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CHAPTER TWO
CRIMINAL PROCEDURE AND THE CONSTITUTION
Learning Objectives
After studying this chapter, students should be able to:
1. Understand and differentiate the two components of case facts: (a) the government official acts that
3. Understand the importance, prevalence, and shortcomings of social scientific research regarding: (a)
4. Know and appreciate that the dualistic, political nature of the U.S. Supreme Court reflects society’s
commitment to two opposing principles—fundamental law and the will of the people.
5. Know and appreciate that all criminal procedures have to answer to the U.S. Constitution, but it is
6. Know that every state constitution guarantees its citizens parallel criminal procedure rights.
7. Understand and appreciate that the balance between crime control and individual liberty is an
8. Understand and appreciate that the difficulty to define due process is historically rooted in the
9. Know, understand, and appreciate that after a decades-long struggle, a Supreme Court majority
10. Understand that equality is a fundamental principle and a constitutional command in our
constitutional democracy, but the heavy burden of proving claims that government officials denied
equal protection falls on the individual.
Lesson Plan
Correlated with PowerPoints
Chapter Introduction
Media Tool
“The Charters of Freedom”
http://www.archives.gov/exhibits/charters/constitution.html#more
o Website including the Constitution, Bill of Rights, and the Declaration of Independence as
well as information regarding how they were written and their impact.
o Discussion: Discuss why the Constitution was written to replace the Articles of
Confederation. Additionally, why was the Bill of Rights added? Ask students to explain how
their functions differ.
What If Scenario
What if the United States had ratified the Articles of Confederation rather than the U.S. Constitution?
How would our early government have differed?
A. Constitutionalism
B. Constitutions last forever and are a set of permanent, general principles.
C. Constitutions have six characteristics:
2. They express the will of the whole people.
4. They cannot be changed by the government.
6. They embody the fundamental values of the people.
D. The law of criminal procedure is based on the Bill of Rights.
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E. Other sources
1. Federal
3. The American Law Institute (ALI)
Media Tool
“The American Law Institute”
http://www.ali.org/
o Provides access to the publications of the American Law Institute as well as information about
their purpose.
o Discussion: Discuss the purposes of the American Law Institute. Who are the members of the
American Law Institute? Ask students what documents they publish and which of these do
they think is most important to criminal law procedure?
3-4
F. The highest authority in criminal procedure is the U.S. Constitution.
1. Court of last resort
3. Trial by jury for crimes
5. Fourteenth Amendment
Class Discussion/Activity
Divide students up into five groups and have them research one of the following amendments to
the Constitution. The Fourth, Fifth, Sixth, Eighth, or Fourteenth. Students can create a
presentation for the class. If the class is very small this activity can be done individually
What If Scenario
What if there was no Fourteenth Amendment? Would the Fifth Amendment be sufficient to
incorporate due process? What does the Fourteenth Amendment provide that is not included in
the Fifth Amendment?
I. The Text-Case Method
Learning Objective 1: Understand and differentiate the two components of case facts: (a) the
government official acts that the defendant claim violated the Constitution, and (b) the objective
basis or facts and circumstances that back up the government actions.
Learning Objective 2: Know the importance of prior case decisions (precedent) and understand
the obligation to follow prior decisions (stare decisis) in judicial reasoning and decision making.
A. Part text and part excerpts from real criminal procedure cases
B. Parts of the case summary
1. Title
3. Procedural history of the case
5. Facts
7. Judgment (disposition) of the case
a. Affirmed
b. Reversed and/or remanded
8. Court opinion
a. Holding
b. Reasoning
c. Majority opinion
d. Concurring opinion
e. Plurality opinions
f. Dissenting opinion
g. Affirmed
h. Reversed/remanded
C. Precedent and stare decisis
1. Stability and predictability
2. Change is rare
D. Appellate court cases
1. Only defendants can review cases
E. Review by petition
II. Empirical Evidence: Judicial Decision Making and Academic Debate
Learning Objective 3: Understand the importance, prevalence, and shortcomings of social
scientific research regarding: (a) the effectiveness of crime control practices and their effect on
III. SCOTUS: Will of the People or Rule of Law?
Learning Objective 4: Know and appreciate that the dualistic, political nature of the U.S.
Supreme Court reflects society’s commitment to two opposing principles—fundamental law and
the will of the people.
Definition
What does governed “by the consent of the people” denote versus how it
is interpreted and fundamentally applied?
A. The will of the people refers to the power the people to create laws, while the ancient
concept of fundamental law places limits on that power. To uphold these contradictory
ideas, the Supreme Court must shape its decisions with the public good in mind.
IV. The U.S. Constitution and the Courts
Learning Objective 5: Know and appreciate that all criminal procedures have to answer to the
U.S. Constitution, but it is up to the courts to interpret the meaning of the Constitution.
Ultimately, the U.S. Supreme Court’s interpretation trumps the decisions of all other courts.
Media Tool
“CNN: Inside the Supreme Court” http://www.youtube.com/watch?v=Unyswl36q8w
o YouTube video of a CNN tour inside the United States Supreme Court building.
o Discussion: Ask the students if anything about the building surprised them? Why do
they think the government would spend so much money on a building to house the
Supreme Court? Why do they think that the justices are so “camera shy”, as it says in
the video?
A. The U.S. Constitution is the last word in criminal procedure.
B. The supremacy clause and judicial review together establish that criminal procedure has
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© 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part,
except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
protected website for classroom use.
1. The dependence on local courts, prosecutors, and police to apply its decisions to day-
to-day operations
2. The power of other courts to answer constitutional questions the Supreme Court has
yet to answer
F. The U.S. Supreme Court can only control the law of criminal procedure in state courts if
the states’ rules violate the U.S. Constitution.
V. State Constitutions and State Courts
Learning Objective 6: Know that every state constitution guarantees its citizens parallel
criminal procedure rights. Understand that state constitutions can increase criminal procedure
rights but can’t reduce them below the federal minimum standard defined by the U.S. Supreme
Court.
Class Discussion/Activity
What rights does your state constitution provide for its citizens? Are there areas of criminal
procedure where your state provides more protection for citizens? Do you agree with these
provisions?
A. Evaluation of criminal procedure utilizes sampling and empirical findings to determine
the effectiveness of policies, procedure and decisions, lending this method to
development a constitutional balancing approach. The balancing approach stimulated
judicial decision making and academic writing to focus on two empirical questions:
B. The answers to these questions call for accurate, reliable, impartial, empirical and social
scientific evidence.
C. Modification of court rulings driven by empirical evidence highlight the following areas
in the text; searches and seizures; right against self-incrimination and confessions;
witness identification; procedures; the exclusionary rule (Chapter 10); pretrial
proceedings; guilty pleas and other areas
VI. State Constitutions and State Courts
What If Scenario
What if parallel rights did not exist? How would rights such as one against self-incrimination,
search and seizure and right to counsel be provided/guaranteed to the citizen?
A. State courts are a source of criminal procedure law in two types of cases: (1) those
that involve the U.S. Constitution that the U.S. Supreme Court has not decided yet and
(2) those involving their own state constitutions.
B. In cases that involve the U.S. Constitution, state court decisions are not final, and they
can be appealed to federal courts.
See Assignments 1-2
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C. State courts are the final authority in cases based on their own state constitutions
and statutes. The federal courts—even the U.S. Supreme Court—cannot interpret state
VII. Criminal Procedure History: The Balance Ideal and Due Process
Learning Objective 7: Understand and appreciate that the balance between crime control and
individual liberty is an ancient controversy. The history of this tension has swung like a
pendulum back and forth, between more emphasis on providing the government with enough
power to enforce criminal law and guaranteeing individual autonomy and privacy.
A. Ancient Roman history
1. Established strong safeguards for individuals against government power in its law of
B. English history
1. Magna Carta
a. Checks on the King’s royal power
2. Star Chamber abuses
C. U.S. History
1. The early years, 1781–1900
a. The Articles of Confederation
(1) Government too weak to govern
b. U.S. Constitution
(1) Effort to balance government power
2. A new era of crime control, 1900–1960
3. The “due process revolution,” 1960–1969
4. Reaction to the “due process revolution,” 1969–2013
a. Calls for crime control
b. Justice William Rehnquist trimmed back the rulings of the Warren Court
c. Roberts Courts has continued the Rehnquist legacy
D. According to the Fourteenth Amendment, due process and equal protection of the law
are two guarantees that states have to provide.
E. The “due process revolution” expanded the protection of rights to all people, from the
powerful to the vulnerable classes.
F. States and the federal government were compelled to guarantee these rights to
vulnerable classes.
G. The meaning of due process
1. How do the courts define due process?
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b. Other experts say the Bill of Rights and the Fourteenth Amendment are flexible
2. Hurtado v. California (1884)
H. Early application of due process to state cases
1. The famous Scottsboro case (1932), Powell v. Alabama, set the stage for
incorporation doctrine in the 1960s.
a. Nine Black defendants were rounded up and charged with raping two White girls.
b. With an alcoholic defense attorney, eight of the boys were tried, convicted, and
2. Brown v. Mississippi, due process, and coerced confessions.
a. Yank Ellington, Ed Brown, and Henry Shields, all Black men, were accused of
killing a White man.
I. The fundamental fairness doctrine
1. Commands states to provide two basics of a fair trial:
J. The incorporation doctrine
Class Discussion/Activity
Divide the class into two groups. Have one group research total incorporation and the other
group research selective incorporation. The students can debate the merits of each. If the size of
the class is not conducive to such a debate, students can be assigned to research either or both
of the types of incorporation and a discussion in class can cover the merits of each.
1. From the 1930s through the 1950s, a majority of the Court rejected the notion that the
Bill of Rights applied to state criminal proceedings.
(1) Some rights were incorporated and other weren’t
2. By the 1970s four specific rights had been incorporated
a. Public trial
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17-18
© 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part,
except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
protected website for classroom use.
c. Prohibition of excessive bail
d. Prosecution by indictment
3. Incorporation took the Supreme Court form the courtroom to the police station and
the street
4. Critics of incorporation argue that it
a. Destroys federalism
5. The incorporation doctrine does not appear to have wounded criminal justice as
critics feared
Class Discussion/Activity
In light of events of terrorism around the world which is currently more important to students:
crime control or individual liberty? How does the current social environment affect the priority
we, as a society, place on either side of this controversy?
VIII. Due Process of Law
Learning Objective 8: Understand and appreciate that the difficulty to define due process is
historically rooted in the controversial issues of states’ rights and equal rights for all citizens.
Gradually, the U.S. Supreme Court expanded the meaning of criminal procedure rights
within the federal system and ruled that most of these rights apply to state and local criminal
justice, too.
Learning Objective 9: Know, understand, and appreciate that after a decades-long struggle,
a Supreme Court majority came to agree that "due process" requires the incorporation of the
public spaces and not-so-public police stations.
IX. Equal Protection of the Law
Learning Objective 10: Understand that equality is a fundamental principle and a constitutional
command in our constitutional democracy, but the heavy burden of proving claims that
government officials denied equal protection falls on the individual.
Lecture Notes
The idea of constitutionalism is fundamental in our democracy. Constitutions embody a people’s
fundamental values and are a higher form of law that no ordinary law or government action can match.
Constitutions express the will of the people, always bind the government and cannot be changed by the
government. Only direct action of the people can change a constitutional provision.
The law of criminal procedure consists of the rules the government must abide by to detect and
investigate crime, prosecute and convict defendants, and punish convicted offenders. The final
authority of criminal procedure lies in the U.S. Constitution, especially in the Bill of Rights. Most of the
criminal procedure provisions are found in the Fourth, Fifth, Sixth, Eighth and Fourteenth
Amendments. The Constitution and these rights are supreme, making the Constitution the final word in
matters involving criminal procedure. According to the principle of judicial review, courts are tasked
Article VI of the U.S. Constitution commands that the government follow its guidelines.
Although this sounds easy enough, the Constitution and its Amendments are vague and
ambiguous making it difficult to determine its meaning. Through the Supremacy Clause and the
principle of judicial rule the Supreme Court has determined that all criminal procedures are
accountable to the Constitution and any court can interpret it but the Supreme Court has the final
Every state constitution guarantees its citizens parallel criminal procedure rights, like the right
against self-incrimination, and against unreasonable searches and seizures. State courts are a
source of criminal procedure law in two types of cases: (1) those involving the U.S. Constitution
that the U.S. Supreme Court has not decided yet and (2) those involving their own state
constitutions. State courts are the final authority in cases based on their own state constitutions
and statutes. State criminal procedure rights might be broader than federal rights, but they can
not fall below the federal minimum standard defined by the U.S. Supreme Court.
From the adoption of the Bill of Rights until the 1960s, the rights afforded to criminal defendants
applied only in the federal criminal justice system. The U.S. Supreme Court, in a series of
decisions in the 1960s called the “due process revolution,” expanded the meaning of these rights
within the federal system and ruled that most of these expanded rights also applied in state and
local criminal justice matters. The Supreme Court relied on two Civil War Amendment
guarantees to accomplish its revolution: the due process and equal protection clauses of the
Fourteenth Amendment. After a decades-long struggle within the Court, a majority came to
The Court also came to agree that the ideal of equality is deeply embedded in our history, and
that since the Civil War, the Constitution commands equal protection of the laws. Equal
protection of the law does not require state officials to treat everybody exactly alike. It means
they cannot investigate, apprehend, convict, and punish people unreasonably. Courts look
suspiciously at the reasonableness of certain classifications, particularly those based on race or
ethnicity. In practice, it is difficult to prove claims that officials have denied equal protection of
the laws.
From Ancient Rome to England to the United States, governments and their citizens have sought
to determine the best ways to balance safety and security with the rights of the people. During
the founding of the United States Antifederalists sought to ensure that the government would not
have too much power. Crime control became more important as the United States experienced
large changes at the beginning of the 20th century through urbanization and industrialization. In
There are two contradictory ideas embodied in the U.S. Constitution. First, the idea of
fundamental law, or a law that is above ordinary law. Second, rule by the will of the people. This
dualism can be seen in the Supreme Court keeping the public good in mind as it makes its
decisions.
Key Terms
Affirmed: an appellate court decision upholding the decision of a lower court
Appellate court cases: case in which a lower court has already taken some action and one of the
parties (appellant or appellee) has asked a higher court to review the lower court’s action
Case citation: the source of the published report of a case
Certiorari: an order to the lower court that decided the case to send up the record of its
proceedings to the U.S. Supreme Court for review
Concurring opinion: statements in which justices agree with the decision but not the reasoning
of a court’s opinion
Constitutionalism: the idea that constitutions adopted by the whole people are a higher form of
law than ordinary laws passed by legislatures
Court holding: the legal rule the court applied to the facts of the case
Court of last resort: The Supreme Court’s decisions interpreting the U.S. Constitution that
trump the authority of all other sources of criminal procedure
Court opinions: written explanation for a court’s decision
Court reasoning: the reasons and arguments the court gives to support its holding
Court’s judgment (disposition): the most important legal action of the court, this is the court's
official decision in the case
Discriminatory effect: proving that race or some other illegal group characteristic (not a
legitimate criterion, such as seriousness of the offense or criminal record) accounts for the
selective prosecution
Discriminatory purpose: proving that the prosecutor in the case at hand intended to
discriminate against the defendant because of race or other illegal criteria.
Dissenting opinion: part of an appellate court case in which justices write opinions disagreeing
with the decision and reasoning of a court
Distinguishing cases: cases in which a court decides that a prior decision doesn’t apply to the
current case because the facts are different
Fundamental law: a law above the ordinary law created by the government
Government officials’ acts: actions that defendants claim violated the Constitution
Habeas corpus: a civil action, also called “collateral attack,” brought by defendants asking for a
review of the constitutionality of their detention or imprisonment
Hunch (mere suspicion): gut feelings not based on facts and circumstances
Incorporation doctrine: the principle that the Fourteenth Amendment due process clause
specifically incorporates the provisions of the Bill of Rights and applies them to state criminal
procedure
Jurisdiction: the power to hear and decide cases in a specific geographical area (such as a county, a
state, or a federal district) or the subject matter (e.g., criminal appeals) the court controls
Model Code of Pre-Arraignment Procedure: American Law Institute’s model of pretrial
procedures for law enforcement and courts
Objective basis: the factual justification for government invasions of individual privacy, liberty,
and property
Parallel rights: all state constitutions’ guarantee of rights identical or similar to those in the U.S.
Constitution and Bill of Rights
Precedent: a prior decision that’s binding on a similar present case
Presumption of regularity: presumes government actions are lawful in the absence of “clear
evidence to the contrary”
Principle of judicial review: principle stating that the U.S. Supreme Court's interpretation trumps
the interpretation of all other federal and local courts, Congress, and state and local legislatures
Procedural history of a case: brief description of the procedural steps, actions, and judgments
(decisions) made by each court that has heard the case.
Remanded: the appellate court sent the case back to the lower court for further action
Reversed: the appellate court set aside, or nullified, the lower court’s judgment
Rule of four: the requirement that four Supreme Court justices must vote to review a case for its
appeal to be heard by the Supreme Court
Selective prosecution: prosecutors’ power to decide to charge suspects with crimes
Suppression hearing: a pretrial proceeding in an appellate case to determine whether evidence
obtained by law enforcement officers during searches and seizures, interrogation, and
identification procedures, such as lineups, should be thrown out
United States Reports: the official U.S. government publication of U.S. Supreme Court cases
Assignments
1. Have students locate a copy of their state constitution (easily accessible on the Internet) and
find the provisions that are parallel to provisions in the U.S. Constitution, especially the Bill
of Rights. Point out where the provisions are exactly the same and where they are different.
Have students access state appellate court opinions that interpret the state constitution’s
criminal procedure-related provisions. Students will learn that the U.S. Constitution is not the
2. Use the Internet to learn more about the “Scottsboro boys” in Powell v. Alabama. It is a
fascinating study in American history in the 1930s and much has been written about the case
and what happened to the defendants. There are also a number of excellent Internet sites and
3. Have students investigate one of the cases from the 1960s that increased individual rights.
Have them research and determine if the Rehnquist Court has reduced any of these rights.
Have them write a paper discussing the importance of these decisions and how they impact
