Ch9. Criminal Procedure — Common Exam Mistakes & Misconceptions

Mistake Type 1 — Confusing Types of Arrest

Frequently Missed Points:

Citizen's Arrest (Warrantless):
  "Anyone" may arrest for a felony
    committed in their presence
  Statutory rules vary by state;
    many states have restricted this

Terry Stop (Investigative Detention):
  Police only — requires reasonable articulable
    suspicion (Terry v. Ohio, 1968)
  Not a full arrest; limited pat-down allowed

Warrantless Felony Arrest:
  Officer only — requires probable cause
  No warrant needed in public
  Warrant needed to enter home (Payton v. NY)

Classic Traps:
  "A citizen can make a Terry stop" → WRONG
  "An arrest in public always needs a warrant" → WRONG
  "Warrantless arrest = automatic suppression" → WRONG
    (suppression follows if fruits used at trial)

Mistake Type 2 — Evidence Rule Confusion

Frequently Missed Points:

Corroboration Rule (corpus delicti):
  A conviction cannot rest on uncorroborated
    confession alone
  "Confession + confession = conviction" → WRONG
  Independent evidence of the crime required

Hearsay Rule (FRE 801-807):
  Out-of-court statement offered for truth of
    the matter asserted = hearsay → generally
    inadmissible
  Exceptions: excited utterance, dying declaration,
    statements against interest, business records
  Defendant's own prior statement = NOT hearsay
    (admission by party opponent)

Exclusionary Rule:
  Evidence seized in violation of Fourth Amendment
    → inadmissible at trial
  Fruit of the Poisonous Tree:
    Derivative evidence also excluded
  Exceptions: inevitable discovery, independent
    source, attenuation, good-faith (Leon)

Mistake Type 3 — Scope of Non-Aggravation on Appeal

Frequently Missed Points:

Non-Aggravation Applies:
  Only when defendant alone appeals
  Appellate court cannot increase the sentence
  (North Carolina v. Pearce)

Does NOT Apply:
  When prosecution also appeals (cross-appeal)
  Interlocutory appeals by the government

Traps:
  "Non-aggravation always applies on appeal"
    → WRONG (not when gov't also appeals)
  "After guilty plea, defendant can never get
    a higher sentence on appeal" → WRONG if
    prosecution cross-appeals

Resentencing After Remand:
  Court can impose any lawful sentence
    if prosecution participated in the appeal

Mistake Type 4 — Prosecutorial Monopoly & Grand Jury

Frequently Missed Points:

Prosecution Monopoly (Federal):
  Only the government (DOJ / US Attorney)
    may bring federal criminal charges
  Private citizens cannot prosecute

Grand Jury (Fifth Amendment):
  Required for federal felony charges
  23 jurors; 12 must vote to indict
  Proceedings are secret; defendant has
    no right to appear

Victim Rights / Declination Challenge:
  Crime Victims' Rights Act (18 U.S.C. § 3771):
    victims have right to be heard at proceedings
    but cannot compel prosecution

Statute of Limitations:
  Federal: 5 years for most non-capital felonies
  No SOL for murder (18 U.S.C. § 3281)
  SOL tolled while defendant is a fugitive

Classic Traps:
  "Any person can bring federal charges" → WRONG
  "Murder has a 5-year statute of limitations"
    → WRONG (none for murder)

Key Concept Cards

Warrantless Arrest = Police Only + Probable Cause ★★★★★ : Distinguish from citizen’s arrest (felony, own presence) and Terry stop (RS, brief detention). Memory hook: full arrest = police + PC; Terry = police + RS

Non-Aggravation = Defendant-Only Appeal ★★★★★ : Government cross-appeal removes the protection; resentencing can go higher. Memory hook: non-aggravation = solo appeal only

Victim’s Complaint Withdrawal ★★★★☆ : For crimes requiring a complaint (e.g., some misdemeanor assaults), withdrawal before prosecution begins prevents charges; after charges file, only the prosecutor can dismiss. Memory hook: complaint-required offense = withdrawal before charge only

Practice Questions

Q. “Can a victim’s recantation prevent prosecution in a domestic violence case?”

Generally no. Once the government files charges, the decision to prosecute belongs to the prosecutor, not the victim. Many jurisdictions use “no-drop” policies for DV cases precisely because victims recant under pressure. The victim’s testimony may be compelled by subpoena. If the victim refuses to testify, the prosecution may use prior recorded statements under the excited-utterance or forfeiture-by-wrongdoing exceptions. Recantation goes to credibility, not to the government’s authority to proceed.

Q. What is the legal problem with a conviction based solely on a defendant’s confession?

Violates the corpus delicti / corroboration rule. The prosecution must produce independent evidence that a crime was committed, beyond the defendant’s own admission. Constitutional basis: the Fifth Amendment privilege against self-incrimination and due process concerns about coerced confessions. Remedy: conviction is reversible on appeal. Even a voluntary, post-Miranda confession requires corroboration of the crime itself.