1. The Sources of Criminal Procedure
Chapter 2
The Sources of Criminal Procedure

2. Sources U.S. Constitution U.S. Supreme Court State constitutions
State appellate court decisions
Federal statutes
State statutes

3. Rules of Procedure Federal rules State rules
steps in the process of the federal system
discussed and regularly amended by the Judicial Conference of United States Courts
have the force of law
State rules
similar to federal

4. Model Code American Law Institute (ALI)
Model Code of Pre-Arraignment Procedure
United States Attorney’s Manual of the Department of Justice
American Bar Association - Standards for Criminal Justice

5. Development of Due Process
Nationalization
Constitutionalization
Fourteenth Amendment Due Process Clause
Debate over the issue

6. Fourteenth Amendment
Justice John Marshall vs. Professor Erwin Chemerinsky
Slavery and the Civil War
Fundamental fairness
Total incorporation and total incorporation plus
Selective incorporation

7. Fundamental Fairness
States free to conduct criminal trials so long as the procedures are consistent with fundamental fairness
States can prosecute individuals without being bound to the same procedures as the federal government
Freestanding due process approach
Hurtado v. California

8. Fundamental Fairness (cont.)
Major cases and events
Fundamental rights
Bill of Rights
Legal test
Procedures
Rochin v. California

9. Total Incorporation Fundamental rights
Justice Black dissenting in Adamson v. California
Total incorporation plus
Three steps:
due process
bill of rights
incorporation

10. Selective Incorporation
Rights essential to liberty
Selective incorporation plus
Malloy v. Hogan
Three elements
fundamental rights
application
federalism
Elements of the following Amendments have not been incorporated
Duncan v. Louisiana

11. Equal Protection Thirteenth Amendment Fourteenth Amendment
Bolling v. Sharpe
The Equal Protection Clause
Presumption of regularity
Arbitrary classification are unconstitutional
Selective prosecution
Strict scrutiny

12. Impact of S.C. Decisions Retroactivity New rule trial appeals
habeas corpus
U.S. Supreme Court decisions must filter down through the lower courts

13. Desired Components of the System
Efficiency
Accuracy
Fairness
Equality

14. Two Models of Procedure
Crime control
assembly line model
emphasis on repression of crime
Due process
stresses the importance of citizens’ rights
better the guilty to free than innocents convicted

15. Why Procedures Matter Perception of justice is important
Tyler’s four factors
voice
neutrality
respect
trust
Importance of legitimacy