Criminal Procedure for the
Criminal Justice Professional
11th Edition
John N. Ferdico
Henry F. Fradella
Christopher Totten
Individual Rights Under the United
States Constitution
Chapter 1
Prepared by Tony Wolusky
Herbert Packer’s Crime Control vs. Due Process Models
Due Process Model
Crime Control Model
Primary Goal: Protection of the innocent;
limiting governmental power.
Primary Goal: Apprehension, conviction,
and punishment of offenders.
Focus: Due process; respect of
individual rights.
Focus: Crime Control; repression of
criminal conduct.
Mood: Skepticism
Mood: Certainty
“Obstacle Court Justice”—presents
numerous obstacles to prevent errors
and wrongful convictions.
“Assembly-Line Justice”—processes
cases quickly and efficiently to promote
finality of convictions.
Concerned with legal guilt—the
assumption that someone is innocent
until proven guilty beyond a reasonable
doubt. Relies on formal, adjudicative,
adversary fact-finding processes.
Concerned with factual guilt—assumes
that someone arrested and charged is
probably guilty. Relies on informal, nonadjudicative fact-finding—primarily by
police and prosecutors.
Dignity and autonomy of both the
accused and the system are to be
preserved.
Expedition processing of offenders to
achieve justice for victims and society as
a whole.
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."
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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.
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.
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Originally applied only to acts of the federal government.
Many rights extended to states with the Fourteenth
Amendment (1868).
Habeas Corpus, Bills of Attainder, Ex
Post Facto Laws and Trial Rights
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.
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. . . .
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. . . .
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.
Trial Rights
The majority of due process rights are implemented during
the criminal trial and include the right to confront
witnesses, jury trial, right to counsel, self representation,
speedy trial, and a fair trial. Which do you think is the
most important? Why?
When it comes to the right of self representation, Supreme
Court requires the person show they have competence,
knowledge, and intelligence to waive their right to
counsel. Do you think this is an unfair limitation on a
person’s right to defend themselves? Why or why not?
Trial Rights
Insert video on trial rights found at
http://www.wadsworthmedia.com/cj/cjsystem/cjsyst
em_trial.swf
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.
First Amendment Guarantees

Freedoms of Speech, Expression, and
Peaceable Assembly

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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.
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.
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.
Fourth Amendment Guarantees

The Fourth Amendment protects people and
their property from unreasonable searches
and seizures by governmental officers.
Fifth Amendment Guarantees

Indictment by grand jury
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Freedom from double jeopardy

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Before a person is tried in federal court for an infamous
crime, he or she must first be indicted by a grand jury.
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.
Fifth Amendment Guarantees Con’t.

The right to due process

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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.
Sixth Amendment Guarantees

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Right to a speedy and public trial
Right to trial by an impartial jury
Right to notice of charges
Right to confrontation of witness

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Guarantee of compulsory process

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Through face-to-face witness testimony and an opportunity
for cross-examination.
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.
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.
Eighth Amendment Guarantees

No excessive bail

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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.
Amendment VIII
Traditionally, a person must provide money to
support release on bail. Some have argued
that this is unfair to indigent people accused
of a crime. What do you think?
Under many state constitutions, when a capital
offense such as murder is charged, bail may
be denied altogether if “the proof is evident
or the presumption great.” Is this consistent
with the Eighth Amendment?
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.
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.
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.