Criminal Procedure for the Criminal Justice Professional

11th Edition

John N. Ferdico

Henry F. Fradella

Christopher Totten

Prepared by Tony Wolusky

Individual Rights Under the United States ConstitutionChapter 1

Herbert Packer’s Crime Control vs. Due Process Models

Due Process Model Crime Control Model

Primary Goal: Protection of the innocent; limiting governmental power.

Primary Goal: Apprehension, conviction, and punishment of offenders.

Focus: Due process; respect of individual rights.

Focus: Crime Control; repression of criminal conduct.

Mood: Skepticism Mood: Certainty

“Obstacle Court Justice”—presents numerous obstacles to prevent errors and wrongful convictions.

“Assembly-Line Justice”—processes cases quickly and efficiently to promote finality of convictions.

Concerned with legal guilt—the assumption that someone is innocent until proven guilty beyond a reasonable doubt. Relies on formal, adjudicative, adversary fact-finding processes.

Concerned with factual guilt—assumes that someone arrested and charged is probably guilty. Relies on informal, non-adjudicative fact-finding—primarily by police and prosecutors.

Dignity and autonomy of both the accused and the system are to be preserved.

Expedition processing of offenders to achieve justice for victims and society as a whole.

The Power of Judicial Review

Article VI, Section 2 of the U.S. Constitution is known as the Supremacy Clause. It declares that the Constitution is the "supreme law of the land."

Constitutional law trumps all other forms of law including statutory law, common law, and administrative law.

Judicial review is the duty of the court to decide when other laws are in violation of the spirit of the constitution.

The Bill of Rights

Shortly after the adoption of the constitution, ten amendments, the Bill of Rights, were added to it to guarantee basic individual liberties, including freedom of speech, freedom of the press, freedom of religion, and freedom to assemble and petition the government.

Originally applied only to acts of the federal government. Many rights extended to states with the Fourteenth

Amendment (1868).

Habeas Corpus, Bills of Attainder, Ex Post Facto Laws and Trial RightsArticle I, Section 9, Clause 2:

The Privilege of the Writ of Habeas Corpus shall not besuspended, unless when in Cases of Rebellion or Invasionthe public Safety may require it.

Article I, Section 9, Clause 3:No Bill of Attainder . . . shall be passed [by the federal government].

Article I, Section 10, Clause 1: No State shall . . . pass any Bill of Attainder. . . .

Article I, Section 9, Clause 3:No . . . ex post facto Law shall be passed [by the federalgovernment].

Article I, Section 10, Clause 1:No state shall . . . pass any . . . ex post facto Law. . . .

Article III, Sections 1 and 2 Article III, Sections 1 and 2, of the Constitution deal with the judicial system of the United States and are too long to be reproduced here.

Trial Rights

The majority of due process rights are implemented during the criminal trial and include the right to confront witnesses, jury trial, right to counsel, self representation, speedy trial, and a fair trial. Which do you think is the most important? Why?

When it comes to the right of self representation, Supreme Court requires the person show they have competence, knowledge, and intelligence to waive their right to counsel. Do you think this is an unfair limitation on a person’s right to defend themselves? Why or why not?

Trial Rights

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Conviction for Treason

Article III, Section 3:Treason against the United States, shall consist only inlevying War against them, or in adhering to their Enemies,giving them Aid and Comfort. No Person shall be convictedof Treason unless on the Testimony of two Witnesses tothe same overt Act, or on Confession in open Court. TheCongress shall have power to declare the Punishment ofTreason, but no Attainder of Treason shall work Corruptionof Blood, or Forfeiture except during the Life of the Personattainted.

Treason is the only crime defined by the Constitution.

First Amendment Guarantees

Freedoms of Speech, Expression, and Peaceable Assembly

Free Speech includes symbolic speech. Governmental entities are entitled to regulate the time,

place, and manner of speech. Defamation, words that incite immanent lawlessness,

and obscenity lie beyond the realm of First Amendment protection.

The establishment clause restricts establishment of government-sponsored religion.

The free exercise clause allows people to practice religion without undue government interference.

Second Amendment Guarantees The Supreme Court has held that the state

and federal governments may pass laws prohibiting the carrying of concealed weapons, requiring the registration of firearms, and limiting the sale of firearms for other than military uses.

Third Amendment Guarantees Before the American Revolution, colonists

were frequently required, against their will, to provide lodging and food for British soldiers. The Third Amendment prohibited the continuation of this onerous practice.

Fourth Amendment Guarantees The Fourth Amendment protects people and

their property from unreasonable searches and seizures by governmental officers.

Fifth Amendment Guarantees

Indictment by grand jury Before a person is tried in federal court for an infamous

crime, he or she must first be indicted by a grand jury. Freedom from double jeopardy

Protects against multiple criminal punishments for the same offense.

Also contains the dual sovereignty and collateral estoppel doctrines.

Privilege against self-incrimination Protects people from being incriminated by their own

compelled testimonial communications.

Fifth Amendment Guarantees Con’t. The right to due process

Provides procedural due process, substantive due process, and equal protection of law.

The right to just compensation The power of the government to acquire private property is

called eminent domain.

Sixth Amendment Guarantees Right to a speedy and public trial Right to trial by an impartial jury Right to notice of charges Right to confrontation of witness

Through face-to-face witness testimony and an opportunity for cross-examination.

Guarantee of compulsory process Right to compel the attendance of favorable witnesses at trial,

usually through a court-issued subpoena.

Right to Representation by Counsel For all prosecutions that may result in imprisonment.

Seventh Amendment Guarantees Except as provided by local federal court

rules, if a case is brought in a federal court and a money judgment is sought that exceeds twenty dollars, the party bringing the suit and the defendant are entitled to have the controversy decided by the unanimous verdict of a jury of twelve people.

Applies only to federal civil trials and not to civil suits in state courts.

Eighth Amendment Guarantees No excessive bail

Everyone does not have the right to bail, but if granted, the bail may not be excessive.

Freedom from cruel and unusual punishment Limits sanctions that violate the principle of

proportionality.

Amendment VIII

Traditionally, a person must provide money to support release on bail. Some have argued that this is unfair to indigent people accused of a crime. What do you think?

Under many state constitutions, when a capital offense such as murder is charged, bail may be denied altogether if “the proof is evident or the presumption great.” Is this consistent with the Eighth Amendment?

Ninth Amendment Guarantees Powers of government are limited by the

rights of the people. The Constitution did not intend, by expressly

guaranteeing certain rights of the people, to grant the government unlimited power to invade other rights of the people.

Tenth Amendment Guarantees Embodies the principle of federalism, which

reserves for the states the remainder of powers not granted to the federal government or expressly withheld from the states.

Fourteenth Amendment Guarantees The right to due process The right to equal protection of the laws

Prevents any state from making unreasonable, arbitrary distinctions between different persons as to their rights and privileges.