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Criminal Procedure: Investigation
St. Louis University School of Law
Miller, Eric J.

Criminal Procedure Outline
Themes of the Course:
1.      How will the formal commands of the law be implemented in the real world?
2.      What is the importance of historical context? (depending on the period in which the courts are interpreting the constitution they take very different views about the nature of the rights at stake and the manor at which the court can regulate the police)
3.      What are the implications of race and racial discrimination? (implicit concern about race and policing – class and geography are often linked with race and ethnicity)
Packer’s Models of Criminal Procedure
(The Courts, the Police, and the Rest of Us, Packer – 21, 22)
Crime Control
(cops/conservative side, community policing concept)
~ Goal: Fast, efficient and reliable screening and disposition of cases. Cops
~ Crime Control’s Procedural Style: an “assembly line” managed by cops. Managerial or administrative.
~ Chain of Command – top down decision making 
§Patrol Cops – Sergeants – lieutenants – police chiefs – police commanders
§Prosecutors not in the chain of command (Do police answer to them?)
§Cops v. Prosecutors/Courts – regulating criminal procedure???
~ Efficient way of dealing with criminals – police system is about the imperatives of process – getting the criminals into the court system.
Due Process
(Bleeding Heart, Courts regulating, Consent based)
~ Goal: Maintaining the defendant’s dignity and autonomy comes first.
~ Due Process’ procedure: an adversarial “obstacle course” managed by judges.
~ Chain of Command – courts push prosecutors who push cops to maintain autonomy from politics.
~ Want policing to occur with public consent when consent cannot be obtained courts get involved.
~ The constitutionalization of criminal procedure –
§Courts serve as a prescreening to act as a check on exuberant policing.
§Courts take charge to protect citizens whose rights have been violated and
§Courts ensure the constitution regulates criminal procedure uniformly allowing all citizens the ability to challenge the process.
~ Concerned with racially discriminatory police & governments invading privacy
~ Set of Controls that seek to emphasize a series of democratic checks on the crime control system.
To work out which model is most appropriate, we need to understand policing – (think about what they do and how they are organized – Who controls the police and how do they do it?)
§ Regulation of police versus the rights to criminal defendants – needs to be justified independently.
§ (Ex: Right to representation (rights!); why you need that right to be read to you by the police (regulation!))
§ Regulatory Perspective – how you enforce rights in the world
The police are an executive agency and respond to their own goals and procedure. Often detectives think street cops are worthless unless they prove them wrong.
Stunz: Judicial limits on cops empowers legislatures and prosecutors. – Courts put limits on cops in order to protect constitutional rights (particularly b/c of indigent offenders). These limits impose high costs on criminal investigation and prosecution. As a result legislatures seek out ways to reduce costs including expanded criminal liability (it is easier for gov’t to induce guilty pleas), mandatory sentences (useful threats), guilty pleas (avoid costly process of criminal procedure). Courts are trying to prevent policing from running wild. (The Uneasy Relationship between Criminal Procedure and Criminal Justice)
Seidman: Criminal Procedure is a shell game legitimizing the mass incarceration. – Constitutional protections intended to make the prosecution more difficult instead serve to make the prosecuti

e – meet the social norms of police solidarity to do a good job)
~        Share a common, unspoken code of conduct and sense of solidarity.
~        Street cops see management cops as sell outs evidenced by the policies coming from the top rather than the code of conduct (social norms of the group).
~        Community Policing – police know who is a law abider and who is a law breaker based upon their gut
~        Feel isolated and at risk in the community – everyone is either a law breaker or they don’t know what is going on.
A central problem with both styles is the issue of discretion
·         Street Cop – want to empower them so give them more discretion (community policing)
·         Management Cop – want to limit civil rights violations so you want to limit discretion on the streets
o   Due Process Theorists – concerned with arbitrariness meaning racism – by giving too much discretion they will be racists mixing up their professional norms with their personal norms.
o   Still give police significant discretionary power – follow the policy when possible but changing circumstances still have power to do what you want to do
Should regulation (of massive discretionary power) be prospective or retrospective? – Major concern with 4th and 5th Amendments – courts see by just changing the procedure slightly they can preserve the rights found in the constitution and empower street cops rather than management cops.