FALL SEMESTER, 2013TARAS SHEVCHENKO NATIONAL UNIVERSITY OF KYIV, UKRAINE IN COOPERATION WITH COUNSEL OF INTERNATIONAL PROGRAMS, USA AND CLEVELAND CRIMINAL JUSTICE INSTITUTE, USA FALL SEMESTER, 2013
No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land. Article 39, Magna Carta (1215).
Course Title: Introduction to Criminal Procedure in the American Justice System
Course: for Masters majoring in Criminal Law and Procedure
Taught by: professor Alek El-Kamhawy
Schedule: Except for two in person sessions (30 September and 1 October), this class will be held on line every Tuesday 15.00-16.20 p.m.
I. Course Description:
This course introduces students to the procedural component of the American Criminal Law. Brief substantive review of American Criminal Law, Applicable Constitutional Amendments and American Criminal Justice System shall provide for students’ introduction to the respective roles of law enforcement/investigative agencies, prosecutorial entities, defense and judiciary. Although concepts in constitutional law do not often manifest themselves in the everyday practice of law, a basic understanding of the foundation on which our entire legal system is built is vital to a student's legal education. This course will provide our students with a general understanding of the major issues in constitutional law, including the separation of powers between the executive, legislative and judicial branches of the federal government; federalism and states’ rights, the concept of interstate commerce; freedom of speech (the First Amendment); substantive and procedural due process; and the equal protection clause; various areas of discrimination. Perhaps the portions of the Constitution most relevant to the everyday practice of law are those sections of the Bill of Rights, which deal with criminal procedure and litigation. Therefore, this course will especially focus on the rights of a criminal defendant. The areas to be highlighted on will include: the Fourth Amendment’s protection against unreasonable searches and seizures by the police; the Fifth and Fourteenth Amendments’ guarantees of “due process” for an alleged criminal; the Sixth Amendment’s guarantee of the right to counsel along with the landmark case of Miranda v. Arizona; and the Eighth Amendment’s prohibition of cruel and unusual punishment.
II. Performance Objectives:
Upon completion, students will acquire basic substantive knowledge of fundamental principles forming procedural component of the American Criminal Justice System. Discussions will be conducted invoking historical, philosophical, moral, ethical and constitutional issues related to society’s effort to confront criminal activity, while protecting its citizens’ civil rights.
III. Course Outcome:
Upon satisfactory completion of this course students should be able to perform the following:
Articulate the roles of the federal, state and local governments. Explain the concept of separation of powers. Describe the due process and equal protection clauses of the U.S. Constitution and their impact on civil rights. Describe when a law can deprive people of certain freedoms. Describe the freedoms protected by the First Amendment, such as, speech, assembly and religion. Articulate the standards the courts use in determining whether, and in what manner, government agents may restrict freedoms. Differentiate between "searches" that are regulated by the Fourth Amendment and police actions that are not considered searches and are thus not restricted by the Amendment. Determine whether a particular search illustrated in a fact pattern is proper under the Fourth Amendment. · Describe the process by which a criminal suspect is arrested, held, interrogated and eventually tried. Describe the protections afforded a criminal suspect in police custody. Determine whether a particular statement made by a defendant is admissible in court. Determine whether a suspect is considered to be in "custody" when he made the statement. · Determine whether the suspect was properly "Mirandized." Determine whether a statement given by a suspect was in response to an "interrogation" and the ramifications thereto. Describe the rights of a criminal suspect through the trial and sentencing process.
IV. Course Communication/Technology Requirements:
Except for in person sessions, this course will be conducted on line utilizing Skype or similar technology. This is a seminar class. As such, students’ participation is expected. This is web based interactive course. As such, regular class (on line) attendance is expected. Active participation in discussions on line is expected and will count in participation component. Assignments should be posted for class discussions and peer review. Additional materials will be posted for additional reading, viewing and comments. Students will be provided with necessary readings on a weekly basis. In order to get the most out of the course, each student is expected to allot appropriate study/research time for active participation. For personal communication, please feel free to contact your instructor or administrator via e-mail and/or Skype.
Student will need to have a minimal working knowledge of the following technologies: Any Word Processing program, PowerPoint, email access and Skype.
V. Text:
Weekly reading assignments will be provided
VI. Class Procedure:
With the exception of in person, session(s), students will participate in Skype session once a week. Student will review assigned reading materials. Students will participate in scholarly discussions during the Skype sessions. Students will critique weekly reading assignment on line.
VII. Methodology of Student Evaluation may include any of the following:
VIII. Tentative Syllabus: Total 10 weeks (12 sessions)
1. September 30, 2013 In Person: Introduction to the Course United States Constitution Overview of American Criminal Justice System Parties in Criminal Process
In this first class, we will acquaint ourselves with the basic principles of American government and constitutional law. We will begin with an examination of what it means to have a federal system of government, and how the Constitution divides power between the national and state governments as well as between the branches of the national government. We will then look at the federal court system, including the Supreme Court’s all-important power of “judicial review.” Marbury v. Madison. This case established the concept of judicial review and it set the important precedent that a court (especially the Supreme Court) can declare the actions of another branch of government to be “unconstitutional.” Then, we will look into the connection between the constitution and the criminal justice by examining the role of the parties in criminal justice process.
2. October 1, 2013 In Person: Criminal Procedure: Constitutional Milestones
The Fourteenth Amendment must be the starting point for due process for equal protection and due process analyses because it is the source for the important “equal protection” and “due process” clauses. In this class, we will begin our discussion of civil rights guaranteed by the Constitution. This class will begin our examination of the Constitution’s Due Process Clause, a vaguely worded provision that the Supreme Court has interpreted to be the source of many important individual rights. We will first explore what are called rights of substantive due process, which used to be considered primarily economic but have for the last eighty years been understood to relate to matters of personal autonomy and family life. We will look at specific rights such as the Freedom of Speech, right to refuse health care, certain aspects of the right to privacy and we will look at the always controversial topic of abortion and the status under Supreme Court law, of the right to choose an abortion. We will conclude by looking at the other side of due process rights: those that require government to follow fair procedures in limiting individual freedom.
3. October 8, 2013 Overview of the Criminal Procedure Federal System v. State System Burden of Proof Felony v. Misdemeanor Model Penal Code (MPC) Criminal Justice Dialogue and Plea Bargains
In this class we will review the Criminal Procedure’s stages from investigation to post trial challenges. We will shift focus here to concentrate on how the Constitution applies to regulate the criminal law and procedure in general. The emphasis of the remaining classes will therefore be on the constitutional rights of criminal suspects and defendants.
4. October 15, 2013 4th Amendment 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.
The purpose of the 4th Amendment is to deny the national government the authority to make general searches and seizures of property. A major issue over the years has been the interpretation of "unreasonable" searches and seizures. The rules can be complicated. They also change often, but the general principle is that searches are valid methods of enforcing law and order, but unreasonable searches are prohibited.
5. October 22, 2013 4th Amendment Continued
6. October 29, 2013 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 offense 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 5th Amendment requires that a citizen cannot be accused of a serious crime without a grand jury investigation. It also forbids double jeopardy — the act of bringing a person to trial a second time for the same crime.
The Fifth Amendment also grants the right to a defendant to refrain from testifying against himself or herself. Probably the most famous modern interpretation of this provision is the right to remain silent. The famous Miranda v. Arizona (1966) case required that individuals arrested for a crime must be advised of their right to remain silent and to have counsel present. This intended to prevent forced or involuntary confessions under police pressure. Although the Supreme Court had long held that involuntary confessions could not be used in federal courts, state courts did not always comply. Now local police departments must issue warnings known as "Miranda Rights" to people that they arrest. A very important principle related to the 4th and 5th Amendments is the exclusionary rule, which upholds the principle that evidence gathered illegally cannot be used in a trial.
7. November 5, 2013 6th Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
The 6th Amendment guarantees that an individual accused of a crime has the right "to have the assistance of counsel for his defense." What if a person can't afford to have a lawyer for his or her defense? Until the 1963 ruling in Gideon v. Wainwright, many states did not ensure this right. Clarence Earl Gideon could not afford counsel when he went to trial for breaking into a poolroom in Bay Harbor, Florida. He was convicted and sent to prison, where he spent years researching his rights. Finally, he successfully petitioned the Supreme Court to hear his case, and they ruled in Gideon's favor, ensuring the right to counsel in state as well as federal courts.
8. November 12, 2013 8th Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
In general, states are allowed to pursue their own policies regarding capital punishment. The Supreme Court did not challenge the death penalty until 1972 in Furman v. Georgia. Even then, it did not judge capital punishment to be cruel and unusual punishment. It simply warned the states that the death penalty was to be carried out in a fair and consistent manner.
9. November 19, 2013 14th Amendment
The 14th amendment is a very important amendment that defines what it means to be a US citizen and protects certain rights of the people. There are three important “clauses” in the 14th amendment, each of which are still important today. A clause is a sentence in any part of our constitution. Citizenship Clause – the citizenship clause gives individual born in the United States, but especially at that time, African Americans the right to citizenship. Before the 14th amendment, African Americans could not become citizens and this limited the rights of those that were able to escape slavery and become free. This clause allows all people born in the United States to be US citizens. Although this right was established by the Civil Rights of 1866, this amendment made the law permanent as many feared that the law could be overturned and take away the citizenship of African Americans. Later on, the Supreme Court protected this right for the children of immigrants and the right of Native Americans to become citizens also was protected later on. Due Process Clause – the due process clause protects the 1st amendment rights of the people and prevents those rights from being taken away by any government without “due process.” Due process is a trial by jury for all people accused of wrongdoing. Although you may think the 1st amendment already protects these rights, the 14th amendment specially enforces the Bill of Rights on the states, to make sure that they can never limit the rights of Americans without fairness. There were also a number of rights that are protected for those that are accused of a crime but have not been proven to do anything wrong yet. Equal Protection Clause – This part of the fourteenth amendment states that there may be no discrimination against them by the law. The federal government enforces this protection on the states, ensuring that they do not. Remember that the Bill of Rights protects some rights for Americans. The equal protection clause extended this protection to the state governments. This clause of the 14th amendment would later be used to end discrimination and segregation in the South.
10. November 26, 2013 Criminal procedure utilization in Trial
The many legal procedures associated with modern criminal trials have developed over centuries. States and the federal government follow a largely uniform set of procedures. Assuming that the criminal trial is carried out to completion, those procedures are as follows: Judge or Jury Trial. The defense often has the right to decide whether a case will be tried to a judge or jury, but in some jurisdictions both the prosecution and the defense have the right to demand a jury trial. Juries consist of 12 persons in serious felony cases, but some states allow for as few as six person juries in less serious misdemeanor cases. Jury selection. If the trial will be held before a jury, the defense and prosecution select the jury through a question and answer process called "voir dire." In federal courts and many state courts, the judge carries out this process using questions suggested by the attorneys as well as questions that the judge comes up with on his or her own. Evidence issues. The defense and prosecution request the court, in advance of trial, to admit or exclude certain evidence. These requests are called motions "in limine." Opening statements. The prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. Because neither side wants to look foolish to the jury, the attorneys are careful to promise only what they think they can deliver. In some cases, the defense attorney reserves his opening argument until the beginning of the defense case. Prosecution case-in-chief. The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor. Cross-examination. The defense may cross-examine the prosecution witnesses. Redirect. The prosecution may re-examine its witnesses. Prosecution rests. The prosecution finishes presenting its case. Motion to dismiss (optional). The defense may move to dismiss the charges if it thinks that the prosecution has failed to produce enough evidence -- even if the jury believes it -- to support a guilty verdict. Denial of motion to dismiss. Almost always, the judge denies the defense motion to dismiss. Defense case-in-chief. The defense presents its main case through direct examination of defense witnesses. Cross-examination. The prosecutor cross-examines the defense witnesses. Redirect. The defense re-examines the defense witnesses. Defense rests. The defense finishes presenting its case. Prosecution rebuttal. The prosecutor offers evidence to refute the defense case. Settling on jury instructions. The prosecution and defense get together with the judge and craft a final set of instructions that the judge will give the jury. Prosecution closing argument. The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it and explaining why the jury should render a guilty verdict. Defense closing argument. The defense makes its closing argument, summarizing the evidence as the defense sees it and explaining why the jury should render a not guilty verdict -- or at least a guilty verdict on a lesser charge. Prosecution rebuttal. The prosecution has the last word, if it chooses to do so, and again argues that the jury has credible evidence that supports a finding of guilty. Jury instructions. The judge instructs the jury about what law to apply to the case and how to carry out its duties. (Some judges "preinstruct" juries, reciting instructions before closing argument or even at the outset of trial.) Jury deliberations. The jury deliberates and tries to reach a verdict. When defendants are charged with serious felonies, all jurors must agree on a verdict (the jury must be unanimous). Some states allow for non-unanimous verdicts (for example, if 10 out of 12 jurors agree on a verdict) in less serious misdemeanor cases. If less than the requisite number of jurors agrees on a verdict, a jury is "hung" and a case may be retried. Post-trial motions. If the jury produces a guilty verdict, the defense often makes post-trial motions requesting the judge to override the jury and either grant a new trial or acquit the defendant. Denial of post-trial motions. Almost always, the judge denies the defense post-trial motions. Sentencing. Assuming a conviction (a verdict of "guilty"), the judge either sentences the defendant on the spot or sets sentencing for another day.
11. December 3, 2013 Appellate procedure
12. December 10, 2013 General Review.
IX. Certification:
To receive a Certificate of Completion students must attend no less than eighty percent of the sessions.
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