Chapter 2
The Sources of Criminal Procedure
Sources
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U.S. Constitution
U.S. Supreme Court
State constitutions
State appellate court decisions
Federal statutes
State statutes
Rules of Procedure
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Federal rules
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steps in the process of the federal system
discussed and regularly amended by the Judicial
Conference of United States Courts
have the force of law
State rules
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similar to federal
Model Code
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American Law Institute (ALI)
Model Code of Pre-Arraignment Procedure
United States Attorney’s Manual of the
Department of Justice
American Bar Association - Standards for
Criminal Justice
Development of Due Process
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Nationalization
Constitutionalization
Fourteenth Amendment Due Process Clause
Debate over the issue
Fourteenth Amendment
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Justice John Marshall vs. Professor Erwin
Chemerinsky
Slavery and the Civil War
Fundamental fairness
Total incorporation and total incorporation
plus
Selective incorporation
Fundamental Fairness
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States free to conduct criminal trials so long
as the procedures are consistent with
fundamental fairness
States can prosecute individuals without being
bound to the same procedures as the federal
government
Freestanding due process approach
Hurtado v. California
Fundamental Fairness (cont.)
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Major cases and events
Fundamental rights
Bill of Rights
Legal test
Procedures
Rochin v. California
Total Incorporation
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Fundamental rights
Justice Black dissenting in Adamson v.
California
Total incorporation plus
Three steps:
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due process
bill of rights
incorporation
Selective Incorporation
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Rights essential to liberty
Selective incorporation plus
Malloy v. Hogan
Three elements
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fundamental rights
application
federalism
Elements of the following Amendments have not
been incorporated
Duncan v. Louisiana
Equal Protection
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Thirteenth Amendment
Fourteenth Amendment
Bolling v. Sharpe
The Equal Protection Clause
Presumption of regularity
Arbitrary classification are unconstitutional
Selective prosecution
Strict scrutiny
Impact of S.C. Decisions
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Retroactivity
New rule
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trial
appeals
habeas corpus
U.S. Supreme Court decisions must filter down
through the lower courts
Desired Components of the System
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Efficiency
Accuracy
Fairness
Equality
Two Models of Procedure
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Crime control
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assembly line model
emphasis on repression of crime
Due process
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stresses the importance of citizens’ rights
better the guilty to free than innocents convicted
Why Procedures Matter
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Perception of justice is important
Tyler’s four factors
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voice
neutrality
respect
trust
Importance of legitimacy