+1(978)310-4246 credencewriters@gmail.com


Because many “optional extra credit opportunities are not possible during this pandemic, the following is a list of media you can watch or listen to. Please write a 5-paragraph brief essay in APA format with APA citations for any of the following choice. Please write the essay in a way that incorporates learning objectives or chapter learning objectives discussed from the course, where possible: (remember, extra credit is limited to no more than 2 choices and can only be used in one class, if you are taking multiple courses with me)

Video/Netflix Media options (Tiger King is NOT an option)

Ozark (Discuss money laundering)

Trials of Gabriel Fernandez (Discuss justice related to the suspects, the social workers or law enforcement officers

The people vs. OJ Simpson (or any documentary that is at least 1-hour about the OJ Simpson case

Any 1-hour documentary about Jaycee Dugard

Mind Hunter

Innocence Files (Netflix):

Franky Carrillo episodes

Podcast options

Serial: Season 3 only, Cuyahoga County

Crimetown: Season 1 or 2

Murder in Oregon

Convicted: Season 1, Richard Nicolas

Someone Knows Something: Season 5 Kerrie Brown or Season 2: Sheryl Sheppard

The Atlanta Monster

I have included the book and fallow the instructions and Please write the essay in a way that incorporates learning objectives or chapter learning objectives discussed from the course, where possible:

John L. Worrall
University of Texas at Dallas
330 Hudson Street, NY, NY 10013
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Library of Congress Cataloging-in-Publication Data
Names: Worrall, John L., author.
Title: Criminal procedure / John L. Worrall, University of Texas at Dallas.
Description: Third edition. | Boston : Pearson, [2018] | Includes
bibliographical references and index.
Identifiers: LCCN 2016036754 | ISBN 9780134548654 (alk. paper) |
ISBN 0134548655 (alk. paper)
Subjects: LCSH: Criminal procedure—United States.
Classification: LCC KF9619 .W65 2018b | DDC 345.73/05—dc23 LC record available at
10 9 8 7 6 5 4 3 2 1
ISBN 10:
ISBN 13:
ISBN 13:
For Dylan, Jordyn, and Sabrina
Brief Contents
Part 1
Chapter 1
Chapter 2
Part 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
Chapter 7
Part 3
Chapter 8
Chapter 9
Part 4
Introduction to Criminal Procedure 1
The Exclusionary Rule and Other Remedies
Search and Seizure
Introduction to the Fourth Amendment 42
Searches and Arrests with Warrants 60
Searches and Arrests Without Warrants 78
Stop-and-Frisk 97
Special Needs and Regulatory Searches 113
Interrogations, Confessions, and Identification Procedures
Interrogation and Confessions
Identifications 147
Formal Proceedings
Chapter 10 The Pretrial Process 161
Chapter 11 Prosecutors, Grand Juries, and Defense Attorneys
Chapter 12 Plea Bargaining and Guilty Pleas 195
Chapter 13 Trial and Beyond 211

Preface  xiii
Chapter 1
Introduction to Criminal Procedure 1
Prying Eyes of a Different Type
The Constitutional Basis for Criminal Procedure 2
Sources of Rights 3
Rights of Relevance in Criminal Procedure 3
Incorporation 4
Precedent and Its Importance
Stare Decisis 6
Distinguishing Cases 7
Theory Versus Reality 7
Competing Concerns in Criminal Procedure
Due Process 8
Crime Control 9
Structure of the U.S. Court System
Understanding Court Cases 13
Tracing the Progress of a Criminal Case
The Criminal Process 16
Pretrial 16
Adjudication 18
Beyond Conviction 18
THE CASE: GPS Tracking and the Fourth Amendment
Introduction to Criminal Procedure
Chapter 2   The Exclusionary Rule
and Other Remedies 22
Too Much Force?
The Exclusionary Rule 24
History of the Exclusionary Rule 24
A Turning Point: Mapp v. Ohio 24
Applicability of the Exclusionary Rule Beyond the Fourth Amendment
When the Exclusionary Rule Does Not Apply 25
Exceptions to the Exclusionary Rule
Good Faith Exception 28
Impeachment Exception 29
The “Fruit of the Poisonous Tree” Doctrine 29
Exceptions to “Fruit of the Poisonous Tree” 30
Alternative Remedies 32
Criminal Law 32
Civil Litigation 32
Nonjudicial Remedies 36
THE CASE: Exclusionary Rule Objections
The Exclusionary Rule and Other Remedies
Part 2
Search and Seizure
Chapter 3   Introduction to the Fourth Amendment 42
Did the Dog Sniff Constitute a Search?
Basic Terminology 43
How to Analyze the Fourth Amendment
When a Search Occurs 44
Government Action 45
Reasonable Expectation of Privacy
When a Seizure Occurs
Seizures of Property
Seizures of Persons
Justification 50
Probable Cause
Other Standards
THE CASE: Probable Cause to Search?
Introduction to the Fourth Amendment
Chapter 4   Searches and Arrests with Warrants 60
A Fourth Amendment Violation?
Warrant Components 62
Neutral and Detached Magistrate
Probable Cause Showing 62
Particularity 63
Challenging Warrants 65
Arrest Warrants 65
When Arrest Warrants Are Required
Serving Arrest Warrants 68
Search Warrants 71
When Search Warrants Are Required
Serving Search Warrants 71
Special Circumstances 72
Search Warrants and Bodily Intrusions
Electronic Surveillance 73
THE CASE: A Valid Warrant?
Searches and Arrests with Warrants
Chapter 5   Searches and Arrests Without Warrants 78
Cell Phones and the Fourth Amendment
Search Incident to Arrest 79
Timing of the Search 80
Scope of the Search 80
Exigent Circumstances 82
Hot Pursuit 82
Escape and Endangerment to Others Absent Hot Pursuit
Evanescent Evidence 82
Offense Seriousness and Exigent Circumstances 84
Automobile Searches 85
Rationale 85
Automobile Search Requirements 85
Scope of the Automobile Search 87
Other Actions in a Traffic Stop 88
Plain-View Searches 88
The Lawful Access Requirement 88
The “Immediately Apparent” Requirement
The Role of Inadvertency
Consent Searches 91
Scope Limitations 91
Third-Party Consent 92
Warrantless Arrests 93
Arrests Based on Exigent Circumstances
Arrests in Public Places 93
THE CASE: A Proper Stop?
Searches and Arrests Without Warrants
Chapter 6  Stop-and-Frisk
Stop-and-Frisk Run Amok?
Terry v. Ohio 99
Stop-and-Frisk: Two Separate Acts 99
Between Reasonable Suspicion and Stop-and-Frisk
The Stop 100
Definition of a Stop 100
Duration of a Stop 101
The Frisk 103
Permissible Grounds for a Frisk
Scope of a Frisk 104
Expansion of Stop-and-Frisk 105
Vehicle Stops 106
Protective Sweeps 106
Plain Touch and Feel 107
Profiling 108
Investigative Detentions
THE CASE: Profiling in the War on Terror
Chapter 7
Special Needs and Regulatory Searches 113
Can Police Search Hotel Records?
Inventories 114
Vehicle Inventories
Person Inventories
Inspections 116
Home Inspections 116
Business Inspections 117
Fire and International Mail Inspections
Checkpoints 118
Border and Immigration Checkpoints 118
Sobriety Checkpoints 119
License and Safety Checkpoints 119
Crime Investigation Checkpoints 120
Other Types of Checkpoints 120
Unconstitutional Checkpoints 120
School Discipline 121
Locker Checks and Drug Dog “Sniffs”
“Searches” of Government Employee Offices
Drug and Alcohol Testing 122
Drug and Alcohol Testing of Employees 122
Drug and Alcohol Testing of Hospital Patients 123
Drug and Alcohol Testing of School Students 123
Probation and Parole Supervision
Police/Probation Partnerships
THE CASE: A Proper Checkpoint?
Special Needs and Regulatory Searches
Interrogations, Confessions, and Identification Procedures
Chapter 8   Interrogation and Confessions
The Taser and Confessions
The Due Process Voluntariness Approach
Police Conduct 131
Characteristics of the Accused 131
The Sixth Amendment Approach 132
Deliberate Elicitation 132
Formal Criminal Proceedings 133
Waiver of the Sixth Amendment Right to Counsel
The Miranda Approach 134
Custody 135
Interrogation 137
Other Miranda Issues 137
The Exclusionary Rule and Confessions
THE CASE: A Legitimate Public Safety Exception?
Interrogation and Confessions
Chapter 9  Identifications 147
Identification and a Wrongful Conviction
The Constitution and Identifications
Pretrial Identification Techniques 150
Lineups 151
Showups 151
Photographic Identifications 152
Identification Procedures: Flaws and Fixes
Double-Blind Lineups 155
Virtual Officer Lineups 155
The Exclusionary Rule and Identifications 156
Tainted Identifications 156
Identifications Resulting from Illegal Searches and Seizures
THE CASE: A Valid Identification?
Part 4
Formal Proceedings
Chapter 10   The Pretrial Process
DNA Collection During Booking
The Initial Appearance
The Probable Cause Hearing 163
Procedural Issues Surrounding the Hearing
Timing of the Hearing 163
Pretrial Release 164
The Pretrial Release Decision
Criteria for Release 166
The Preliminary Hearing 167
The Probable Cause Requirement
Procedural Issues 168
The Arraignment
Discovery 169
Discovery by the Prosecution 170
Discovery by the Defense 171
The Prosecution’s Duty to Disclose Exculpatory Evidence
The Prosecution’s Duty to Preserve Evidence 173
THE CASE: A Meritorious Brady Claim?
The Pretrial Process
Chapter 11   Prosecutors, Grand Juries,
and Defense Attorneys 177
A Defense Attorney Concedes Guilt
The Prosecutor 178
The Charging Decision 178
Restrictions on Bringing Charges 180
Dealing with Overzealous Prosecutors 181
Joinder 182
The Grand Jury 183
How a Grand Jury Is Constructed 184
Secrecy of Grand Jury Proceedings 184
Rights of Witnesses Testifying Before Grand Juries
Investigative Powers of the Grand Jury 186
The Defense Attorney and the Right to Counsel 186
The Right to Counsel in a Criminal Prosecution 187
Waiver of the Right to Counsel 188
Indigent Versus Nonindigent Defendants’ Right to Counsel
of Their Choice 189
Effective Assistance of Counsel 190
THE CASE: Ineffective Assistance?
Prosecutors, Grand Juries, and Defense Attorneys
Chapter 12 Plea Bargaining and Guilty Pleas
A Fair Bargain?
An Alternative to Trial 196
The History and Rise of Plea Bargaining
Arguments for and Against Plea Bargaining 198
The Supreme Court’s View on Plea Bargaining 200
The Plea-Bargaining Process 200
Rights During Plea Bargaining 200
Types of Inducements 201
Effects of Plea Bargaining 203
Guilty Pleas
Intelligence 206
Voluntariness 207
Factual Basis 208
THE CASE: Prosecutorial Obligations During Plea Bargaining
Plea Bargaining and Guilty Pleas
Chapter 13   Trial and Beyond
Confrontation in Child Abuse Cases
Rights at Trial 212
Speedy Trial 212
Public Trial 213
Impartial Judge 214
Impartial Jury 214
Selection of Potential Jurors
Confrontation 217
Compulsory Process 219
Double-Jeopardy Protection
Entrapment 220
Sentencing 221
Determining the Appropriate Sentence 221
Constitutional Rights During Sentencing 222
Appeals 222
Types and Effects of Appeals 223
Constitutional Rights During the Appellate Process
Habeas Corpus 225
Restrictions on the Right to Habeas Corpus 226
The Right to Counsel in the Habeas Corpus Context
THE CASE: What Is the Goal of Sentencing?
Trial and Beyond 229
Appendix 231
Glossary 239
References 246
Case Index 249
Subject index 256
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Introducing the Justice Series
and instructional designers come together,
focused on one goal—improve student performance across the criminal justice (CJ)
curriculum—you come away with a
groundbreaking new series of print and
digital content: the Justice Series.
Several years ago, we embarked on a journey to create
affordable texts that engage students without sacrificing academic rigor. We tested this new format with Fagin’s CJ 2010
and Schmalleger’s Criminology and received overwhelming
support from students and instructors.
The Justice Series expands this format and philosophy to
more core CJ and criminology courses, providing affordable,
engaging instructor and student resources across the curriculum. As you flip through the pages, you’ll notice this book
doesn’t rely on distracting, overly used photos to add visual
appeal. Every piece of art serves a purpose—to help students
learn. Our authors and instructional designers worked tirelessly
to build engaging info-graphics, flow charts, pull-out statistics,
and other visuals that flow with the body of the text, provide
context and engagement, and promote recall and
We organized our content around key learning objectives
for each chapter and tied everything together in a new objectivedriven end-of-chapter layout. Not only is the content engaging
to the student, it’s easy to follow and focuses the student on the
key learning objectives.
Although brief, affordable, and visually engaging, the ­Justice Series is no quick, cheap way to appeal to
the lowest common denominator. It’s a series of texts and
­support tools that are instructionally sound and student
Additional Highlights
to the Author’s Approach
A comprehensive introduction to criminal procedure
takes students from the point where individuals first
come into contact with the police all the way through to
Half of the book is devoted to “traditional” criminal procedure topics, notably search and seizure as well as interrogation and identification procedures. The remainder of the
book moves beyond these topics and discusses the pretrial
process; the roles of defense attorneys, prosecutors, and
grand juries; plea bargaining and guilty pleas; rights of
criminal defendants at trial; and appeals and habeas
Many leading Supreme Court decisions are discussed;
however, lengthy excerpts from the actual decisions are
left out of the text in order to avoid distracting from the
many important concepts introduced.
For a “real-world” focus, the book incorporates several
actual legal documents and excerpts from official policy
manuals of police departments and other CJ agencies
around the United States.
The author avoids unnecessary legalese and takes
­special steps to thoroughly introduce basic legal concepts and issues, all the while adopting a
conversational tone.
“Think About It” exercises are intended to encourage
classroom discussion and reflection. These exercises
place readers in the position of a judge who must
decide how the issue/scenario should be resolved.
Some are based on actual court cases, but several are
Chapter-opening vignettes and end-of-chapter case studies
discuss current events in criminal procedure, including
some of the most recent and controversial Supreme Court
decisions and their effects on the CJ system.
New to This Edition
In addition to being updated with the latest U.S. Supreme Court
decisions, the following chapter-by-chapter changes have
been made:
Chapter 1: The chapter-opening story was revised
to reflect the most recent changes in drone legislation and includes examples of current drone use in
law enforcement. A new end-of-chapter case features
the Supreme Court’s 2015 decision in Grady v. North
Carolina (GPS monitoring of convicted sex offenders),
a follow-up to the Court’s 2012 United States v. Jones
decision regarding police-led GPS tracking of suspects’
Chapter 2: A new chapter-opening story features the
Supreme Court’s decision in Plumhoff v. Rickard, a highspeed pursuit case in which the families of two slain motorists sued police on the theory they used e­ xcessive force.
The chapter was also updated with the latest decisions
involving remedies for constitutional rights violations.
Chapter 3: The chapter-opening story features the
Supreme Court’s decision in Florida v. Jardines, a drug
dog case. New key terms were added throughout the
­chapter, and the end-of-chapter story continues with
another drug dog case, Florida v. Harris.
Chapter 4: Chapter learning outcomes were streamlined. ­
A new end-of-chapter story features the Ninth Circuit’s
decision in United States v. Payton, a case dealing with
search warrants and computers.
Chapter 5: Sections on consent searches and arrests without warrants were reorganized for improved flow. The
chapter-­ending case features the Supreme Court’s 2014
decision in Heien v. North Carolina, a case that dealt with
a vehicle stop for a malfunctioning brake light that led to a
cocaine seizure.
Chapter 6: The chapter-opening story features the
latest developments in the Floyd v. City of New York stopand-frisk case. The chapter has been updated with the
latest Supreme Court decisions dealing with reasonable
­suspicion and stop-and-frisk, including the 2015 decision
in Rodriguez v. United States, a case involving dog sniffs
during traffic stops.
Chapter 7: A new opening story features the Supreme
Court’s 2015 decision in Los Angeles v. Patel, a case
involving inspections of closely regulated business. At
issue in the case was whether police officers could have
access to hotel records, including information about their
Chapter 8: A new opening story features recent research
on the effects of TASER exposure on Miranda ­waivers.
Is it possible that suspects who are “tased,” arrested,
and advised of their Miranda rights could confess more
readily than those who are not “tased”? In other words,
does TASER exposure lead to cognitive impairment?
The Miranda discussion in chapter 8 was also streamlined
for this edition of Criminal Procedure.
Chapter 9: Content has been updated and learning
outcomes have been realigned.
Chapter 10: A new chapter-opening story features the
Supreme Court’s 2013 decision in Maryland v. King, a
case dealing with the constitutionality of police DNA
swabs during the booking process.
Chapter 11: This chapter has been updated with the latest Supreme Court decisions involving prosecutors, grand
juries, and defense attorneys. Concerning the latter, the
end-of-chapter case features the Supreme Court’s 2015
per curiam decision in Maryland v. Kulbicki, which dealt
with the validity of a scientific technique for comparing
bullet fragments.
Chapter 13: The chapter-opening story features the
Supreme Court’s 2015 decision in Ohio v. Clark,
a case involving the confrontation clause as it applies
to child abuse victims. In that case, a child abuse
victim reported his injuries to his preschool teacher.
His statements were used against the ­perpetrator
at trial. The question was whether the out-of-court
­statements violated the Sixth Amendment’s confrontation clause.
â–¶ Instructor Supplements
Instructor’s Manual with Test Bank
Includes content outlines for classroom discussion, teaching
suggestions, and answers to selected end-of-chapter questions
from the text. This also contains a Word document version of
the test bank.
This computerized test generation system gives you maximum
flexibility in creating and administering tests on paper, electronically, or online. It provides state-of-the-art features for
viewing and editing test bank questions, dragging a selected
question into a test you are creating, and printing sleek, formatted tests in a variety of layouts. Select test items from test banks
included with TestGen for quick test creation, or write your own
questions from scratch. TestGen’s random generator provides
the option to display different text or calculated number values
each time questions are used.
PowerPoint Presentations
Our presentations offer clear, straightforward. Photos, illustrations, charts, and tables from the book are included in the presentations when applicable.
To access supplementary materials online, instructors
need to request an instructor access code. Go to www.­
pearsonhighered.com/irc, where you can register for an
instructor access code. Within 48 hours after registering, you will
receive a confirming email, including an instructor access code.
Once you have received your code, go to the site and log on for
full instructions on downloading the materials you wish to use.
Alternate Versions
This text is also available in multiple eBook formats. These are
an exciting new choice for students looking to save money. As
an alternative to purchasing the printed textbook, students can
purchase an electronic version of the same content. With an
eTextbook, students can search the text, make notes online,
print out reading assignments that incorporate lecture notes,
and bookmark important passages for later review. For more
information, visit your favorite online eBook reseller or visit
REVELTM is Pearson’s newest way of delivering our respected
content. Fully digital and highly engaging, REVEL replaces
the textbook and gives students everything they need for the
course. Seamlessly blending text narrative, media, and assessment, REVEL enables students to read, practice, and study in
one continuous experience—for less than the cost of a traditional textbook. Learn more at pearsonhighered.com/revel.
  Instructor Supplements
â–¶ REVEL for Criminal Procedure, 3e by Worrall
Designed for the way today’s Criminal Justice students read,
think and learn
e­xercises, watching Point/CounterPoint videos, and
­participating in shared writing (discussion board) assignments.
REVEL offers an immersive learning experience that engages
students deeply, while giving them the flexibility to learn their
way. Media interactives and assessments integrated directly
within the narrative enable students to delve into key concepts
and reflect on their learning without breaking stride.
REVEL seamlessly combines the full content of Pearson’s
bestselling criminal justice titles with multimedia learning
tools. You assign the topics your students cover. Author
Explanatory Videos,
application exercises,
and short quizzes
engage students and
enhance their understanding of core topics as they progress
through the content.
Instead of simply
reading about criminal justice topics,
REVEL empowers
students to think critically about important
concepts by completing
Track time-on-task throughout the course
REVEL for Criminal Procedure, 3e by Worrall
The Performance Dashboard allows you to see how much time the
class or individual students have spent reading a section or doing an
assignment, as well as points earned per assignment. This data
helps correlate study time with performance and provides a window into where students may be having difficulty with the material.
NEW! Ever-growing Accessibility
Learning Management System Integration
REVEL offers a full integration to the Blackboard Learning
Management System (LMS). Access assignments, rosters and
resources, and synchronize REVEL grades with the LMS
gradebook. New direct, single sign-on provides access to all the
immersive REVEL content that fosters student engagement.
The REVEL App further empowers students to access
their course materials wherever and whenever they want. With
the REVEL App, students can access REVEL directly from
their iPhone or Android device and receive push notifications
on assignments all while not being tethered to an Internet connection. Work done on the REVEL app syncs up to the browser
version, ensuring that no one misses a beat.
Visit www.pearsonhighered.com/revel/
â–¶ Acknowledgments
Several people contributed to this book, a few of whose names
are almost certainly escaping me. First, my former department
chair, Larry Gaines, deserves credit for introducing me to
book writing. Thank you to the following reviewers for their
insightful suggestions on this edition: Shari Miller Blank, Johnson
County Community College, Russ Pomrenke, Gwinnett T
­ echnical
College. I would also like to thank Gary Bauer and Lynda ­Cramer
at Pearson; Robyn Alvarez and Megha Bhardwaj at iEnergizer
Aptara; and Susan Hannahs at SPi Global for their support during
this edition.
â–¶ About the Author
John L. Worrall is professor of criminology
at the University of Texas at Dallas (UTD).
A Seattle native, both his M.A. (criminal
­justice) and Ph.D. (political science) are from
Washington State University, where he graduated in 1999. From 1999 to 2006, he was a
member of the criminal j­ustice faculty at
­ alifornia State University, San Bernardino. He joined UTD in
About the Author
the fall of 2006. Dr. Worrall has published articles and book
chapters on topics ranging from legal issues in policing to
crime measurement. He is also the author or coauthor of numerous textbooks, including Introduction to Criminal Justice (with
Larry J. Siegel, 15th ed., Cengage, 2016) and Criminal Procedure:
From First Contact to Appeal (5th ed., Pearson, 2015); coeditor of
The Changing Role of the American Prosecutor (SUNY, 2009);
and editor of the journal Police Quarterly.
to Criminal Procedure
Summarize the constitutional basis for criminal
Explain the importance of precedent.
Distinguish between the public order (crime-control)
and individual rights (due process) perspectives of
criminal justice.
Outline the structure of the court system, including
the responsibilities and jurisdictions of each level.
Discuss the steps to trace and understand court
Summarize the criminal process.
Prying Eyes of a Different Type
Use of drones by law enforcement officials
raises a number of legal questions. When and
where can drones be used? By whom and for
what precise purpose? Surveillance? Eavesdropping? Should they be allowed on private
property? What if a drone is used to secure
evidence for a criminal case? Should the courts
admit such evidence? There are no easy answers to
these questions. Critics feel that people’s privacy should
be protected at all costs. Supporters point to how difficult a job the police must perform; drones may assist in
crime prevention and crime control.
With rare exceptions, police do not have carte blanche
to use drones as they see fit. First, the Federal Aviation
Administration has enacted a number of rules restricting drone use, including for civilians.1 States, too, can
impose their own restrictions on drone use,2 as can the
cities in which drones are authorized. At one extreme,
San Jose, California, permitted police to use drones in
only two situations: assisting bomb squads in dealing
with explosive devices and in live shooter or hostage situations.3 At another extreme (and as of this writing), North
Dakota law allows police to equip drones with less-lethal
weapons, including Tasers.4
American criminal procedure consists of a vast set of rules and
guidelines that describe how suspected and accused criminals
are to be handled and processed by the justice system. Criminal
procedure begins when the police first contact a person and
ends well after his or her conviction. It continues on through
charging, trial, and to the appellate stage. Along the way, the
constitutional rights of the accused must be honored and
Two important themes run throughout criminal procedure.
First, there is a concern with the constitutional rights of accused
persons, as interpreted by the courts. People enjoy a number of
important rights in the United States, but the bulk of criminal
procedure consists of constitutional procedure or what the U.S.
Constitution says—usually through the interpretation of the
U.S. Supreme Court (i.e., the Court)—with regard to the treatment of criminal suspects.
Second, criminal procedure contains an important historical dimension, one that defers regularly to how sensitive legal
issues have been approached in the past. The role of precedent,
or past decisions by the courts, cannot be overemphasized. At
the same time, though, the world continues to evolve, and it is
Chapter 1
Introduction to Criminal Procedure
Montgomery Martin/Alamy Stock Photo
Unmanned aerial vehicles (UAVs), more popularly
known as drones, have been used by the military
for years. They have also been used to assist with
patrolling the U.S.–Mexico border. More recently,
they have inched into domestic law enforcement
use, such as for search-and-rescue operations
or performing reconnaissance ahead of raids.
Ordinary citizens can readily access drones, too,
albeit cheaper and less-sophisticated versions
of what government officials typically use.
High courts have yet to answer questions about the constitutionality of drone use, but that will likely change in
the not-too-distant future. But even if legislatures and
courts place strict limitations on drone use in domestic
law enforcement, civilian use remains an issue. Citizens
are not bound by the same constitutional restrictions the
government is. That coupled with the increased accessibility to the technology (many drones are homemade)
means it is not difficult to imagine a situation in which
drones armed with high-definition cameras fly across
neighborhoods engaging in all manner of surveillance.
What limits should be placed on
law enforcement and civilian
drone activities?
sometimes necessary to part ways with the past and decide on
novel legal issues.
â–¶ The Constitutional Basis for
Criminal Procedure
The Preamble to the U.S. Constitution states,
We the People of the United States, in Order to form a
more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, promote
the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain
and establish this Constitution for the United States
of America.
Of particular relevance to criminal procedure are the terms
justice and liberty. The Constitution helps ensure justice and
liberty through both setting forth the various roles of government and protecting the rights of people within the nation’s borders. Throughout the years, the courts have devoted a great
amount of energy to interpreting the Constitution and to specifying what rights are important and when they apply.
The Constitution is not the only source of rights; there are
others worthy of consideration. In addition, some rights are
more important than others, at least as far as criminal procedure is concerned. Finally, the two-tiered system of government in the United States creates a unique relationship between
the federal and state levels. Criminal procedure cannot be
understood without attention to the interplay between federal
and states’ rights.
Sources of Rights
In addition to the Constitution, important sources
of rights include court deci1
sions, statutes, and state constitutions. Most of the court
decisions discussed in this section and throughout the text are
U.S. Supreme Court decisions.
Whenever the Supreme Court interprets the Constitution, it
effectively makes an announcement concerning people’s rights.
For example, the Fourth Amendment states that unreasonable
searches and seizures are impermissible. The term unreasonable is not self-explanatory, so the Court has taken steps to
define it. One definition of unreasonable appears in Wilson v.
Layne (526 U.S. 603 [1999]), in which the Court held that it is
unreasonable for the police to bring reporters along when serving a warrant unless the reporters are there to serve a legitimate
law enforcement objective.
Although the Constitution and the court decisions stemming
from it reign supreme in criminal procedure, statutes also play an
important role. Obviously, the Constitution and the courts cannot be expected to protect all of the interests that people represent. Statutes attempt to compensate for that shortcoming by
establishing that certain rights exist. An example is Title VII of
the 1964 Civil Rights Act. Among other things, it prohibits discrimination in employment. Another statute of relevance in
criminal procedure is 42 U.S.C. Section 1983. As discussed further in the next chapter, it allows private citizens to sue local law
enforcement officials for violations of federally protected rights.
In addition, each state has its own constitution, which can
be considered an important source of rights. The supremacy
clause of Article VI to the U.S. Constitution makes it the
supreme law of the land and binds all states and the federal
government to it. However, nothing in the U.S. Constitution
precludes individual states from adopting stricter interpretations of the federal provisions. In general, if a state constitution
gives less protection than the federal Constitution, such a limitation is unconstitutional. But a stricter interpretation of the
federal Constitution is perfectly reasonable. For example, the
Supreme Court has interpreted the Fifth Amendment in such a
way that it requires police to advise a suspect of his or her socalled Miranda rights when the suspect is subjected to custodial
interrogation—an action that does not necessarily rise to the
level of an arrest. A state, however, could require that Miranda
rights be read whenever a person is arrested, regardless of
whether he or she is interrogated.
Summarize the
­constitutional basis
for criminal procedure.
Finally, although they are not a source of rights per se, the
Federal Rules of Criminal Procedure are worth considering.5
Excerpts from the Federal Rules are reprinted throughout this
book because they sometimes clarify important rulings handed
down by the U.S. Supreme Court. Additionally, the Federal
Rules set forth the criminal procedure guidelines by which federal criminal justice practitioners are required to abide.
Rights of Relevance in Criminal
Of the many rights specified in the U.S. Constitution, the rights
stemming from five amendments are of special importance in
criminal procedure. They are the Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments (see Figure 1–1 for details). The
first four of these are found in the Bill of Rights. The Bill of
Rights consists of the first ten amendments. Beyond the Bill of
Rights, the Fourteenth Amendment is of special relevance in
criminal procedure. Sometimes the First Amendment, which
protects assembly and speech, and the Second Amendment,
which protects the right to bear arms, are relevant in criminal
procedure, but only rarely.
The Fourth Amendment is perhaps the most well-known
source of rights in criminal procedure. In fact, it is considered so important that several books on criminal procedure
devote the overwhelming majority of their chapters to it.
Several rights can be distinguished by reading the text of
the Fourth Amendment. It refers to the right of people to
be free from unreasonable searches and seizures, and it
provides that specific requirements are to guide the warrant process. That is, a warrant must be issued by a
magistrate or judge, supported by probable cause, and
sufficiently specific as to what is to be searched and/or
seized. Because of the complexity of the Fourth
Amendment, this book devotes an entire chapter to its
interpretation (see Part 2).
The second constitutional amendment of special relevance
to criminal procedure is the Fifth Amendment. This book
also examines the Fifth Amendment in detail, focusing in
particular on the role of the grand jury, the statement that
no person shall be “twice put in jeopardy of life or limb”
(known as the double-jeopardy clause), the statement that
no one can be compelled “to be a witness against himself”
(also known as the self-incrimination clause), and—
perhaps most important of all—the requirement that an
individual cannot be deprived of life, liberty, or property
without due process of law.
The Sixth Amendment is also of great importance in criminal
procedure. Of relevance to criminal procedure is the Sixth
Amendment’s language concerning speedy and public trials,
impartial juries, confrontation, and compulsory process.
The Sixth Amendment also suggests that in addition to being
public, trials should be open, not closed, proceedings.
The Supreme Court has interpreted the Sixth Amendment as
providing the right of the accused to be present at his or her
trial and to be able to put on a defense.
The Constitutional Basis for Criminal Procedure
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.
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.
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.
Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
Fourteenth Amendment
(relevant portions)
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States, nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Figure 1–1
Constitutional Amendments of Relevance in Criminal Procedure.
Source: Preamble: The United States Constitution.
The Eighth Amendment is relevant in criminal procedure
but to a limited extent. The Eighth Amendment’s language
on bail and the nature of cruel and unusual punishment
are relevant in criminal procedure.
The Fourteenth Amendment has an important home in
criminal procedure. It is a fairly long amendment,
however, and only a small portion is relevant to the handling and treatment of criminal suspects. The due process
language of the Fourteenth Amendment mirrors that of the
Fifth. Nonetheless, because the Fifth Amendment is part
of the Bill of Rights, it is only binding on the federal
government. The Fourteenth Amendment, by contrast, has
been used by the Supreme Court to incorporate, or make
applicable to the states, several of the rights provided for in
the Bill of Rights. (The following subsection introduces
the so-called incorporation controversy.) The Fourteenth
Amendment’s due process clause has been interpreted to
consist of two types of due process: (1) substantive
due process and (2) procedural due process. The essence
of substantive due process is protection from arbitrary
and unreasonable action on the part of state officials.
Chapter 1
Introduction to Criminal Procedure
By contrast, a procedural due process violation is one in
which a violation of a significant life, liberty, or property
interest occurs (e.g., Geddes v. Northwest Missouri State
College, 49 F.3d 426 [8th Cir. 1995]). Procedural due
process is akin to procedural fairness.
The Bill of Rights, consisting of the first ten amendments to
the U.S. Constitution, places limitations on the powers of the
federal government. It does not limit the power of the states,
however. In other words, the first ten amendments place no
limitations on state and local governments and their agencies.
Government power at the state and local levels is clearly limited
by state constitutions.
Even though the Bill of Rights does not limit state and
local governments, the Supreme Court has found a way to do so
through the Fourteenth Amendment. In particular, the Court
has used the Fourteenth Amendment’s due process clause,
which holds that no state shall “deprive any person of life, liberty, or property, without due process of law,” to make certain
Think About It…
Onur ERSIN/Shutterstock
The First Amendment and Criminal Procedure The
First Amendment to the U.S. Constitution provides that
“Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the ­Government for a redress of grievances.” Given what
you have read so far, is the First Amendment relevant to
criminal procedure?
protections specified in the Bill of Rights applicable to the
states. This is known as incorporation.
The extent to which the Fourteenth Amendment should
regulate state and local government power has been the subject
of some disagreement—hence, the incorporation controversy.
The basic question posed over the years has been “To what
degree should the Fourteenth Amendment’s due process clause
incorporate the various provisions of the Bill of Rights so as to
restrict state and local law enforcement in the same way federal
law enforcement is restricted by the Bill of Rights?” In response
to this question, there are several leading views on incorporation. They are depicted in Figure 1–2.
The incorporation debate is significant because of three
concerns. First, because most contact between citizens and
the police occurs at the state and local levels, it is critical to
determine the role of the federal Constitution at the state
level. Comparatively few people have contact with federal
law enforcement, so the Bill of Rights actually regulates a
limited number of police/citizen contacts. Second, incorporation, according to some, threatens federalism. Under the doctrine of federalism, states have the authority to develop their
own rules and laws of criminal procedure, but if the Fourteenth Amendment incorporates the Bill of Rights, this
authority can be compromised. Third, the incorporation
debate raises important concerns about the separation of
powers. Namely, the Supreme Court has decided which
rights should be incorporated—a decision that may better be
reserved for Congress.
Where does incorporation stand today? The Supreme Court
has consistently held that some protections listed in the Bill of
Rights are more applicable to the states than others. The Fourth
Total Incorporation
The total incorporation perspective holds that the Fourteenth Amendment’s
due process clause incorporates the entire Bill of Rights. In other words, all
protections specified in the Bill of Rights should be binding on the states.
The primary proponent of this view was Supreme Court Justice Hugo Black
(e.g., Adamson v. California, 332 U.S. 46 [1947]; Rochin v. California, 342
U.S. 165 [1952]).
Selective Incorporation
The second leading view on incorporation is that of selective incorporation,
or the fundamental rights perspective. It favors incorporation of certain
protections enumerated in the Bill of Rights, not all of them. Further, this
perspective deems certain rights as being more critical, or fundamental,
than others. The Supreme Court’s decision in Snyder v. Massachusetts
(291 U.S. 97 [1934]) advocates this perspective, arguing that the due
process clause prohibits state encroachment on those “principle[s] of
justice so rooted in the traditions and consciences of our people as to be
ranked as fundamental.”
Total Incorporation Plus
The third view on incorporation can be termed total incorporation plus.
This view holds that the Fourteenth Amendment’s due process clause
incorporates the whole Bill of Rights as well as additional rights not
specified in the Constitution, such as the “right to privacy.” This view can be
found in such Supreme Court cases as Adamson v. California and Poe v.
Ullman (367 U.S. 497 [1961]).
Finally, some people believe that the topic of incorporation deserves caseby-case consideration. That is, no rights should be incorporated across the
board. Rather, the facts and circumstances of each individual case should
be weighed in order to determine if any protections listed in the Bill of
Rights should apply at the state or local level.
Figure 1–2
Leading Views on Incorporation.
The Constitutional Basis for Criminal Procedure
Deciding Case
First Amendment freedom of religion, speech, and
assembly and the right to petition for redress of
Fiske v. Kansas, 274 U.S. 380 (1927)
Fourth Amendment prohibition of unreasonable
searches and seizures
Wolf v. Colorado, 338 U.S. 25 (1949)
Fifth Amendment protection against compelled
Malloy v. Hogan, 378 U.S. 1 (1964)
Fifth Amendment protection from double jeopardy
Benton v. Maryland, 395 U.S. 784 (1969)
Sixth Amendment right to counsel
Gideon v. Wainwright, 372 U.S. 335 (1963)
Sixth Amendment right to a speedy trial
Klopfer v. North Carolina, 386 U.S. 213 (1967)
Sixth Amendment right to a public trial
In re Oliver, 333 U.S. 257 (1948)
Sixth Amendment right to confrontation
Pointer v. Texas, 380 U.S. 400 (1965)
Sixth Amendment right to an impartial jury
Duncan v. Louisiana, 391 U.S. 145 (1968)
Sixth Amendment right to compulsory process
Washington v. Texas, 388 U.S. 14 (1967)
Eighth Amendment prohibition of cruel and
unusual punishment
Robinson v. California, 370 U.S. 660 (1962)
Figure 1–3
Rights Incorporated to the States.
Amendment, in its view, lists several fundamental rights. By
contrast, the Fifth Amendment’s grand jury clause has not been
deemed fundamental and is not binding on the states (Hurtado
v. California, 110 U.S. 516 [1884]).
Figure 1–3 lists the rights that have been deemed fundamental by the Supreme Court and, as a result, incorporated to
the states.6 The Supreme Court cases responsible for these
incorporation decisions are listed as well.
Although not all of the Bill of Rights is binding on the
states, it bears mentioning that the Supreme Court has repeatedly emphasized that Americans have a fundamental right to
privacy, even though the Constitution makes no mention of privacy. It is commonly said that people do not enjoy an expectation of privacy in public places. It would seem, then, that certain
rights not listed in the Constitution have also been identified as
well as incorporated.
â–¶ Precedent and Its Importance
To many students of criminal procedure, legal research is a lessthan-desirable pursuit. Even so, it is essential in everyday practice because of the importance of precedent. A ­precedent is a
rule of case law (i.e., a decision by a court) that is binding on all
lower courts and the court that issued it. A past decision may
not be available in each case, but when one is, the courts will
defer to it. This is the doctrine of stare decisis.
Chapter 1
Introduction to Criminal Procedure
Stare Decisis
Stare decisis is a Latin term that means to abide by or to adhere
to decided cases. Most courts adhere to the principle of stare
decisis. That is, when a court has handed down a decision on a
specific set of facts or legal questions, future court decisions
that involve similar facts or questions will defer to the previous
decision. In short, stare decisis is simply the practice of adhering to a previous decision or precedent.
Why does stare decisis occupy such an important position
in the U.S. court system? The answer is that it promotes consistency. It is well known that accused criminals enjoy the right to
counsel (Gideon v. Wainwright, 372 U.S. 335 [1963]), but what
if from one year to the next the Supreme Court vacillated on
whether this right were constitutionally guaranteed? The criminal process, not to mention the rights of the accused, would be
unpredictable and vary from one point to the next.
It is important to note that the practice of deferring to precedent is not always possible or desirable. First, stare decisis is
usually only practiced by courts in a single jurisdiction. Suppose, for example, that a federal circuit appeals court handed
down a decision. All the district courts within that circuit would
then abide by the appeals court decision. Courts outside that
circuit would not be bound to adhere to the decision (although
some courts often do as a matter of professional courtesy). Perhaps more important, if a case coming before a court is unique
and does not resemble one decided in the past, the court may
distinguish it.
Distinguishing Cases
When a previous decision
does not apply to the current
facts, a court will distinguish
the case, saying, in effect, that
this case is different and cannot be decided by looking to past rulings. Another way of
understanding what it means to distinguish a case is to think of
the present set of facts as unique and never before considered by
an appellate court.
Because only a handful of cases make it to the appellate
level, and even fewer still arrive at the Supreme Court, there are
an untold number of cases waiting to be distinguished. This is a
critical point. The case law in place currently addresses only a
minute quantity of possible constitutional questions. Countless
contacts occur between the police and citizens, and several of
them may give rise to important constitutional questions. Yet
they may never see the inside of a courtroom. So, although this
book may appear heavy on case law, a thorough understanding
of criminal procedure would require a review of the nearly
infinite possible factual circumstances that could arise in the
criminal process.
An example of a case that was distinguished is Terry v.
Ohio (392 U.S. 1 [1968]). In that case, the Supreme Court held
that police officers can stop and frisk suspects with reasonable
suspicion, not probable cause (the latter standard appearing in
the text of the Fourth Amendment). The Court felt that a stopand-frisk is different from a search or a seizure and, as such,
should be governed by a different set of standards. Had the
Supreme Court not decided Terry, or any case like it, stop-andfrisk encounters would probably still be considered seizures
and therefore subject to the Fourth Amendment’s requirement
for probable cause. Terry will be considered in more detail
later, as will many other distinguished cases.
In nearly every class on criminal procedure, students ask,
“What if . . . ?” The “what if” question reflects a concern over
possible factual circumstances not already addressed in published court decisions. In order for a “what if” question to be
answered, a court decision must result, otherwise the best
approach to answering such a question is to look to the past and
find a decision that closely resembles the hypothetical scenario
posed by the question. In this vein, every case discussed
throughout this text should be thought of as a distinguished
case. Every decision was based on a different set of factual circumstances and was deemed by the reviewing court as worthy
of being distinguished. Were it not for distinguished cases,
criminal procedure case law could be adequately covered in a
matter of minutes, even seconds.
Explain the
importance of
law enforcement within the real world. Understandably, there
can be differences, even tensions, between the worlds of theory
and reality.
Americans are taught that the courts—and the Supreme
Court, in particular—are charged with interpreting the Constitution and the laws of the United States. They are further taught
that law enforcement should accept such interpretations uncritically and without much reflection. Although these understandings are mostly true, theory and reality can still differ. Some
Supreme Court decisions have little influence in the real world,
and in some cases may even be flatly ignored. There are four
reasons for this:
• First, the Supreme Court sometimes makes decisions on
excruciatingly detailed matters that have almost no applicability to most law enforcement officers, most of the time.
A good example is the Supreme Court’s decision in
Atwater v. City of Lago Vista (533 U.S. 924 [2001]).
The Court decided that the Fourth Amendment does not
prohibit the police from arresting people for seatbelt
violations. To the parties involved in the actual case, this
decision may have been significant. But in most jurisdictions, how many police officers are going to arrest people
for seatbelt violations? The case probably has little
relevance to most police officers because they usually
have more important matters to address.
Theory Versus Reality
Criminal procedure consists mostly of rules and guidelines that
have been handed down by the courts to dictate how the criminal process should play out. In some circumstances, however,
court decisions may not have a great deal of influence. That is,
some court decisions are made in the theoretical world, which
is somewhat disconnected from the day-to-day operations of
Second, the Supreme Court frequently hands down decisions that would seem to have dramatic effects on the
nature of law enforcement, but actually involve issues that
are already being addressed by many police agencies. For
example, the Supreme Court’s decision in Tennessee v.
Garner (471 U.S. 1 [1985]) made it a violation of the
Fourth Amendment for the police to use deadly force to
apprehend an unarmed and nondangerous fleeing felon.
However, prior to Garner, many police agencies had
already adopted restrictive deadly force policies—policies
that, in many instances, were more restrictive than the
ruling handed down in Garner. Police agency policy,
therefore, can differ from, and even be more restrictive
than, decisions reached by the Supreme Court.
The third reason for the gap between theory and reality is
that the courts sometimes hand down decisions that can be
effectively circumvented or ignored by the police. Clearly,
it is not in the best interest of law enforcement to ignore
the courts, and probably quite rare that the police do so,
but it does occur. For example, in Kyllo v. United States
(533 U.S. 27 [2001]), the Supreme Court held that a search
occurs when the police scan a private residence with an
infrared thermal imager without first obtaining a warrant.
The consequence of conducting such a scan without a warrant is that any evidence subsequently obtained will not be
admissible in court. However, in reality, what is to prevent
the police from scanning someone’s house if there is no
intent to obtain evidence?
Finally, what the courts say and the police do can differ
simply as a consequence of some aspects of the U.S. legal
system. It is well known, for example, that a police officer
cannot stop a motorist without some level of justification.
Precedent and Its Importance
On how many occasions, though, are motorists stopped
without justification? That is, how many people are pulled
over every day simply because a police officer is
suspicious of them? This cannot be established for certain,
but it does happen. It can happen because the legal system
cannot do much to prevent it. Someone who is wrongfully
stopped can file a complaint, but research shows that many
such complaints are resolved in favor of the police.
A lawsuit can be filed, but such suits are rarely successful.
And if nothing is discovered that leads to arresting the
motorist, then it is doubtful that the illegal stop will draw
attention in court.
â–¶ Competing Concerns
in Criminal Procedure
Criminal procedure is an exciting topic because of the inherent
tension it creates between two competing sets of priorities. On
the one hand, there is a serious interest in the United States in
controlling crime, with some Americans advocating doing
whatever it takes to keep criminals off the streets. On the other
hand, because of their country’s democratic system of government, Americans value people’s rights and become angry when
those rights are compromised or threatened. These two competing sets of values have been described by Herbert Packer as the
crime-control and due process perspectives.7
The values each opposing perspective subscribes to are
probably familiar to many readers because the due process/
crime-control debate invariably pops up all throughout criminal
justice. Almost without exception, whenever there is disagreement as to how best to approach the crime problem—be it
through court decisions or legislative measures—the due
process/crime-control distinction rears its head. A delicate balance has to be achieved between the two perspectives.
The due process perspective closely resembles a liberal
political orientation. Liberals often favor protection of people’s
rights and liberties to a higher degree than their conservative
counterparts. By contrast, the crime-control perspective is the
one most frequently subscribed to by conservative law-andorder types.
Of course, in reality, there can be a great deal of overlap
between the two orientations. Liberals occasionally favor conservative crime-control policies, and conservatives can be concerned with protecting the rights of American citizens. That is
to say, although the two groups frequently stand in stark contrast to each other, they do sometimes meet in the middle.
Regardless, the values espoused by each group—be it an interest in crime control, an interest in civil rights, or an interest in
both—are here to stay. Given that, it is useful to consider each
perspective in more detail, focusing special attention on the
implications for criminal procedure.
Due Process
Packer’s due process perspective is, first and foremost, concerned with people’s rights and liberties. It also gives significant weight to human freedom. Due process advocates believe
Chapter 1
Introduction to Criminal Procedure
that the government’s primary job is not to control crime but
rather to maximize human freedom, which includes protecting
citizens from undue government influence. Proponents of due
process favor minimizing the potential for mistakes, as
explained by Packer:
People are notoriously poor observers of disturbing
events. . . . [C]onfessions and admissions by persons in
police custody may be induced by physical or psychological coercion so that the police end up hearing what
the suspect thinks they want to hear rather than the truth;
witnesses may be animated by a bias or interest that no
one would trouble to discover except one specially
charged with protecting the interests of the accused (as
the police are not).8
Due process advocates also believe that each suspect is
innocent until proven guilty, just as Americans are taught. In
addition, they place greater emphasis on legal guilt (whether a
person is guilty according to the law) rather than factual guilt
(whether a person actually committed the crime with which he
or she is charged).
Underlying the due process/crime-control perspectives are
four ideals: (1) The criminal process looks, or should look,
something like an obstacle course; (2) quality is better than
quantity; (3) formality is preferred over informality; and (4) a
great deal of faith is put in the courts.
The Obstacle Course
The “obstacle course” idea is rooted in a metaphor, of course. A
criminal process that resembles an obstacle course is one that is
complex and needs to be navigated by skilled legal professionals.
Further, it is one that is somewhat difficult to operate in a predictable fashion. It is not a process that prides itself on speed and
efficiency—values of great importance in the crime-control perspective. In fact, the opposite could be said. The obstacle-course
metaphor also stresses that each case must pass through several
complicated twists and turns before a verdict can be rendered.
Quality over Quantity
Another way to distinguish between due process and crime control is in terms of quantity and quality. The due process view
favors quality—that is, reaching a fair and accurate decision at
every stage of the criminal process. It stresses that each case
should be handled on an individual basis and that special attention should be paid to the facts and circumstances surrounding
the event. In addition, the concern with quality is one that minimizes the potential for error. For example, due process advocates are in favor of allowing several death penalty appeals
because the possibility of executing the wrong person should be
avoided at all costs.
Insistence on Formality
Due process advocates do not favor informal processes. Because
of the potential for human error and bias, they favor a fullblown adversarial criminal process. They also believe that early
intervention by judges and other presumptively objective parties (besides, say, the police) is in the best interest of people
accused of breaking the law.
Think About It…
Faith in the Courts
Another value inherent in the due process perspective is intense
faith in the courts as opposed to law enforcement. Due process
advocates correctly point out that the job of a judge is to interpret the U.S. Constitution. This, they argue, helps provide protection to people charged with crimes. Faith in the courts also
corresponds with the previously mentioned insistence on formality. When guilt or innocence is determined in court, an air of
fairness and objectivity must be maintained.
Crime Control
In contrast to the due process
perspective, the crime-control
emphasizes the
importance of controlling
crime, perhaps to the detriment of civil liberties. From
a cost/benefit perspective,
crime-control advocates believe that the benefit of controlling
crime to society at large outweighs the cost of infringing on
some individuals’ due process protections. Another way to distinguish between the due process and crime-control perspectives is to consider the distinction between means and ends:
Crime control is more concerned with the ends—with wiping
out crime, or at a minimum, with mitigating its harmful effects.
By contrast, due process is concerned with the means—with the
methods by which people are treated by criminal justice officials. The result—either crime or the absence of it—is not of
great concern to due process advocates.
Distinguish between
the public order
(crime-control) and
individual rights (due
process) perspectives of criminal
The Assembly Line
The metaphor of an “assembly line” suggests that the criminal
process should be automatic, predictable, and uniform. In other
words, every criminal should be treated the same, with minimal
variations in terms of charges and sentences. The assembly-line
metaphor further suggests that the criminal process should be
quick and efficient. The goal of the crime-control perspective is
to move criminals through the justice process as swiftly as possible. A full-blown adversarial criminal process, replete with
Marmaduke St. John/Alamy Stock Photo
Due Process or Crime Control The Supreme Court’s
­decision in Miranda v. Arizona (discussed later in
­Chapter 8, “Interrogation and Confessions”) requires that
police advise suspects of their Fifth Amendment right to
be free from compelled self-incrimination. Is the Court’s
decision in this case due process oriented or crime-control
oriented? Why?
hearings and other pauses in the interest of the accused, is
anathema to the crime-control view.
Quantity over Quality
As just mentioned, the due process model stresses quality over
quantity. The crime-control model, by contrast, favors quantity over quality, a view that is consistent with the assemblyline metaphor. The goal is to move as many offenders as
possible through the criminal justice system with as little delay
as possible. If mistakes are made along the way and someone
is wrongfully charged or convicted, so be it. That is, the overall goal of ensuring that as many criminals are dealt with as
possible is superior to protecting any individual’s constitutional rights.
Insistence on Informality
Whereas the due process perspective favors the formality of the
criminal process, with particular emphasis on the courts, the
crime-control perspective favors informality. The courts are to
be avoided; instead, justice should be meted out beyond the
walls of a courtroom. Plea bargaining, for instance, is favored
because of its swift, behind-the-scenes nature (not to mention
that it eliminates the need to go to trial). An insistence on informality suggests further that the law enforcement establishment
should be more involved in making determinations of guilt, not
the courts.
Faith in the Police
Finally, whereas the due process perspective places a great deal
of faith in the courts, the crime-control perspective puts a high
degree of trust in the police. All Americans are taught that each
suspect is innocent until proven guilty in a court of law. Clearly,
the courts are charged with making this determination. However, crime-control advocates favor so-called street justice, giving the police vast discretion in deciding how to deal with
people suspected of being involved in criminal activity. A fitting quote describing the crime-control perspective is, therefore, “All criminals are guilty until proven innocent.” In other
words, all suspects should be considered guilty; if the courts
determine otherwise, then so be it.
Competing Concerns in Criminal Procedure
Think About It…
Blend Images/Alamy Stock Photo
Due Process or Crime Control In two decisions, United
States v. Leon (468 U.S. 897 [1984]) and Massachusetts
v. Sheppard (468 U.S. 981 [1984]), the Supreme Court
created what is known as the “good faith” exception to the
exclusionary rule. Both cases are important in that they
held that violations of people’s constitutional rights are
permissible, under limited circumstances, when the police
make honest mistakes. For example, if a police officer
relies on a search warrant that was obtained on the basis
of a reasonable mistake, he or she could serve the warrant,
search for evidence, and seize it, even if these actions violated the rights of the person searched. The key is that the
mistake must be a reasonable one. How, then, would you
characterize both the Leon and Sheppard decisions:
as prioritizing crime control or due process?
â–¶ Structure of the U.S. Court
Criminal procedure can be complex, not only because of the
many factual questions that arise in day-to-day police/citizen
encounters (as well as throughout the rest of the justice ­process),
but also because of the two-tiered structure of the U.S. court
system. This two-tiered structure reflects the idea of dual sovereignty: The federal and state governments are considered separate, or sovereign, in their own right. Each state, as well as the
federal government, has its own court structure.
There is no way to succinctly describe all the variations in
state court structures, but, generally, they resemble one another.
Chapter 1
Introduction to Criminal Procedure
Typically, the lowest-level courts in a given state are courts of
limited jurisdiction, which have jurisdiction over relatively
minor offenses and infractions. A traffic court fits in this category. Next are the trial courts, also called courts of general
jurisdiction, which try several types of cases. Courts of general
jurisdiction are often county-level courts and are frequently
called superior courts. At the next highest level are the intermediate appellate courts; verdicts from courts of general jurisdiction are appealed to these courts. Finally, each state has its own
state supreme court, the highest court in the state. Figure 1–4
shows a typical state court structure—from the state of
Washington. Importantly, state courts try cases involving state
laws (and, depending on the level of the court, some county, city,
and other local ordinances).
The federal court strucLEARNING Outline the structure
OUTCOMES of the court system,
ture can be described suc4 including the responcinctly because, for the
sibilities and jurisdicpurposes of criminal procedure, it consists of three spe- tions of each level.
cific types of courts. Federal
courts try cases involving federal law. The lowest courts at the
federal level are the so-called district courts. There are 94 federal
district courts in the United States (as of this writing), including
89 district courts in the 50 states and 1 each in Puerto Rico, the
Virgin Islands, the District of Columbia, Guam, and the Northern
Mariana Islands. At the next level are the U.S. courts of appeals.
There are 13 of these so-called circuit courts of appeals:
12 regional courts and 1 for the federal circuit. Each is charged
with hearing appeals from several of the district courts that fall
within its circuit. Finally, the U.S. Supreme Court is the highest
court in the federal system. As will be discussed, however, the
Supreme Court does not hear only federal appeals.9 Figure 1–5
shows the structure of the federal court system; the courts of relevance in criminal procedure are highlighted. Figure 1–6 presents a map of the geographic boundaries of the U.S. courts of
appeals and the U.S. district courts.
The federal government as well as each of the 50 states is
considered a sovereign entity. That is why each has a court
system of its own. There is another set of sovereigns, however: the Native American tribal courts. These tribal courts
will receive no further attention in this book because, in general, they do not have to follow the same constitutional
requirements as state and federal courts. Rather, they fall
under the Indian Civil Rights Act of 1968. The U.S. military
also has its own structure, in which the rules of criminal procedure differ markedly from those covered here. Because of
the complexity of the Uniform Code of Military Justice, military courts and criminal procedure will not be covered in this
book, either.
That said, what influences where a case will be decided?
Generally, if the case involves federal law, it will be tried in
federal court. If, by contrast, it involves state law, it will be
heard in state court. Certain crimes—such as kidnapping, transportation of illegal narcotics across state lines, and robbing a
federally insured bank—can be tried in both federal and state
courts, if the prosecutors agree. As will be discussed later, such
a dual prosecution does not violate the Fifth Amendment’s
double-jeopardy clause.
9 justices sit en banc and in panels.*
CSP** case types:
Mandatory jurisdiction in civil, capital criminal, criminal, administrative agency, juvenile, and certified
questions from federal court cases
Discretionary jurisdiction in civil, noncapital criminal, administrative agency, juvenile, disciplinary, original
proceeding, and interlocutory decision cases
Court of
last resort
COURT OF APPEALS (3 courts/divisions)
22 judges sit in panels.
CSP case types:
Mandatory jurisdiction in civil, noncapital criminal, administrative agency, juvenile, and original proceeding cases
Discretionary jurisdiction in administrative agency and interlocutory decision cases
SUPERIOR COURT (31 districts in 39 counties)
179 judges
CSP case types:
Tort, contract ($0/no maximum); exclusive real property rights ($0/no maximum), estate, mental
health, civil appeals, and miscellaneous civil jurisdiction
Exclusive domestic relations jurisdiction
Exclusive felony and criminal appeals jurisdiction
Exclusive juvenile jurisdiction
MUNICIPAL COURT (125 courts)
98 judges
CSP case types:
Misdemeanor, DWI/DUI, and domestic violence
Moving traffic, parking, miscellaneous traffic,
and ordinance violation
Jury trials except in infractions and parking
Court of
DISTRICT COURT*** (44 courts in 56 locations
for 39 counties)
109 judges
CSP case types:
Tort, contract ($0/$50,000); exclusive small
claims jurisdiction ($4,000)
Misdemeanor, DWI/DUI, and domestic violence
Moving traffic, parking, and miscellaneous
(nontraffic) violations
Preliminary hearings
Courts of
Jury trials except in traffic and parking
* en banc means all justices/judges hear the case at once. “In panels” means only some of the justices/judges hear the case.
** Court Statistics Project
*** District court provides services to municipalities that do not have a municipal court.
Figure 1–4
Structure of a State Court System (Washington).
Source: www.bjs.gov/content/pub/pdf/sco04.pdf (accessed November 1, 2015).
As indicated near the outset of this chapter, criminal
procedure textbooks—this one included—focus almost exclusively on U.S. Supreme Court decisions. Why focus on federal Supreme Court decisions rather than state supreme court
decisions? The answer is that many important cases move
from the state supreme courts to the U.S. Supreme Court,
which is the court of last resort. Decisions of the U.S. Supreme
Court are therefore important because they represent the last
word on what conduct is constitutional and what is not.
Structure of the U.S. Court System
U.S. Courts of Appeals
12 Regional Circuit Courts of Appeals
1 U.S. Court of Appeals for the Federal Circuit
U.S. District Courts
94 judicial districts
U.S. Bankruptcy Courts
U.S. Court of International Trade
U.S. Court of Federal Claims
Figure 1–5
Military Courts (trial and appellate)
Court of Veterans Appeals
U.S. Tax Court
Federal administrative agencies and boards
Structure of the Federal Court System.
Source: Administrative Office of the U.S. Courts, http://www.uscourts.gov/FederalCourts.aspx
(accessed November 1, 2015).
Figure 1–6
U.S. Court Jurisdictions.
Source: Administrative Office of the U.S. Courts, http://www.uscourts.gov/about-federal-courts/
federal-courts-public/court-website-links (accessed November 1, 2015).
To understand the relationship between the federal and
state courts, it is necessary to understand first where to find
criminal cases and then how to trace the progress of criminal
cases as they move from the trial to the appellate level.
Chapter 1
Introduction to Criminal Procedure
Following discussion of these topics, attention will turn to
what types of cases are decided by the U.S. Supreme Court
and how state-level court decisions arrive at the nation’s highest court.
â–¶ Understanding Court Cases
Being able to find court cases requires that readers be familiar
with legal citations as well as the publications in which cases
can be found. Legal citations are somewhat cryptic, but they can
be deciphered with relative ease (see Figure 1–7). After becoming familiar with case citations, it is necessary to learn where the
cases can actually be found. First, most university libraries have
one or several of the so-called reporters listed in Figure 1–8.
They can be found in bound form on the library shelves. Online
research is also an option. Cases can be found at such websites
as www.findlaw.com. U.S. Supreme Court cases can be found at
www.supremecourtus.gov. Another website, maintained by
Cornell University, is helpful for finding Supreme Court cases:
Many university libraries also have access to subscription
databases, such as LexisNexis, which contain cases from nearly
all courts across the country. LexisNexis has a search feature
known as Shepard’s Citations, which allows researchers to
enter a case citation and retrieve every other case that has cited
it. Doing a Shepard’s search is useful for tracing the history and
current status of an important decision. Westlaw offers a similar service known as KeyCite.
For those who do not enjoy reading actual court decisions,
other sources of legal information may be useful. For example,
legal dictionaries and encyclopedias offer clarification of
important legal concepts. Legal digests identify and consolidate
legal issues, provide commentary on and interpret cases, and
otherwise “digest” complex material. Finally, law reviews are
Miranda v. Arizona, (384 U.S. 436 [1966])
Miranda and Arizona: the parties to the case. The party
listed first is the one initiating the action. In this case,
Miranda appealed his conviction, which is why he is
listed first.
384: the volume of the publication in which the case
is located
U.S.: the abbreviation of the publication in which the
case can be found. “U.S.” refers to the official U.S.
Supreme Court reports.
436: the page on which the case starts
1966: the year the decision was published
Figure 1–7
Understanding Case Citations.
United States Reports: This is the official publication for U.S. Supreme Court decisions.
Supreme Court Reporter: This West Law publication reports U.S. Supreme Court decisions.
Criminal Law Reporter: This Bureau of National Affairs publication reports U.S. Supreme Court decisions.
United States Law Week: This Bureau of National Affairs publication reports U.S. Supreme Court decisions.
Federal Reports, Second Series: This West Law publication reports decisions of the Federal Courts of Appeals.
Pacific Reporter, Second Series: This West Law publication reports decisions from the Pacific states.
Atlantic Reporter, Second Series: This West Law publication reports decisions from the Atlantic states.
North Eastern Reporter, Second Series: This West Law publication reports decisions from the northeastern states.
North Western Reporter, Second Series: This West Law publication reports decisions from the northwestern states.
South Eastern Reporter, Second Series: This West Law publication reports decisions from the southeastern states.
South Western Reporter, Second Series: This West Law publication reports decisions from the southwestern states.
Southern Reporter, Second Series: This West Law publication reports decisions from the southern states.
Figure 1–8
Publications Containing Court Cases.
Understanding Court Cases
useful places to find discussions of various aspects of the law as
well as opinions on and interpretations of court cases. Databases such as LexisNexis contain full-text articles from nearly
all law reviews.
The appellate court
agrees with the lower
court’s decision.
The case is sent back
to the lower court for
further action.
The lower court’s
decision is nullified
or set aside.
The lower court’s decision
is cancelled or set aside
(similar to a reversal).
Tracing the Progress of a Criminal Case
One of the more frustrating
aspects of criminal procedure,
especially for those who have
little familiarity with the law
or legal jargon, is the sometimes laborious task of tracing the progress of a criminal case.
If final decisions were reached in a single court, then criminal
procedure would be vastly simplified. In reality, though, a single case can bounce back and forth between trial and appellate
courts, sometimes for years. Indeed, many U.S. Supreme Court
decisions concern matters that occurred a decade or more ago.
Thus, it is of particular importance for students of criminal procedure to learn how to trace a criminal case.
There are several essential steps to tracing the progress of
a criminal case. First, it is necessary to have a basic understanding of the nation’s court structure. This requires knowing where
the criminal trial in question took place. If it took place in a
federal circuit court, then tracing the progress of the case will
be fairly easy. There are only three possible courts—district
court, circuit appellate court, and the Supreme Court—that may
have handed down decisions on the matter. If the case originated in state court, however, it can be decidedly more difficult
to trace the case over time. Familiarity with the state court
structure is needed, as well as an understanding of how cases
can jump back and forth between the state and federal courts,
which will be discussed later in this section.
Second, to adequately follow the progress of a criminal
case, it is also necessary to understand the legal jargon, beginning with the parties to the case (see Figure 1–9). Next, to follow a criminal case, it is essential to have an understanding of
how cases are decided and what possible decisions can be
reached (see Figure 1–10). At the trial level, two decisions can
result: guilty and not guilty. At the appellate level, however, the
picture becomes more complex. Assume, for example, that a
defendant is found guilty in a federal district court and appeals
to one of the circuit courts of appeals. Assuming that the court
agrees to hear the case, it can hand down one of several
Discuss the steps to
trace and understand
court cases.
Person charged with the crime in question
The official governmental representative tasked
with bringing charges against the accused
The party that appeals
The party appealed against
Similar to an appellant, but one who files for
habeas corpus review
Figure 1–9
The Parties to a Case.
Chapter 1
Introduction to Criminal Procedure
Figure 1–10
Common Appellate Court Dispositions.
decisions. The most common decisions are to affirm or to
reverse a lower court’s decision.
If there were only one appellate court, tracing the progress
of a case would be fairly simple. Unfortunately, multiple appellate courts exist, which means the decisions from court to court
can change. This is a very important point. Assume, for example, that a defendant is found guilty in a state trial court. He or
she could appeal to the state’s intermediate appellate court,
which could reverse the defendant’s conviction. The case could
then go to the state’s supreme court, which could reverse the
appellate court’s decision and basically uphold the defendant’s
conviction. Finally, the case could go to the U.S. Supreme
Court, which could again reverse the defendant’s conviction.
Believe it or not, this is a fairly simple progression. Nothing
prevents a single case from going from the trial court to the
appellate court, back to the trial court, up to the appellate court
again, up to the state supreme court, back to the intermediate
appellate court, and so on.
It is essential to understand what has happened with a criminal case before making any claims as to its importance or influence. In other words, doing incomplete legal research can be a
recipe for disaster. If, for instance, a researcher finds a state
supreme court decision that supports a point he or she wants to
make, but that decision was later reversed, say, by the U.S.
Supreme Court, whatever argument he or she makes in reliance
on that state supreme court case will be inaccurate. Thus, in
tracing the progress of a criminal case, it is necessary to understand whether the issue in question has been resolved or may
currently be on the docket of an appellate court, which could
render an altogether different decision.
In tracing a criminal case, especially when interpreting one
decided at the appellate level, it is important to understand the
components of a published decision (see Figure 1–11). An
appellate court often consists of a panel of judges who may not
always agree with one another, even though the court reaches a
single decision. For example, a 5-to-4 decision by the U.S.
Supreme Court is one in which the Court reached a single decision because of a majority, but four of the justices disagreed.
There is much more to tracing the progress of a criminal
case than understanding the terminology encountered along the
way. How is it that certain cases are appealed and others are
Think About It…
Brandon Bourdages/
not? Under what circumstances may the defendant, but
Voice of the majority of the court—the majority opinion
not the prosecution, appeal, and vice versa? Why do
some defendants file several appeals and others do not?
Concurring Opinion
An agreement with the majority decision, but using
Answers to these questions are presented in the last
different reasoning
chapter of this text, where special attention is given to
the appellate process and other methods for challenging
Dissenting Opinion
A disagreement (supported by reasoning) with the
the verdicts of trial courts throughout the United States.
majority decision
Most criminal cases originate at the state level.
This should be obvious because there are 50 state court
Figure 1–11 Parts of a Supreme Court Decision.
structures and only 1 federal court system. Also, the
number of state laws criminalizing certain types of conduct
Four of the nine U.S. Supreme Court justices must agree to hear
vastly exceeds the number of federal laws with the same objeca case before a writ of certiorari will be issued. This is known
tive. But just because most cases are heard in state courts does
as the rule of four.
not mean they cannot be heard at the federal level. State-level
If four justices do not agree to hear the case, that is the end
cases can arrive at the U.S. Supreme Court.
of the road in terms of legal options. When tracing the progress
Stated simply, a state-level case can arrive at the U.S.
of a case, encountering a statement such as “cert. denied” will
Supreme Court if it raises a federal question, which is usually a
indicate this result: The case was denied a hearing by the
question concerning the U.S. Constitution. First, however, such
Supreme Court. Figure 1–12 summarizes how cases arrive at
a case must proceed through several steps. It must move all the
the Supreme Court.
way to the state supreme court. That is, a case cannot jump from
It must be emphasized that only a handful of cases will
a state-level intermediate appellate court to the U.S. Supreme
ever reach the U.S. Supreme Court. It is not uncommon for the
Supreme Court to review thousands of petitions yet grant fewer
Next, like many appellate courts, the U.S. Supreme Court
than 100 writs of certiorari. Most cases that are appealed stop
must decide whether it wants to hear the case. The party seekshort of reaching the Supreme Court, so it is necessary to find
ing a decision must file documents with the Court, asking to be
out at what level the final decision was reached. Not tracing a
heard. If the Supreme Court agrees the case is worth deciding,
case to its final decision can be fatal to a legal argument. In
it issues what is known as a writ of certiorari. This is an order by
other words, if a researcher wants to argue a specific point with
the court requiring the lower court to send the case and a record
reference to a previously decided case, he or she must be sure
of its proceedings to the U.S. Supreme Court for review.
that the decision is, if only for the time being, a final one.
Interpreting a Supreme Court Holding Assume that John Smith was subjected to a search
that was not supported by probable cause. Assume further that he was convicted in a
federal district court based on evidence obtained from the search. He appealed his conviction to the U.S. court of appeals, which remanded his case back to the district court to
determine if the search to which Smith was subjected required probable cause. The district
court concluded that the search did not require probable cause. The case was then appealed again to the U.S. court of a­ ppeals,
which reversed the district court’s decision. The U.S. Supreme Court then granted certiorari and reversed the U.S. court of
appeals decision. In plain English, what happened here? In other words, what is the practical effect of this c­ onvoluted case
Think About It…
Would the Supreme Court Hear This Case? Assume that a state supreme court heard an appeal
from one of the state’s intermediate appellate courts. In the appeal, the defendant argued that her
conviction should be overturned, as the judge failed to declare that certain testimony provided by
the government’s lead witness should have been deemed inadmissible according to the state’s rules
of evidence. In making its decision, the appellate court sided with the government, upholding the d­ efendant’s conviction. Would the
U.S. Supreme Court likely hear this case? What if instead the defendant argued that the original judge mistakenly permitted the prosecutor to comment to the jury concerning the defendant’s refusal to take the stand and testify? Would that issue likely get a hearing
from the Court?
Understanding Court Cases
the lower courts (usually, the trial court) to decide if the action
in question conforms to constitutional guidelines. However,
this approach can also create uncertainty for law enforcement
U.S. Supreme Court
U.S. Courts of Appeals
State Supreme Courts
U.S. District Courts
Appellate Courts
Federal-Level Courts
Trial Courts of
General Jurisdiction
State-Level Courts
Figure 1–12
â–¶ The Criminal Process
There is no easy or concise way to describe the criminal
process. Figure 1–13 presents one variation. Importantly, however, there are many different variations. For example, cases are
handled differently between the federal and state levels. Many
differences exist between states, as well. Further, depending on
the seriousness of a case, the criminal process may assume
different forms.
Almost all criminal procedure texts present an overview of
the criminal process, like the one that follows. But because
of the variation from one jurisdiction to the next, readers should
take steps to familiarize themselves with the criminal processes
in the areas in which they reside. That said, think of the rest of
this section as an overview of the criminal process. The rest of
this book will detail the criminal process in this order.
How Cases Arrive at the Supreme Court.
At the risk of simplification, there are two types of Supreme
Court decisions: (1) bright-line decisions and (2) decisions
requiring case-by-case adjudication. A bright-line decision is
one in which the Court hands down a specific rule, one subject
to very little interpretation. It is like the metaphorical “line
drawn in the sand”; in other words, the Court emphatically
communicates to the criminal justice community what it can
and cannot do. An example of a bright-line decision is Wilson v.
Layne, mentioned earlier. In it, the Supreme Court said that the
police cannot bring the media along on the service of warrants
unless media presence serves a legitimate law enforcement
objective. It is easy to see that this is a clear, bright-line rule.
Exactly what constitutes a “law enforcement objective” may be
somewhat vague, but otherwise, this rule is quite clear. The
advantage of a bright-line rule is that it promotes clarity and
consistency. Also, it is easily understood by criminal justice
A decision requiring case-by-case adjudication is quite different. In many cases, the Supreme Court refers to the concept
of totality of circumstances. For example, in the case of
Manson v. Braithwaite (432 U.S. 98 [1977]), the Supreme
Court held that the totality of circumstances determines whether
an identification procedure is unreliable. This means that all the
facts and circumstances surrounding the case must be examined
in order to determine whether a constitutional rights violation
has taken place. Deciding whether the totality of circumstances
supports the action in question requires looking at each case
individually. There is no existing recipe specifying what authorities should or should not do. A case-by-case decision is preferable in some instances because it is rarely possible to know in
advance all the possible twists and turns in a criminal case. That
is, case-by-case decisions promote flexibility, leaving it up to
Chapter 1
Introduction to Criminal Procedure
The wheels of the criminal process are set in motion once an
arrest occurs. This is the pretrial stage of the criminal process.
An arrest may occur because an officer observed a crime in
progress. Alternatively, an arrest may be made because an arrest
warrant was out on the individual targeted. The officer may also
have been serving a search warrant and discovered contraband,
thus justifying an arrest. Finally, the officer may have been
engaged in a proper warrantless search, found contraband, and
made the arrest.
In any case, once someone is arrested, he or she will be
searched. This is done to protect the police and also to discover
contraband that may be in the suspect’s possession. Then the
suspect will be transported to the police station and booked.
Booking is the process in which the suspect is fingerprinted,
processed, photographed, and probably placed in a holding cell.
The suspect may also be required to submit to testing (such as a
Breathalyzer) and possibly to participate in a lineup for identification by a witness to the crime.
After this, the police will present their case to the prosecutor, and, assuming the prosecutor believes the evidence
is persuasive enough, he or she will bring charges against
the suspect, subject to certain restrictions identified by the
U.S. Supreme Court. The suspect will now be considered the
defendant. If the charges are minor, the police may release
the suspect, in which case he or she will be required to
appear in court at some later date.
Suspects who are booked, placed in detention, and charged
with a crime face a number of different court hearings, depending on the seriousness of the crime. Misdemeanors, because of
their not-so-serious nature, tend to be fast-tracked through the
courts. A misdemeanor defendant may appear at only one court
hearing, in which the judge will decide guilt or innocence. Felony defendants, by contrast, face a longer legal road. If, as
Figure 1–13
Sequence of Events in the Criminal Justice System.
described already, the suspect is arrested without a warrant, he
or she will be granted a probable cause hearing, in which
the judge will decide whether the arresting officer had appropriate justification to make the arrest. (This hearing may, in fact,
be merged with other hearings, but this book will treat it as a
separate event.)
The next step in the criminal process is the arraignment. At
the arraignment, the suspect comes before a judge and is, at a
minimum, informed of the charges against him or her. The
defendant will also be notified of the right to counsel, the right
to remain silent, and other important rights. He or she will also
be allowed to enter a plea. Common pleas are guilty, not guilty,
and nolo contendere (which is akin to a plea of “no contest”). A
public defender may be assigned at this stage, particularly if the
defendant is unable to afford his or her own representation.
Probable cause may also be determined at this stage if a
separate hearing is not required. Finally, for a misdemeanor
charge, a trial may take place at the arraignment. A bail determination could be made as well.
If the bail determination is not fused with the arraignment,
a separate hearing may be warranted. (The approach taken in
this book is that the bail determination is made in a separate
hearing.) In deciding whether bail should be granted, the judge
will take such factors into account as the seriousness of the
crime and the defendant’s prior record, likelihood of flight, and
level of dangerousness. The defendant’s financial status may
also be considered.
It is important to note that the prosecutor’s method of
filing charges varies from one state to the next. Some states
require that the prosecutor proceed by information, a document that describes the charges the prosecutor is filing.
Other states require that the prosecutor proceed by a
The Criminal Process
grand jury indictment. That is, a grand jury decides whether
charges should be filed, usually with the advice and assistance of the prosecutor. Some states require or allow both
methods of filing charges, depending on the nature of the
case. What is important in this discussion, however, is that
in jurisdictions in which the prosecutor proceeds by information, he or she is usually required to show that the charging decision is appropriate. This is accomplished in a
so-called preliminary hearing, during which the prosecutor
makes out what is known as a prima facie case of the defendant’s guilt. A preliminary hearing can also be required in
a grand jury jurisdiction, requiring the prosecutor to present his or her case before seeking a grand jury indictment.
At trial, the prosecutor bears the burden of proving that the
defendant is guilty beyond a reasonable doubt. After the prosecution has presented its case, the defense steps in and presents
its case. In doing so, it seeks to cast doubt on the prosecution’s
evidence. A criminal trial may move back and forth in this fashion until both sides rest. At this point, a verdict must be reached.
Depending on the seriousness of the offense, the verdict is
decided by either a judge or a jury. A judge decides the defendant’s fate in a so-called bench trial but only for an offense that
is likely to result in less than six months’ imprisonment. A jury
decides the verdict when the offense at issue is more serious.
Special steps must be taken in either instance to ensure the
impartiality of the judge or the jury.
Beyond Conviction
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