Criminal Procedure for the Criminal Justice Professional 11 th Edition

1. Criminal Procedure for the Criminal Justice Professional11th Edition John N. Ferdico Henry F. Fradella Christopher Totten Individual Rights Under the United States Constitution Chapter 1 Prepared by Tony Wolusky

2. Herbert Packer’s Crime Control vs. Due Process Models

3. 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." • 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.

4. 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. • Originally applied only to acts of the federal government. • Many rights extended to states with the Fourteenth Amendment (1868).

5. 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.

6. 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?

7. Trial Rights Insert video on trial rights found at http://www.wadsworthmedia.com/cj/cjsystem/cjsystem_trial.swf

8. 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.

9. First Amendment Guarantees • Freedoms of Speech, Expression, and Peaceable Assembly • 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.

10. 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.

11. 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.

12. Fourth Amendment Guarantees • The Fourth Amendment protects people and their property from unreasonable searches and seizures by governmental officers.

13. Fifth Amendment Guarantees • Indictment by grand jury • Before a person is tried in federal court for an infamous crime, he or she must first be indicted by a grand jury. • Freedom from double jeopardy • 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.

14. Fifth Amendment Guarantees Con’t. • The right to due process • 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.

15. Sixth Amendment Guarantees • Right to a speedy and public trial • Right to trial by an impartial jury • Right to notice of charges • Right to confrontation of witness • Through face-to-face witness testimony and an opportunity for cross-examination. • Guarantee of compulsory process • 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.

16. 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.

17. Eighth Amendment Guarantees • No excessive bail • 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.

18. 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?

19. 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.

20. 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.

21. 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.