The majority of the class will involve the study of criminal procedure and the balance between two “competing” governmental interests: The protection of society and maintaining law and order VS The protection of individual rights Beginning on page 4 of your text (Ferdico 11th) the balance between Due Process and Crime Control is discussed. Herbert Packer discussed these competing concepts (see table 1.2, p. 5).
Keep in mind that these two competing governmental interests are at odds each time action is taken by the police, corrections and the courts – our criminal justice system. It is important to understand that criminal procedure is the study and practice of how the law is made and enforced. For example, each time the police conduct a search or make an arrest they are intruding into an individual’s rights. The determination of whether that intrusion is reasonable is weighed against the need to protect society. It is our individual rights as defined in the Bill of Rights, (generally amendments 1-10 & 14), which provide the template for the interpretation of actions by the government that affect those individual rights. This interpretation is carried out by the judicial branch of government through a concept known as judicial review.
Judicial review is the process by which the courts determine if actions by the government are in adherence to constitutional law – the supreme law of the land. The case of Marbury v. Madison (1803) made clear that it was the responsibility of the judicial branch of government to determine what the law is and to interpret that law. Marbury v. Madison is discussed on p. 9 (Ferdico 11th). To explain the concept with an analogy we could use a football game and instant replay as an example. Let’s say a player scores a touchdown in the remaining seconds of a football game causing his team to win the game. That outcome (his team winning the game) is not set unless it survives scrutiny by instant replay. The referees in the game would be the judicial branch of government in our analogy.
If the referees determine that the team who scored the touchdown violated the rules of the game, then the touchdown does not count. A holding penalty against the scoring team would be equivalent to an illegal search by the police that leads to an arrest. The score doesn’t count because of the penalty, just as the arrest will be invalidated by the illegal search. If the touchdown doesn’t count that team could lose the game without those points. If the arrest and all of the fruits of the arrest are thrown out because of the illegal search, the government could lose its case against the defendant. A football coach throwing a challenge flag in a football game is challenging a play by saying that the play should not count because of a violation of the rules of the game.
The challenge by the football coach is the same as a defence attorney filing a motion to suppress evidence used to incriminate his client based on the defence attorney’s belief that the government violated the rules of due process and/or acted in violation of a constitutional amendment. Without the referees in a football game and judges in our criminal justice system, there would be no one to interpret the rules and chaos would occur. The title of this book is “Criminal Procedure for the Criminal Justice Professional”. Criminal procedure is governed by a set of rules, the foundation of which is contained in our constitution and bill of rights.
It is the responsibility of criminal justice professionals to understand this set of rules (limitations) put in place to balance the protection of society and the protection of individual rights. One cannot exist without the other. Before beginning this class what is your opinion or idea about the current status of the two competing interests mentioned above: 1. Does the United States Government do a good job of protecting society and maintaining order? 2. Does the United States Government intrude into your individual life to the point that your individual freedom and privacy is unfairly compromised? Please provide your opinion on each question and respond to at least two other student’s posts.
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