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CP – Lesson One

CP – Lesson One. Balancing Order and Freedom The American Court System The Criminal Justice Process Constitutional Rights and Incorporation Cases Powell v. Alabama Palko v. Connecticut Rochin v. California Duncan v. Lousiana. Balancing Order and Freedom.

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CP – Lesson One

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  1. CP – Lesson One • Balancing Order and Freedom • The American Court System • The Criminal Justice Process • Constitutional Rights and Incorporation • Cases • Powell v. Alabama • Palko v. Connecticut • Rochin v. California • Duncan v. Lousiana

  2. Balancing Order and Freedom • The Federalist on government and citizens: • “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.”

  3. Balancing Order and Freedom, continued… • Related conflict between means and ends • Sporting theory of justice • Related Principle – Facts & Objectivity • Intrusion goes up, then proof requirement increases • Adversary System • Method of ascertaining the truth within the bounds of fairness and freedom from oppression • As opposed to Inquisitorial system used in other countries

  4. The American Court System • Dual Court system – Federal and State Courts • Federal Courts • Supreme Court • Courts of Appeals • District Courts • State Court systems • Appeals and Stare Decisis

  5. Investigation Arrest Booking Charging Initial Appearance Preliminary Hearing and/or Grand Jury Information or indictment Arraignment Pretrial Motions Trial Sentencing Appeal Criminal Justice Process

  6. Brief History of Criminal Procedure • Magna Carta – England 13th Century • Forced on King John • Watershed event in Western Civilization • Established Rule of Law & basic protections • American Colonial Experience • Hatred of British General Writs • Unbounded power of Monarchy • Revolutionary War

  7. U.S. Constitution • Doesn’t Address citizens’ rights directly • Added later in first 10 amendments (i.e. Bill of Rights) • For criminal procedure purposes, we are primarily interested in 4th, 5th, 6th, and 8th Amendment rights (but others may also be involved, e.g. 1st )

  8. Amendments in Detail • Fourth Amendment - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  9. Amendments in Detail, cont. • Fifth Amendment - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  10. Amendments in Detail, cont. • Sixth Amendment - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

  11. Amendments in Detail, cont. • Eighth Amendment - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

  12. Bill of Rights Civil War 14th Amendment Incorporation

  13. Incorporating the Bill of Rights • 14th Amendment Due Process… • … Nor shall any State deprive any person of life, liberty, or property, without due process of law … • Cases • Powell v. Alabama (1932) • Palko v. Connecticut (1937) • Rochin v. California (1952) • Duncan v. Louisiana (1968)

  14. Recapping Approaches to Incorporation • Fundamental Rights • The DP Clause has independent potency • Total Incorporation • DP Clause incorporates all of BOR, nothing more, nothing less • Total Incorporation Plus = total+fundamental • Selective Incorporation • Once a BOR is deemed fundamental, every feature of the federal right applies to states

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