The Rule Of Law

Chapter 4 – The Rule of Law

Two Types of Law:Criminal Law and Civil Law

There are two types of law practiced in the United States:

• Criminal law

• Civil law

A crime is a violation of the penal code.

A tort is a violation of the civil law.

Criminal Law and Civil Law

civil lawA means of resolving conflicts between individuals. It includes personal injury claims (torts), the law of contracts and property, and subjects such as administrative law and the regulation of public utilities.

Substantive vs. Procedural LawThere are two types of criminal law:

• Substantive law—laws that prohibit and penalize murder, rape, robbery, and other crimes.

• Procedural law—laws that are concerned with due process of law.

substantive lawThe body of law that defines criminal offenses and

their penalties.

procedural lawThe body of law that governs the ways in which the substantive laws are to be administered; sometimes called adjective or remedial law.

due process of lawThe rights of people suspected of or charged with

crimes.

Creating Criminal Lawsin the United States

In the U.S., criminal laws are created by legislative bodies, and are also affected by interpretation by courts (case law)

Constitutions and Legislative Bodies

• Congress enacts federal statutes.• State legislatures enact state statutes.• Cities, counties, and councils enact laws

generally called ordinances.Statutes and ordinances apply only in the particular jurisdiction in which they were enacted.

Procedural Law:Rights of the Accused

Most of the procedural rights given to criminal suspects or defendants in the U.S. are found in the Bill of Rights. Others are found in

• Federal and state statutes

• State constitutions

• Federal Rules of Criminal Procedure

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Searches and SeizuresWith a Warrant

Probable cause for a search warrant requires substantial and trustworthy evidence to support two conclusions:1. that the specific objects to be searched for

are connected with criminal activity; and

2. that the objects will be found in the place to be searched.


The Fourth Amendment requires that a search warrant contain a particular description of the place to be searched and the person or things to be seized.

Search warrants are required to be executed in a reasonable amount of time, and in some jurisdictions during certain hours of the day.


Generally, before law enforcement officers may enter a place to conduct a search, they must first announce that:

• they are law enforcement officers,

• they possess a warrant,

• and they are there to execute the warrant.


If in the course of conducting a legal search, officers discover contraband or evidence of a crime not covered by the warrant, they may seize it without getting a new warrant.

Generally, an arrest warrant is legally required when law enforcement officers want to enter private premises to make an arrest.

An arrest warrant is issued if substantial and trustworthy evidence supports two conclusions:• A violation of the law has been committed.• The person to be arrested committed the violation.

Arrests With a Warrant

Searches and SeizuresWithout a Warrant

The Supreme Court has allowed warrantless searches in some circumstances:• Incident to an arrest, police may search the

area within the suspect’s immediate control, including an automobile, and may seize contraband or evidence in plain view.

• In emergency situations.• If a suspect consents to a search.

Arrests Without a Warrant

Officers may enter a private home to make a warrantless arrest only if the offense is serious and there are exigent circumstances, such as:

• Likely disappearance of the suspect

• Hot pursuit

Standards of ProofProbable cause is one among a number of standards of proof for various criminal justice activities.

The amount of proof necessary depends on the activity in question.

Standards of ProofThe line between probable cause and reasonable suspicion, or even mere suspicion, is a fine one and a matter of interpretation.

Responsibility for determining whether a standard of proof has been met lies with criminal courts and judicial officers.

The Exclusionary RuleThe exclusionary rule was created by the Supreme Court in 1914, and extended to state courts in 1961 (Mapp v. Ohio). The exclusionary rule originally had three purposes:

• To protect individual rights from police misconduct• To prevent police misconduct• To maintain judicial integrity

exclusionary ruleThe rule that illegally seized evidence must be excluded

from trials.

The Fifth AmendmentNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Protection Against CompelledSelf-Incrimination

Arguably the most important procedural safeguard in the Fifth Amendment is the protection against compelled self-incrimination.

• The protection is based on the belief that confessions made involuntarily may not be truthful.


In Miranda v. Arizona (1966) the court broadened the protection against compelled self-incrimination. Suspects must be notified of their specific rights or their confessions will not be admissible.

The Fifth Amendment further applies to trial procedures:

• A defendant does not have to take the witness stand in a trial.

• The prosecution is forbidden from commenting on the defendant’s silence or refusal to take the stand.


The Sixth AmendmentIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Right to a Speedy and Public Trial• In determining what constitutes a speedy

trial, the Supreme Court has created a balancing test that weighs both the defendant’s and the prosecution’s behavior.

• The length of delay depends partly on the nature of the charge; a longer delay may be tolerated in more complex cases.

Right to Impartial Jury of the State and District Wherein the Crime Shall

Have Been CommittedThe right to an impartial jury promises:• that the jury will be unbiased.

• that there will be a jury trial.

Right to Impartial Jury of the State and District Wherein the Crime Shall

Have Been Committed

The Supreme Court has interpreted this to mean that defendants charged with felonies or with misdemeanors punishable by more than six months’ imprisonment are entitled to a jury trial.

Right to be Informed of the Nature and Cause of the Accusation

The right to notice and a hearing is the very core of what is meant by due process.

This right prevents the practice, common in some countries, of holding suspects indefinitely without telling them why they are being held.

Right to Confront Opposing Witnesses

Defendants have the right to:

• be present during their trials, and

• cross-examine witnesses against them.

Defendants can forfeit this right by disrupting the trial.

Right to Compulsory Process for Obtaining Favorable Witnesses

Defendants have the right to use the subpoena power of the court to compel the testimony of any witnesses who may have information useful to the defense.

Right to Counsel

The right to hire a privately retained lawyer did not exist in state courts until 1954.

Right to CounselIn federal courts, defendants who could not afford an attorney went without until 1938 when the Supreme Court first required the government to provide an attorney for a defendant facing felony charges. The right to an attorney paid for by the government was extended to state courts in 1963 (Gideon v. Wainwright).

The Eighth AmendmentExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Protection Against Excessive Bail and Fines

The Eight Amendment does not require that bail be granted to all suspects or defendants.

Protection Against Cruel and Unusual Punishments

The definition of cruel and unusual punishment was changed in 1910. The Supreme Court determined that:• The meaning of the Eight Amendment is not

restricted to the intent of the Framers.• The Eight Amendment bars punishments that are

excessive.• What is excessive is not fixed in time but changes

with evolving social conditions.

Protecting the Accused from Miscarriages of Justice

The legal system of the U.S. is unique in the world in the number of procedural rights that it provides people suspected or accused of crimes.

However, people continue to be victims of miscarriages of justice.


A study of wrongful conviction determined that 0.5% of all felony convictions were in error.

Consider that in 2001, approximately 13.7 million people were arrested in the U.S.

That could mean 34,250 people wrongfully convicted.


The most important factors contributing to wrongful convictions are:1. Eyewitness misidentification

2. Police errors

3. Prosecutorial errors

4. Guilty pleas made by innocent defendants who are offered plea bargains or are mentally incompetent

Documents

The Rule Of Law