Model Code of Pre-Arraignment Procedure

Chapter 2 The Sources of Criminal Procedure

Sources     



U.S. Constitution U.S. Supreme Court State constitutions State appellate court decisions Federal statutes State statutes

Rules of Procedure 

Federal rules   



steps in the process of the federal system discussed and regularly amended by the Judicial Conference of United States Courts have the force of law

State rules 

similar to federal

Model Code   



American Law Institute (ALI) Model Code of Pre-Arraignment Procedure United States Attorney’s Manual of the Department of Justice American Bar Association - Standards for Criminal Justice

Development of Due Process    

Nationalization Constitutionalization Fourteenth Amendment Due Process Clause Debate over the issue

Fourteenth Amendment 

  

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Justice John Marshall vs. Professor Erwin Chemerinsky Slavery and the Civil War Fundamental fairness Total incorporation and total incorporation plus Selective incorporation

Fundamental Fairness 



 

States free to conduct criminal trials so long as the procedures are consistent with fundamental fairness States can prosecute individuals without being bound to the same procedures as the federal government Freestanding due process approach Hurtado v. California

Fundamental Fairness (cont.)      

Major cases and events Fundamental rights Bill of Rights Legal test Procedures Rochin v. California

Total Incorporation  

 

Fundamental rights Justice Black dissenting in Adamson v. California Total incorporation plus Three steps: 

 

due process bill of rights incorporation

Selective Incorporation    

Rights essential to liberty Selective incorporation plus Malloy v. Hogan Three elements   

 

fundamental rights application federalism

Elements of the following Amendments have not been incorporated Duncan v. Louisiana

Equal Protection   

    

Thirteenth Amendment Fourteenth Amendment Bolling v. Sharpe The Equal Protection Clause Presumption of regularity Arbitrary classification are unconstitutional Selective prosecution Strict scrutiny

Impact of S.C. Decisions  

Retroactivity New rule    

trial appeals habeas corpus U.S. Supreme Court decisions must filter down through the lower courts

Desired Components of the System    

Efficiency Accuracy Fairness Equality

Two Models of Procedure 

Crime control  



assembly line model emphasis on repression of crime

Due process  

stresses the importance of citizens’ rights better the guilty to free than innocents convicted

Why Procedures Matter  

Perception of justice is important Tyler’s four factors    



voice neutrality respect trust

Importance of legitimacy