Criminal Procedure for the Criminal Justice Professional 10th Edition

1. Criminal Procedure for the Criminal Justice Professional 10th Edition John N. Ferdico Henry F. Fradella Christopher Totten

2. Individual Rights Under the United States Constitution Chapter 1

3. Criminal Procedure as the Balance Between Due Process and Crime Control

4. The Need for Balance One of the biggest challenges for the criminal justice system is to keep its competing notions of due process and crime control in balance. The law of criminal procedure is designed to balance the important governmental functions of maintaining law and order and protecting the rights of citizens.

5. Herbert Packer’s Crime Control vs. Due Process Models

6. Shifting the Balance Over Time The criminal justice system has had different emphases at different times. First half of 20th century—crime control Urbanization, immigration, industrialization Increased diversity 1960s—due process revolution Civil rights era Social consciousness & equal justice Nixon era to present—tough of crime War on drugs War on terror

7. A Brief History of the Constitution

8. The Law of England English common law gave procedural protections to the criminally accused, including: The right to have adequate notice of what is prohibited by law before being punished for violating law; The right to a fair trial; and The protection of property or possessions These guarantees were not always honored.

9. Drafting a New Constitution In light of their experience with governmental tyranny, the Founding Fathers of the United States had a strong commitment to the protection of individual rights from governmental abuse. This commitment was embodied in the original Constitution of 1788 and in the Bill of Rights, adopted shortly thereafter.

10. The Original Constitution The Constitution of 1789 has served as the fundamental instrument of our government for almost all of our country's history. The original Constitution of the United States is divided into seven parts—a preamble and six articles. Each article addresses a different topic relevant to the structure and operations of government.

11. 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.

12. 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).

13. Individual Rights in the Original Constitution

14. Habeas Corpus Article I, Section 9, Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. This guarantee enables a person whose freedom has been restrained in some way to petition a federal court for a writ of habeas corpus to test whether the restraint violates the Constitution or laws of the United States.

15. Bills of Attainder 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. . . . A bill of attainder is a special act of a legislature declaring that a person or group of persons has committed a crime and imposing punishment without a court trial.

16. Ex Post Facto Laws Article I, Section 9, Clause 3: No . . . ex post facto Law shall be passed [by the federal government]. Article I, Section 10, Clause 1: No state shall . . . pass any . . . ex post facto Law. . . . These two clauses prohibit the states and the federal government from enacting any ex post facto law, literally a law passed "after the fact."

17. Trial Rights 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. Article III, Section 1, of the Constitution outlines the structure and power of our federal court system and establishes a federal judiciary. Article III, Section 2, guarantees that the trial of all federal crimes, except impeachment, will be by jury.

18. Conviction for Treason Article III, Section 3: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. Treason is the only crime defined by the Constitution.

19. Individual Rights in the Bill of Rights

20. Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

21. 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.

22. Amendment II A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

23. 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.

24. Amendment III No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

25. 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.

26. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

27. Fourth Amendment Guarantees The Fourth Amendment protects people and their property from unreasonable searches and seizures by governmental officers.

28. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

29. 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.

30. 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.

31. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

32. 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.

33. Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re- examined in any Court of the United States, than according to the rules of the common law.

34. 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.

35. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

36. 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.

37. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

38. 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.

39. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

40. 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.

41. Later Amendments Dealing withIndividual Rights and Liberties

42. Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.

43. Thirteenth Amendment Guarantees Prohibits slavery. Prohibits certain state laws that had the effect of jailing debtors who did not perform their financial obligations.

44. Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . . Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

45. 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.

46. Standards of Judicial Review for Equal Protection Clause Litigation

47. Amendments Protecting Voting Rights

48. Amendment XV Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

49. Amendment XIX Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Section 2. Congress shall have power to enforce this article by appropriate legislation.

50. Amendment XXVI Section 1. The right of citizens of the United States, who are eighteen years or older, to vote shall not be denied or abridged by the United States or any State on account of age. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

51. Amendments XV, XIX, and XXVI Together these three amendments ensure the right to vote. May not be denied to any citizen over the age of eighteen because of race, color, previous condition of servitude, or gender. The Twenty-Sixth Amendment lowered the voting age for all elections from twenty-one to eighteen years of age. These amendments, together with the Fifth and Fourteenth, prohibit any arbitrary attempt to disenfranchise any American citizen.

52. Amendment XXIV Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. Section 2. The Congress shall have power to enforce this article by appropriate legislation.