The Law of Criminal Procedure

Criminal Procedure
8th Edition
Joel Samaha
Wadsworth Publishing
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.

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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.
Constitutions
Constitutions have six characteristics:
1.
2.
3.
4.
5.
6.
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.
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:

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Detect and investigate crimes
Apprehend suspects
Prosecute and convict defendants
Punish criminals
The Law of Criminal Procedure
Equally important are the rules
generated by the U.S. Supreme Court
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.
Criminal Procedure Provisions
and the Constitution
Most criminal procedure provisions are
found in the following amendments to the
U.S. Constitution:

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Fourth
Fifth
Sixth
Eighth
Fourteenth
Criminal Procedure Protections in the Bill of Rights
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
The
The
The
right
right
right
right
Sixth
Amendment
The
The
The
The
right to a speedy trial
right to a public trial
right to an impartial jury
right to have a jury made up of persons from the state and district where
the crime was committed
right to be informed of the charges against the accused
right to confront witnesses against the accused
right to a compulsory process to obtain witnesses in favor of the accused
right of the accused to defense counsel
The
The
The
The
to grand jury indictment in federal cases
against double jeopardy
to due process in federal cases
against self-incrimination
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
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.
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All courts can interpret the Constitution, but the
U.S. Supreme Court has the final word.
U.S. Supreme Court decisions bind all other
courts.
States’ rules cannot violate the U.S. Constitution.
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 the U.S. Supreme court but
cannot reduce rights below that standard.
Raising Constitutional Standards
The Oregon appellate court gave students more
rights against search and seizure in schools than
the 4th Amendment does in a case called Oregon
v. M.A.D. in 2008 where a student had been
searched and the principal found marijuana on
his person.
The court stated searches under the Oregon
Constitution do not depend on the privacy that
one expects from the government [as in the 4th
Amendment], but on the privacy that one has a
right to expect from the government.”
(Emphasis added).
State Courts as a Source of
Criminal Procedure Law
State courts are a source of criminal
procedural law in two types of cases:
1.
2.
Those involving the U.S. Constitution that the
U.S. Supreme Court hasn’t decided yet.
Those involving their own state constitutions.
Due Process of Law
While the 14th Amendment was adopted in
the aftermath of the Civil War, its power
greatly expanded during the “due process
revolution” in the 1960s.
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.

Hurtado and Charging by
Information
Hurtado v. California (1884)—the defendant
Joseph Hurtado was indicted in a murder
case without being charged by a grand jury.
Hurtado argued that charging by information was
unconstitutional under the 14th and 5th
Amendments.
 The court rejected his argument (but later adopted
the view in the 1960s, adopting the view of Justice
John Marshall Harlan, the lone dissenter in
Hurtado).
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The “Scottsboro Boys,” Due Process of
Law, and The Right to Counsel
Powell v. Alabama (1932)—nine black
defendants, “the Scottsboro boys,” were
charged with raping two white girls.
With an alcoholic defense attorney, 8 were tried,
convicted, and sentenced to death in a span of
four days.
 The Alabama Supreme Court upheld the
convictions, but the U.S. Supreme Court later
overturned them because the defendants were
denied due process of law.

Brown v. Mississippi, Due Process,
and Coerced Confessions
Brown v. Mississippi (1936)—three black
men were severely and repeatedly beaten
until they confessed to killing a white man.
After a one day trial, all three were convicted and
sentenced to death.
 The Mississippi Supreme Court affirmed the
convictions.
 The U.S. Supreme Court reversed the convictions,
ruling that the confessions were anything but
voluntary.

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:
1.
2.
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:
1.
2.
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.