When we study the law, we should not think of it as just a bunch of rules that can be memorized.

It is an active process—a way of thinking.

Because it involves thinking, it changes over time, just like other aspects of society.

Are there things that your mother or grandmother would think are terribly wrong but that you think are O.K.?

Law schools don’t teach law—they teach you to think like a lawyer

Criminal procedure refers to those laws and rules that govern the criminal justice process—they dictate how the substantive criminal law (which acts are crimes) is administered.

There are four primary sources of procedural law:

1. Constitutions – both state and federal.

If the state constitution contradicts the federal, the federal prevails.

Both state and federal legislatures make laws regarding the procedures followed by the justice system.

Except where there are constitutional issues, federal rules of procedure apply only in federal courts and state rules apply only in state courts.

The Primary federal rules can be found in Title 18 of the US Code.

Of course, many federal and state statutes will mirror each other.

Judicial opinions interpret the constitutionality and meaning of statutes, and tell us what constitutions really mean.

These types of laws are of critical importance—they will dominate our treatment of criminal procedure.

Court rules consist of the procedures used by the courts, and were developed of a courts supervisory power over the administration of the criminal justice system.

These rules specify important issues such as how long a court can take to being a trial (90 days in US district courts)

The big problem with making standardized rules of criminal procedure that don’t change over time is that we cannot agree on a specific goal for the criminal justice system.

The goals of the criminal justice system change along with the ideals important to society at the time—Ex. Treatment model in 60s to a punitive model in 80s

CJ professionals are generally geared toward one of two opposing directions—

law and order

Individual rights

Law and order stresses the need to solve the crime problem—like giving up freedom so we can better deal with terrorists

The individual rights side argues that the government cannot be allowed to take away our freedoms just because it makes the jobs of police easier

Pragmatic means "practical," being of real world importance, not merely philosophical

Preventing Crime: provide opportunity for legitimate success, improving informal social controls (family, church), better schools, improving environmental conditions in neighborhoods

Community policing can help—little place for the courts (law) in the prevention strategy

Diverting offenders – this goal is an effort to take offenders out of the CJ system and place them in non-punitive treatment programs.

The purpose is correction without the stigma of being labeled "criminal"

The justice system tried to deter crime in specific and general ways.

General deterrence says that one offender being punished serves as an example to us all not to commit crime

Specific deterrence says that the individual will learn from the pain of his punishment and will not commit crime again

This goal is extremely important: it is the ideological foundation of our CJ system

This goal sees criminality as something wrong that can be fixed: treatment of some type is the answer.

While extremely popular in the 60s, this goal has fallen into disfavor: people just don’t believe that rehabilitation efforts work.

Just because the outcomes are less tangible, these abstract goals are extremely important: just like the abstract goals of freedom, democracy, and justice for all.

All people involved in the justice system should be treated fairly and humanely.

Punishments should not be more sever or more likely because of SES, race, religion or gender.

The system should be organized in such a way that maximum benefit is obtained from limited financial and human resources

The justice system should accomplish its goals—a nebulous concept—but preventing citizens from coming to harm from crime is common to all goals.

A crime is a wrong involving the violation of the peace and dignity of the state.

In theory, it is committed against all of the people.

This makes sense—think about how people in Boston must have felt when the Boston Strangler was at large.

Accordingly, crimes are prosecuted in the name of the state—whether it be called a state, a commonwealth, or the People

A tort is a wrong that involves the violation of a private interest and thus gives rise to civil liability.

The same conduct, however, may be both a crime and a tort. Ex: OJ was acquitted in criminal court, but found liable for wrongful death in civil court (the standard of proof is less in civil court)

The foundations of our modern criminal law is the common law of England.

Most states have now adopted penal codes that specify what crimes are, but the essence of those prohibited acts hasn’t changed much.

In general, if there is not governing statute, the common law can still be applied.

Common law is essentially judge made law.

That is, judges decide cases on what they know the law to be, and future judges deciding similar cases are required to look to those old cases as binding law.

In one sense, the common law refers to the customary laws of ancient England as set down by judges.

In the modern sense it simply refers to cases decided by a court with authority over a lower court.

Statutory law is so called because it comes from Statutes passed by legislatures at both the state and national level.

The criminal law is now almost entirely statutory in most states today.

Procedural law, due to its constant stream of constitutional questions, is still largely considered a common law field of study.

From the ancient English practice of following the precedent set forth in previously decided cases, we get the Latin phrase "stare decisis" which means "to adhere to" a decided case.

Stare Decisis is not optional for the lower courts—what the SC says, the lower courts must do.