Home Colleges & Universities The Criminal Justice Process and Constitutional Protection

The Criminal Justice Process and Constitutional Protection


The Criminal Justice Process and Constitutional Protection


Examining the process of a criminal case and learning about constitutional protections for individuals I will explain details of the entire criminal justice process for a felony criminal charge. I will summarize the steps between arrest, pre-trial, trial, and appeals both state and federal and explain the contingencies for each stage of the proceedings and possible outcomes. I will analyze how constitutional protections for the defendant work at each stage of the proceeding and evaluate whether the system effectively deals with criminal prosecutions or changes and improvements are required. Lastly, I will make recommendations on how the system can effectively perform at professional and ethically socially acceptable standards.


The criminal justice process is complex in many ways relating to the justice system, politics and the U.S. Constitution, and ethical values in how a law enforcement official, attorney, or judge would perform ethically and legally in the scenario of a criminal case. Examining criminal trials and lesser included offense (LIO) for defendants rights during prosecution I will explain if someone can be convicted for multiple crimes or if the Fifth Amendment provides protection against this. Explaining actus reus and mens rea and I will explain how the common law uses mens rea to prove actus reus. Analyzing plea bargains and the International Criminal Court (ICC) there are different standards than the criminal justice laws and values in the United States. Looking at reasonable suspicion and probable cause used for unwarranted searches during a criminal investigation I will use the Fourth Amendment as an example of a violation of the U.S. Constitution which can be used in Supreme Court for the defendant.

The criminal justice legal term of lesser included offense (LIO) is used in a criminal procedure as a right to the defendant and aids the prosecution. According to Pattillo, M. G. (1998), “In Terry Nichols’s Oklahoma City bombing trial, the jury was not only given the opportunity to convict him of eight counts of first-degree murder, but was also given the option of conviction him of the LIOs of second-degree murder or involuntary manslaughter.” (Pg429Para2) This means if this man did not go to trial it could of resulted in more serious charges.

How courts determine whether a crime is a lesser included offense surrounds a Constitutional Status of LIOs that the defendant has a right to use during a Capital Trial which may be the source of how the attempt of the court deciding on LIOs appears before court by the defendants attorney. According to Pattillo, M. G. (1998), “An interesting irony in the debate about a defendant’s “right” to an instruction on LIOs is the fact that the procedure “developed at common law to aid the prosecution in cases where the proof failed to show some element of crime charged.” (pg432Para2)

Someone can be convicted for multiple crimes for one act if they receive an LIO which included multiple offenses in association to the crime/s. How lesser included offenses do violate the double jeopardy clause of the 5th Amendment is that they do not prosecute or convict an individual multiple times but, they can receive conviction of multiple crimes that were committed. The double jeopardy clause of the 5th Amendment does protect against multiple punishments of the same offense however the offense can have several counts such as 8 counts of first-degree murder. This usually applies to jury cases which during a trial a jury makes a decision on the conviction and sentencing. According to Durham, A. S. (2015), “The Fourteenth Amendment to the United States Constitution extends the Fifth Amendment’s double jeopardy protection to the states. Acquittals granted on the merits of a case— based on a lack of sufficient evidence to sustain a conviction—bar future prosecution for the same offense under double jeopardy principles, whereas most mistrials do not bar future reprosecution.” (Pg9010Para2)

The material elements of crimes and how they can vary to allow for multiple prosecutions for the same acts or similar offenses; A specific example would be used in international crimes and the general principles of criminal law in the international criminal court statute along with applicable law and principle of legality. Specific crimes such as war crimes or genocide in Yugoslavia or Rwanda. The guidelines and principles used in international court surrounds a legal framework and general principles of criminal law. According to Schabas, W. A. (1998), “During the March–April, 1996 session of the Preparatory Committee, an informal group pursued work on general principles following the guidelines set out by the Ad Hoc Committee, and in the Committee’s report to the General Assembly in late 1996 a section was added to the draft statute entitled ‘General Principles of Criminal Law’. It consisted of a series of twenty draft articles, and bore the caveat that it ‘neither represents a text agreed upon among delegations nor suggests that every item should be included in the Statute.” (Pg85Para1)

It’s true that factual evidence matters in proving beyond a reasonable doubt and how a state proves all elements or variables contributing to a criminal charge. The term actus reus refers to action of crime as in physical action of the crime while mens rea refers to the intent of the action or mental on a psychological level as to thinking of the criminal action. They are significant in criminal law because actus reus can prove the crime committed without a reasonable doubt while mens rea looks at the criminal intent and jurisdiction. When proving a mens rea the prosecutor connects it to the actus reus of the crime.

The common law mens rea proves the state of mind of the defendant in order to connect to the actus reus to gain a criminal conviction. If the defendant were mentally unstable to the point of not knowing their actions committed then the state would prove the actus reus to not lead to a conviction based on the state of mind. The mens rea would not relate to the actus reus if the defendant were mentally incapacitated. At that point the defendant would be taken into state custody and placed in a mental institution.

Mens rea is more difficult to prove beyond a reasonable doubt because it is assuming the criminal mind and intent based on the crime committed. A forensic psychologist would be a credible liable source for translating how contributing factors relating to the suspect inspired or lead to the criminal intent which progressed to the act of crime. Usually forensic analysts could use their evidence in court along with motive of the crime to support the mens rea in connection to the actus rea.

A Plea Bargin is when a prosecutor and defendant come to an agreement and the defendant pleads guilty for the lesser charge. According to Turner, J. I. (2017), “As plea bargaining began spreading to an increasing number of domestic jurisdictions in the 1990s, it was perhaps not surprising that it ultimately made its way to international criminal courts. All such courts, with the exception of the Extraordinary Chambers in the Courts of Cambodia, provide for the possibility of plea bargaining. But the introduction of plea bargaining was far from predetermined and remains controversial. In fact, three of the courts that allow plea bargaining in their statutes—the International Criminal Court (ICC), the Special Court for Sierra Leone, and the Special Tribunal for Lebanon—have yet to resolve a case through plea bargaining.” (Pg226Para1)

The process of Plea Barganing begins with the proceedings to an admission of guilt. A term is chosen over the admission of guilt. Within International Criminal Court a statute called The Rome Statute of the ICC would allow negotiations between the defendant and prosecution to make a compromise between civil law and common law. The Rome Statute is only a negotiating hypothetical and is not a binding agreement in court. A judge is usually not involved with the ICC with the defendant admitting guilt. The elements of a valid plea bargain are waiver of rights, voluntary waiver, and factual basis.

I think plea bargaining is a benefit to ICC which the United States criminal justice system is not involved with since it usually is beneficial to international crimes against humanity such as genocide, terrorism, and domestic terrorism which when that individual admits to guilt they are given a life sentence opposed to the death penalty. In the United States plea bargaining would most likely benefit petty crimes such as theft and vandalism or could be used towards greater crimes such as murder with providing a life sentence opposed to death penalty.

Looking at international criminal law there is a process of litigating, disclosures in association with conflicts, sanctions, and equality laws and principles. The conflict falls with the policies systems and procedural sanctions because there is a violation based on provisions and a trial making a final decision based on the behavior of the prosecutor in persuading a decision made by a jury. According to Caianiello, M. (2010), “At present, the International Criminal Court (ICC) embodies the most representative attempt to harmoniously blend different traditions, in the field of criminal justice. If we look at the core of the system, we may say that there are two main cultural roots from which each single solution in the ICC system is extrapolated: The Anglo-American one and the European-Continental one. These double-rooted origins may be examined adopting various theoretical dichotomised models developed by scholars, when dealing with the differences that characterise the two aforementioned legal traditions: common law vs. civil law; accusatorial vs. inquisitorial; coordinate vs. hierarchical officialdom, etc.”(Pg24Para1)

The purpose and function of the International Criminal Court (ICC) is to ensure that crimes against humanity such as genocide and against human rights do not happen. Examples would be human trafficking in South Korea and Russia, slavery in Singapore, child predators all nations, children marrying adults in Afghanistan, children forced into labor in India, children involved in gun wars in Africa, children involved in drug trafficking in South America, females beaten, whipped, and stoned for domestic crimes in the middle east, and so on.

Why the United States has not joined the ICC would be based on the political history and how it could affect the nations national security measures. According to Smith, L. (2016), “One of the main reasons why the United States has opposed signing and ratifying the Rome Statute is because after signing, the International Criminal Court would be able to hold United States military and political leaders to the global standard of justice. This means that the United States would not be able to protect both its military and political leaders that have committed crimes against humanity, like knowingly killing innocents in the crossfire.” (Pg1Para2) My proposal is the United States should continue to not be part of the ICC to protect the best interest of our nation. This is the best course of action for the political foundation including government and military leaders. There are still other ways the United States can prevent crimes against humanity without joining the ICC.

Reasonable suspicion and probable cause are used by an officer during a criminal investigation. Reasonable suspicion is the investigation of a potential crime while probable cause is reason for arresting an individual/s. Reasonable suspicion such as an officer having suspicion of a drive being on narcotics can’t simply pull over the individual without probable cause. Probable cause such as a traffic violation leading to pulling over the driver and then a warranted approved search based on probable cause resulting in discovering narcotics in the vehicle would lead to the drivers arrest. If an officer does not have probable cause to the reasonable suspicion then it is ruled that the search was unwarranted or based on prejudice or other means unrelated to a real criminal investigation and the case would be dropped.

Exploring the Fifth Amendment of the U.S. Constitution, the Fifth Amendment of the U.S. Constitution is also part of the Bill of Rights. This protects criminal and civil rights of individuals in legal proceedings from being used as witnesses against themselves if they are involved in a criminal case. Regarding the Bill of Rights, The Fifth Amendment protects citizens against the federal government through due process. With substantive due process the notion protects certain legal procedures and rights.

The Miranda Rule was recognized as a constitutional right in 1966. An individual is given their Fifth and Sixth Amendment rights upon arrest and before interrogations. The Miranda Rules are the right to remain silent, right to the presence of an attorney, and right to have an attorney appointed by the state if they cannot afford one. Privilege against self-incrimination is a privilege through The Fifth Amendment of the U.S. Constitution which bans a witness from giving testimony which could self-incriminate them. The defendant has the right not to testify and only the defendant can plea the fifth. If a witness refuses to testify in court it would implicate they are involved with criminal activity.

Motion to Suppress Statements means evidence used in court during prosecution can be thrown out if ruled unconstitutional such as for example, forensic evidence from a murder scene which involved an unwarranted seizure. Any evidence obtained at any crime scene without a warrant would be disqualified from being used in court. This would suppress the evidence presented by the defendants attorney as unconstitutional and not to be used. Other examples would be violation of Miranda Rights of an unlawful interrogation. If a motion to suppress is granted for violation of The Fifth Amendment then the defendant has the right to a speedy trial which is a Constitutional right. When motion to suppress is granted it also eliminated all evidence including witness testimony. The prosecutor would need to re-file for the case to keep the defendant from being imprisoned. The last step for the defendant would be a trial determining the incarceration. According to DRIPPS, D. A. (2017), “There is no formal difference between Fourth Amendment “bright line rules” and Fifth Amendment “prophylactic rules.” Formal critics of Miranda are therefore logically committed, in general, to resolving Fourth Amendment issues ad hoc based on the circumstances of each case.7 More specifically, formal critiques impugn the very foundations of Fourth Amendment law—the warrant requirement and the exclusionary rule.” (Pg895Para1)

Looking at how the U.S. Supreme Court works in relation to an officer using probable cause involving the case of Whren v. United States with traffic stops on unconstitutional grounds and racial profiling in association to the probable cause of criminal activity and drug trafficking. There’s an analysis of the Fourth Amendment in association with unwarranted traffic stops being a violation of the U.S. Constitution. In Whren v. United States the vehicle which Michael Whren was riding in was pulled over and he was in the passenger seat holding two bags of what appeared to be cocaine. When and the driver Brown were then convicted of multiple possessions of narcotics. Two circuits of court did not agree with the traffic stop to be legally correct wince the traffic stop was unwarranted without reasonable cause of a traffic violation so an appeal was made to the U.S. Supreme Court ruled Equal Protection Clause instead of using the Fourth Amendment as the objective against discrimination and the stop and search was deemed reasonable. According to Lawton, M. M. (2016), “Thus, in one case the Nevada Supreme Court vacated the defendant’s drug conviction on the grounds that, “but for the improper purpose of searching defendant’s truck for drugs, a reasonable officer would not have made the stop.” In another application of the test, the Nevada Supreme Court upheld a defendant’s drug conviction where it concluded that “any reasonable officer, absent suspicion of an unrelated serious crime,would have pulled over [the defendant’s] vehicle.” (Pg1045Para1)

In conclusion with examining the process of a criminal case the only improvements or suggestions I would make for on how the system can effectively perform at professional and ethically socially acceptable standards are having monthly meetings with employees to go over work progress and how it has helped or not based on the work efforts and or behavioral standards affecting work ethics with other coworkers or with inmates. Instead of dehumanizing people whom are jailed there needs to be a better social interaction with communication and positive feedback to improve working and or other type of environmental work-related conditions. Setting goals and meeting the monthly goals or even surpassing the goals only leads a team of a company or organization to success. Through success there is less tension and a happier and more effective work force.



Caianiello, M. (2010). Disclosure before the ICC: The Emergence of a New Form of Policies Implementation System in International Criminal Justice? International Criminal Law Review, 10(1), 23-42. doi:10.1163/157181209X12584562670776

Cornell Law School (2017). Legal Information Institute. Fifth Amendment Criminal Law / Criminal Law Procedure. Found At: https://www.law.cornell.edu/constitution/fifth_amendment


Durham, A. S. (2015). State v. Davenport: The Louisiana Supreme Court Ignores Federal Constitutional Double Jeopardy Protections in Favor of Criminal Reprosecution. Tulane Law Review, 89(4), 909-920.

Lawton, M. M. (2016). STATE RESPONSES TO THE WHREN DECISION. Case Western Reserve Law Review, 66(4), 1039.

Pattillo, M. G. (1998). When Lesser Is More: The Case for Reviving the Constitutional Right to a Lesser Included Offense. Texas Law Review, 77(2), 429.

Schabas, W. A. (1998). General Principles of Criminal Law in the International Criminal Court Statute (Part III). European Journal Of Crime, Criminal Law & Criminal Justice, 6(4), 84-112. doi:10.1163/15718179820518638

Smith, L. (2016). ODYSSEY. Reasons Why The US Is Not A Part Of The ICC. Found At: https://www.theodysseyonline.com/reasons-why-the-us-is-not-part-of-the-icc

Chapter 4: The elements of a crime (Links to an external site.)Links to an external site. . Retrieved from http://2012books.lardbucket.org/pdfs/introduction-to-criminal-law/s08-the-elements-of-a-crime.pdf

Turner, J. I. (2017). Plea Bargaining and International Criminal Justice. University Of The Pacific Law Review, 48(2), 219-246.



To learn more on constitutional protections Click Here





I agree to have my personal information transfered to MailChimp ( more information )
Join over 8.000 visitors who are receiving our newsletter and learn specialized information, get discounts on training, and network with professionals like you!
We hate spam. Your email address will not be sold or shared with anyone else.