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Criminal Procedure

Further Readings

Contrasting Perspectives on the Legal System
Many Americans come in contact with the U.S. legal system during their lifetimes, some for just cause and others without sufficient reason. From the "bottom"--that is, from the perspective of the person charged with a crime--the system of criminal justice may seem like a maze through which the individual isprocessed by means that often appear arbitrary and sometimes seem hostile ordiscriminatory in nature. There is little that is dignifying about undergoing arrest and incarceration; but under the constitutional system, persons in the United States enjoy a variety of protections against abuses of their basicrights.
Viewed from the "top"--that is, from the perspective of legal scholarship--criminal procedure in America is not so much concerned with the concrete paraphernalia of police activity, such as handcuffs and jail cells, as it is with qualities considerably more abstract. Specifically, criminal procedure is governed by a quartet of amendments to the U.S. Constitution, and by the legal interpretation of those amendments which has developed over the years since their adoption.
Four Constitutional Cornerstones
Much of contemporary understanding with regard to criminal procedure arises from interpretations of the Fourth, Fifth, and Sixth Amendments--adopted alongwith seven others as part of the ten-amendment Bill of Rights in 1791--as well as the Fourteenth Amendment, ratified in 1868 as a means of securing rights for former slaves freed during the Civil War.
The Fourth Amendment addresses the issue of search and seizure, and limits the power of the government to search the property of an individual--whether that property is a house, papers, effects, or the citizen's own body--without "probable cause." The latter term has undergone varying interpretations, but can be explained in common-sense terms as a reasonable expectation that some form of crime has been committed. For example, if neighbors report that they have heard the sound of machine-gun fire coming from a particular individual'sdwelling, the police have probable cause to search the premises for illegalweapons and, given that such weapons are illegal, to seize them. They do not,however, have the power to search for items not specified in the warrant (e.g., to look for illegal drugs if the warrant is for weapons), or to search parts of the individual's property other than those defined in the warrant. This derives from the guidelines for warrants provided in the amendment: they must be "supported by Oath or affirmation," and must "particularly [describe] the place to be searched, and the persons or things to be seized."
The Fifth Amendment contains several guarantees of rights important in the system of criminal procedure, the most well-known of which is the right againstmaking self-incriminating statements. This means that a suspect charged witha crime is not required to act as a witness against himself, or to provide any information which would lead to his conviction; rather, the burden of proof is on the government.
As for the Sixth Amendment, it guarantees the individual's rights in the courtroom, rights which include a speedy and public trial, an impartial jury, andconfrontation by witnesses against the individual (i.e., someone cannot makean accusation without formally presenting themselves as a witness in a courtroom). The individual is also guaranteed the right to "[obtain] witnesses inhis favor," as well as the right to legal counsel. In a case where a defendant cannot afford an attorney's fees, the court will appoint a defense lawyer whose fees will be paid by the public. Such was the situation, for instance, in the famous Oklahoma City bombing trial, United States v. McVeigh (1997), when accused bomber Timothy McVeigh was granted the services of StephenJones, a court-appointed lawyer. Whereas the right to defend oneself is embodied in the Sixth Amendment, however, the right to a court-appointed defense in the absence of other means has only arisen through subsequent interpretation of the amendment.
Likewise the Fourteenth Amendment represents a progressive development of ideas contained in the Fifth. Though the language and the immediate purposes ofthe two amendments differ greatly, both contain a key phrase: "due process oflaw." These four words are at the bedrock of America's legal tradition, andwhereas the Fifth Amendment guarantees individuals' right to due process withregard to federal proceedings, the Fourteenth Amendment does the same with regard to state proceedings. Because the majority of all legal action takes place at the state or local level, this expansion of constitutional safeguardswas one of the most pivotal events in American legal history.
Habeas Corpus and Other Guarantees
In addition to the amendments, the main body of the Constitution provides a number of provisions governing criminal procedure. Among these is a guaranteeregarding writ of habeas corpus. In Latin, the phrase literally means"You should have the body," the first words of the original Habeas Corpus Act, adopted in England in 1679. Under the writ of habeas corpus, a defendant has a right to appear before a judge to determine whether he is being held illegally. During the Civil War, President Lincoln suspended the writ ofhabeas corpus in order to detain suspected Confederate agitators, using as his justification the provision in the Constitution which provides that"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The Supreme Court ruled, in Ex parte Merriman (1861), that Lincoln had exceeded the powers granted the executive branch of government; however, Congress, in what remains a controversial act, authorized suspension of the writ for the duration of the war.
Other clauses in the Constitution which address criminal procedure include prohibitions against bills of attainder, a law declaring a person guilty without trial; and against ex post facto laws, or retroactive laws that attempt to punish someone for something that was not a crime when they did it. Finally, Article III, Section 2, provides for one of the foundational elementsof the criminal justice system, trial by jury.
From Probable Cause to Appeal: The Criminal Procedure Cycle
To return to the earlier view of the criminal justice system from the "bottom," the following provides a rough outline of the procedure whereby a suspectis sent through the legal process. The latter term, of course, suggests a factory-like atmosphere, which in turn carries with it negative connotations regarding the attitude of the justice system toward the individual. In fact theestablishment of a routine structure for criminal procedure suggests an underlying desire, however imperfectly realized, to treat all defendants the same.
The process begins with the report of a crime, or with the law enforcement officer's direct awareness of a crime in progress. There follows a pre-arrest investigation, at which time the officer may, within strict guidelines which include the requirement of a search warrant, obtain information about the suspect and the crime which may lead to arrest. If a court later determines thatthe officer obtained evidence illegally at this or any point in the process,then that evidence will have to be suppressed or excluded from the legal record.
The officer having determined sufficient grounds for arrest, he or she readsthe defendant his Fifth Amendment rights. This statement, often called the Miranda rights (Miranda v. Arizona [1966]), contains words famous to viewers of almost any crime drama on television: "You have the right to remain silent; anything you say can and will be used against you...." Like the Exclusionary Rule which governs the exclusion of evidence obtained illegally, the reading of the Miranda rights is a provision that results from a Supreme Courtdecision, rather than from a specific stipulation in the Constitution or itsamendments.
Police may spend a great deal of time leading up to the arrest, but in accordance with the constitutional guarantee of the right to a speedy trial, the next stages proceed as quickly as possible. The suspect is booked, and usuallyis placed in a temporary jail cell pending charges. The arresting officer maythen make a post-arrest investigation, and assuming that the evidence seemssufficient to do so, will then decide to charge the suspect. The officer files a complaint, under sworn oath, stating that he or she believes that the suspect committed the crime in question. Assuming that the magistrate (or judge)agrees that there is probable cause, the suspect then appears before the magistrate for a bail decision, and to enter a plea of guilty or not guilty.
The case only goes to trial--and hence bail becomes an issue--if the defendant pleads not guilty. Assuming the judge has set bail at levels which the defendant can meet, either through his own resources or through the use of a bailbondsman, the defendant is released pending trial. After a preliminary hearing, the case will be bound over for trial and, assuming it involves violationof a federal statute, will be taken before a grand jury for review. This hearing is called an arraignment and the purpose is for the grand jury to investigate a crime and determine if there is sufficient evidence to indict the accused, sending the case to trial. (State laws regarding grand juries vary.) After arraignment and pre-trail motions, the trial begins. Here a key element is the requirement that guilt must be established "beyond a reasonable doubt."This does not mean that guilt has to be proven beyond all doubt, which in any case would be impossible. To be sure, the phrase "beyond a reasonable doubt" is a vague one--perhaps necessarily so--but is usually interpreted to suggest such a doubt as would cause reasonble men or women to hesitate to convicton the evidence provided.
Assuming the defendant is found guilty in the trial, sentencing--as well as appeals and post-conviction proceedings--will follow. As suggested above, thisonly a rough and generalized outline of criminal procedure; in fact the process is an exceedingly intricate one, woven with a rich history of judicial opinions.
Crime Control and Due Process
Criminal procedure places at odds two concepts dearly cherished by most Americans: public safety and order, and liberty. Accordingly, legal scholars haveidentified two opposing perspectives on criminal justice: the Crime Control model versus the Due Process model. The former places a premium on public safety, and accordingly values the interests of the public (and of the state) over those of the criminal defendant. The latter, as its name suggests, puts theprimary emphasis on the due process provisions of the Constitution, and thusfavors the rights of the accused. In the past, the Crime Control viewpoint has been associated with political conservatives, and the Due Process perspective with liberals, but these distinctions have tended to blur in the 1990s. Hence in the instance of the Branch Davidians in 1993, an action in which theFBI engaged in a standoff with cult members at their Waco, Texas, compound, many conservative commentators took the side of the Branch Davidians.
Dissenting in Shaughnessy v. United States (1953), Justice Robert H. Jackson held that due process ultimately benefits the public as a whole: "It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice...." In the same year that Jacksonwrote this opinion, Earl Warren became Chief Justice, ushering in an era ofincreased sensitivity to the rights of the accused. It was during this period, for instance, that the Court extended the Exclusionary Rule--applicable tothe federal government ever since 1914--to the states as well. Again, becauseof the larger number of state and local cases than federal ones, this decision (Mapp v. Ohio [1961]) had far-reaching effects. Likewise the decision in Miranda v. Arizona (1966) opened the way for significant changeas well.
The question as to whether the reading of Miranda rights constituted more than a mere formal change, however, remained open to debate. Likewise the differing views--Due Process and Crime Control--continued to do battle in the nation's courts. With the appointment of conservative judges, particularly under the administration of President Ronald Reagan in the 1980s, the Court moved toward a Crime Control model. This coincided with increasing public concern andalarm over the spread of crime.

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