The Teaching, The Writing, The Clients

How the Criminal Justice System Works

I.          Police-citizen encounters implicating Fourth Amendment prohibition against unreasonable searches & seizures: The Fourth Amendment prohibition against unreasonable searches and seizures protects persons, homes, papers, and effects, and involves intrusions — on the street, in a vehicle, or in a home — initiated by a governmental actor (police or other governmental agent) on their own or based on citizen complaints to police or court commissioners.

A.        Mere accosting:  The least intrusive police-citizen encounter is no intrusion at all in constitutional terms.  An accidental, voluntary, or consensual encounter is an accosting.  Because an accosting has no restraint of liberty, an accosting does not implicate the Fourth Amendment.  It is not a seizure if a reasonable person would feel free to ignore the officers and leave.

B.         Stop or detention:  A stop or detention occurs when the police intrude on an individual’s reasonable expectation of privacy at a level less than a full custodial arrest.  It requires a show of authority and submission thereto.  Such an intrusion requires reasonable suspicion that criminal activity is afoot.

C.        Stop & frisk:  A frisk occurs when the police “pat down” or “frisk” an individual for weapons (but do not search) or when police search the interior of a vehicle for weapons.  Such an intrusion requires reasonable suspicion that the individual is armed and dangerous.

D.        Arrest:  An arrest occurs when the police intrude on an individual’s reasonable expectation of privacy at a level equal to a full custodial arrest at common law.  A warrantless arrest for a felony requires probable cause to believe that the individual being arrested committed a felony.  A warrantless arrest for a misdemeanor generally requires that a misdemeanor be committed in the officer’s presence.  An arrest requires probable cause and a warrant, issued by a neutral and detached magistrate (in Maryland, that’s a judge) when the arrest is taking place in the arrestee’s home (unless there is an exigency or consent to enter) or when the arrest is for a misdemeanor not committed in the officer’s presence.

E. Search:  Other than inventory searches and some administrative searches, a search requires probable cause to believe that particularized fruits, evidence, or instrumentalities of a crime are located in a particularized place.  A search requires either a warrant or a constitutionally approved exception to the warrant requirement, e.g., automobile exception, exigency, search incident to a lawful arrest, plain view.

F.         Entry into searchee’s or arrestee’s home:  Police may enter the searchee’s or arrestee’s home in only four circumstances, as follows:

1.         Consent:  An individual with a reasonable expectation of privacy in the home may give consent to enter, provided consent was voluntarily given, measured under a totality of the circumstances.

2.         Search warrant:  The police may search an individual’s home based on a search warrant for the home, limited only by reasonableness.

3.         Arrest warrant:  The police may enter an arrestee’s home only if there is reasonable cause to believe the arrestee is at home at that time.

4.         Exigency/“hot pursuit”:  The police may enter a home if there is probable cause to believe that a fleeing felony or evidence is present, and the arrestee/evidence will be gone if the police take time to obtain a warrant.

II.         Police-citizen encounters implicating Fifth Amendment privilege against compelled self-incrimination:  The Fifth Amendment privilege against compelled self-incrimination places limitations on police obtaining written and oral statements or confessions from individuals in both pre-arrest and post-arrest scenarios.

A.        Voluntariness under totality of circumstances:  The voluntariness standard applies whenever there is conversation between the police and any individual in all pre-arrest and post-arrest scenarios.  In Maryland, an otherwise voluntary statement may not be voluntary if it was taken by the police during a period of unnecessary delay in taking the arrestee before the a court commission, particularly if the purpose of the delay was to obtain a statement.

B.         Miranda rights:  Miranda v. Arizona, 384 U.S. 486 (1966), and its progeny, entitle the individuals to be advised that (1) there is a right to remain silent, (2) anything the individual says will be used against the individual, (3) the individual has the right to an attorney present during questioning, and (4) the police will provide the individual with an attorney if the individual cannot afford an attorney.  Miranda rights only apply during police custodial interrogation, meaning when the individual is being subjected to questioning or its functional equivalent while under arrest.

C.        Maryland common law:  A statement is inadmissible, under Maryland’s common law, if it is given in response to police promises or inducements.

III.       Police-citizen encounters implicating Sixth Amendment right to counsel &/or Fourteenth Amendment DPC during identifications: Both Sixth Amendment right to counsel and Fourteenth Amendment DPC place limitations on police obtaining identifications, e.g., photo arrays, line-ups, show-ups, both pre-charging and post-charging.

A.        All identifications:  When an individual is identified (whether or not formally charged and whether or not during a critical stage), the identification procedure must be reliable, under a totality of the circumstances, under Fourteenth Amendment DPC.

B.         Identifications during critical stages after formal charging or during trial-like confrontation:  When an individual is identified, during a critical stage (a non-videotaped line-up or show-up, after formal charges have been filed, or during a trial-like confrontation (an adversarial preliminary hearing)), the individual is entitled not only to reliability, but also entitled, under the Sixth Amendment right to counsel, to have counsel present during the identification.

IV.       Initial appearance of arrestees in District Court: The Fourth Amendment prohibition against unreasonable searches and seizures requires that an individual arrested without a warrant be taken before a judicial officer promptly (48 hours is presumptively prompt).  In Maryland, all arrestees (warrant and warrantless) must be taken before a Court Commissioner as soon as practicable but, in no event, later than 24 hours after arrest.  This is a non-adversarial preliminary hearing with no right to counsel.  The judicial officer makes the following determinations:

A.        Probable cause to arrest:  The judicial officer determines whether there is probable cause for the arrest and continued detention of the arrestee (in the same manner that a neutral and detached magistrate would have decided whether to issue an arrest warrant).  If there is no probable cause, the Fourth Amendment requires that the illegal arrest be terminated and the individual be released.  If there is probable cause, the judicial officer proceeds to the next steps.

B.         Notification of pending charges:  The judicial officer informs the arrestee of the charges for which the arrestee has been arrested.

C.        Pretrial release determination:  The judicial officer determines, based on constitution, statute or court rule, whether the individual is entitled to pretrial release. If so, the judicial officer determines the release status and conditions, using discretion for ensuring both the arrestee’s appearance when required and the safety of others.  About half of all arrestees are (1) released on personal recognizance, meaning a promise to obey all laws and conditions of pretrial release, and to appear in court when required, or (2) released to the custody of another person, e.g., a juvenile released to the custody of a parent.  About half of all arrestees are released by posting bond, supported by a pledge of real property, cash posted with a court, or a pledge by a corporate surety, i.e., a bail bondsman.

D.        Preliminary hearing:  The judicial officer informs arrestees who are arrested for felonies (but not misdemeanors) that if the arrestee has not, or is not, indicted by a grand jury, the arrestee has a right to a preliminary hearing, but only if requested within ten days.  This is an adversarial preliminary hearing to determine whether there is probable cause to formally charge the arrestee and require the arrestee to stand trial and defend against the charges.

E.         Right to counsel:  The judicial officer informs the arrestee of the right to counsel and the advantages of counsel, even if Defendant plans on pleading guilty.

V.        Preliminary hearings in District Court: Defendant who is arrested for a felony, but not indicted, is entitled to an adversarial preliminary hearing, in which Defendant is entitled to counsel, for the purpose of determining whether there is probable cause to require Defendant to stand trial on those charges, provided Defendant requests such hearing within ten days after appearance before the Court Commissioner.

VI.       Charging process: A charging document is prepared by a prosecutor or police officer, alleging either that an adult committed one or more crimes (felonies, misdemeanors, or both) or that a juvenile committed one or more non-criminal delinquent acts.  In state court, there must be an appropriate matching of the charging document with criminal jurisdiction, i.e., Circuit Court versus District Court, or juvenile jurisdiction.

A.        Grand jury indictment: A prosecutor may present felony charges ex parte to a grand jury, meaning that neither Defendant nor counsel is present.  A grand jury formally charges by issuing a “true bill” criminal charge, i.e., an indictment, which can only be litigated in Circuit Court.

B.         Criminal information: A prosecutor may prepare and file criminal charges by way of a criminal information for felonies litigated in Circuit Court and for misdemeanors litigated in either District Court or Circuit Court.

C.        Statement of charges: A police officer prepares a statement of charges in connection with each arrest.  This document may be used by a prosecutor as the charging document, provided the charges include only District Court misdemeanors.

D.        Citation: A police officer may prepare and issue a citation for traffic misdemeanors, which serve as the charging document in District Court.

E.         Juvenile delinquency petition: A prosecutor may prepare and file a juvenile delinquency petition, alleging delinquent acts committed by a juvenile, which if juvenile jurisdiction is not waived, is litigated in Circuit Court, sitting as the juvenile court.  Although all individuals under age 18 are juveniles, depending on the age of the juvenile and the nature of the charges, a juvenile may be prosecuted as an adult in criminal court at ages 16 or 14, depending on the offense.

VII.      Arraignment: An arraignment is a Circuit Court appearance in which Defendant enters a plea of guilty or not guilty.  Occasionally, there is a plea of nolo contendere or not criminally responsible (NCR) by reason of insanity.  An arraignment is usually Defendant’s first appearance in Circuit Court, which is an event that commences the “clock” for other events, e.g., discovery requirements, pretrial motions, non-constitutional speedy trial analysis.

VIII.     Discovery: Discovery is the pretrial process of each side obtaining/providing certain information and evidence from/to the other side.

A.        Constitutional discovery:  Under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, a prosecutor is required to gratuitously provide all exculpatory evidence, meaning all evidence that is favorable to the defendant or that may be used to impeach prosecution witnesses.

B.         Non-constitutional discovery:  Under court rules, both the prosecution and the defense may be required certain information and evidence be provided by the other side, if timely requested.

C.        Bill of particulars:  Under court rules, Defendant may request a bill of particulars to supplement the charging document.  If the prosecution charges by way of a statutory short-form indictment, the defendant is entitled to a bill of particulars.  Otherwise, whether to require a bill of particulars is within the court’s discretion.

IX.       Mandatory notice from the State & mandatory motions from Defendant

A. Prosecutorial mandatory notice:  Some sentencing options, e.g., recidivism sentencing, enhanced sentencing, death penalty, life without parole, require the prosecutor to provide timely written notice to Defendant.

B.         Defense mandatory motions:  If Defendant wishes to make certain challenges to the prosecution’s case, Defendant must file timely pretrial motions, as follows:

1.         Defective charging document:  A charging document’s failure to provide subject matter jurisdiction may be challenged by Defendant at any time at any level, e.g., on appeal even if not raised at trial.  All other charging document defects, e.g., improper personal jurisdiction or venue, violation of the Fifth Amendment prohibition against double jeopardy, must be raised in a motion to dismiss.

2.         Unconstitutionally seized evidence:  If evidence, statements, and/or identifications were obtained unconstitutionally, their admissibility must be challenged by a motion to suppress.

3.        Severance:  If counts and/or Defendants were improperly joined, such joinder must be challenged by a motion to sever..

X.        Plea bargaining & guilty pleas:  More than 80% of all criminal cases are resolved by a two-party or three-party plea agreement, i.e., by a “constitutional contracts.”

A.        Types of plea agreement

1.         Standard guilty plea:  In a standard guilty plea, Defendant pleads guilty and admits guilt.

2.         Alford guilty plea:  Under North Carolina v. Alford, 400 U.S. 25 (1970), Defendant may plead guilty without admitting guilt.

3.         “Not guilty/statement of facts”:  Under a plea of “not guilty/statement of facts,” Defendant pleads “not guilty,” but proceeds on an agreed statement of facts as if guilty.

4.         Nolo contendere plea:  Under a plea of nolo contendere, Defendant does not plead guilty, and is not found guilty, but Defendant agrees not to contest the charges, allowing the court to treat Defendant as if guilty.

B.         Parties to plea agreements

1.         Two-party ABA approved plea:  A two-party ABA approved plea agreement is an agreement between the prosecution and defense, presented as a non-binding recommendation to the court.

2.         Three-party ABA approved plea:  A three-party ABA approved plea agreement is an agreement in which the prosecution and defense present a binding agreement to the court, which, if the court is not willing to “bind” itself, permits Defendant to go to another Court.

C.        Terms of plea agreements:  The negotiated terms may include anything that is not against public policy and usually includes one or more of the following:

1.         Offenses:  Agreements almost always include those offenses/counts to which Defendant is pleading guilty and other charges that will be dismissed by way of nolle prosequi (nol pros), placed on an inactive docket by way of stet, or not charged in the first instance.

2.         Cooperation by Defendant:  Sometimes, agreements include cooperation by Defendant, e.g., testifying.

3.         Disposition:  Agreements usually include the disposition or sentence, e.g., period of incarceration, terms and length of probation or parole, restitution, community service.

XI.       Trial rights

A.        Right to counsel

1.         Fifth Amendment right to counsel:  Defendant has a Fifth Amendment right to counsel during custodial interrogation under Miranda.

2.         Sixth Amendment right to counsel:  Defendant has a Sixth Amendment right to counsel for all critical stages from the commencement of formal judicial adversarial proceedings, i.e., formally charged (or a trial-like confrontation), through sentencing, if Defendant is charged with a felony or charged with a misdemeanor for which Defendant faces potential incarceration.

3.         Fifth/Fourteenth Amendment Equal Protection Clause right to counsel:  Equal protection ensures that indigent Defendants have a right to counsel on the first appeal of right.  For Defendants in a state criminal justice system, this is based on the Fourteenth Amendment.  For Defendants in the federal criminal justice system, this is based on the Fifth Amendment.

4.         Fifth/Fourteenth Amendment DPC right to counsel:  Due process ensures that indigent Defendants have a right of counsel for violation or probation and revocation of parole proceedings if the case is complex or involves a constitutional question.  For Defendants in a state criminal justice system, this is based on the Fourteenth Amendment DPC.  For Defendants in the federal criminal justice system, this is based on the Fifth Amendment DPC.

5.         Maryland statutory right to counsel:  Maryland Defendants are entitled to counsel, by statute, (a) for misdemeanors with a potential incarceration in excess of three months or a fine in excess of $500, and (b) for a first post conviction proceeding.

B.         Right to speedy trial

1.         Sixth Amendment right to speedy trial:  To determine if Defendant has been denied the Sixth Amendment right to speedy trial, consider (a) the length of any delay, (b) the reasons for the delay, (c) whether Defendant demanded a speedy trial, and (d) the prejudice to Defendant by the delay.  It probably takes at least a one-year delay to trigger the analysis.

2.         Maryland right to speedy trial:  In Maryland, by statute and court rule, Defendant is entitled to the commencement of the trial no later than 180 days after the first appearance of Defendant or first appearance of counsel in Circuit Court, unless the administrative judge postpones the trial for good cause shown.

C.        Right to trial by jury

1.         Sixth Amendment right to trial by jury:  The Sixth Amendment right to a jury trial applies if there is potential incarceration exceeding sixth months on any given count in the charging document.  A jury requires at least six jurors, but does not require unanimity, i.e., juries of 10-2, 9-3, and 6-0 were held as constitutional, while juries of 5-1 and 5-0 were held unconstitutional.  A jury venire/pool must include a fair cross-section that does not exclude large distinctive groups, i.e., race, ethnicity, national original, religion, gender.  Defendant may strike “for cause” potential jurors who are unable to render a verdict based solely on the evidence.  Defendant may exercise peremptory strikes (strikes not “for cause”), as provided by statute or court rule.  However, because there is an equal protection right to serve on a jury, Defendant may not exercise a peremptory strike based solely on the potential juror’s membership in a large distinctive group.

2.         Maryland right to trial by jury:  Maryland’s common law entitles Defendant to a jury trial in Circuit Court if there is potential incarceration.  There are no jury trials in District Court but, if Defendant is subject to potential incarceration in excess of 90 days on any given count, Defendant may pray for a jury trial, which divests the District Court of jurisdiction.  A jury requires 12 jurors and unanimity, unless there is a knowing and intelligent waiver.

D.        Right to fair trial:  The Sixth Amendment requires a fair trial.

E.         Right to public trial

1.         Sixth Amendment right to public trial:  Defendant has a Sixth Amendment right to ensure that the trial is open to the public at all stages subsequent to grand jury proceedings, unless there are “higher values” of witness or juror fear or embarrassment, permitting limited closure.

2.         First Amendment right to public trial:  The press and public have a First Amendment right to ensure that the trial is open to the public at all stages subsequent to grand jury proceedings, subject to legitimate time, place, and manner restrictions.

3.         Maryland’s crime victim’s constitutional amendment:  Md. Decl. Rights art. 47 ensures crime victims a state constitutional right to notice of most proceedings and a right to be present.

F.         Right to confrontation:  The Sixth Amendment right to confrontation guarantees face-to-face confrontation, except in child abuse cases, and guarantees the right to cross-examine witness against Defendant, precluding testimonial hearsay in most circumstances.  Defendant may forfeit this right through witness intimidation.

G.        Right to compulsory process:  The Sixth Amendment right to compulsory process guarantees Defendant the right to call any witness, unless the witness has a testimonial privilege or is an alibi witness that the defense intentionally failed to disclose to the prosecution.

H.        Fifth/Fourteenth Amendment DPC:  As to each element of each offense and the criminal agency of Defendant, the Fourteenth Amendment DPC in state criminal justice systems and the Fifth Amendment DPC in the federal criminal justice system place on the prosecution (1) the burden of production, i.e., the burden of producing a prima facie case (tested through a motion for judgment of acquittal at the end of the prosecution’s case-in-chief), and (2) the burden of persuasion, persuading the fact finder (jury or judge) of guilt beyond a reasonable doubt (tested through the verdict, following jury instructions).

XII.      Post-trial motions: Defendant may file a Motion for a New Trial (1) in the interests of justice, (2) based on newly discovered evidence, or (3) based on fraud, mistake, or irregularity.  A few jurisdictions (not Maryland) permit a motion for judgment notwithstanding the verdict, i.e., a criminal JNOV.

XIII.     Sentencing: Sentencing issues include the following:

A.        Sentencing authority:  The sentencing authority in a given situation may be a judge (most typical) and/or a jury.  In Maryland, the jury never plays a role in sentencing, except in death penalty cases.

B.         Mandatory or discretionary sentencing:  By statute, a sentence may be mandatory or discretionary at both the level of imposition of sentence and/or the level of execution of sentence.

C.        Types of sentence:  Sentences include incarceration, home detention, drug and alcohol treatment, probation after judgment, probation before judgment (PBJ), fines, restitution, and/or community service.

D.        Sentencing enhancements:  Under some circumstances, the legislature provides permissive or mandatory sentencing enhancements.

E.         Sentences eligible for parole & sentences not eligible for parole:  Some sentences require, and some permit, incarceration with parole or without parole.

F.         Pre-sentence investigation (PSI) reports:  Courts usually order a PSI report.

G.        Victim impact statements (VIS):  Victims of crimes are entitled at sentencing to provide a VIS to the sentencing judge.

H.        Sentencing factors:  Courts may consider any information that is relevant to the offense or the offender, meaning relevant to the crime or the criminal, provided that, as to negative information, the prosecution provided the information to Defendant prior to sentencing, with sufficient time for Defendant to investigate the information.

I. Sentencing guidelines:  Most jurisdictions, including Maryland, have sentencing guidelines.  Sentencing guidelines must be discretionary, and not mandatory, unless that which supports a sentencing enhancement was pleaded by the prosecution, was supported by evidence at trial, and was found to exist beyond a reasonable doubt.

J.          Capital offenses:  Thirty-eight states and the federal government have a death penalty statute.  The Eighth Amendment prohibition against cruel and unusual punishment limits the imposition of the death penalty to homicide cases (in Maryland, first degree murder).  Defendant is entitled (1) to a bifurcated proceeding of guilt or innocence and sentencing, (2) to select sentencing by a judge or a jury, (3) to require the prosecution to persuade the sentencing authority of one or more aggravating circumstances beyond a reasonable doubt, (4) to present all relevant mitigating factors, (5) to require the prosecution to persuade the sentencing authority, at least by a preponderance of the evidence, that the aggravating circumstances outweigh the mitigating circumstances, and (6) to an automatic appeal (in Maryland, all appeals of right go from Circuit Court to Court of Special Appeals (CSA), except death sentences, which are automatically reviewed by the Court of Appeals (COA).

K. Post-sentencing sentence motions:  Maryland provides multiple post-sentencing sentence motions, as follows:

1.         Application for Review of Sentence by Three-Judge Panel:  Defendant may file an Application for Review of Sentence by a Three-Judge Panel within 30 days after sentencing.  Although the sentencing judge may not serve on the review panel, the panel may confer with the sentencing judge and may decrease the sentence, increase the sentence, or leave the sentence unchanged.

2.         Motion for Modification of Reduction of Sentence:  Defendant may file a Motion for Modification or Reduction of Sentence within 90 days after sentencing.  Because sentencing judges may hold the motion sub curia for five years, most Defendants request no ruling until Defendant files an amended motion.  The sentencing judge may deny the motion without a hearing, but may only grant the motion following a hearing.  The sentencing judge may decrease the sentence or leave it unchanged, but may not increase the sentence.

3.         Motion to Correct Illegal Sentence:  Defendant may file a Motion to Correct Illegal Sentence at any time.  The sentencing judge may deny the motion without a hearing, but may only grant the motion following a hearing.

L.         Violation of probation:  If the sentencing judge places Defendant on probation, whether before or after judgment, and Defendant fails to comply with probation conditions, the sentencing judge may, by a preponderance of the evidence, find Defendant in violation of probation and execute on some or all of the suspended sentence.

{ Comments on this entry are closed }