CRJ 318 Criminal Procedure
Thomas N. Davidson, J.D.
Indiana Wesleyan University
Class Meeting No. 1
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Government v. Liberty Tension
In a free society there is a constant tension
between its government’s legitimate police
function and its citizens’ liberty interests. It
has and will be with us and it will never go
away. It is a source of conflict that must
be understood by both the police and the
population in order for it to be controlled.
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Concise & Bias-Free
Orderly Presentation of Ideas.

Punctuation marks.

Transitional words.
(then, next, after, while)

Cause-effect links.
(therefore, consequently, as a result)
Smoothness of Expression.


Use of verb tenses.
Noun-stings. (tangled strings of several nouns
“Early
childhood thought disorder misdiagnosis” “Misdiagnosis of
thought disorders in early childhood”)
Format
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8 ½ x 11 in.
White paper.
Every component double-spaced.
One inch margins all around.
Title page. (Your name, instructor, course name, & date.)
Each paragraph longer than a single sentence,
but not too long.
Explain necessary abbreviations.
Citations included where necessary.
Format
 Font
size 12. (Courier, Courier New, Times, Times Roman,
Times New Roman, Helvetica, and Palatino.)
 Do
not justify the right margin.
 Number all pages including Title Page.
(Upper right hand corner with 2 or 3 words of title 5 spaces to left.)
 No
abstract.
 Citations. (APA format.)
 Reference Page. (APA format.)
Format
Reference page.
 Any source listed on reference page must
be cited in the body of the paper.
 Spell journal titles out in full.
 List in alphabetical order.
 Double-space all entries.
 Hanging indent format.
Reference Page: Example Reference Format
(Every line is double spaced.)
American Psychological Association. (2003).
Electronic references. Retrieved January
30, 2007 from
http://www.apastyle.org/elecref.html
Harris, Muriel. (2003). Prentice Hall
reference guide to grammar and usage
(5th ed.). Upper Saddle River, NJ:
Prentice Hall.
Sample Title Page
(Center text on paper.)
Title of paper
Student’s name
Course #
Submission date
I have read and understand the plagiarism policy as
outlined in the syllabus and the sections in the Student
Bulletin relating to the IWU Honesty/Cheating Policy. By
affixing this statement to the title page of my paper, I
certify that I have not cheated or plagiarized in the
process of completing this assignment. If it is found that
cheating and/or plagiarism did take place in the writing of
this paper, I understand the possible consequences of the
act/s, which could include expulsion from Indiana
Wesleyan University.
Statement of
Academic
Honesty
Statement of Academic Honesty
Be sure to include the Statement of Academic Honesty on
the cover page of all your assignments:
I have read and understand the plagiarism policy as
outlined in the syllabus and the sections in the Student
Bulletin relating to the IWU Honesty/Cheating Policy. By
affixing this statement to the title page of my paper, I
certify that I have not cheated or plagiarized in the
process of completing this assignment. If it is found that
cheating and/or plagiarism did take place in the writing of
this paper, I understand the possible consequences of
the act/s, which could include expulsion from Indiana
Wesleyan University.
Header
Sample Page Layout
Indent 5 spaces
Page #
Double-space
throughout
paper
12 Point Font
One inch
margins
Do NOT right
justify
Subsequent cite in same P
do not include year.
Citations
First cite in P: Author’s
name & Date of publication
Place period after cite
Sample Reference Page
Hanging
indents
Double-spaced
http://www.indwes.edu/ocls/style_guide.html
Sources of Law: Constitutions
 Protect
citizens from unreasonable
government action.
 USC is supreme Law of the land.
 1st 10 Amendments to USC are known as
the Bill of Rights.
 USC applied to the states through a
process of Incorporation through the 14th
Amendment.
Sources of law: Constitutions
 USC
provides minimum personal
protection.
 There is no conflict when a state
constitution provides greater personal
protection from government action than
the USC.
Sources of Law: Statutes
 Federal:
Passed by Congress.
 State: Passed by the General Assembly.
 Local: Passed by city or county councils.
Sources of Law: Common Law
 Appellate
Court decisions.
 Force in their jurisdiction only.
 Stare decisis = adhere to precedent.
Sources of Law: Common Law
 US
Supreme Court.
 Federal District Courts of Appeal – 7th
Circuit covers Indiana.
 Indiana Supreme Court.
 Indiana Court of Appeals.
Sources of Law: Common Law
 The
US Supreme Court, the Indiana
Supreme Court, the 7th Circuit Court of
Appeals, and the Indiana Court of Appeals
are courts of special limited jurisdiction.
 The trial courts are courts of general
jurisdiction.
Sources of Law: Administrative

1.
2.
3.

Three branches of government:
Legislative – create and pass laws.
Executive – enforce and administer laws.
Judicial – interpret laws.
Separations of Powers – checks and
balances.
Sources of Law: Administrative
 Legislative
delegates authority to
Executive Branch agencies to promulgate
rules that have the effect of law by passing
enabling statutes.
 Rules must be narrowly designed in scope
pursuant to the express mission of the
administrative agency.
Trial Process
 Prosecutions
begin with the filing of an
Information or Grand Jury Indictment.
 The person who files is the prosecutor and
is filed in the name of the State.
 The person to whom charge is filed
against is the Defendant.
Prosecutors
 Federal:
US Attorney may bring a charge
only through a GJ Indictment.
 State: Prosecutor may bring a charge
either by filing an Information or by GJ
Indictment.
 Prosecutor has absolute discretion on
whether to bring a charge, but must have
PC if he decides to bring a charge.
Trial Process: Jurisdiction
A court has no authority to decide a case
unless it has jurisdiction over the person
and the subject matter involved.
Trial Process: Jurisdiction

Subject matter jurisdiction. The authority of a
court to hear a particular dispute.
 Personal jurisdiction. The authority of a court to
hear a dispute involving the particular parties.
 Original jurisdiction. The authority of a court
decide the dispute in the first instance.
 Appellate Jurisdiction. The authority of a court to
review a prior decision by a previous court.
Trial Process: Jurisdiction
 Courts
of Limited jurisdiction are generally
specialized courts and courts of appeals.
The Supreme Court is a court of special
limited jurisdiction.
 Courts of General jurisdiction are
commonly the trial courts such as Circuit
or Superior courts.
The Trial Process: Venue
Venue refers to the county or district within a state
or the U.S. where the lawsuit is to be tried. The
venue of a lawsuit is set by statute, but it can
sometimes be changed to another county or
district. For example, if a case has received
widespread pre-trial publicity, one of the parties
may make a motion (request to the judge) for
change of venue in an effort to secure jurors
who haven’t already formed an opinion about
the case. Venue also may be changed for the
convenience of witnesses.
Trial Process: Motions
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Motions are not pleadings but are requests for the judge
to make a legal ruling. Some of the most common pretrial motions include:
Motion to Discover. A motion by which one party seeks to
gain information from the adverse party.
Motion to Dismiss. This motion asks the court to dismiss
the suit because the suit doesn’t have a legally sound
basis, even if all the facts alleged are proven true.
Motion for Summary Judgment (sometimes called
motion for summary disposition). This motion asks the
court for a judgment on the merits of the case before the
trial. It is properly made where there is no dispute about
the facts and only a question of law needs to be decided.
Trial Process: Discovery

To begin preparing for trial, both sides engage in
discovery. This is the formal process of
exchanging information between the parties
about the witnesses and evidence they’ll present
at trial.
 Discovery enables the parties to know before the
trial begins what evidence may be presented. It’s
designed to prevent "trial by ambush," where
one side doesn’t learn of the other side’s
evidence or witnesses until the trial, when
there’s no time to obtain answering evidence.
Trial Process: Depositions
One of the most common methods of discovery is
to take depositions. A deposition is an out-ofcourt statement given under oath by any person
involved in the case. It is to be used at trial or in
preparation for trial. It may be in the form of a
written transcript, a videotape, or both. In most
states, either of the parties may take the
deposition of the other party, or of any other
witness. Both sides have the right to be present
during oral depositions.
Trial Process: Production & Inspection
Other methods of discovery include:
 subpoenaing or requiring the other side to
produce books, records or other documents for
inspection (a subpoena is a written order issued
by a court compelling a person to testify or
produce certain physical evidence such as
records);
 having the other side submit to a physical
examination; or
 asking that a document be submitted for
examination to determine if it is genuine.
Trial Process: Jury Selection
 Voir
Dire.
 Strike for Cause.
 Preemptory Challenge.
Trial Process: Jury

Juries of six to twelve persons are selected from the jury
pool. The size of jury varies from state to state and
depends to some extent on the type of case at trial.
 In civil cases, especially in courts of limited jurisdiction,
the standard size in many jurisdictions is becoming six,
which can be increased by stipulation of both parties.
 In misdemeanor cases there are sometimes fewer than
twelve jurors, though in serious criminal cases twelve
jurors are generally required.
 The old requirement that juries be unanimous is also
changing. In misdemeanor and civil cases particularly,
states often provide for verdicts based on the agreement
of three-fourths or five-sixths of the jurors.
Jury - Indiana Criminal
IC 35-37-1-1
If 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 - Criminal
In 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: Juries
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1.
2.
3.
4.
You will not automatically get a jury trial,
you must timely ask for one.
Not all trials can be heard in front of a
jury:
Divorce cases.
Bankruptcy.
Tax court.
Probate court.
Trial Process: Opening Statements
The purpose of opening statements by each
side is to tell jurors something about the
case they will be hearing. The opening
statements must be confined to facts that
will be proved by the evidence, and cannot
be argumentative.
Trial Process: Evidence
The heart of the case is the presentation of
evidence. There are two types of evidence -direct and circumstantial.
 Direct evidence usually is that which speaks for
itself: eyewitness accounts, a confession, or a
weapon.
 Circumstantial evidence usually is that which
suggests a fact by implication or inference: the
appearance of the scene of a crime, testimony
that suggests a connection or link with a crime,
physical evidence that suggests criminal activity.
Trial Process: Direct Examination
Lawyers for the plaintiff or the government
begin the presentation of evidence by
calling witnesses. The questions they ask
of the witnesses are direct examination.
Direct examination may elicit both direct
and circumstantial evidence. Witnesses
may testify to matters of fact, and in some
instances provide opinions. They also may
be called to identify documents, pictures or
other items introduced into evidence.
Trial Process: Cross Examination
When the lawyer for the plaintiff or the government
has finished questioning a witness, the lawyer
for the defendant may then cross-examine the
witness. Cross-examination is generally limited
to questioning only on matters that were raised
during direct examination. Leading questions
may be asked during cross-examination, since
the purpose of cross-examination is to test the
credibility of statements made during direct
examination.
Trial Process: Directed Verdict
At the conclusion of the plaintiff's or government's
evidence, the lawyer will announce that the
plaintiff or government rests. Then, when the
jury leaves the courtroom, the defendant's
lawyer in a civil case has the option of making a
motion for a directed verdict, arguing that his or
her client's liability has not been proven by a
preponderance of the evidence. In a criminal
trial, the defendant's lawyer can ask for a motion
to dismiss the charges, arguing that the
government has failed to prove its case.
Trial Process: Defense Case
The defense presents evidence in the same
manner as the plaintiff or state, and the
plaintiff or government in return has the
right to cross-examine the defense's
witnesses. Re-direct and re-cross
examination also are permitted.
Trial Process: Rebuttal
At the conclusion of the defendant's case,
the plaintiff or government can present
rebuttal witnesses or evidence to refute
evidence presented by the defendant. This
may include only evidence not presented
in the case initially, or a new witness who
contradicts the defendant's witnesses.
Trial Process: Closing Arguments
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The lawyers’ closing arguments or summations discuss
the evidence and properly drawn inferences. The
lawyers cannot talk about issues outside the case or
about evidence that was not presented.
The judge usually indicates to the lawyers before closing
arguments begin which instructions he or she intends to
give the jury. In their closing arguments the lawyers can
comment on the jury instructions and relate them to the
evidence.
The lawyer for the plaintiff or government usually goes
first. The lawyer sums up and comments on the
evidence in the most favorable light for his or her side,
showing how it proved what he or she had to prove to
prevail in the case.
Trial Process: Jury Instructions
The judge will advise the jury that they are
the sole judge of the facts and of the
credibility (believability) of witnesses. He
or she will note that the jurors are to base
their conclusions on the evidence as
presented in the trial, and that the opening
and closing arguments of the lawyers are
not evidence. Sometimes judges will
explain what basic facts are in dispute,
and what facts do not matter to the case.
Trial Process: Mistrials
Mistrials are trials that are not successfully
completed. Mistrials can occur for many
reasons:
 death of a juror or attorney.
 an impropriety in the drawing of the jury
discovered during the trial.
 a fundamental error prejudicial (unfair) to the
defendant that cannot be cured by appropriate
instructions to the jury (such as the inclusion of
highly improper remarks in the prosecutor's
summation).
 juror misconduct the jury's inability to reach a
verdict because it is hopelessly deadlocked.
Trial Process: Verdict
After reaching a decision, the jury notifies
the bailiff, who notifies the judge. All of the
participants reconvene in the courtroom
and the decision is announced. The
announcement may be made by either the
foreperson or the court clerk.
Trial Process: Appeals
In a civil case, either party may appeal to a higher
court. In a criminal case, only the defendant has
a right to an appeal in most states. (Some states
give the prosecution a limited right to appeal to
determine certain points of law. These appeals
usually occur before the actual trial begins.
Appeals by the prosecution after a verdict are
not normally allowed because of the prohibition
in the U. S. Constitution against double
jeopardy, or being tried twice for the same
crime).
Trial Process: Appellate Review
 Affirm.
 Reverse
and remand.
 Reverse and render a new judgment.
Trial Process: Differences Between
Criminal and Civil
 Burden
of Proof.
 Complaint v. Information or Grand Jury.
 Trial brought in the name of Plaintiff v. the
name of the State.
 Civil damages v. Criminal incarceration.
 Double Jeopardy v. Res Judicata.
 Some criminal convictions receive
automatic appeal to Indiana Supreme
Court.
Burden of Proof
 Criminal:
Beyond a reasonable doubt.
 Commitment: Clear and convincing
evidence.
 Civil: Preponderance of the evidence.
 Arrest: Probable Cause.
 Civil Infraction Notice to appear: Good
faith belief.
 Investigatory detention: Articulatible
suspicion.
Presumption of innocence
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1.
2.
Applies to criminal proceedings.
One cannot be convicted of a crime
unless:
Pleads guilty-admitting the truth of the
allegation.
Convicted at trial (guilt proved beyond a
reasonable doubt).
Presumption of innocence
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1.
2.
Bail is allowed so long as not excessive
(8th Amendment to USC).
If presumed innocent, why bail required
at all?
Guarantee presence at trial.
Public safety.
Presumption of innocence
A private employer X has a “Public Conduct”
clause in his employee contracts that state that
behavior by employees that brings discredit to
the employer or that is inappropriate as
measured by community standards whether or
not on-duty is cause for discipline up to and
including dismissal.
Employee X is arrested, but not convicted of
cruelty to animals and promoting illegal dog
fighting. Must employer X wait to see if
employee X is convicted in order to discipline the
employee?
INDIANA CRIMINAL APPELLATE
PROCEDURE

Everyone is entitled to at least one appeal as a
matter of law. (Ind. Const. art. 7 § 6.)
 A judgment carrying a sentence of death, life
imprisonment or a term of more than 50 years is
automatically appealed directly to the Indiana
Supreme Court. (Ind. Const. art. 7 § 4.)
 Generally, an appeal can be taken once there is
a final judgment.
Praecipe
A request for the clerk of the trial court to
assemble the record of the trial.
Record of the Proceeding
 Copy
of praecipe and, if used, Motion to
Correct Errors;
 Copies of all papers filed or offered during
the course of the trial; copy of the order
book entries; and the transcript of the
evidence and proceedings
Appellant v. Appellee
 Appellant:
The party who is appealing from
an adverse judgment.
 Appellee: The party who is responding to
the appellant, generally the winning party
at the trial level.
Motion to Correct Errors
A request that the court correct errors made
during trial. Except in two instances, a
motion to correct errors is no longer a
prerequisite for filing an appeal. Bases for
the motion include: jury misconduct, abuse
of judicial discretion, decision not
supported by sufficient evidence, newly
discovered evidence, mistake, surprise, et
cetera.
Writ of Habeas Corpus
A civil remedy for anyone who is illegally
restrained. The writ is filed in the county
where the person is held. Must state the
party, where and who is holding him and
why he is being held and why it is illegal.
The purpose is to test the legality of a
person’s imprisonment; not whether he is
guilty. Not part of the appeal process.
Post Conviction Relief
Generally, any person who has been sentenced for
a crime may ask for relief, in a civil proceeding,
from the sentence by claiming the conviction
violated the Constitution, the court was without
jurisdiction, sentence exceeds the maximum
authorized by law, evidence of facts not
previously presented, sentence has expired, or
the conviction or sentence is subject to attack
available under law. This petition is similar to a
writ of habeas corpus. Does not take the place
of an appeal.
Appeal Process if not taken directly to IN Supreme Court
Criminal Law: Defenses
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Infancy/Insanity/Lack of Capacity.
Involuntary Intoxication.
Mistake of Law if law not published or relied
upon an incorrect official statement of the law.
Mistake of Fact (picked up a coat that looked like
yours).
Consent.
Duress (threat of serious harm, greater than that
caused, immediate & inescapable, in a position
through no fault of his own).
Defenses continued
 Self
Defense.
 Necessity.
 Entrapment.
 Statute of Limitations.
 Immunity.
 Plea Bargain (agreed to plead guilty to a
lesser crime).
Constitutional Rights of the
Accused
 4th Amendment:
searches and seizures.
 5th : Due process, double jeopardy, & selfincrimination.
 6th: Speedy trial, jury, public trial,
confrontation, and counsel.
 8th: bail, fines, & cruel and unusual
punishment.
Incorporation
 Prior
to the 60’s the Bill of Rights restricted
and regulated only the federal
government.
 Through a series of cases in the 60’s, the
Warren Court began incorporating USC
protections to the states through the due
process clause of the 14th Amendment.
14th Amendment
Section. 1. All persons born or naturalized in the
United States and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction
the equal protection of the laws.
Due Process
 Procedural
Due Process can be boiled
down to notice of the charges and an
opportunity to be heard.
 Substantive Due Process means the
procedures must be in content and
conducted “fairly.”
Criminal Procedure - Warrant
Requirement

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and 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 .
 Any search conducted without a warrant is per
se illegal unless an exception exists.
Criminal Procedure – Exceptions to the
Warrant Requirement

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Search incident to a lawful, custodial arrest
Voluntary consent and waiver
Search of a vehicle with probable cause
Inventory after lawful impoundment of a vehicle
Stop and frisk searches (Investigatory Detention)
Plain view, smell & touch
Open fields
Exigent circumstances - hot pursuit
Abandoned property
Protective sweep
Criminal Procedure – 5th Amendment
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.
The Exclusionary Rule
Evidence obtained in violation of the 4th, 5th,
or 6th (and evidence derived thereof)
Amendment rights is not admissible.
Rationale for the rule:
 Deterrence (deter police from violating
rights).
 Dirty hands.
 Enforcement of the USC.
Criminal Procedure – Exclusionary Rule
Weeks v. United States, 232 U.S. 383
(1914). First used in federal case.
 Mapp v. Ohio, 367 U.S. 643 (1961) Made
applicable to the states.
Rationale
1. Dirty Hands
2. Deterrence
3. Way to enforce constitution

Exceptions to Exclusionary Rule
 Independent
Source: Nix v. Williams, 467
US 431 (1984).
 Attenuation: Nardone v. U.S., 308 U.S.
338 (1939).
 Inevitable Discovery: Murray v. U.S., 487
U.S. 533 (1988).
 Good faith: U.S. v. Leon, 468 U.S. 897
(1984).
Miranda Rule
upon 5th Amended right against
self-incrimination.
 Applies to custodial interrogation.
 Does not apply non-incriminating
information such as name and address.
 Based
Criminal Procedure – Miranda Rule


Custodial Interrogation.
The person in custody must, prior to interrogation, be
clearly informed that he or she has the right to remain
silent, and that anything the person says may be used
against that person in court; the person must be clearly
informed that he or she has the right to consult with an
attorney and to have that attorney present during
questioning, and that, if he or she is indigent, an attorney
will be provided at no cost to represent him or her.
Additionally, the officer must ask whether the person
understands their right and will consent to questioning.
Immunity
 Transactional
Immunity.
 Use Immunity.
Double Jeopardy Clause of the 5th
Amendment
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.
Double Jeopardy
 Prohibition
from being tried twice for
crimes arising out of the same set of facts.
 Prohibition from increasing a penalty expost facto.
 Dual sovereignty.
Burden of Proof
 Beyond
a reasonable doubt.
 Clear and convincing evidence.
 Preponderance of the evidence.
 Probable cause.
 Articulable suspicion.
 Good faith belief.
Evidence

There are four traditional types of evidence: real
evidence (tangible things like a weapon),
demonstrative (a model or photograph),
documentary (a writing or other document), and
testimonial (testimony by witnesses).
 Circumstantial Evidence - Testimony not based
on actual personal knowledge or observation of
the facts in controversy, but of other facts from
which deductions are drawn, showing indirectly
the facts to be proved.
Police Ethics and Misconduct
Police Ethical Models
1. Law.
2. Code of conduct.
3. Rules, regulations, & standard operating
procedures.
Police Ethics and Misconduct
 Police
have a property interest in their
jobs.
 Cannot be terminated or disciplined
without due process.
Police Ethics and Misconduct
Internal Investigation
1. Founded
2. Unfounded
3. Exonerated
4. Not determined.