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Criminal
Procedure

10th Edition

Joel Samaha

Criminal Procedure
and the Constitution

Chapter 2

Constitutionalism

In a constitutional democracy, constitutionalism is the idea that constitutions adopted by the whole people are a higher form of law than ordinary laws passed by legislatures.
Constitutions are permanent, general principles.
Laws are detailed, constantly changing rules.
The U.S. Constitution is the highest authority in criminal procedure; it trumps all other sources.

Note:

Constitutions

Constitutions have six characteristics:
They are the highest form of law.
They express the will of the whole people.
They always bind the government.
They cannot be changed by the government.
They can only be changed by direct action by the whole people.
They embody the fundamental values of the people.

Note: what is the difference between the a law and a constitution? The core

of the idea is that constitutions adopted by the whole people are a higher form of law

than ordinary laws passed by legislatures. Constitutions are forever; ordinary laws are

for now. Laws are detailed, constantly changing rules passed by legislatures; constitutions

are a set of permanent (or at least very hard to change), general principles.

The Law of Criminal Procedure

The U.S. Constitution is the highest authority in criminal procedure. The law of criminal procedure is based on the Bill of Rights. They are rules that the government must follow to:
Detect and investigate crimes
Apprehend suspects
Prosecute and convict defendants
Punish criminals

Note: What are some sources of procedural law in addition to the Bill of Rights (federal source and state sources).

The Law of Criminal Procedure

Equally important are the rules generated by SCOTUS based on the Bill of Rights.
We also learn about criminal procedure by looking at lower courts, such as the U.S. Courts of Appeal and the U.S. District Courts.

What/Who is the court of last resort? And what does his mean - meaning its decisions trump

the authority of all other sources of criminal procedure.

Criminal Procedure Provisions and the Constitution

Most criminal procedure provisions are found in the following amendments to the U.S. Constitution:
Fourth
Fifth
Sixth
Eighth
Fourteenth

Note: What procedural rights are guaranteed by the Constitution? Habeas corpus (Article I, § 9), the right of individuals to challenge any government detention. Trial by jury in the community where crimes were committed.

Criminal Procedure Protections
in the Bill of Rights (slide 1 of 2)

Fourth Amendment	The right to be free from unreasonable searches The right to be free from unreasonable seizures The right to probable cause to back up searches and seizures
Fifth Amendment	The right to grand jury indictment in federal cases The right against double jeopardy The right to due process in federal cases The right against self-incrimination
Sixth Amendment	The right to a speedy trial The right to a public trial The right to an impartial jury The right to have a jury made up of persons from the state and district where the crime was committed The right to be informed of the charges against the accused The right to confront witnesses against the accused The right to a compulsory process to obtain witnesses in favor of the accused The right of the accused to defense counsel

Note: For most of U.S. history, the guarantees

listed in Table 2.1 applied only to the federal government’s power and actions. But in

a series of SCOTUS cases in the 1960s, the Court decided that most of the criminal

procedure rights apply to state and local governments, too.

Criminal Procedure Protections
in the Bill of Rights (slide 1 of 2)

Eighth Amendment	The right against excessive bail The right against excessive fines The right against cruel and unusual punishment
Fourteenth Amendment	The right to due process of law in state criminal proceedings The right to equal protection of the law in state criminal proceedings

Note: For most of U.S. history, the guarantees

listed in Table 2.1 applied only to the federal government’s power and actions. But in

a series of SCOTUS cases in the 1960s, the Court decided that most of the criminal

procedure rights apply to state and local governments, too.

The U.S. Constitution and the Courts

The supremacy clause and judicial review together establish that criminal procedure has to answer to the U.S. Constitution.
All courts can interpret the Constitution, but SCOTUS has the final word.
SCOTUS decisions bind all other courts.
States’ rules cannot violate the U.S. Constitution.

Precedent and Stare Decisis

Prior decisions are called precedent
Firmly entrenched doctrine called stare decisis commands judges to follow their precedents

State Courts as a Source of Criminal Procedure Law

State courts are a source of criminal procedural law in two types of cases:
Those involving the U.S. Constitution that SCOTUS hasn’t decided yet.
Those involving their own state constitutions.

Constitutional Balancing Approach

The balancing approach stimulated judicial decision making and academic writing to focus on two empirical questions:

How effective are these practices in controlling crime?

What is their effect on individual liberty and privacy?

Discuss

In light of events of terrorism around the world which is currently more important to students: crime control or individual liberty? How does the current social environment affect the priority we, as a society, place on either side of this controversy?

Accuracy of Determining Guilt or Innocence

The criminal justice system is operated by people, namely “witnesses, detectives, suspects, lawyers, judges, and jurors.”
These people’s “memories, recognitions, assessments, inferences, social influence, and decisions, all tied in with moral judgments, and emotions, and motivations turn the wheels of the system.”

—Dan Simon, In Doubt (2012)

Note: What are some faulty system explanations? Too much plea bargaining, prosecutors discretion, infrequent jury trials

Dualistic Nature of the Supreme Court

The will of the people refers to the power the people to create laws, while the ancient concept of fundamental law places limits on that power. To uphold these contradictory ideas, SCOTUS must shape its decisions with the public good in mind.

State Constitutions and State Courts

Every state constitution guarantees its citizens parallel rights—rights similar to those in the U.S. Constitution and Bill of Rights.
States can raise the minimum standards of rights set by SCOTUS but cannot reduce rights below that standard.

Note: What are some examples of parallel rights? Every state constitution guarantees its citizens rights parallel to those in the U.S. Constitution,such as the rights against self-incrimination and unreasonable searches and seizures. State constitutions can increase criminal procedure rights but can’t reduce them below the

federal minimum defined by the U.S. Supreme Court. State courts are the final authority in

cases based on their own constitutions and statutes, but cases involving the U.S. Constitution

that the Supreme Court hasn’t decided yet can be appealed to federal courts.

Due Process of Law

While the 14th Amendment was adopted in the aftermath of the Civil War, its power greatly expanded during the 1960s “due process revolution.”
According to the 14th Amendment, states must provide due process and equal protection of the law.
Procedural due process means “fair process.”
Due process guarantees fair procedures for deciding cases.

The Fundamental Fairness Doctrine

Powell v. Alabama and Brown v. Mississippi established the fundamental fairness doctrine. According to this, states must provide two basics of a fair trial:

Notice to defendants of the charges against them.

A hearing on the facts before convicting and punishing defendants.

The Incorporation Doctrine

By the 1960s, the majority of the Court came to reject the fundamental fairness doctrine, favoring instead the incorporation doctrine.
This defined 14th Amendment due process as applying specific provisions of the Bill of Rights to state criminal procedures.
Fundamental fairness doctrine focused on general fairness, while incorporation focused on specific procedures.

Bill of Rights Provisions Incorporated (as of 2007)

The Bill of Rights Provision	Case
Unreasonable searches and seizures	Wolf v. Colorado (1949)
Exclusionary rule applied to state searches and seizures	Mapp v. Ohio (1961)
Self-incrimination	Malloy v. Hogan (1964)
Assistance of counsel	Gideon v. Wainwright (1963)
Confront witnesses against the accused	Pointer v. Texas (1965)
Compulsory process to obtain witnesses	Washington v. Texas (1967)
Speedy trial	Klopfer v. North Carolina (1967)
Cruel and unusual punishment	Robinson v. California (1962)

Equal Protection of the Law

A constitutional command since 1868, equal protection protects people from being investigated, apprehended, convicted, and punished unreasonably.
This is not the same as saying everyone must be treated exactly alike—but the treatment must always be reasonable.

Violating Equal Protection of the Law

To claim a violation of equal protections, defendants must prove two things:
Discriminatory effect—The official action was based on race or some other group identity.
Discriminatory purpose—The named official in the group intended to discriminate against the named individual because of race or some other group identity.

Anatomy of a case summary

Understand and differentiate the two components of case facts: (a) the government official acts that the defendant claim violated the Constitution, and (b) the objective basis or facts and circumstances that back up the government actions.

Title
Citation
Procedural History
Judge
Constitutional Question
Judgment (disposition)- affirmed, reversed, remanded
Court Opinion- holding + reasoning (majority opinion, concurring opinion, plurality opinion, dissenting opinion)