Where Our Criminal Procedures Come From

How federal and state constitutions, legislatures and courts protect the rights of criminal defendants.

The word "criminal" reflects our society's belief that certain acts are unacceptable and that people committing these acts should be punished. Because we place a high value on freedom, however, our state and federal constitutions make it very difficult for the government to take that freedom away from us. As a result -- and perhaps as a price -- the court system often appears to protect the criminal rather than the victim, and to unduly favor defendants who are blessed with clever attorneys. On the other hand, if the system doesn't place a heavy burden on government prosecutors, we risk sending innocent people to jail and we make it easier for our government to slide into totalitarian practices. One thing is sure, no matter what type of system we have for separating the bad citizens from the good, it will always be a matter of great controversy.

Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections for people suspected of and charged with crimes. These include the right to confront witnesses, the right to not testify, the right to an attorney, the right to a jury trial and the right to be free from unreasonable searches and seizures, among others. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass statutes governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.

The courts regulate the interplay between constitutional provisions and legislative enactments. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation in the facts from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result.

Example: Using binoculars to look through a window, a police officer sees something illegal going on in a private home. If the officer is not trespassing at the time she views the activity, she may legally enter the home without a search warrant to arrest the suspects and possibly seize evidence. The legal reasoning behind this result is that people inside a home have no reasonable expectation of privacy if their activities can be viewed through the window. However, if the officer uses a high-powered telescope, or a surveillance satellite picks up the illegal conduct through an open skylight, the results may be different., because we reasonably expect that our private activities will not be subject to such invasive surveillance techniques.