CHAPTER ONE
PREVIEW OF CRIMINAL PROCEDURE IN THE AGE OF THE
DIGITAL REVOLUTION
Learning Objectives
After studying this chapter, students should be able to:
2. Know, understand, and appreciate the five ideals of criminal procedure in the Digital
Age.
3. Appreciate the balancing ideal as it is applied to the real world of criminal procedure.
Lesson Plan
I. Welcome to Criminal Procedure 10!
Learning Objective 1: Understand the read-about–talk-about– write-about approach to
“interrogating” criminal procedure in the Digital Age.
A. Criminal Procedure Snapshots, 2014-2016
2. Paris, France ISIS attack, November 13, 2015.
2016.
5. Picture of the Digital Age. (table provided)
6. Apple, Inc. A Letter to Our Customers, February 16, 2016.
B. Criminal Procedure Ideals in the Real World
2. Proportionality – Using no more state power and resources than are needed to
3. Equal justice – Impartial treatment of innocent and guilty individuals by law
enforcement, prosecutors, and judges
4. Accuracy – Avoiding “errors of justice”
5. Evidence-based decision making – relies on two types of evidence
a. Legal evidence
b. Empirical evidence – Basic research and policy research
Class Discussion/Activity
Discuss with students the differences between the different criminal
procedure ideals presented in the text. Ask students what they know about
these different ideals. Students can write briefly what they know about
these ideals and then have them compare their thoughts before they read
about them to what they learn through the text.
II. U.S. v. Apple
Learning Objective 3: Appreciate the balancing ideal as it is applied to the real world of
criminal procedure.
Class Discussion/Activity
Discuss with students the importance of balancing community safety and
individual autonomy. Ask them which is more important to them. Relate
the discussion to issues such as terrorism and the PATRIOT Act.
3
4
5
6
What If Scenario
What if your state decided to implement a law that allowed all persons to be stopped
at any time to determine if they were legal citizens of the United States? The state
legislature is responding to a threat by a terrorist organization to bomb the capitol
building. How would you respond to such a law? What would the Supreme Court
say about such a law?
A. U.S. v Apple, Inc. (2016) – The “balancing” ideal is explored through an extensive
study of this current case.
1. Fred Kaplan described it as “a fight to the finish over lofty principles and national
2. The FBI, NSA, etc., maintain that if Apple wins, the fight against terrorists and other
criminals is threatened.
B. The Case Enters the Criminal Process
2. FBI Motion to Compel Apple to Comply
C. The March 22 hearing on these “brilliantly argued motions” did not take place
2. Balancing community security and public safety on one side and individual
privacy on the other in the rapidly growing and changing technology of the
digital age is a huge challenge.
Lecture Notes
At the heart of our constitutional democracy is balancing the safety and security of the whole
community and individual autonomy, consisting of life, liberty, property, privacy, and dignity.
Because both crime control and the right of individuals to control their own lives are highly
valued in our society, striking the balance is often difficult. On one side is the need to give
government enough power to control crime. On the other side is allowing individuals the ability
to control their lives without government interference. The balance between crime control and
individual autonomy is also flexible, particularly during emergencies. The right balance is not an
exact point, but rather it falls within a zone between total control and total freedom. The quality
of life in our constitutional democracy also depends on another balance—between ends (result)
and means (process). The result is the search for truth to obtain the “right” result in each case,
which is convicting the guilty and freeing the innocent. At the process end of the balance is a
7
8
9-10
Throughout U.S. history, the ideals of equality and equal justice have ranked high. Most of
the history of criminal procedure, especially state criminal procedure since the Civil War,
developed in response to racial discrimination. Although racial discrimination has diminished, it
has not disappeared. Additionally, the ideal of equal justice reaches beyond ending race
discrimination; it includes class, gender, ethnic, religious, and sexual orientation discrimination.
In criminal procedure, both formal decision making according to written rules and informal
discretionary decision making according to judgments based on official training and experience
play a crucial rule. Each step in the criminal process from investigating crimes to appealing
convictions involves decisions. Each step requires a criminal justice professional to decide
Researchers on both conservative and liberal sides are calling for new criminal procedure
that includes both judicial decision making and academic research in the process. This new
approach is called the balancing approach and seeks to examine two empirical questions: how
effective are these practices in controlling crime and what are their impacts on individual liberty
and privacy? While this new approach won’t guarantee the best results in criminal procedure, it
will give us a better picture. Empirical evidence will be provided in those areas where it is
available throughout the text.
We also examine how accurate the criminal justice system is in sorting out the guilty from
the innocent. When errors are made, there are many reasons including prosecutorial discretion;
inconsistent policing; infrequent jury trials; too much plea bargaining; not enough access to legal
representation; inadequate training and lack of law enforcement officers; improper forensic
procedures; and frequent reliance on unreliable evidence.
Throughout the book, you will notice that court opinions refer to past cases to support their
reasoning and their decisions. This reliance on prior cases (precedent) is part of how lawyers
think. Related to reliance on precedent is the doctrine of stare decisis, which requires courts to
follow prior precedent in their decisions.
Key Terms
text-case method: Part text and part excerpts from real criminal procedure cases, edited for
nonlawyers. (p. 4)
appellate courts: Courts that review lower courts decisions. (p. 6)
constitutional democracy: The system of government where neither a single dictator nor an
overwhelming majority of the people have total power over an individual. (p. 6)
community security: The value of living in a community where we are safe (p. 7)
individual autonomy: Individuals are free to control their own lives without government
interference. (p. 7)
new generation of criminal procedure: “…judicial decision making and academic debate
that treats social scientific and empirical assessment as a crucial element in constitutional
decision making” (735). (p. 11)
text-case book: Part text and part excerpts from real criminal procedure cases, edited for
nonlawyers. (p. 16)
case citation: The string of letters and numbers that appears after the name of a case and
identifies the source of a case. (p. 18)
The Federal Reporter: The journal that report U.S. Court of Appeals decisions. (p. 18)
procedural history of the case: A brief description of the procedural steps and judgments
made by each court that has heard the case. (p. 18)
government officials’ acts: The actions that defendants claim violated the Constitution. (p.19)
objective basis (quantum of proof): The facts and circumstances that back up the government
officials’ action. (p. 19)
court’s judgment (disposition): The most important legal action of the court; it’s the court’s
official decision in the case. (p. 19)
court opinions: The written explanations of the court’s judgment. (p. 19)
majority opinion: The law of a case in an appellate court. (p. 19)
concurring opinion: Statements in which justices agree with the result, not the reasoning, of a
court’s opinion. (p. 19)
plurality opinions: A statement in which a majority of the justices agree on a decision but
they can’t agree on the reasons. This plurality opinion is the one with the reasons agreed on by
the largest number of justices. (p. 19)
dissenting opinion: Part of an appellate court case in which justices write opinions disagreeing
with the decision and reasoning of a court. (p. 20)
affirmed: An appellate court upholding the decision of a lower court. (p. 20)
precedent: A prior decision that is binding on a similar present case. (p. 20)
stare decisis: The doctrine in which a prior decision binds a present case with similar facts. (p. 20)
jurisdiction: The authority of a court to hear and decide cases. (p. 20)
distinguishing cases: The court decides that a prior decision does not apply to the current case
because the facts are different. (p. 21)
appellate court cases: A lower court has taken action in the case, and one of the parties has
asked a higher court to review the lower court’s decision. The appellate court reviews the
alleged errors made by the trial court. (p. 21)
pretrial proceedings: Proceedings before trial and convictions. (p. 21)
appellant: The party appealing a lower court ruling or decision. (p. 21)
appellee: The party appealed against who won in the lower court. (p. 21)
petitioner: A party who asks a higher court to review the decision of a lower court or some
other official. (p. 22)
collateral attack: A separate proceeding from a criminal case, a civil action that reviews the
constitutionality of the petitioner’s detention. (p. 22)
habeas corpus: An action that asks those who hold defendants to justify their detention. (p. 22)
Writ of certiorari: An order issued by the Supreme Court to the court that decided the case
ordering the court to send up the record of its proceedings to the Supreme Court for review. (p. 22)
Assignments
1. Most states have websites that allow the public to access appellate court opinions. If not,
the federal courts, including the U.S. Supreme Court, have websites that allow public
access. The library at your college or university may subscribe to a database such as
Westlaw or Lexis/Nexis that allows students to do legal research. The Legal Information
Institute at Cornell University Law School has a terrific database of Supreme Court and
New York State cases. See what is available to you.
If you can find cases based on a topic or subject area, have students locate a recent case that
addresses search or seizure Fourth Amendment law. If students cannot research cases by
topic, require them to find one of the Supreme Court cases covered in the text. Have them
skim/read an actual court opinion. They’ll notice the opinion is considerably longer than
the edited opinions featured in the textbook. There are usually multiple legal issues that the
2. Have students discuss how the popular media portrays the balance our criminal justice
system strikes between “means” and “ends.” Have them identify specific movies and
television shows that address the inherent tension between the “means and “ends.” How
accurate is the picture painted by the media? How much do the media influence the public
3. Have students discuss why the balance between crime control and individual rights must be
4. Write a paper discussing the importance of using empirical evidence to identify how
5. Have students find a case brief of a criminal case on the internet using one of the sites
identified in assignment 1. Have students write an argumentative paper discussing whether