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Criminal Law Foundation

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Criminal Law Foundations 2.


There are a few of distinct proceedings and procedures that take place at what might be called the pretrial stage. Determining what part of the Constitution governs these manner of proceeding is no easy matter.

The general push is that certain due process and right to counsel safeguards suitable in any process that is critical to a prosecution or adversarial in nature (U.S. v. Wade 1967). Due process is the idea which applies directly to identification manner of proceeding, and it's customary to point out the following constitutional sources of pretrial procedural protections:

The Fourth Amendment protection against unreasonable search and seizure.

The Fifth Amendment due process and double jeopardy clauses.

The Sixth Amendment right to counsel.

Criminal Law Foundations 3.

Criminal Law Foundations Evaluation

Let's speak about these Constitutional safeguards. The 4th Amendment right to be free from search and seizure does not apply directly, but indirectly, via an interpretation of unreasonableness as invasiveness.

The right to the 5th and 14th Amendment due process means that the procedure must be fair. Courts follow a totality of circumstances come near in determining if something at the pretrial level is fair or unfair, and there have been more standards brought out over whether procedures (like lineup) are impermissible suggestive.

The 5th Amendment safeguard against self incrimination does not usually apply to pretrial procedures since the purpose at this stage is to get identification, not testimonial evidence.

The 6th Amendment right to counsel is understood best by referring to the Wade- Gilbert rule, which comes from U.S. v. Wade (1967) which have need that the defendant have an attorney on site at any stage of a criminal prosecution. The safeguard for this rule covers identification procedures on a individual where there has been an initial judgment to charge them with a crime.

Criminal Law Foundations 4.

Every system of criminal law rests on ethical theory or postulates, most of them of very old date, and common to all criminal systems in modern countries. The quality of the criminal law is found in the general accordance between it and the public.

The juvenile justice system and the adult system share their commonalities and differences. For instance, the juvenile system makes it the point to rehabilitate instead of punishing the juvenile.

For those juveniles and adults that admit guilt there is a system of procedural safeguards to protect their rights. In addition, other commonalities between the age separated groups



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