Criminal Procedure: Adjudication Outline
I. Introduction to Criminal Adjudication
a. Rules of criminal procedure among states/federal system have many similarities, but also vary significantly (e.g. no need for grand jury in many states).
b. Arrest is usually made before decision to prosecute, but occasionally the grand jury will secretly indict before arrest.
c. Most criminal prosecutions share the following characteristics:
i. Initial enforcement rests with police agencies with vast discretion to involve an individual in the criminal justice system.
ii. Decision to formally charge is in hands of prosecutor, has vast discretion.
iii. Some screening to determine whether there is a factual basis for serious charges.
iv. Entitled to assistance of counsel, and appointed counsel if indigent and incarceration will result from conviction.
v. Most defendants participate in plea bargaining, and most cases are disposed this way.
vi. Pretrial motions to challenge evidence and fairness in the process.
vii. Challenges to evidence are normally remedied by excluding the evidence (esp. in case-in chief)
viii. Prosecution and defense are sometimes required to share discovery, but nowhere near civil discovery.
ix. Trial before impartial judge, confrontation and cross-examination, to present witnesses and evidence, to a trial by jury unless “petty offense,” and acquittal unless proven beyond reasonable doubt.
1. These rights, and others, are waived by guilty pleas.
x. Right to address court prior to sentencing. Judges have substantial discretion in setting the penalty.
xi. Usually a Defendant has a right to some form of appellate review.
d. Overarching Themes:
i. Real-World Application: Will the formal commands of the law be implemented in the real world? What will be the consequences? How will this be applied at the street level, given the great discretion given to many actors.
ii. Interaction with Substantive Law
iii. Implication of Race and Racial Discrimination
iv. History: The Court has been dealing with US v. Boyd (1886) for over 100 years.
v. Resources: There are scarce and limited resources for both police and prosecutors, the courts and prisons.
e. Perspectives on the System:
i. Herbert Packer
1. Crime Control Model: The system is administrative and managerial, an assembly line. Most parts of the system look like this.
2. Due Process Model: The system is adversarial and judicial, an obstacle course. Officially prescribed norms look adversarial, development has been in judicializing each stage.
ii. Louis Michael Seidman
1. While our system has elaborate and detailed constitutional protections, they do little to bar prosecutions and rarely prevent the police from pursuing any reasonable crime control tactic. Court endorses criminal procedure tactics. The increased rate of incarceration reflects anger over crime, belief that crime is out of control, and that legal technicalities are setting people free.
iii. Joseph D. Grano
1. Criminal justice system should be based on ascertainment of truth, and arguments that criminal offenders are victims of society fail to recognize free will.
iv. Dorothy Roberts
1. The system is racist and has served as a means of controlling blacks. It is used to identify criminals, determine what constitutes a crime, and which crimes society treats most seriously. Intimidation, supervision, and imprisonment of blacks is pervasive.
f. Sklansky’s Themes:
i. Plea Bargaining
ii. Centrality of Defense Counsel
iii. Deference Courts Give to Trial Court, State Court System in Habeas Proceedings, Defense Counsel, and Prosecutors
iv. Federalism
v. Autonomy of Defendants
vi. Social Justice
II. Due Process
a. Generally: When the state uses its coercive machinery to catch and punish criminals, it must treat people fairly, even ones it wishes to punish.
b. Amend. V: No person shall be . . . deprived of life, liberty, or property, without due process of law
c. Amend. XIV: No State shall . . deprive any person of life, liberty, or property, without due process of law
d. Meaning of Due Process:
i. Rule of Law:
1. Hurtado: Due process means nonarbitrariness, enacted ahead of time, reflecting general principles rather than specific laws attacking people.
a. Law that hears before it condemns, proceeds upon inquiry, renders judgment after trial, excludes acts of attaineder, bills of pains and penalties, acts of confiscation, acts reversing judgments, legislative judgments and decrees.
b. Any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised, that preserves liberty and justice, is due process.
c. Rejected that grand jury was part of due process, considering that it is discussed separate from that concept.
d. Guid
troops)
2. Grand jury of 5th Amendment (Hurtado)
3. Civil jury of 7th Amendment
4. Excessive fines provision of 8th Amendment
f. Residual Due Process Clause
i. What else the Due Process Clause stands for besides the Bill of Rights.
ii. Two tests for determining Due Process violation
iii. Matthews v. Eldridge Test
1. Three factor balancing test:
a. Private interest affected by official action
b. Risk of erroneous deprivation, and probative value of adding procedural safeguards
c. Government’s interest in the deprivation and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.
2. Court in Medina found that the Matthews test is not applicable for assessing criminal rules that are part of the criminal process
iv. Patterson v. New York Test
1. Because preventing and dealing with crime is mainly the role of the states, it is normally “within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence, and the burden of persuasion, and this is not subject to proscription unless it offends a fundamental principle of justice (so rooted in the traditions and conscience of our people)”
2. Substantial deference exercised to state legislative judgments
3. Competence: Medina: Allocating burden of proof to criminal defendant to prove incompetence by a preponderance does not offend a fundamental principle of justice.
a. While rule that incompetent cannot stand trial is rooted in tradition, the burden of proof and who it is on is still contested over by the states, and there is no national consensus.
b. Pate: Cannot waive right to competency hearing, b/c if incompetent, you can’t do so intelligently. Must have competence hearing if evidence of irrational behavior, demeanor at trial, and any prior medical opinion raise question.
i. Must always be willing to consider changes in competence.
