Procedural Criminal Law: Due Process and the Constitution
Procedural Criminal Law
Procedural criminal law governs the enforcement of criminal law, including rules of procedure.
Examples: Miranda warnings, stop and frisk, reasonable search and seizure.
Contrast with substantive criminal law.
Substantive criminal law defines the specific elements of crimes that must be proved to establish guilt.
The U.S. Constitution focuses more on procedure.
States have "police powers" to define substantive criminal laws.
However, state governments must follow constitutional procedure.
The focus is on how the government investigates, tries, and punishes crime, emphasizing procedure over the substance of the conduct.
Crime Control Versus Due Process
Balancing public safety and security with individual liberty, privacy, and autonomy is key to criminal procedure.
Due process constrains how the government executes its crime control functions.
Packer’s Two Models of Criminal Justice
Two models of the criminal process:
One emphasizes efficiency in suppressing crime.
The other prioritizes protecting individuals from the state.
Errors will occur in any criminal justice system.
False positives: convicting the innocent.
False negatives: failing to convict the guilty.
Wrongful convictions are considered the greater evil.
Blackstone’s ratio (1760):
"It is better that ten guilty persons go free than that one innocent suffer."
Benjamin Franklin modified it to 100/1.
Constitutionalism
Constitutional rules provide fundamental law.
This concept dates back to the idea that some laws are higher than ordinary law (e.g., religious law, natural law).
A constitution limits what lawmakers can do.
Even the majority cannot overrule constitutional rules.
Changing constitutional rules typically requires “direct action of the whole people”.
In practice, it requires a supermajority to amend (3/4 of states in the U.S.).
The U.S. Constitution consists of two main parts:
Constitution: Articles 1–7.
Provides enumerated, limited powers of the legislative, executive, and judicial branches of the federal government.
Ratified in 1788.
Amendments to the Constitution: 27 amendments added from 1791 to 1992.
First 10 amendments are called the “Bill of Rights”.
Ratified in 1791.
Federalism
The United States operates under a federal system.
This involves the separation of powers between the national (federal) system and state systems.
States have police power.
The federal government has limited, enumerated powers.
States have broad powers to pass laws (i.e., police powers).
There are 52 separate criminal codes (statutory law).
50 state codes + D.C. code + federal code.
States can define crimes and defenses differently and have different levels of punishment.
U.S. Constitution and Criminal Procedure
Article VI of the Constitution contains the “supremacy clause”.
"This Constitution…shall be the supreme law of the land; and the judges in every state shall be bound thereby…".
State and federal laws, including criminal procedure, must not violate the Constitution.
Judicial review
The judicial branch interprets whether ordinary laws violate the “supreme law of the land”.
SCOTUS has the final say on the interpretation of criminal procedure rights.
Criminal Procedure in Bill of Rights
Fourth Amendment
Right to be free from unreasonable searches.
Right to be free from unreasonable seizures.
Right to probable cause for warrants.
Fifth Amendment
Right to grand jury indictment (federal only).
Right against double jeopardy.
Right to due process (federal only).
Right against self-incrimination.
Sixth Amendment
Right to a speedy trial.
Right to a public trial.
Right to an impartial jury.
Right to a jury of peers (i.e., local).
Right to notice of charges against accused.
Right to confront witnesses against accused.
Right to compulsory process to obtain witnesses in favor of accused.
Right to defense counsel.
Eighth Amendment
Right against excessive bail.
Right against excessive fines.
Right against cruel and unusual punishments.
Fourteenth Amendment
Right to due process of law in state proceedings.
Right to equal protection of law in state proceedings.
Right to privileges or immunities of U.S. citizens.
History of U.S. Criminal Procedure
Prior to the Civil War, the Bill of Rights only applied to the federal government.
State governments had exclusive police powers to pass criminal laws and operate the criminal justice system.
Substantive and procedural criminal law were purely local.
After the Civil War ended in 1865, three amendments were added to the Constitution.
These “reconstruction amendments” radically changed our constitutional system.
Reconstruction Amendments
13th Amendment (1865)
Abolished slavery and involuntary servitude, except as punishment for a crime.
14th Amendment (1868)
Established citizenship for those born or naturalized in the U.S.
Prohibits states from abridging the privileges or immunities of citizens.
Guarantees due process and equal protection of the laws.
15th Amendment (1870)
Prohibits denying or abridging the right to vote based on race, color, or previous condition of servitude.
Due Process of Law
Fundamental fairness doctrine
Hurtado v. California (1884) held that “due process” means “fundamentally fair procedures”.
Criminal justice remains a state matter, and the federal Bill of Rights does not apply directly.
Fundamental fairness is “less rigid and more fluid” than specific Bill of Rights.
Due process requires that states:
(1) Provide notice of charges to criminal defendants.
(2) Provide a hearing on the facts before convicting and punishing criminal defendants.
Incorporation doctrine
“Due process” means that states cannot violate the Bill of Rights.
By the 1960s, the majority of SCOTUS adopted the incorporation perspective.
Major Incorporation Cases
No unreasonable searches and seizures (Fourth Amendment)
Wolf v. Colorado (1949)
Exclusionary rule
Mapp v. Ohio (1961)
Right against self-incrimination (Fifth Amendment)
Malloy v. Hogan (1964)
Right to assistance of counsel (Sixth Amendment)
Gideon v. Wainwright (1963)
Right to confront witnesses (Sixth Amendment)
Pointer v. Texas (1965)
Compulsory process to obtain witnesses (Sixth Amendment)
Washington v. Texas (1967)
Right to speedy trial (Sixth Amendment)
Klopfer v. North Carolina (1967)
Right against cruel and unusual punishment (Eighth Amendment)
Robinson v. California (1962)
Equal Protection of the Law
“No state shall…deny to any person within its jurisdiction the equal protection of the laws.”
Originally, equal protection was intended to protect former slaves from mob violence in the South.
SCOTUS cases in the late 19th century limited equal protection claims to discrimination by the government.
Selective Prosecution
The decision to prosecute cannot be discriminatory.
Prosecutors who prosecute some defendants but not others based on group characteristics (e.g., race/ethnicity) violate the Equal Protection Clause.
How to prove selective prosecution (i.e., discrimination)?
“The claimant must demonstrate that the federal prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose’.”
Claimants must prove:
(1) Discriminatory effect (i.e., disparate impact).
Are similarly situated defendants treated differently according to some group characteristic?
(2) Discriminatory purpose.
Must show that the prosecutor selected the defendant based on group characteristics.
Presumption of regularity
Government actions are presumed lawful unless clear evidence to the contrary.
Claimants have the burden to prove they were denied equal protection of the laws.
Case Briefing
Facts
What happened in this case? What are underlying facts that gave rise to the case?
Legal issue
What is being appealed? What is the legal issue?
Holding
What is the decision of the appellate court? Did they reverse the lower court decision or affirm it?
Reasoning
What is the reasoning behind the holding of the majority opinion?
Are there any dissents? Concurring opinions?
Precedent and Stare Decisis
Precedent
Prior appellate opinions by the same (or higher) court about the same legal question.
Stare decisis
Ancient legal doctrine that courts will follow precedent.
Unless it is clearly egregious.
Appellate judges deciding issues of criminal procedure are guided by the text of the Constitution (e.g., Bill of Rights) as well as precedent.
Court opinions will often distinguish from relevant precedent
How is the present case similar and different from past cases involving the same legal question?
In this way, constitutional law evolves over time…
Court System
U.S. Supreme Court
U.S. Federal Court of Appeals (13 Circuits)
U.S. Federal District Court (94 Courts)
Highest State Court of Appeals (51)
State Appeals Courts
State Trial Courts
"Police powers" refer to the powers that states have to enact laws and regulations to promote public health, safety, and welfare. This includes the authority to define substantive criminal laws, which determine what constitutes a crime and the appropriate punishments for those crimes. States must exercise these powers while still adhering to constitutional procedures.
Analogies and Visuals for Remembering Key Concepts
Procedural vs. Substantive Criminal Law
Analogy: Think of procedural law as the rules of a game (like a referee's guidelines) while substantive law is the actual game (like the players and the score). The rules (procedure) ensure fair play, while the game (substance) determines who wins or loses.
Police Powers
Visual: Imagine a police officer standing at a boundary of a city. This officer symbolizes the state's authority (police powers) to protect its residents by defining laws.
Crime Control vs. Due Process
Analogy: Picture a scale. On one side, you have the safety of the community (Crime Control). On the other, you have individual rights and freedoms (Due Process). The balance between the two is crucial, just like ensuring neither side tips over.
Blackstone's Ratio
Visual: Visualize a courtroom with ten guilty people on one side and one innocent person on the other, with a scale. The scale tipping towards the innocent person illustrates the philosophy that protecting the innocent is more important than convicting all guilty offenders.
Constitution and Amendments
Visual: Think of the Constitution as a blueprint for a building. The amendments are like renovations or updates that improve the structure while still keeping the original design.
Incorporation Doctrine
Analogy: Imagine making a cake (the Bill of Rights) and then decorating it (Incorporation). The cake remains the same, but the decorations (application of rights in states) enhance and add to it without changing the fundamental recipe.
Case Briefing
Visual: Imagine a filing cabinet where each drawer represents a different case. The facts, legal issues, holding, and reasoning of each case are like neatly labeled folders inside each drawer for easy retrieval and review.
Analogies and Visuals for Remembering Key Concepts
Procedural vs. Substantive Criminal Law
Analogy: Think of procedural law as the rules of a game (like a referee's guidelines) while substantive law is the actual game (like the players and the score). The rules (procedure) ensure fair play, while the game (substance) determines who wins or loses.
Police Powers
Visual: Imagine a police officer standing at a boundary of a city. This officer symbolizes the state's authority (police powers) to protect its residents by defining laws.
Crime Control vs. Due Process
Analogy: Picture a scale. On one side, you have the safety of the community (Crime Control). On the other, you have individual rights and freedoms (Due Process). The balance between the two is crucial, just like ensuring neither side tips over.
Blackstone's Ratio
Visual: Visualize a courtroom with ten guilty people on one side and one innocent person on the other, with a scale. The scale tipping towards the innocent person illustrates the philosophy that protecting the innocent is more important than convicting all guilty offenders.
Constitution and Amendments
Visual: Think of the Constitution as a blueprint for a building. The amendments are like renovations or updates that improve the structure while still keeping the original design.
Incorporation Doctrine
Analogy: Imagine making a cake (the Bill of Rights) and then decorating it (Incorporation). The cake remains the same, but the decorations (application of rights in states) enhance and add to it without changing the fundamental recipe.
Case Briefing
Visual: Imagine a filing cabinet where each drawer represents a different case. The facts, legal issues, holding, and reasoning of each case are like neatly labeled folders inside each drawer for easy retrieval and review.