Criminal Procedure. 8 th Edition Joel Samaha. Wadsworth Publishing

Transcription

1 Criminal Procedure 8 th Edition Joel Samaha Wadsworth Publishing

2 Crime Control in a Constitutional Democracy Chapter 1

3 Constitutional Democracy We live in a constitutional democracy, where neither a single dictator nor an overwhelming majority of the people has total power. A majority of elected representatives have wide latitude to create criminal laws, but in enforcing the criminal law, officials are much more restricted by the law of criminal procedure.

4 Balancing Values in Constitutional Democracy Our constitutional democracy balances the need to provide for the public s safety and security against other equally important values individual liberty, privacy, and dignity. Weighed on one side of the balance is the amount of government power needed to control crime for everybody s safety and security. Weighed on the other side is the amount of control individuals have over their own lives.

5 The Pendulum It has been argued that the history of criminal justice in the Western world has been like a pendulum swinging back and forth between periods of result and process alternately holding the upper hand. When one becomes excessive, the pendulum swings back toward the other.

6 EQUALITY Most of the history of criminal procedure, especially state criminal procedure since the Civil War, developed in response to racial discrimination. However, equal justice under law also deals with equality in class, gender, ethnicity, religion and sexual orientation.

7 The Bill of Rights as a Code of Criminal Procedure The Bill of Rights limits the power of the government to enforce criminal law by guaranteeing the fair and equal administration of criminal justice to everybody, including criminal suspects, defendants, and convicted offenders.

8 The Fourteenth Amendment Two clauses in the Fourteenth Amendment to the U.S. Constitution guarantee fairness and equality. Due process of the law Equal protection of the laws

9 Balancing Values in Criminal Procedure At the heart of our constitutional democracy is the difficult task of balancing values: Community security vs. individual autonomy Ends vs. means

10 Community Security and Individual Autonomy The objective of community security is the feeling of safety in the community. The objective of individual autonomy is being able to control one s own life. Community security and individual autonomy are equally important. Striking balance is difficult and doesn t satisfy everyone. Balance is flexible, falling within a zone.

11 Ends and Means The balance between ends and means is like a balance between results and process. Ends the search for the truth to obtain the correct result in individual cases Catching, convicting, and punishing the guilty Freeing, as soon as possible, innocent people Means the commitment to fairness in dealing with suspects, defendants, and offenders

12 The History of Balancing Values Throughout the history of criminal justice, the pendulum has swung between periods of result and process. When there was an excess of one, the pendulum swung back to the other. In the 1960s The Warren Court tilted the balance toward process and individual rights in what came to be known as the due process revolution. From the late 1960s to today, the pendulum is swinging back to result.

13 Balancing Values in Emergencies The balance between community security and individual autonomy and between ends and means has been tested during emergencies, especially the wars on drugs and terror.

14 Equality Most of the history of criminal procedure, especially state criminal procedure since the Civil War, developed in response to racial discrimination. The search for justice also targets class, gender, ethnic, religious, and economic discrimination.

15 Discretion Understanding the importance of discretion is key to understanding the values in our society along with equality. Discretion and law compliment each other in promoting and balancing interests. Criminal process is a blend of formal law and informal influences.

16 Decision Making There are two types of decision making: 1. Formal decision making according to the law of criminal procedure 2. Discretionary decision making informally made by professionals based on their training and experience and unwritten rules. Each step of the criminal justice process presents an opportunity to make judgment.

17 The Objective Basis Requirement Agents of crime control aren t free to do whatever they please. The objective basis requirement maintains: That every officially-triggered government restraint on the rights of individuals has to be backed up with facts. The greater the limit, the more facts required to back it up (graduated objective basis requirement).

18 Good Evidence and Bad Methods The exclusionary rule forces courts to throw out good evidence if the government got it by bad methods.

19 Social Scientific Research and Criminal Procedure In 2009, two law professors wrote an article calling for a new generation of criminal procedure, one that places empirical and social scientific evidence at the very heart of judicial decision making. The goal is to make criminal procedure decisions and decision-making more transparent.

20 Briefing a case helps you better understand its importance. The parts of the brief are: 1. Title 2. Citation 3. History 4. Judge 5. Facts 6. Constitutional (legal) issue 7. Judgment (disposition) of case 8. Court Opinion Briefing a Case

21 Precedent and Stare Decisis Precedent is what prior cases are called, giving courts their reasons for more recent cases. Prior cases are followed under the doctrine known as stare decisis, which binds judges to follow precedent. BUT, judges are only required to follow stare decisis from higher courts within their own jurisdiction.