1. Copyright © Allyn & Bacon 2007 Chapter 1 Introduction to Criminal Procedure

2. Copyright © Allyn & Bacon 2007 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

3. Copyright © Allyn & Bacon 2007 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

4. Copyright © Allyn & Bacon 2007 A. Sources of Rights Federal Constitution State constitutions Court decisions Statutes Federal Rules of Criminal Procedure

5. Copyright © Allyn & Bacon 2007 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

6. Copyright © Allyn & Bacon 2007 (continued) Fourteenth Amendment Substantive due process Procedural due process

7. Copyright © Allyn & Bacon 2007 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

8. Copyright © Allyn & Bacon 2007 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

9. Copyright © Allyn & Bacon 2007 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

10. Copyright © Allyn & Bacon 2007 3. Outcome of the Debate Selective Incorporation is the winner

11. Copyright © Allyn & Bacon 2007 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

12. Copyright © Allyn & Bacon 2007 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

13. Copyright © Allyn & Bacon 2007 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

14. Copyright © Allyn & Bacon 2007 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

15. Copyright © Allyn & Bacon 2007 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

16. Copyright © Allyn & Bacon 2007 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

17. Copyright © Allyn & Bacon 2007 B. Crime Control Concern with controlling crime Ends, not means Assembly line Quantity over quality Insistence on informality Faith in the police

18. Copyright © Allyn & Bacon 2007 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

19. Copyright © Allyn & Bacon 2007 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

20. Copyright © Allyn & Bacon 2007 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

21. Copyright © Allyn & Bacon 2007 (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

22. Copyright © Allyn & Bacon 2007 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

23. Copyright © Allyn & Bacon 2007 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

24. Copyright © Allyn & Bacon 2007 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

25. Copyright © Allyn & Bacon 2007 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

26. Copyright © Allyn & Bacon 2007 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

27. Copyright © Allyn & Bacon 2007 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

28. Copyright © Allyn & Bacon 2007 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

29. Copyright © Allyn & Bacon 2007 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

30. Copyright © Allyn & Bacon 2007 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

31. Copyright © Allyn & Bacon 2007 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

32. Copyright © Allyn & Bacon 2007 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

33. Copyright © Allyn & Bacon 2007 C. Beyond Conviction Sentencing Appeals Automatic Discretionary Habeas corpus