Criminal Procedure

Theory and Practice

Jefferson L. Ingram

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9780367371425
• eBook ISBN: 9781000532210
• Topic: Law
• Subtopic: Criminal Procedure
• Index: Law

Criminal Procedure: Theory and Practice, 3rd Edition, presents a broad overview of criminal procedure as well as a detailed analysis of specific areas of the law that require specialized consideration. The third edition provides students with an updated, comprehensive text written in reader-friendly language to introduce them to the field of criminal procedure.

Significant edited legal cases are integrated into each chapter, and comments, notes, and questions accompany each case. This edition features a new chapter covering searches of Internet-connected devices and electronic devices that may store personally connected data. The chapter "The Internet of Things" introduces search and seizure concepts related to electronics. In addition, a section at the conclusion of each chapter, "How Would You Decide," allows readers to examine the facts of a real case that contain some of the important concepts form each chapter. The reader can compare the individual's personal resolution of the case with the way the actual court determined the issue. Using a balanced text/case format, the author provides an overview of general criminal procedure as well as guidance for law enforcement actions that honor constitutional protections and comport with the rule of law. Instructor support material prepared by the author is available on our website, including lecture slides and instructor's manual with test bank, as well as online updates on new case law in the area of criminal procedure.

This textbook is ideal for all criminal justice programs in both four-year and two-year schools, especially those preparing future police officers, as well as a reference for law students and attorneys.

1 Introduction to the Constitutional and Legal Process

DOI: 10.4324/9780429352973-1

Learning Objectives

1. Explain what the Framers of the three post-civil war amendments, the Thirteenth, Fourteenth, and Fifteenth Amendments, intended.
2. Analyze the basic theory behind the selective incorporation doctrine that gradually incorporated some of the Bill of Rights into the due process clause of the Fourteenth Amendment.
3. Identify the rights in the Bill of Rights that have been incorporated into the due process clause of the Fourteenth Amendment.
4. Recognize and identify the more recent rights that have been selectively incorporated into the Fourteenth Amendment’s due process clause.
5. Be able to explain why successive prosecutions by a state and the federal government are not considered double jeopardy.
6. Explain the difference between an indictment and an information.
7. Verbally trace the major trial process from jury selection to the verdict.
8. Be able to explain the essential steps of the typical appellate process.

Chapter Outline

Part I Constitutional Introduction

1. Constitutional Basis of Rights for Persons Accused of Crime
2. Articles of Confederation
3. The Constitution: Revision in National Government
4. The Constitution: Challenges to Ratification
5. Rationale and Need for the Bill of Rights
6. History of the Bill of Rights
7. Constitutional Developments: Civil War Era
8. Selective Incorporation Doctrine: Federalization of Criminal Procedure
9. Summary

Part II Overview of State and Federal Court Organization

1. An Introduction to the Criminal Justice System
2. Organization of Courts: State and Federal: A Dual System

Part III Pretrial and Trial Criminal Procedure: An Introduction

1. The Initial Steps toward Prosecution: Pre-Trial Processes
2. Pretrial Motions: Mandatory and Discretionary
3. Jury and Non-Jury Trials
4. The Trial Process From Selecting Jurors to Judgment
5. Verdicts, Sentencing Process, and Post-Trial Motions
6. Appellate Practice
7. State and Federal Habeas Corpus
8. Summary

KEY TERMS

1. Articles of Confederation
2. Bill of Rights
3. Thirteenth Amendment
4. Fourteenth Amendment
5. Fifteenth Amendment
6. Selective Incorporation
7. Grand Jury Indictment
8. Information
9. Indictment
10. Privilege Against Self-Incrimination
11. Speedy Trial Right
12. Habeas Corpus
13. Jury Instructions
14. Preliminary Hearing
15. Pretrial Hearings
16. Trial by Jury

PART I
Constitutional Introduction

1. Constitutional Basis of Rights for Persons Accused of Crime

Over the past ten centuries, English and Western thought developed the concept that fundamental fairness should prevail in relationships between governments and their people.¹ Concepts of fairness and due process were written in the Magna Carta of 1215, a document signed by the English monarch, King John, which guaranteed individual rights that the government would respect. The Magna Carta provided, among other things, that the king would be bound by law and that the people would be free from unlawful imprisonment, would be tried by the judgment of their peers, and justice would not be bought or sold.² British and colonial governments and leaders made efforts to extend some of the concepts of fundamental fairness found in the Magna Carta to all persons in their relations with their governments, including those accused of criminal activities. This is not to say that there have not been miserable failures of governments to observe fundamental fairness [slavery and unfair trials, etc.] on many occasions both civil and criminal, but political thinkers of the pre- and post-Revolutionary War period, who had been influenced by concepts included in the Magna Carta and rational theories offered during the Age of Enlightenment,³ endeavored to enshrine fairness and due process by the use of written instruments of government. It was believed that a static written form of governance would ensure civil and criminal justice, both in the several states and in our national government.

Despite a fairly enlightened view of justice, people in the colonies and later in states and localities continued to fear that a distant government, especially a strong national one, could eventually erode their rights and institute unfair laws and practices that local people could do little to counteract. This fear resulted in compromises that created a weak central government under the Articles of Confederation and caused problems with ratification of the stronger government represented by the Constitution of the United States.

Under the Articles of Confederation, the states were free to conduct their criminal justice systems as each saw fit, with virtually no involvement with the central government. Most criminal justice 200 years ago, then as now, occurred at the local level, with state and local members of the executive branch directed to take wrongdoers into custody. State and local judicial officials had the task of ensuring a measure of justice consistent with the heritage of English common law and the common practice of the era. The overall fear of a national government interfering with local freedoms, especially ones involving crime and justice, had been a recurring American theme and one that has existed throughout the history of the nation, whether prior to the Articles of Confederation, during the Articles, or under the Constitution. The fear of a strong central government under the Constitution prompted agitation for a Bill of Rights and was directed to ensure that the traditional rights of Englishmen⁴ continued under the newest version of the national government. The fear explains the perceived need for protections from the federal government against illegal searches and seizures; the desire for grand jury indictments; the need for providing protection against double jeopardy; the desire to ensure due process; and protections against unreasonable fines, bails, and punishments. While such fears explain many of the reasons there is a Bill of Rights, other political and judicial factors and political tensions explain why these guarantees in the Bill of Rights have come to be nationalized and applied against the states in contravention of the intent of the original Framers. In some respects, the concept of selective incorporation of the Bill of Rights against the states has been to protect local individuals from overreaching or unfair treatment not from an all-powerful national government but from increasingly powerful state governments. Civil liberties and criminal justice fairness have become federalized as a way to ensure that their basic guarantees remain and continue. This chapter starts with the government under the Articles of Confederation and traces some of the later developments and constitutional trends that occurred as state and national courts interpreted the newer Constitution of the United States. These interpretations and later constitutional amendments have created a living document that, among other things, regulates much criminal procedure of the present day.

2. Articles of Confederation

At the beginning of the Revolutionary War, the colonial legislatures generally transformed themselves into governing bodies of independent states, with each state developing its own constitution. There were variations in how these independent states adapted their forms of government with new constitutions, but generally the individual states continued their forms of government in ways that were recognizable before the Declaration of Independence. Where colonial governors might once have been appointed, following independence, as a general rule, governors were elected by properly qualified voters, and the states that had two houses in their legislatures had their members elected by voters. Universal suffrage remained a future development since women and African Americans were not permitted to vote.

The Continental Congress attempted to devise a constitution that would cover all of the states in a new form of government, but that proved a very difficult task. Concerns about how representation should be based, whether on population or by some other fair measure, consumed much of the time of members of Congress. Difficult compromises had to be made among all the states, especially those like New York and Virginia, which continued to have claims on western lands far beyond their present borders. Small states were concerned that they might end up with insufficient power and be dominated by the larger states. The resulting constitution, called the Articles of Confederation, was probably the best and strongest document that could have received enough support by a sufficient number of states to have been accepted as the national charter. As is true with most negotiated documents, compromises sometimes are necessary to attain initial agreement, but necessary compromises also inject some weaknesses that may need to be corrected or renegotiated at a later time. Governmental difficulties under the Articles caused a variety of national problems.

In practice, the national government that emerged under the Articles of Confederation exhibited weaknesses that required cooperation among the states that, in many instances, was difficult to attain. Upon request from the national government under the Articles, states would furnish their allotted number of military service members, but the national government had no way to ensure that the allotted number of soldiers, properly equipped, would actually show up for service. Under the Articles, the government had no central control or even influence over interstate or foreign commerce, so each individual state acted more like a sovereign nation rather than part of a larger nation-state. A glaring weakness under the Articles of Confederation involved the inability to levy and collect taxes from either the states or from individuals, while many states taxed goods coming to their respective states. From a perspective of national unity, trade, taxation, and foreign affairs, the Articles of Confederation demonstrated weaknesses that cried out for a new approach.

3. The Constitution: Revision in National Government

Delegates from five states responded to a Virginia call to a meeting designed to address problems affecting interstate commerce. The delegates eventually assembled in Philadelphia, Pennsylvania, in 1787 and initiated work related to resolving interstate trade problems that the Articles of Confederation either helped create or did not solve. What developed from the meetings of the delegates for the summer of 1787 after extensive wrangling and compromise was the United States Constitution under which we operate today. If compromises were difficult when drafting the Articles of Confederation, they might have been small compared to the issues with which the delegates had to deal in writing a new document for that would serve as new governmental charter. The new government was to have power over interstate and foreign commerce as a way of solving one of the major problems under the Articles of Confederation. Central-government power over interstate and foreign commerce was added. The old concerns that divided the large states and the small states with respect to representation and relative power and authority in the new government were solved by having a Senate where each state had two senators and a lower house, called the House of Representatives, where the number of representatives was to be based on a state’s population. This created a new problem, because in the slaveholding states, those delegates wanted slaves counted as whole people, and delegates from non-slaveholding states did not want to count each slave as a person for the purposes of apportioning representation. While there were many conflicts concerning how to organize the government, eventually the delegates settled upon a plan that had three equal branches, the legislative, executive, and judicial. The delegates eventually resolved these and many other issues and presented the document to the Congress under the Articles of Confederation. Congress sent the new document to the states for consideration by state conventions called for that purpose.

4. The Constitution: Challenges to Ratification

Given the divergent opinion on political and economic matters, state ratification of the new constitution was not a foregone conclusion at the time it was submitted to the states for consideration. Article VII stated that “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.” In addition to acquiring the proper number of state votes, the merits of the new constitution created significant public discussion both for and against its adoption. One of the common arguments against adopting the new constitution concerned the fact that it had no Bill of Rights that would guarantee either individual or state rights, a concern that related back to the general fear of a strong national government. Many arguments were made that the new government created under the new constitution sacrificed state sovereignty, might levy taxes in an unfair or burdensome way, or might unfairly favor one section of the country over another. In some quarters, there was the fear that the presidency might evolve into a king-like institution or position. In many states, public meetings involved raucous gatherings of partisans who argued one way or the other, and newspapers and broadsides offered their particular political wisdom both in support of ratification and in agitation against ratification.

Strong opposition in the Commonwealth of Massachusetts developed, where the anti-Federalists argued that it should be amended before it would be acceptable. The Massachusetts convention eventually voted to accept the Constitution but recommended that amendments should be considered by the first Congress under the new constitution.

At the Massachusetts ratifying convention in early 1788, Federalists won assent for the new federal Constitution only by promising that they ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• 1 Introduction to the Constitutional and Legal Process
• 2 Basic Fourth Amendment Principles and the Exclusionary Rule
• 3 The Concept of Stop and Frisk
• 4 Arrest and Seizure of the Person
• 5 Miranda Principles: Fifth and Sixth Amendment Influences on Police Practice
• 6 Obtaining and Using Search Warrants: Practice, Execution, and Return
• 7 Searches and Seizures: Houses, Places, Persons, and Vehicles
• 8 The Internet of Things: Searches of Computers, Cell Phones, and Other Smart Devices
• 9 Searches of Open Fields and Abandoned Property
• 10 Special Needs Searches
• 11 Confession and the Privilege Against Self-Incrimination
• 12 Pretrial Criminal Process: Pretrial Motions, Identification Process, Preliminary Hearing, Bail, Right to Counsel, Speedy Trial, and Double Jeopardy
• 13 Trial Procedure and Legal Rights
• 14 Appellate Practice and Other Posttrial Remedies
• Appendix A: The Constitution of the United States
• Appendix B: The Bill of Rights and Other Amendments to the Constitution
• Glossary
• Index of Cases
• Subject Index