1、刑事诉讼法大纲 美国法学院Emanuel Law OutlinesCriminal ProcedureChapter 1CONSTITUTIONALCRIMINAL PROCEDURE GENERALLYI. STATE PROCEDURES AND THE FEDERAL CONSTITUTIONA. Meaning of criminal procedure: The term criminal procedure refers to the methods by which the criminal justice system functions. Here are some of t
2、he topics that are usually included within criminal procedure:1. The arresting of suspects.2. The searching of premises and persons.3. The use of electronic surveillance and secret agents.4. The interrogation of suspects, and the obtaining of confessions.5. The use of line-ups and other pre-trial id
3、entification procedures.6. The Exclusionary Rule, and how it affects the admissibility of evidence obtained through methods that violate the Constitution.7. The right to counsel.8. Grand jury proceedings.9. Bail and preventive detention.10. Plea bargaining.11. The right to a speedy trial.12. Pre-tri
4、al discovery.13. The Double Jeopardy clause.B. Focus on U.S. Constitution: Many aspects of criminal procedure are regulated by the U.S. Constitution, particularly the Bill of Rights (the first ten amendments). As discussed below, most federal constitutional provisions concerning criminal procedure a
5、re binding on state proceedings as well as federal ones.1. Non-constitutional issues: The states are free to develop their own procedures for dealing with criminal prosecutions, as long as these do not violate the federal constitution.C. Applicability of Bill of Rights to states: In deciding how the
6、 federal constitution applies to state criminal prosecutions, the Supreme Court follows the selective incorporation approach. Under this approach, not all rights enumerated in the Bill of Rights are applicable to the state, but if any aspect of a right is found to be so necessary to fundamental fair
7、ness that it applies to the states, then all aspects of that right apply. Thus if a right is applicable in state courts, its scope is the same as in federal courts. 21. All but two rights applicable to states: All Bill of Rights guarantees have been held applicable to the states, except for two. 5 T
8、he two Bill of Rights guarantees that have not been found applicable to the states are:a. Bail: The Eighth Amendments guarantee against excessive bail (so that apparently, a state may choose to offer bail, but may then set it in an excessive amount); andb. Grand jury indictment: The Fifth Amendments
9、 right to a grand jury indictment (so that a state may decide to begin a prosecution by using an information prepared by the prosecutor rather than a grand jury indictment).D. Raising constitutional claims in federal court: A defendant in a state criminal proceeding can of course raise in the procee
10、ding itself the claim that his federal constitutional rights have been violated (e.g., by the use against him of a coerced confession or the fruits of an illegal search and seizure).1. Federal habeas corpus: But the state criminal defendant has in some situations a second chance to argue that the st
11、ate trial has violated his federal constitutional rights: he may bring a federal action for a writ of habeas corpus. The defendant may bring a habeas corpus proceeding only after he has been convicted and has exhausted his state appellate remedies. The petition for habeas corpus is heard by a federa
12、l district court judge. If the judge finds that the conviction was obtained through a violation of the defendants constitutional rights, he can order the defendant released (usually subject to a new trial). 5a. Limits: There are significant limits on the kinds of arguments a defendant can make in a
13、federal habeas corpus proceeding. Most important, in search and seizure cases, if the state has given D the opportunity for a full and fair litigation for his Fourth Amendment claim (that is, the defendant got a fair chance to argue that evidence should not be introduced against him because it was t
14、he fruit of an illegal search or seizure), D may not make this argument in his habeas corpus petition, even if the federal court is convinced that the state court reached the wrong constitutional conclusion. Stone v. Powell 5II. STEPS IN A CRIMINAL PROCEEDINGA. Here is a brief summary of the steps i
15、n a criminal proceeding:1. Arrest: When a police officer has probable cause to believe that a suspect has committed a crime, the officer makes an arrest. An arrest may occur either with or without a warrant (most are made without a warrant). Arrest usually involves taking the suspect into custody an
16、d transporting him to the police station. 72. Booking: At the police station, the suspect undergoes booking which includes entering information about him into a police blotter, photographing and fingerprinting him. 73. Filing complaint: A prosecutor now decides whether there is enough evidence to fi
17、le charges; if so, the prosecutor prepares a complaint. 74. First appearance: After the complaint has been filed, the suspect is brought before a magistrate. In most states, this is called the first appearance. Here, the magistrate informs D of the charges, notifies him that he has the right to coun
18、sel, and sets bail or releases D without bail. 75. Preliminary hearing: If the case is a felony case, a preliminary hearing is held. Again, this is in front of a magistrate, and usually involves live witnesses so the magistrate can determine whether there is probable cause to believe that D committe
19、d the crime charged. 86. Filing of indictment or information: In the federal system, or in a grand jury state, the next step is for a grand jury to hear the prosecutors evidence and to issue an indictment. In a non-grand-jury state, the prosecutor now prepares an information, reciting the charges. 8
20、7. Arraignment: After the indictment or information has been filed, D is arraigned; that is, he is brought before the trial court and asked to plead innocent or guilty. 88. Pre-trial motions: Defense counsel now makes any pre-trial motions. 99. Trial: Next comes the trial. If the charge is a felony,
21、 or a misdemeanor punishable by more than six months in prison, all states (and the federal system) give D the right to have the case tried before a jury. 910. Sentencing: If D pleads guilty or is found guilty during the trial, he is then sentenced (usually by the judge, not the jury). 911. Appeals:
22、 A convicted defendant is then entitled to appeal (e.g., on the grounds that the evidence admitted against him at trial was the result of an unconstitutional search). 912. Post-conviction remedies: Both state and federal prisoners, even after direct appeal, may challenge their convictions through fe
23、deral-court habeas corpus procedures. 9Chapter 2ARREST; PROBABLE CAUSE; SEARCH WARRANTSI. GENERAL PRINCIPLESA. Fourth Amendment: The Fourth Amendment to the U.S. Constitution provides, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches a
24、nd seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 12B. Applies to both searches and arrests: The Fourth Amendment thus applies both
25、to searches and seizures of property, and to arrests of persons. 131. Invalid arrest no defense: Generally, the fact that D was arrested in an unconstitutional manner makes no difference: a defendant may generally be tried and convicted regardless of the fact that his arrest was made in violation of
26、 the Fourth Amendment. 13 However, when evidence is seized as part of a warrantless search conducted incident to an arrest, the evidence will be excluded as inadmissible if the arrest was a violation of the Constitution (e.g., the arresting officer did not have probable cause to believe that D had c
27、ommitted a crime). 132. Probable cause for issuance of warrant: Where a search or arrest warrant is issued, the Fourth Amendment requires that the warrant be issued only based on probable cause. This requirement is quite strictly enforced.3. Where warrant required: A warrant is usually required befo
28、re a search or seizure takes place, unless there are exigent circumstances. An arrest warrant, by contrast, is usually not constitutionally required.4. Search must always be reasonable: Whether or not there is a search warrant or arrest warrant, the arrest or search must not be unreasonable.5. Proba
29、ble cause for warrantless search or arrest: But there is no requirement in the Fourth Amendment that a warrantless search or seizure take place only upon probable cause. This is why police may conduct a brief stop and frisk even without probable cause: they are making a Fourth Amendment seizure, but
30、 merely need some reasonable suspicion, not probable cause. (See Terry v. Ohio, discussed below.)II. AREAS AND PEOPLE PROTECTED BY THE FOURTH AMENDMENTA. Katz expectation of privacy doctrine: A Fourth Amendment search or seizure only takes place when a persons reasonable expectation of privacy has b
31、een violated. 14 Katz v. U.S.1. Waiver of privacy right: A persons conduct may mean that he has no reasonable expectation of privacy in a particular situation. If so, no Fourth Amendment search or seizure will result, even if the police are doing something which a non-lawyer would think of as being
32、a search or seizure.Example: D puts some papers into a public trash bin, unaware that the police are watching his conduct through binoculars. Because a person who disposes of trash normally does not have a reasonable expectation of privacy as to the trash, the police do not commit a Fourth Amendment search or seizure when they go through the trash bins contents and remove the papers belonging to D (and use these in a subsequent prosecution of D).a. Contexts: Some types of
