I. criminal procedure overview 3

I. CRIMINAL PROCEDURE OVERVIEW

A. BACKGROUND TO CRIMINAL PROCEDURE

What is the purpose of the body of law that we call criminal procedure?

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  To control crime
  
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  To ensure accurate determinations of guilt (factual accuracy)
  
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  Preserving the rights of the citizen (privacy of the home)
  
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  Maintaining confidence in the criminal justice system
  
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  Limit the power of the executive → constrains arbitrariness in exercise of government power
  
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  Consistency in the application of the law → particularly in preventing racial discrimination (equality)
  

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  The function of criminal procedure is to try and achieve the goals outlined above
  
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  There are a lot of rules of criminal procedure (i.e. restrictions on police entering a private home, prohibition on using force against a suspect to extract a confession etc.)
  
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  Most of criminal procedure is constitutional and therefore “judge defined” → the importance of the SC in providing guidance (CB p.81)
  
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  All of this constitutional regulation begins with the idea of “due process” (CB p.81)
  
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  The constitutional hook is the 14^th Amend which imposes the 4^th and 5^th Amends on state/local police
  
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  A huge problem is whether the police actually follow these rules
  

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  Consequences of breaching the rules are only felt down the track during the trial process where the evidence is excluded (accordingly it is largely a “paper threat”)
  
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  Fast-paced nature of decision making by police on the streets → responding to fast breaking events
  
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  People largely being victimized are not in a position to assert their rights → a lot of obstacles for vulnerable people to sue police → enforcement is dependent upon defense attorneys
  
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  Police typically have low visibility (although this is changing with body cams) → practically everything police do is low visibility (not many people see it, especially in a private home or pulling over a car on a dark night on a remote stretch of highway, or confronting someone in an alleyway) → but if a judge puts a crucifix in his court, then everyone sees it so this is high visibility
  
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  Systems for appointing counsel to represent indigent defendants are very problematic
  
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  These situations are dangerous → police work is dangerous → split second decision-making
  

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  Why even though we have these criminal procedure rules, do we have increasing rates of incarceration? This seems paradoxical
  
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  Are we better off with more or less criminal procedure? Stuntz observes this dynamic (CB p.38) → as courts have increased criminal procedure protections which in turn raise the cost of criminal investigation and prosecution, the executive/legislature have in turn sought to reduce those costs (by reducing defense funding, imposing mandatory sentences which induce defendants to plead guilty)
  
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  Stuntz argues that over-criminalization has increased as criminal procedure has expanded
  
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  But Prof disagrees with this view, he thinks that there are other reasons for over-criminalization (not just expanded criminal procedure), it is very hard to claim a causal connection, the better approach is to keep the safeguards and focus in addition on what is needed to make those safeguards effective (better funding of public defenders etc.)