Criminal Procedure Outline
Fall 2005
Jack Nowlin
I. Introduction: Policy Justifications and the Constitution
A. Herbert Packer’s models of the criminal process: The criminal process in the United States is affected by a series of competing values or policies.
1. Crime Control (rights of citizens to be safe from crime, government)
a. central value of criminal process: the efficient, expeditious and reliable screening and disposition of persons suspected of crime
b. administrative and managerial
c. analogous to an assembly line
2. Due Process (defendant’s/Individual rights)
a. central value of criminal process: the maintenance of the dignity and autonomy of the individual suspected of crime
b. adversarial and judicial
c. analogous to an obstacle course
3. Real-world criminal process
a. tends to follow the C/C model more than the D/P model
b. but, the SC officially prescribed norms are moving toward a D/P model that has the following effect:
i. “judicializing” each stage of the criminal process
ii. enhancing the capacity of the accused to challenge the operation of the process
iii. making it more possible for everyone to the opportunity to challenge created for them.
B. The Constitution, the Declaration, “Due Process,” and “Crime Control
1. Lincoln (and Nowlin) believe(d) that the purpose of the Constitution was to enshrine and preserve the political principles articulated in the Declaration of Independence.
2. The D of I was very concerned with individual rights and too extensive gov. control. The Purpose of the Constitution and Government is to protect the rights of citizen’s life liberty and happiness.
a. the C/C model tends to view the government as protecting rights
b. the D/P model tends to view the gov. as potentially violating rights
C. Judicial Activism, Judicial Restraint, and Constitutional Rights and Structure
1. There are 2 policy approaches to criminal justice the policy above is a substantive CJ policy (crime control vs. due process) and below is a procedural governmental power dispute (judicial restraint vs. activism)
2. Judicial activists – the idea that the SC and other courts have to be active in protecting the rights of individuals and criminals and that the ordinary political process won’t protect those rights
a. non-deferential to democratic decision makers
b. don’t feel their decisions have to be firmly grounded in traditional legal materials
c. exercise a substantial amt of political discretion in determining the meaning of constitutional decisions
d. accept, and even celebrate, judicial policy-making in areas of political importance and controversy
3. Judicial Restraint or Passivists – based on a concern with protecting constitutional values like s
phold or will bend the rules issued by the SC.
E. Alan Dershowitz: Rules that in practice govern the justice system in America
1. Almost all criminal Ds are, in fact guilty and all criminal defense attorney’s, prosecutors and judges accept and believe this
2. It is easier to convict guilty Ds unconstitutionally than by complying w/it, and sometimes it is impossible to convict w/o violating the constitution
3. Almost all police lie about whether they violated the constitution in order to convict guilty Ds and all defense attorney’s, prosecutors and judges are aware of this
4. Most trial judges pretend to believe PO’s they know are lying, and all appellate judges are aware of this but pretend to believe the trial judges
5. Most judges disbelieve Ds about whether their constitutional rights have been violated, even if they are telling the truth
Most judges and prosecutors would not knowingly convict a D who they believe to be innocent of the crime charged or related crime (however this doesn’t apply to members of organized crime, drug dealers, career criminals, or potential informers
