Criminal Procedure and the Bill of Rights

By C. J. Oakes

The Criminal Justice system is complicated and a times  ineffective in many aspects of its goals.  In 1791, 10 Amendments were added to the United States Constitution with several portions applying directly to the interests of justice.  As a new nation, the United States of America was concerned about the potential for the government to overstep its authority and trample upon the rights they had fought to secure for all citizens.  The solution was the Bill of Rights, as these first 10 came to be called.  The final Amendment in this set, the tenth, is very illuminating when considering the intent of these amendments as well as their future effects on the future Criminal Justice system.

Reasoning on Rights

The 10th Amendment reads,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Because once the collection of rights were ratified, these would be encompassed into the body of the document, the Constitution; it is reasonable to conclude that the preceeding rights would apply to all, regardless of state of residency.  However, for reasons not clear, this position was not taken; it would be nearly a hundred years before anyone challenged this thinking (Zalman, 2008).

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When the challenge came, it surfaced as a Supreme Court dissent in the 1884 Hurtado v. California case wherein John M. Harlan I applied the 14th Amendment.  He argued that the 14th Amendment encompasses the rights “enumerated in the Bill of Rights” and hence applies to the states.  The case involved the right to be called as a defendant only after a decision is rendered by a Grand Jury, in accordance with the 5th Amendment (Zalman, 2008, p. 48).  However, it would still take several decades before these rights would be applied to the States; only the Federal Government would be bound by the criminal procedure rights.

Major Changes Affecting Criminal Justice

In 1968, Herbert Packer published The Limits of the Criminal Sanction.  In this book, he described the workings of the two schools of thought in the Criminal Justice field as two models he termed the Due Process Model and the Crime Control Model.  These two generally align with the two political leanings, namely, either a conservative or a liberal approach to crime and the two competing ideologies that shape the Criminal Justice system (Zalman, 2008).

It was around this same time that the U.S. Supreme Court ruled on a case that would alter not only the Criminal Justice system but also the national perspective of rights.

The Dred Scott case of 1857 had laid the foundation for applying the 4th, 5th, and 6th Amendments to the states by means of the Due Process Clause located in the 14th Amendment.  Yet it would take over a hundred years for the remaining elements of these Amendments to be applied to the States (Zalman, 2008).

A most notable case involved an indigent defendant name Clarence Gideon.  Gideon v. Wainwright in 1963 brought national attention to the issue of rights for he had been convicted of a felony without benefit of counsel for this defense.  The liberal Supreme Court acting in favor of Due Process, directed that anyone who could not afford an attorney be provided on at the expense of the district wherein the case is tried.  This brought sweeping changes to the Criminal Justice systems of the several states (Zalman, 2008).

In 1966, Miranda v. Arizona brought to national attention the issue of self-incrimination (Zalman, 2008).  This has come to be known as the Miranda Warning and it has perhaps had the greatest impact on attitudes regarding rights than any other as it is often featured in film and TV shows when police make arrests.

Of course, during this era there were numerous cases that extended the rights stipulated in the Bill of Rights to the states and respectively to the citizens of those states.  However, as the political makeup of the Court shifted, so too did the focus pertaining to rights.  Beginning roughly in 1972, the U.S. Supreme Court began to systematically dilute, rather than dismantle these rights (Zalman, 2008).  This has had the effect of making it more difficult for both Criminal Justice officials and the public to understand rights and how these apply.  This shift reflected a change in the national attitude away from the Due Process Model and to the Crime Control Model.

The Next Big Change in the Criminal Justice System

What the future holds for the Criminal Justice System as the Supreme Court as of 2012 consistently rules against defendants and in favor of police powers remains to be seen.  However, it does not take a stretch of the imagination to expect that another shift back to the Due Process Model will occur eventually.

Much of this left and right movement of the Courts rulings has to do with public opinion and attitudes.  The major shift toward the Due Process model came as police powers expanded to the point of abuse.  This was well illustrated by the Rochin v. California case wherein police had entered a suspected drug dealer’s home unannounced. When the suspect swallowed pills, the police forcefully took him to the hospital and using an emetic, he was forced to vomit up the evidence.  The Court ruled that this violated his right against self-incrimination (Zalman, 2008).

The shift the other direction occurred after too many known criminals began to win releases because police and courts failed properly to do their jobs in accord with the new and often bewildering requirements set forth by the Supreme Court.  This, combined with sharp increases in crime, a frightened public, and a more conservative court, resulted in the current shift towards the Crime Control Model and the curtailing of rights (Zalman, 2008).

However with the implementation of the USA PATRIOT Act in 2001, police have been provided with numerous new tools to conduct investigations and many of these are already abused to the point that even the current conservative Court is shifting in the other direction.  One such is the so-called “sneak and peek warrant” (Zalman, 2008, p. 18) that permits police to enter the homes of private citizens and simply look around.  Originally intended to be used for hunting down suspected terrorists, this law is being used in general police work and in some cases abused.  Such abuse could bring yet another shift back to the left.


Sir Robert Peel, often called the father of modern police, believed that police must have the public trust and confidence to be effective in their mission (Walker-Katz, 2008).  Many have studied and written about the effect such trust has on society and the ability of police to do their jobs effectively (Indermaur & Roberts, 2010).  Indeed should the abuse of these newfound powers continue, there will be another shift back toward rights and once again, the Criminal Justice system will have to scramble to change how things are done.  This will lead inevitably to confusion and mistakes resulting in egregious errors and criminals being freed which will lead again to the right.  At some point, the Criminal Justice system, the Supreme Court included will be forced to stop listening to the public and base law and policy upon sound facts and research.  Until then Criminal Justice will remain complicated and to some degree ineffective.

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  • Indermaur, D., & Roberts, L. (Nov2009sup). Confidence in the criminal justice system. Trends & Issues in Crime & Criminal Justice, 1(387), 1-6.
  • Walker, S., & Katz, C. (2008). The Police in America:  An Introduction. : McGraw-Hill.
  • Zalman, M. (2008). Criminal Procedure: Constitution and Society (5th ed.). Upper Saddle River, NJ: Prentis Hall.

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