copyright © allyn & bacon 2007 chapter 1 introduction to criminal procedure

Copyright © Allyn & Bacon 2007

Chapter 1

Introduction to Criminal Procedure


Introduction: What is Criminal Procedure?

A vast set of rules and guidelines describing how suspected and accused criminals are to be handled and processed by the justice system


I. EMPHASIS ON CONSTITUTIONAL RIGHTS

Criminal procedure is concerned with constitutional rights

These rights are interpreted by the courts, particularly the U.S. Supreme Court


A. Sources of Rights

Federal Constitution State constitutions Court decisions Statutes Federal Rules of Criminal Procedure


B. Rights of Relevance in Criminal Procedure

Fourth Amendment Search and seizure

Fifth Amendment Grand juries, double jeopardy, self-incrimination, and

due process Sixth Amendment

Speedy and public trial, impartial jury, confrontation, and compulsory process

Eighth Amendment Cruel and unusual punishment


(continued)

Fourteenth Amendment Substantive due process Procedural due process


C. The Incorporation Controversy

The Bill of Rights, consisting of the first ten amendments to the U.S. Constitution, places limitations on the powers of the federal government.

The Bill of Rights does not limit the power of the states.

Incorporation is concerned with the extent to which the Bill of Rights should apply to the states

The Fourteenth Amendment’s Due Process Clause facilitates incorporation


1. Significance of the Debate

Most contact between police and citizens occurs at the local level

Incorporation may threaten federalism Incorporation raises separation of powers

concerns


2. Views on Incorporation

Total incorporation The whole Bill of Rights should be incorporated

Selective incorporation (fundamental rights) Some of the rights in the Bill of Rights should be

incorporated Total incorporation plus

The Bill of Rights and other rights not specified in the Constitution should be incorporated

Case-by-case perspective Incorporation should be dealt with in a case-by-case

fashion


3. Outcome of the Debate

Selective Incorporation is the winner


II. THE IMPORTANCE OF PRECEDENT

A precedent is a rule of case law, i.e., a decision by a court, that is binding on all lower courts in that court’s jurisdiction as well as the court issuing the decision.

When a previous decision is available, courts will defer to it


A. Stare Decisis

Stare decisis is simply the practice of adhering to previous decisions, or precedent.

Stare decisis promotes consistency Stare decisis may not always be possible or

desirable


B. Distinguishing Cases

If a case coming before a court is unique and does not resemble one decided in the past, the court may “distinguish” it

Distinguishing a case is akin to deciding a new legal issue


III. THEORY VERSUS REALITY

The “theory world” of the courts and the “real world” of law enforcement can differ from one another Courts decide detailed legal matters that may not

affect most police officers Many police agencies adopt their own restrictive

policies Some court decisions can be ignored What the courts say and the police do may differ as a

result of our legal system


IV. COMPETETING CONCERNS IN CRIMINAL PROCEDURE

Criminal procedure creates tension between two competing sets of priorities.

First, there is a serious interest in this country with controlling crime.

Second, because of our democratic system of government, we value people’s rights.

These are known as the “due process” and “crime control” perspectives

Due process resembles liberal orientation Crime control resembles conservative orientation


A. Due Process

Maximize human freedom Protect from undue government influence Innocent until proven guilty Concern with legal guilt, not factual guilt Obstacle course Quality over quantity Insistence on formality Faith in the courts


B. Crime Control

Concern with controlling crime Ends, not means Assembly line Quantity over quality Insistence on informality Faith in the police


V. DOING LEGAL RESEARCH AND UNDERSTANDING THE RELATIONSHIP AMONG COURTS

Two-tiered court structure States

Courts of limited jurisdiction Courts of general jurisdiction (superior courts) Intermediate appellate courts State supreme courts

Federal level District courts (94) U.S. Courts of appeal (13) U.S. Supreme Court

Military and tribal courts are separate


A. Finding Cases

Understand citation format Miranda v. Arizona (384 U.S. 436 [1966]) Names are the parties 384 = volume U.S. = name of reporter 436 = starting page number 1966 = year of decision


B. Tracing the Progress of a Criminal Case

Must know court structure Must know parties

Defendant=person charged Prosecutor=charging party Appellant=person who appeals Appellee=person appealed against Petitioner=one who petitions for habeas review

Must know possible decisions Reversal=nullify or set aside Remand=send back to trial court Vacate=nullify or set aside Affirm=agree


(continued)

Opinion=“voice” of majority of justices Concurring opinion=opinion in agreement with

majority but with different reasoning Dissenting opinion=disagreement with the

majority opinion


C. How Cases Arrive at the Supreme Court

State-level cases can arrive at the Supreme Court if they raise a federal question, which is usually a question concerning the U.S. Constitution

U.S. Supreme Court decides if it wants to hear the case

If Court agrees to hear a case, it issues a writ of certiorari

Rule of four=four of nine justices must agree to hear the case


VI. IMPORTANT TERMS, ISSUES, TRENDS, AND CHANGES IN CRIMINAL PROCEDURE

There have been many interesting terms, issues, trends, and changes in criminal procedure over the years

Criminal procedure has changed as a result of legislation as well


A. Bright Line Decisions vs. Case-by-Case Adjudication

A bright line decision is one where the Court hands down a specific rule, one subject to very little interpretation

Bright line rules promote understanding and consistency

Case-by-case adjudication requires reference to the totality of circumstances

Case-by-case adjudication may be preferable because it is difficult to predict all the twists and turns in every criminal case


B. Subjectivity versus Objectivity

Subjectivity and objectivity are used in connection with the term “reasonable”

Subjective reasonableness is concerned with what an individual officer believes

Objective reasonableness is concerned with what a reasonable person would believe

The Supreme Court has moved from a subjective to an objective focus


C. Increased Faith in the Police

Throughout the 1960s and 1970s, the Court decided largely in favor of defendants

More recently, the Court has decided heavily in favor of the police

This new orientation places a great deal of faith in the police


D. Judicial Restraint

Judicial restraint is the philosophy of limiting decisions to the facts of each case, deciding only the issue or issues that need to be resolved in a particular situation

At the other extreme is judicial activism


E. Personal Privacy

In the past, physical intrusion was required for privacy to be violated

Nowadays, privacy has been expanded to include more than personal property


F. The Patriot Act and Criminal Procedure in Post-September 11 America

Congress passed the Patriot Act on October 26, 2001

The word “Patriot” in the Patriot Act is an acronym that stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”

The Patriot Act makes several changes to criminal procedure


VII. THE CRIMINAL PROCESS: AN OVERVIEW

There is no easy way to describe the criminal process

The presentation on the next three slides is generic

It is best to organize the criminal process into three phases Pretrial Adjudication Beyond conviction


A. Pretrial

Complaint Investigation Arrest (or search, then arrest) Suspect searched Booking Police present case to prosecutor Probable cause hearing Pretrial release Preliminary hearing Arraignment Discovery


B. Adjudication

Possible guilty plea If no guilty plea, then trial Prosecution begins, then defense Case is decided by judge or jury Special steps are taken to ensure impartiality Accused enjoys many constitutional protections

at trial


C. Beyond Conviction

Sentencing Appeals

Automatic Discretionary

Habeas corpus

copyright © allyn & bacon 2007 chapter 1 introduction to criminal procedure

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