police officer who has probable cause to make the
arrest. The knowledge need not be from personal observation; it can come from police bulletins,
factual circumstances, and/or the officer’s training and experience, etc. Whether there is probable
cause is judged by the totality of the circumstances.

There are also seizures of people that fall short of arrest, such as investigatory detentions, which
may be referred to as “stops” or “Terry stops” (in reference to the case that first upheld such
stops: Terry v. Ohio). Police officers may briefly detain people for questioning even if the officers
lack probable cause, so long as they have a reasonable suspicion (more than a feeling or hunch
but less than probable cause), supported by articulable facts (a particularized, objective basis)
that criminal activity is afoot (happening or about to happen). Whether reasonable suspicion is
present is judged by the totality of the circumstances. Note that as with probable cause,
reasonable suspicion need not always come from a police officer’s own observations; a police
officer can rely on police bulletins, the circumstances plus training, and/or an informant’s tip.
However, if a police officer relies on a tip, the tip must be accompanied by some indicia of
reliability (i.e., the informant must have been reliable in the past or there must be something in
the tip that has predictive information or otherwise indicates the informant has more than just the
general knowledge that any observer would have). Finally, while there is no specific time limit
for determining whether a stop is reasonably brief, the police should act in a diligent manner to
confirm or dispel their suspicion.

An automobile stop also constitutes a seizure—of the driver and of the passengers—for purposes
of the Fourth Amendment. Generally, an automobile stop will not be deemed reasonable unless
the officer making the stop has at least a reasonable suspicion to believe that a law has been
violated. However, there is a significant exception: police officers can set up roadblocks without
reasonable suspicion (i) to serve special law enforcement needs related to a particular problem

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pertaining to automobiles (ii) if cars are stopped on some neutral basis (e.g., every third car).
During any automobile stop, a police officer can order all the occupants out of the car for safety
reasons. Note that the fact that an officer has another motive for stopping a car—a motive for
which the officer lacks reasonable suspicion—does not render invalid an otherwise valid stop. In
bar exam essay questions, you’ll often see the argument that a police officer’s use of a minor
traffic violation was merely a pretext for investigating some other crime. It’s a losing argument.
As long as the police officer had a sufficient reason to stop a car, it doesn’t matter that the officer
had other (non-supportable) reasons for the stop as well.

(b) Was the search or seizure of property proper?

The Constitution protects not only against unreasonable seizures of people, but also against
unreasonable searches and seizures of a person’s home, belongings, etc. As with seizures of
persons, under the Fourth Amendment, searches and seizures of property must also be reasonable.
Here, too, reasonableness often requires a warrant. However, there are a number of categories of
searches that can be conducted without a warrant. You will need to learn the requirements of each
category.

Before getting to the warrantless search categories, a preliminary matter must be considered. The
Supreme Court has adopted a policy that a person may challenge a search or seizure on
constitutional grounds only if the person’s own constitutional rights were violated. It is not
enough that a companion’s rights were violated. This requirement is known as the standing
requirement. To have standing to challenge a search or seizure, a person must have a reasonable
expectation of privacy with respect to the place searched or the item seized. The court looks at the
totality of the circumstances to determine standing, but there are some places in which the law
presumes a person has a right to privacy. Such places include the person’s home, a place the
person owns or has a right to possess, and a place in which the person is an overnight guest. It
should be noted that a person’s home includes not only the interior of a house but also the
curtilage (the land immediately surrounding the house). Areas outside the curtilage are subject to
search under the “open fields” doctrine because they are deemed to be held out to the public (e.g.,
suspicious plants growing in an open field can be searched). The police may also fly over a
fenced yard, assuming they are in legal airspace, and view what is in a person’s yard.

With the preliminary matters out of the way, we can now address the six exceptions to the
warrant requirement:

• Search incident to arrest: Police officers may conduct a search incident to arrest
whenever they arrest a person and the arrest is constitutional (i.e., the arrest was
reasonable and based on probable cause). Interestingly, the arrest need not be valid under
state law to be constitutional. The search may extend to the person, areas into which she
might reach to destroy evidence or obtain a weapon (this is referred to as the arrestee’s
“wingspan”), and to a protective sweep of the entire area if the officers have reason to
believe that an accomplice may be present who might harm them. Police officers need
not have reason to believe that the arrestee is armed or carrying illegal substances to

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conduct a search incident to arrest. However, the search must be contemporaneous with
the arrest (e.g., the search cannot be 20 minutes later).

If the arrestee was in an automobile shortly before being arrested, special rules apply.
Officers generally may not go back and search the automobile unless the arrestee is
unsecured and may still gain access to the interior of the automobile or the officer
reasonably believes that evidence of the offense for which the person was arrested may
be found in the automobile. The police can also search the entire vehicle, including
containers in the vehicle, if it has been impounded (taken into legal police custody) and
police department policy calls for such a search.

• Automobile exception: If police officers have probable cause to believe that a vehicle
contains contraband (illegal goods), fruits (items taken during a crime) or
instrumentalities (actual weapons or items used in the perpetration of a crime), or
evidence of a crime, they may conduct a warrantless search of the automobile. The
rationale is that vehicles are mobile and that the automobile will not be available (and the
evidence will be gone) if the police have to go and get a warrant. Under the automobile
exception, the police can search the entire vehicle, including the trunk and any container
that could contain the object for which they are searching. So, for example, if police
officers are searching for a rifle, they cannot look inside the glove compartment. On the
other hand, if police officers are looking for drugs, they can look anywhere within the
vehicle. Unlike searches incident to arrest, searches under the automobile exception do
not have to be contemporaneous; police officers may tow the car and take it to a police
station before conducting a search.

• Plain view exception: Police officers can seize items that are in plain view without a
warrant if (i) the officers are legitimately on a premises; (ii) they discover evidence,
fruits, or instrumentalities of a crime or contraband; (iii) they see the evidence in plain
view; and (iv) they have probable cause to believe that what they see is evidence, fruits,
or instrumentalities of a crime or contraband. Law enforcement personnel do not have to
turn a blind eye to what they see. Plain view is literally defined; it means the items are
conspicuous or viewable without moving or touching the items (e.g., police officers can’t
turn around a stereo to read serial numbers).

• Consent exception: Police officers can conduct a warrantless search if they have a
voluntary consent to conduct the search. (Note that police officers need not inform people
that they have a right to refuse giving consent in order for consent to be voluntary.) Any
person with the apparent right to use or occupy the property may consent to a search, and
any evidence found may be used against the other owners or occupants. The fact that the
person who gave the consent wasn’t actually authorized to do so doesn’t matter as long as
the person was in a position that made her appear to be in a position to consent. On the
bar exam, watch for situations in which the officers should know that the person lacked
authority (e.g., “Oh, that’s my housemate’s room. I don’t have a key, but you can search
it if you can open it.”).

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• Stop and frisk: We have already discussed the first part of stop and frisk when we
discussed seizures of persons: a police officer may stop a person for investigatory
purposes if the officer has an articulable and reasonable suspicion of criminal activity.
The officer may also conduct a frisk if the officer reasonably believes that the person is
armed and presently dangerous. A frisk is a limited search of the detainee consisting of a
pat down of the detainee’s outer clothing. If during the pat down the officer determines
by an item’s plain feel that it is a weapon or contraband, the officer may reach into the
detainee’s clothing and seize the item (e.g., if an officer pats down A’s jacket and feels
the outline of a gun or crack pipe, the officer can pull out the item). However, an officer
may not manipulate an item—its nature as a weapon or contraband must be obvious.

• Hot pursuit, evanescent evidence, and emergencies: Finally, if a police officer is in “hot
pursuit” of a fleeing felon, the officer may follow the suspect into a home even without a
warrant. In such cases, there is no time to stop and get a warrant. Similarly, there is an
exception for evanescent evidence (evidence likely to disappear before officers could
obtain a warrant). Lastly, police officers can enter a home without a warrant if they are
addressing an emergency rather than performing a law enforcement function. For
example, if officers see through a window of a home that a person is being beaten within
the home, they may go to the person’s aid. Similarly, if officers follow a trail of blood to
the door of a house, they may enter the house without a warrant to see if anyone inside
needs assistance. Some states call this the community caretaker exception.

There are a few other search issues that you will need to study before the bar exam, like
administrative searches (e.g., searches of airline passengers before boarding planes) which may
be conducted without individualized suspicion, public school searches (which can be conducted
by school personnel if reasonable grounds exist for the search), and wiretapping or eavesdropping
situations.

(c) Was the confession validly obtained?

Confessions are the final area in which you will encounter admissibility issues on the bar exam.
The admissibility of a defendant’s confession or incriminating admission involves analysis under
several Constitutional Amendments.

First, for a confession to be admissible, the Due Process Clause of the Fourteenth Amendment
requires the confession to be voluntary (of the suspect’s own initiative and uncompelled).
Voluntariness is assessed by looking at the totality of the circumstances, including such things as
the defendant’s age, education, and mental condition, as well as the setting and duration of the
police interrogation (e.g., a confession obtained from a defendant after questioning the defendant
for a few minutes in his home usually will be found voluntary, but a confession obtained from a
defendant who was questioned at the police station in a locked room, under bright lights, for 18
hours without a break likely will be found to be involuntary). Note that a confession will be found
involuntary only if it is in response to official compulsion. That the person was on drugs or was
“compelled by God” to confess does not make the confession involuntary.

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Second, the Sixth Amendment provides that the defendant has the right to the assistance of
counsel at all critical stages of criminal prosecution after formal proceedings have begun. This
means that defendants don’t have a right to counsel in pre-charge lineups and preliminary
hearings. You’re looking for the official beginning of criminal proceedings (post-indictment).
Counsel may be privately retained or counsel may be appointed by the state if the defendant is
indigent (too poor to pay). However, a defendant may waive the right to counsel, so long as the
waiver is knowing and voluntary. Note, too, that the Sixth Amendment right to counsel is offense
specific. Thus, if a defendant makes a request for counsel under one charge and is subsequently
charged with another crime, the first request for counsel does not count as a request for counsel
on the second charge.

Finally, we must consider the protections of the Fifth Amendment. Among other things, the Fifth
Amendment provides people with a privilege against self-incrimination. To protect this right, in
Miranda v. Arizona the Supreme Court held that in order to offset the coercive nature of custodial
police interrogation, a suspect must be informed that he has the right to remain silent, anything he
says can be used against him in court, he has the right to the presence of an attorney, and that if
he wants an attorney but cannot afford one, one will be appointed for him. A person in police
custody must be given Miranda warnings before a police officer may interrogate the person.

Whether a person is in custody for purposes of Miranda is determined through a two-step

process. First, a court will look to see if a reasonable person under the circumstances would not
feel free to terminate the interrogation and leave. If a person’s freedom was curtailed in such a
way, the court will then look to whether the environment presents the same coercive pressures as
would accompany a stationhouse interrogation. The more a setting resembles a traditional arrest,
the more likely a court will find the detention custodial. Let’s think about a traffic stop—a very
common situation. Would a reasonable person feel free to leave? Clearly, no. But does the setting
share the coerciveness of a stationhouse interrogation? No—the detainee usually is in his own car
and knows that shortly he’ll be on his way. Thus, an ordinary traffic stop does not constitute
custody for purposes of Miranda.

Whether a detainee is being interrogated under Miranda depends on whether someone whom the
detainee knows is a police officer does or says something that would likely elicit an incriminating
response. Thus, Miranda warnings need not be given before a cellmate questions a detainee—
even if the cellmate is a police informant—because the cellmate is not someone whom the
detainee knows to be a police officer (the rationale is that Miranda is intended to offset inherent
police coercion, and there is no such inherent coercion if the detainee does not know that he is
talking to a police officer or agent of an officer). Neither is there a Miranda violation when a
detainee spontaneously blurts something out—since a police officer has done nothing to elicit an
incriminating response. Finally, it should be noted that even though a detainee knows that a
booking officer is a police officer, ordinary booking questions (e.g., give your name, address,
height, weight, etc.) do not require Miranda warnings because such questions are not designed to
elicit an incriminating response.

If Miranda warnings are required under the rules discussed above, and warnings are not given,
generally the evidence obtained from the detainee will not be admissible at trial. (However, there

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are a few narrow exceptions to this rule that you will learn during the bar review course.) If
Miranda warnings are given to a detainee, the detainee has a few choices to make. He can choose
to remain silent. To do so, ironically, he must speak up—to invoke the right to remain silent
under Miranda, the suspect must explicitly and unambiguously tell the police officers that he
wishes to invoke the right to remain silent. If he does, the officers must scrupulously honor the
request and immediately stop all interrogation. Ambiguous statements (e.g., “maybe I shouldn’t
talk”) or simply refusing to answer questions (e.g., sitting silently while the police ask questions
for three hours) do not count as an invocation of the right to remain silent. Evidence obtained in
violation of these rules generally is inadmissible at trial.

Under Miranda a detainee can also choose to invoke his right to an attorney. Again, he must be
explicit and unambiguous. If the right to counsel is invoked, police officers must cease
questioning until counsel is obtained and present. Again, evidence obtained in violation of this
rule generally is inadmissible at trial.

If the detainee is given Miranda warnings and does not specifically invoke the right to remain
silent or to counsel, and instead confesses, the detainee usually will be held to have waived his
Miranda rights. The Supreme Court has held that such waivers must be knowing and voluntary,
but a suspect’s choosing to answer after receiving Miranda warnings usually is sufficient to prove
a knowing and voluntary waiver. Again, evidence obtained in violation of the above rules
generally is inadmissible at trial.

CHRONOLGY OF A TYPICAL CRIMINAL CASE

Now that you know what the big admissibility issues are in Criminal Procedure, you may be wondering
when a defendant would object to potentially inadmissible evidence or what other protections are afforded
the accused. We’ll bear those questions in mind as we take a look at the chronology of a typical criminal
case:

(a) Pretrial

A criminal defendant’s liberty can be restricted only on a finding of probable cause to detain. We
have seen that probable cause may already have been determined if the arrest was pursuant to a
warrant. Probable cause might also have been determined by a grand jury. Some states have
grand juries determine whether there is probable cause to prosecute, and if so they issue a
charging bill (called a true bill). However, if a defendant was arrested without a warrant or true
bill from a grand jury, the defendant is entitled to a preliminary hearing, which is an informal,
nonadversarial hearing held to determine whether there is enough evidence to hold the defendant
for trial. At this point or shortly thereafter, most states will also hold a hearing to determine
whether the defendant should be released on bail (security, usually in the form of money, given to
obtain release of a defendant) or other conditions of pre-trial release. Most states’ constitutions
create a right to pre-trial release unless the charge is a capital offense (a crime for which the
death penalty may be imposed) or there is reason to believe that the defendant is dangerous or
will not return for trial.

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After a defendant is arrested or formally charged, the Sixth Amendment provides a right to a
“speedy trial.” A determination of whether the speedy trial right has been violated is made by
evaluating the totality of the circumstances, considering the length and reason for the delay,
whether the defendant asserted his speedy trial right, and any prejudice that resulted from the
delay. The remedy for a violation is dismissal with prejudice, meaning the criminal defendant
cannot be retried for the same offense—this is something the government works hard to avoid.

Before trial the prosecutor also has a duty to disclose all exculpatory evidence in her possession.
Failure to do so constitutes a due process violation that will result in the reversal of a conviction if
the defendant can prove (i) that the evidence at issue was favorable to the defendant and (ii)
prejudice has resulted (i.e., there is a reasonable probability that the result of the case would have
been different if the undisclosed evidence had been presented at trial).

Prior to trial, the defendant will be brought into court and asked how he pleads. If the defendant
pleads guilty, he waives his Sixth Amendment right to a jury trial (discussed below). However,
the judge must determine that the guilty plea is knowing and intelligent by addressing the
defendant in open court. The judge must make sure that the defendant understands the nature of
the charge and the elements of the crime charged, the minimum and maximum penalties, and that
he has a right not to plead guilty and instead go to trial. Many cases are settled through a plea
bargain, which involves an agreement by the defendant to plead guilty in exchange for the
prosecutor reducing charges, recommending a lenient sentence, or dropping other charges that
may be pending against the defendant. Courts look favorably upon plea bargaining because it
streamlines the process and avoids the costs associated with trial. Once the court has accepted the
plea, the defendant has the right to have the plea enforced.

(b) Trial

A criminal trial brings up a host of constitutional issues. The defendant has a right to:

• Public Trial: The Sixth and Fourteenth Amendments guarantee the right to a public trial,
but the right varies based on the stage of proceedings. Generally, pretrial suppression
hearings (hearings at which the defense would file motions to suppress admission of
evidence based on the exclusionary rule) and voir dire proceedings (jury-selection
proceedings) are public. As to the trial itself, the press and public have a First
Amendment right to attend, even when the defense and prosecution wish to close the
trial; the judge would have to determine that closure is necessary for a fair trial in order to
close the trial.

• Trial by Jury: While there is no constitutional right to a jury for a trial regarding petty
offenses or at juvenile delinquency hearings, there is such a right for a trial regarding
serious offenses (offenses for which six months or more of imprisonment is authorized).
The defendant also has a right to have a jury selected from a representative cross-section
of the community and for that jury to be impartial. During the voir dire process (the
process of questioning prospective jurors to determine whether something might inhibit
their ability to render an impartial verdict), the attorneys can ask questions about bias,

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racial prejudice (if an issue at trial), views on the death penalty, etc. If a trial court refuses
to exclude a potential juror for cause, either side can use a peremptory challenge
(rejecting a juror without cause) to exclude the juror. Note that the Equal Protection
Clause forbids the parties from basing peremptory strikes on a potential juror’s race or
gender.

• Right to Counsel: The defendant has a Sixth Amendment right to counsel at trial. The
defendant, of course, can waive the right and choose to defend himself at trial, which
requires making a knowing and intelligent waiver. The judge will then decide, based on
the defendant’s emotional and psychological state, whether the defendant is competent to
proceed pro se (on his own behalf). The right to counsel includes the right to effective
counsel. This right will be found to have been violated (and therefore is a ground for
setting aside a conviction on appeal) if the defendant shows deficient performance by
counsel and that but for the deficiency, the result of the proceeding would have been
different. Failure to file timely motions to suppress evidence is a good example of the
type of deficient performance that will result in a Sixth Amendment violation. On the
other hand, that the defendant did not like counsel’s trial tactics does not constitute
deficient performance and is not a ground for setting aside a conviction.

• Right to Confront Witnesses: The Sixth Amendment gives defendants the right to
confront adverse witnesses, but the right to face-to-face confrontation is not absolute. For
example, the defendant may be asked to leave the courtroom during the testimony of a
child witness, the defendant may voluntarily leave the courtroom for any testimony, or
she may be asked to leave if she is disruptive during the proceedings. As for the actual
testimony, there are specific rules you will learn during bar review.

• High Standard of Proof: The defendant is presumed innocent unless the prosecution
proves otherwise, and the standard of proof is high. The Due Process Clause requires the
government to prove every element of the defendant’s guilt beyond a reasonable doubt.

(c) Sentencing and Punishment

Once the defendant has pled guilty or has been found guilty at trial, the case passes into the
sentencing phase. The defendant has a constitutional right to counsel during sentencing because it
is still a critical phase of the prosecution. Under the Eighth Amendment, the defendant also has
the right to not be subjected to cruel and unusual punishment. A cruel and unusual punishment
is one in which the penalty is grossly disproportionate to the seriousness of the offense
committed. Most of the Eighth Amendment cases involve imposition of the death penalty
(permissible if the jurors have discretion to consider all mitigating circumstances, but cannot be
imposed on one who was intellectually disabled or a juvenile at the time the crime was
committed).

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(d) Appeal

There is no federal constitutional right to appeal. However, if other laws (e.g., federal and state
statutes) provide for such a right, review must be equally accessible to the poor and the wealthy
or there is an Equal Protection violation. Thus, indigent defendants must be given legal counsel at
the state’s expense during the first appeal as a matter of right and for appeals of guilty pleas.

OTHER CONSIDERATIONS

You must also bear in mind that under the Fifth Amendment a person may not be retried for the same
offense once jeopardy (the risk of conviction) attaches—this is called double jeopardy. In a jury trial,
jeopardy attaches at the time the jury is empanelled and sworn in. In a bench trial (trial before a judge),
jeopardy attaches when the first witness is sworn. An offense will be considered the same unless each
crime requires proof of an element that the other crime does not require. This is known as the
Blockburger test. There are exceptions you will need to learn, including that retrial is allowed if the first
trial ends in a hung jury (a jury that is split and their positions are so divided that they cannot come to a
decision).

Bar examinations also frequently test the privilege against self-incrimination. We talked about this Fifth
Amendment privilege some when we discussed Miranda, but the privilege is applicable beyond Miranda.
Under the privilege, a natural person has a right to refuse to answer questions that might incriminate him.
The privilege may be applied whenever a response may incriminate; it is not limited to use at trials. Under
the privilege, a criminal defendant may refuse to take the witness stand at trial. In all other cases, a
witness must take the stand, but can refuse to answer questions as they are asked. The privilege extends
only to testimonial evidence; it does not extend to nontestimonial evidence, such as bank records,
handwriting samples, blood samples, etc. The privilege, however, may be nullified. If the government
offers immunity from prosecution in exchange for testimony, there is no right to refuse to testify.

Early Start 11 criminal procedure overview T--draft.pdf 11 8/26/2020 10:56:27 AM

Early Start 11 criminal procedure overview T--draft.pdf 12 8/26/2020 10:56:27 AM