Procedural Safeguards


Procedural Safeguards

Learning Objective 8: Explain the importance of the due process clause in the criminal justice system.

A. Substantive and procedural criminal law

i. Substantive criminal law – defines the acts that the government will punish

ii. Procedural criminal law – defines laws for criminal procedures

B. The Bill of Rights

i. Ten Amendments adopted into the Constitution in 1791

ii. Have been interpreted by the U.S. Supreme Court

iii. Serving as safeguards for those accused in this country

a. Fourth Amendment

1. Protection from unreasonable searches and seizures

2. Requirement that no warrants for a search or an arrest can be issued without probable cause

b. Fifth Amendment

1. Requirement that no one can be deprived of life, liberty, or property without “due process” of the law

2. Prohibits against double jeopardy

3. Guarantees that no person can be required to be a witness against himself or herself

c. Sixth Amendment

1. Guarantees a speedy trial, a trial by jury, a public trial

2. Guarantees the right to confront witnesses, and the right to a lawyer at various stages of criminal proceedings

d. Eighth Amendment

1. Protects against excessive bail and fines

2. Protects against cruel and unusual punishment

C. Due Process

i. General ideas

a. Due process clause, as expressed in the Fifth and Fourteenth Amendments, requires that the government not act unfairly or arbitrarily

b. The government cannot rely on individual judgment and impulse when making a decision, but must stay within the boundaries of reason and the law

ii. Procedural Due Process

a. Procedural due process mandates that law must be carried out by a method that is fair and orderly

b. It requires that certain procedures be followed in administering and executing law so that an individual’s basic freedoms are not violated

iii. Substantive Due Process

a. Substantive due process requires that laws themselves be reasonable

iv. The Judicial System’s Role in Due Process

a. U.S. Supreme Court plays an important role

b. Decides whether due process rights exist

D. Victim’s Rights in the Criminal Justice System

a. Congress proposed a Victim’s Rights Amendment to the U.S. Constitution

ii. Legislative Action

a. The right to be informed

b. The right to be present

c. The right to be heard

iii. Enforceability

a. Federal and state laws do not contain sufficient enforcement mechanisms

b. Victim’s rights legislation gives criminal justice officials the discretion to deny the very protection they contain

Lecture Notes

Chapter 3 introduces students to the four key sources of American criminal law: the U.S. Constitution and the state constitutions, federal and state statutes, administrative agency regulations, and case law. It also introduces the purposes of American criminal law. The primary function of law is to protect citizens from harm, but law also serves to maintain and teach social values and to establish social boundaries. It may be helpful to pause at this point in your lecture and allow students to brainstorm examples of laws that satisfy each of these functions. For example, laws that forbid bigamy and gambling are ensuring that social values are not breached, while laws that regulate driving both protect the safety of citizens and teach individuals the expectations of society.

Chapter 3 next introduces students to the classification of crime. There are three major ways that crime can be classified: (1) civil law and criminal law, (2) felonies and misdemeanors, and (3) crimes mala in se and mala prohibita. Begin by discussing with students the differences between criminal and civil law. Criminal law exists to protect society from crime by punishing criminal offenses. Civil law is designed to resolve disputes between two parties. While students are primarily interested in criminal law, there are occasions when criminal behavior is addressed in both courts. Explore with students the differences between the two systems of law and the occasions when they overlap. A second classification of crime refers to offenses that can be defined as either felonies or misdemeanors. Encourage students to explore the way offenses are classified in your area. Finally, a third classification involves determining whether offenses are sanctioned because they are inherently wrong, mala in se, or illegal because they conflict with our concept of public order, mala prohibita. Our views of morality are not fixed, but change depending on the era, or even the culture being considered. Encourage students to ponder these classifications and apply them to a variety of offenses. Stalking, for example, was criminalized as recently as 1990. Is this offense mala in se or mala prohibita? Why did behavior that was traditionally considered deviant become criminal?

Chapter 3 also introduces the concept of corpus delicti. This term refers to the body of circumstances that must exist for a crime to occur. The basic elements of any crime include actus reus (the guilty act), mens rea (criminal intent), concurrence, causation, attendant circumstances, and harm done. Students may not realize that factors beyond the criminal act must be established to support a criminal conviction. To illustrate the mechanics of building a criminal case, invite a local prosecutor to class to walk students through the process of establishing corpus delicti. Students should be encouraged to also ask about any of the previous material introduced in class regarding crime classifications.

Criminal defenses generally rely on one of two arguments, that the defendant is innocent, or that the defendant is guilty but justified in committing the criminal act. In some cases, the law “excuses” criminal defendants for their behavior. For example, criminal law recognizes that the very young do not have the ability to formulate mens rea. Likewise those who are intoxicated may lack intent, which is necessary for establishing corpus delicti. All states make some exception for those who are deemed criminally insane. It is important that students recognize that the legal definition of insanity is not consistent with the psychological definition of insanity. To be considered legally insane in most states, a defendant’s state of mind must be such that he or she did not understand their nature of his or her actions, or that those actions were wrong. A defendant can be diagnosed with mental illness and still be held criminally accountable. Justification defenses argue that the defendant committed the crime, but was justified in doing so. For example, a defendant who acts in self-defense, under duress, or out of necessity may have had no other choice that to commit the crime. A defendant who argues that he or she was the victim of entrapment asserts that they were deceived into offending by law enforcement. As with any abstract concept, criminal defenses make the most sense to students if they are anchored with real world case examples, so be sure to include them in your lecture for this chapter. This will also give students the opportunity to evaluate the validity of each of the justification and excuse defense strategies.

The final part of Chapter 3 addresses the procedural safeguards afforded to all citizens who are accused of a crime. In criminal justice, particular attention is paid to the Fourth, Fifth, Sixth, and Eighth Amendments. Explain to students that the Bill of Rights was designed to limit the power of government, rather than to protect individuals. As criminal justice practitioners they will need to operate within these confines.

Key Terms

Actus reus (pronounced ak-tus ray-uhs) – a guilty (prohibited) act. The commission of a

prohibited act is one of the two essential elements normally required for criminal liability, the

other element being the intent to commit a crime. (p. 80)

Administrative law – the body of law created by regulatory (administrative) agencies (in the

form of rules, regulations, orders, and decisions) in order to carry out their duties and

responsibilities. (p. 73)

Attempt – the act of taking substantial steps toward committing a crime while having the ability

and the intent to commit the crime, even if the crime never takes place. (p. 81)

Attendant circumstances – the facts surrounding a criminal event that must be proved to convict

the defendant of the underlying crime. (p. 85)

Ballot initiative – a procedure in which citizens, by collecting enough signatures, can force a

public vote on a proposed change to state or local law. (p. 72)

Beyond a reasonable doubt the degree of proof required to find the defendant in a criminal

trial guilty of committing the crime. The defendant’s guilt must be the only reasonable

explanation for the criminal act before the court. (p. 77)

Bill of Rights – the first ten amendments to the U.S. Constitution. (p. 95)

Case law – the rules of law announced in court decisions. (p. 73)

Civil law – the branch of law dealing with the definition and enforcement of all private or public

rights, as opposed to criminal matters. (p. 76)

Competency hearing – a court proceeding to determine whether the defendant is mentally well

enough to understand the charges filed against her or him and cooperate with a lawyer in

presenting a defense. (p. 89)

Conspiracy – (p. 86)

Constitutional law – law based on the U.S. Constitution and the constitutions of the

various states. (p. 67)

Corpus delicti – the body of circumstances that must exist for a criminal act to have

occurred. (p. 79)

Defendant – in civil court, the person or institution against whom an action is brought. In

Criminal court, the person or entity who has been formally accused of violating a criminal law.

(p. 76)

Due process clause – the provisions of the Fifth and Fourteenth Amendments to the

Constitution that guarantee that no person shall be deprived of life, liberty, or property without

due process of law. (p. 95)

Duress – Unlawful pressure brought to bear on a person, causing the person to perform an act

that he or she would not otherwise perform. (p. 91)

Duty to retreat – the requirement that a person claiming self-defense prove that he or she

first took reasonable steps to avoid the conflict that resulted in the use of deadly force. (p. 92)

Entrapment – a defense in which the defendant claims that he or she was induced by a public

official – usually an undercover agent or police officer – to commit a crime that he or she would

otherwise have not committed. (p. 93)

Felony – a serious crime, usually punishable by death or imprisonment for a year or longer.


Felony-murder an unlawful homicide that occurs during the attempted commission of a

felony. (p. 84)

Hate crime law – a statute that provides for greater sanctions against those who commit

crimes motivated by bias against an individual or a group based on race, ethnicity, religion,

gender, sexual orientation, disability, or age. (p. 85)

Inchoate offenses – conduct deemed criminal without actual harm being done, provided

that the harm that would have occurred is one the law tries to prevent. (p. 86)

Infancy a condition that, under early American law, excused young wrongdoers of criminal

behavior because presumably they could not understand the consequences of their actions.

(p. 87)

Infraction in most jurisdictions, a noncriminal offense for which the penalty is a fine

rather than incarceration. (p. 78)

Insanity – A defense for criminal liability that asserts a lack of criminal responsibility due to

mental instability. (p. 87)

Intoxication – a defense for criminal liability in which the defendant claims that the taking of

intoxicants rendered him or her unable to form the requisite intent to commit a criminal act. (p.


Involuntary manslaughter a negligent homicide, in which the offender had no intent to kill

his or her victim. (p. 82)

Irresistible-impulse test – a test for the insanity defense under which a defendant who knew his

or her action was wrong may still be found insane if he or she was unable, as a result of a mental

deficiency, to control the urge to complete the act. (p. 88)

Liability – in a civil court, legal responsibility for one’s own or another’s actions. (p.76)

Mala in se – a descriptive term for acts that are inherently wrong, regardless of whether they are

prohibited by law. (p. 78)

Mala prohibita – a descriptive term for acts that are made illegal by criminal statute and are not

necessarily wrong in and of themselves. (p. 78)

Mens rea (pronounced mehns ray-uh) – mental state, or intent. A wrongful mental state is usually

as necessary as a wrongful act to establish criminal liability. (p. 81)

Misdemeanor – a criminal offense that is not a felony; usually punishable by a fine and/or a jail

term of less than 1 year. (p. 78)

M’Naughten Rulea common law test of criminal responsibility, derived from

M’Naghten’s Case in 1843, that relies on the defendant’s inability to distinguish right from

wrong. (p. 87)

Necessity – a defense against criminal liability in which the defendant asserts that circumstances

required him or her to commit an illegal act. (p. 92)

Negligence – a failure to exercise the standard of care that a reasonable person would exercise in

similar circumstances. (p. 81)

Plaintiff – the person or institution that initiates a lawsuit in civil court proceedings by filing a

complaint. (p. 76)

Precedent a court decision that furnishes an example of authority for deciding subsequent

cases involving similar facts. (p. 73)

Preponderance of the evidence – the degree of proof required to decide in favor of one

side or the other in a civil case. In general, this requirement is met when a plaintiff proves that a

fact more likely than not is true. (p. 77)

Procedural criminal law – rules that define the manner in which the rights and duties of

individuals may be enforced. (p. 94)

Procedural due process – a provision in the Constitution that states that the law must be carried

out in a fair and orderly manner. (p. 95)

Recklessness the state of being aware that risk does or will exist and nevertheless acting in a

way that consciously disregards this risk. (p. 81)

Self-defense – the legally recognized privilege to protect one’s self or property from injury by

another. (p. 91)

Statutory law – the body of law enacted by legislative bodies. (p. 72)

Statutory rape a strict liability crime in which an adult engages in a sexual act with a minor.

(p. 83)

Strict liability crimes – certain crimes, such as traffic violations, in which the defendant is guilty

regardless of his or her state of mind at the time of the act. (p. 83)

Substantial-capacity test (ALI/MPC test) from the Model Penal Code, a test for the insanity

defense that states that a person is not responsible for criminal behavior if when committing the

act “as a result of mental disease or defect he [or she] lacks substantial capacity either to

appreciate the wrongfulness of his [or her] conduct or to conform his [or her] conduct to the

requirements of the law.” (p. 88)

Substantive criminal law – law that defines the rights and duties of individuals with respect to

each other. (p. 94)

Substantive due process – the constitutional requirement that laws used in accusing and

convicting persons of crimes must be fair. (p. 96)

Supremacy clause – a clause in the U.S. Constitution establishing that federal law is the

“supreme law of the land” and shall prevail when in conflict with state constitutions or statutes.

(p. 72)

Voluntary manslaughter a homicide in which the intent to kill was present in the mind of

the offender, but malice was lacking. Most commonly used to describe homicides in which the

offender was provoked or otherwise acted in the heat of passion. (p. 82)


1. Ask students to research how felonies are graded in your state. If felonies are designated in degrees, what are the sentences associated with each degree? Likewise, how is murder classified in your state? If murder is designated in degrees, what factors determine whether a homicide is murder in the first, second, or third degree? (LO 3)

2. Research the differences between civil and criminal law. Research the O.J. Simpson case and explain the outcomes of the civil and criminal trials. Explain why the outcome of civil cases can be very different than the outcome of criminal trials even though they are about the same crime. You should include a discussion of the differences between civil and criminal trials, the burden of proof, guilt versus responsibility, etc. (LO 3)

3. Explain the concept of self-defense. Provide some examples of self-defense. Following, research the case of George Zimmerman. Do you agree that Zimmerman acted in self-defense? If so, explain why his actions met the requirements for self-defense. If you disagree, explain why his actions did not meet the requirements of self-defense. (LO 7)

4. Research the case of Tyler Clementi and read the article Prepare a discussion paper about this case. Imagine you were the prosecutor and you are planning to hold the bullies responsible. What would you charge them with and what punishment would you ask for? (LO 2-4)

5. Research the requirements of an insanity defense. Following, research how many defendants use the insanity defense each year and how many are successful. Prepare a short class presentation and two discussion questions for the class. (LO 6)

6. Assume for the sake of this exercise the following facts: The legislature debates and passes a law that requires all fast food restaurants to cease selling soft drinks and French fries in the United States, due to the negative impact on children’s health. Assume that the “negative impact” is scientifically proven, and assume that procedural due process rights to a hearing, etc, have been complied with. Is there a reasonable or rational basis for this law? Is eating French fries and drinking soda such basic freedoms that, although not explicitly protected in the constitution, is nonetheless protected by it? Have students openly debate this example and substantive due process rights in class. (LO 8)

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