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Unformatted text preview: CRIMINAL PROCEDURE OUTLINE SPRING 2005 PROFESSOR SCHULHOFER I) OVERVIEW A) An Overview of the Criminal Justice Process 1) Diversity in Legal Regulation (a) Fifty-two separate legal structures (i) Each state has its own code (ii) Each state has its own authority to enforce its criminal laws through its own criminal justice system This is done through the state police power, which allows the states to act to promote the general welfare The federal government, in contrast, can only enact criminal laws and establish enforcement agencies and procedures where necessary and proper to the implementation of those specific areas of regulatory authority granted to the national government through the Constitution (iii) Unlike in other areas, the federal government does not dwarf the states in the criminal justice field (b) Divergence (i) Elements of the criminal justice system that naturally promote divergence amongst the 52 systems: A lack of uniformity is not a deterrent to the free flow of goods or services between states Each state has a different administrative environment, such as demography of the population, the resources available to the process, and the structure of the institutions responsible for the administration of the process (such as police, prosecutor, judiciary) Criminal justice can often be influenced by the political process rather than by those with presumed technical expertise The integrated character of the criminal justice system means that a divergence between states in one part of the process will likely lead to divergence in other parts (ii) Divergence is even stronger amongst states and the federal government (iii) However, the basic elements of the criminal justice systems are the same; where there are substantial differences it is usually seen through one or two alternative approaches (c) The United States Constitution (i) The Bill of Rights has 16 guarantees applicable to the criminal justice system 1 All the guarantees of the 4 th , 6 th and 8 th amendments All but one of the guarantees (the just compensation guarantee) of the 5 th amendment (ii) Almost all of the criminal justice guarantees of the Bill of Rights have been incorporated into the 14 th amendment and been made applicable to the states (iii) Some states establish standards more rigorous than the constitutional standard (d) The common law heritage (i) The colonial version of the English common law largely survived and provided a common core of principles (ii) As administrative of criminal justice changed, different locations took different approaches to changing the common law- e.g. some codified and some didnt as much (e) Models (i) Laws of the 52 jurisdiction are most likely to vary where: (1) Federal constitutional regulation is not detailed and comprehensive; and (2) The particular procedure either was unknown at common law or was substantially modified as a result of institutional and process changes not anticipated in the common law...
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