VALUES AND THE CRIMINAL PROCESS

Criminals when arrested do everything in their capacity and whatever their resources permit
to resist being convicted it is a constant struggle to freedom the struggle is referred to as
criminal process criminal process is a compendious term including all the activities that take
place to bring substantive law of crime to fruition or to avoid the same. This accreation of
knowledge of the criminal trial system has led to legislation and courts adding to the
prescription of law exponentially both in extent and velocity.

the divide between the normative and descriptive that is, what is and what ought to be in the
criminal process has become wider.

Following are the dichotomies that exist between what is and what ought to be:

Patterns that fall into what ought to be do not automatically become part of the patterns of
official behaviour that is actually followed in procedure For example, legal aid for poor is
advocated for all, but is actually not given And evidence obtained by question is not to be
included in the criminal trial But police gathers such evidence.

Shape of criminal process affects the substance of criminal law in two ways:

It is essential to determine before Penalising a behaviour whether it would add an additional

burden on the criminal process. The more expeditious the process, the greater the number of
people it can deal with. Hence, the greater the amount of control over antisocial conduct, On
the other hand, if the process is hard then the level of resources is devoted to staffing and
operating it Would be more as compared to the number of people dealt with it.

The second relationship exists between the functioning of the process and the kind of conduct
it can efficiently deal with. for example, victimless crimes, Like the fence of fornication is
prohibited before marriage in certain jurisdictions or consensual transactions in gambling and
narcotics Herbert Packer assesses weather the criminal process is high speed or a low speed
instrument of social control and specifically assess its fitness for the handling of particular
kinds of anti-social behaviour Backer abstracts from reality to build two models by
examining the constitutional and statutory provisions that govern the operation of the
criminal process The kind of criminal process we have depends mainly on certain value
choices that are reflected in its habitual functioning We need Two normative models that
represent an attempt to abstract 2 separate value systems that compete for attention in the
operation of the criminal process.
Values and the criminal process

First there is the assumption implicit in the ex post facto clause of the constitution that the
function of defining conduct is separate from anterior to the process of identifying and
dealing with persons as criminals. Next assumption is that criminal process ought to be
involved by those charged with the responsibility for doing so when it seems that a crime has
been committed. Decision makers at every level of criminal process are expected. Conduct
that has been denominated as criminal should be treated so by the participants in the criminal
justice process

Next assumption is that there are limits to the powers of government to investigate and
apprehend person suspected of committing crimes The degree of scrutiny and degree of
control have to be exercised reasonably Final assumption is that the criminal is not merely an
object to be acted upon, but an independent entity in the process. The process has the
potential to become, to some extent, an adversary struggle in both the models

Crime control values

The basic premise is that the most important function to be performed by the criminal process
is the repression of criminal conduct Focuses on enforcing of laws and High percentage of
apprehension And conviction making a law abiding citizen prone to unjustifiable invasions of
his interests

Crime control model requires that primary attention should be paid to efficiency with which
the criminal process operates. By efficiency, Packer means the system’s capacity to
apprehend try convict and dispose of a high proportion of criminal offenders whose offence
has become known. The resources required to be devoted to the suppression of criminal
activity through the operation of criminal process have an important bearing on the crime
control model.

Its main twofold aim are speed and finality. Speed depends on informality and on uniformity,
And therefore it leads focus on extrajudicial processes to judicial process or informal to
formal operations. Uniformity can be insured by routine stereotyped procedures. He paints
the picture of this model like an assembly line or conveyor belt which never ceases to stop.
And case by case is disposed of where the final The presumption of guilt is implicit in the
screening at the early stages by police and prosecutors of the model Aim is successful
conclusion.
Criticism

There is an assumption based on confidence in the reliability of informal administrative fact

finding activities expressed in the form of presumption of guilt. The presumption of
innocence is a direction to officials about how they are to proceed And to treat the offender as
if his guilt is an open question, the presumption of guilt, however, is basically a prediction of
outcome. While the presumption of guilt is descriptive and factual, the presumption of
innocence is normative and legal Crime control process puts special weight on the quality of
administrative fact finding.

finality depends on minimising the occasions for challenge.

Due process values

the due process model looks very much like an obstacle course Each of its successive stages
is designed to present formidable impediments to carrying the accused any further along in
the process Due process model rejects the premise of crime control model and substitutes it
for a view of informal, non adjudicative finding that stresses on the possibility of error For
example, witnesses may be animated by bias or police custody may be induced by physical or
psychological coercion. The main question to unpack here is how much reliability is
compatible with efficiency.

Due process model resembles a factory that has to devote a substantial part of its input to
quality control which ends up reducing the quantitative output The combination of stigma
and loss of liberty that is embodied in the end result of criminal process is viewed as being
the heaviest deprivation that government can inflict on the individual It accepts a substantial
Diminution in the efficiency with which the criminal process operates in the interest of
preventing official operation of individual It does so by implementing the value of doctrine of
legal gate By designing various rules such as jurisdiction statute of limitation, double
jeopardy, criminal responsibility, to name a few. It is in this concept of legal gate, which lies
the quixotic presumption of innocence

Criticism

Due process while maintaining to find reliable fact finding techniques comes eventually to
incorporate Prophylactic and deterrent rules that result in release of the factual guilty. Another
complexity that analyse the due process model is equality. The factual predicate underlying
this assertion is that there are gross equalities in the financial means of criminal defendants as
a class And in an adversary system of criminal justice, defence is largely a function of
resources that can be mustered on behalf of accused Equality norm exerts a powerful pressure
to provide equal opportunity to all defendants and disregard to this would result in
malfunctioning of the process. The final ignored strand of thought into process model is
about the morality and utility of criminal sanction Professor Paul Baor In his critique opine
that mere condemnation and punishment are the cruel hypocrisy of criminal justice system
and its failure to provide for individualised and human rehabilitation of offenders is wasteful.

Problems to be direct by any module of criminal process

 What the rules shall be

 How the rules shall be implemented

The most controverted aspect of criminal processes is the right to counsel and the role of
government in its provision

 The crime control model is basically an affirmative model emphasising on the

existence and exercise of official power and its validating authority is ultimately
legislative even administrative at times
 Due process model is basically a negative model asserting limits on the nature of
official power and on the modes of its exercise It’s validating authority is judicial and
it appeals to the law of constitution.

THE TWO MODELS IN OPERATION

 The period from arrest through the decision to charge the suspect with the crime-
arrest for investigation and detention and interrogation after lawful arrest
 The period from the decision to charge through the determination of guilt- pretrial
retention and the plea of guilty
 Stage of review and correction of errors that have occurred during the effort
problems of direct appeal and equality of access to codes

STAGE ONE,

The two crucial issues that arise at the stage of process are on what basis are the police
entitled to make an arrest? And what consequences will flow from making an illegal
arrest
Crime control model Justify slight invasion of personal freedom and privacy For
example previous offenders should be subject to arrest Those who make a living out of
criminal activity periodic cheques should be done on their activities However, it does not
state whether such arrest should be made hypocritically and deviously or openly. Focus
Isleweed on police conduct

The Model provides broad powers by two fold methods first one by directly and explicitly
providing broad powers to stop and questions persons irrespective of reasonable suspicion
And secondly, by indirect method by framing broad enough definitions of criminal
conduct to give the police the power to arrest probable causeway Example, vagrancy laws
disorderly conduct laws

The due process model

Asserts that it is the basic right of free men to not be subjected to physical restraint,
except for good causeway Arrest if necessity would be susceptible to judicial scrutiny.
The due process model inevitably involves sacrifice of efficiency to pay the price for a
regime that f....champions the dignity Of Individuals.

It acknowledges the practical consequences of broadening police powers as it will Be

applied in a discriminatory fashion precisely to the poor, ignorant and illiterate population
of the society Lowering the respect for law among minority groups

Sanctions were illegal arrests should be located within the criminal process itself Any
evidence obtained on the basis of illegal arrest should be suppressed.

It suggests outside scrutiny as a method to ensure the impartial enforcement of law and
the need to set up civilian or non police boards to which complaints about illegal police
activity may be directed

Trend: There is no authoritative holding on whether the police may constitutionally be

authorised to restrain a person And in practise, there is silence on question of remedies
available to persons wrongfully detained. Therefore, there is a slight push in practise
towards the direction of due process model

Detention and interrogation after lawful arrest

Questions related to independent magisterial hearing need to be decided regarding

presenting the accused in front of the magistrate at a particular time And the limitations
on the police to investigate or whether the queues should be entitled to the assistance of
Council

Crime control model

Provides for reasonable opportunity to the police to interrogate the suspect in private
before there is a chance of fabrication of stories but not in an indefinite manner. Harden
fast tools cannot be laid down if police efficiency is not to be impaired

The due process model property standards to be employed And no necessity to obtain
additional evidence from the mouth of defendant. To be presented before registered
without unnecessary delay. Suspect is entitled to Liberty pending the judicial
determination of his guilt. Note extraordinary confessions.

The situation and trend

There is a strong accelerating judicial trend towards limiting the duration and
circumstances of police interrogation The trustworthiness of compassion is not rooted in
ex voluntariness but in its procurement that is independent and freely secured confessions
to be given primacy

There has been a concomitant tendency to move from rules that require case by case
determination of prejudice to Setting forth general standards of police and prosecutorial
conduct. Conviction based on involuntary confessions must be reversed.

STAGE TWO FROM CHARGE TO GUILD DETERMINATION

The question of bail or gaol arises But there is a lack of justification as to why keeping a
defendant in custody has been formally adjudicated, or why financial deterrent is the only
appropriate means of assuring his presence at trial.

Crime control model for practical purpose, it assumes the defendant is a criminal
Advocates for devoting limited resources to tracking criminal down in bringing him in. It
asserts that An offender if released pending trial, the incentive to plead guilty is reduced.
In cases of serious crimes, the confinement of the defendant before adjudication of guilt
serves as ends of the process and should regard as the norm

Due process model does not assume that the person accused of crime is a criminal and An
acknowledges his status as that of the defendant. Gives reasons for bail Person accused of
crime is entitled to freedom except when it is necessary to serve the legitimate ends of
illegal system. Believes that financial deterrent would adequately protect the viability of
the system. It must be set with regards to circumstances of individuals case, rather than
mechanical basis Therefore, BL setting must be a fact finding process based on the nature
and circumstances of the offence charged.

Trend in practise that mechanically there is very little judicial control for bail practises
Bail or gel therefore becomes a question answered solely on the basis of a dependence
financial resources

It is evident that the practical reality indicates the situation much closer to crime control
model. Excessive bail

PLEA OF GUILTY AND APPEAL

Claim control model. If the defendant is conscious of his own guilt It serves no purpose
to enable him to escape his just desserts

Who finds that there is a distinct social advantage to terminating criminal proceedings
without trial, whenever the defendant is willing to do so If the judge discovers there has
been an improper promise the plea can be rejected to set right defendants rights

Due process model

No kinds of pressure, either by prosecutor or judge, should be brought to be around

defendant to induce him to plead guilty. Plea bath gaining and a careful supervision
should be an acceptable way of terminating a criminal case A criminal trial is not to be
viewed as an undesirable burden, but rather as a logical and proper culmination of the
process No one should be vomited to plead guilty without counsel

Situation and trend practises confirm more closely to the crime control model than to the
due process model of judges, relatively passive one. And we were easily accomplishing
widespread However, plea of guilty receives increasingly close scrutiny

Appeal

According to crime control model, the role of an applet review system is highly
marginal and available to correct plain errors about factual guilt. No issue should be
raisable on appeal that was not raised at an earlier stage of the process
In contrast, the appellate stage and due process model is seen to have much broader
function It serves as a forum in which infringements on the right of accused are to be
redressed, and their repetition in later cases deterred. There should be no limitations on
the convicted defendants right to appeal financial restrictions or as much out of place as
everywhere. The appealed court should be entitled to notice any plain error prejudicial to
the rights of an accused

Situation and trend

The trend seems too unmistakably gravitate towards due process model and errors that are
denominated. Constitutional are more and more being viewed as grounds for automatic
reversal without regards to evidence is factual guilt

Access to counsel

In Crime Control Model is more for luxury. The new process model with adversary and
judicial bias makes council for the accused of crucial figure throughout the process Both
models do not address vendors the right to council, begin and end.

CONCLUSION

backer hints that the way criminal process operates fairly closer to crime control model
Yet, the officially determined norms of the due process module are rapidly gaining
popularity. In theory, at least the process is being turned from an assembly line to an
obstacle course However, it would be fair to critique that the due process model has
almost exclusively developed on the basis of judicial decisions. The second cautionary
note regarding the gravitation towards due process would be It is difficult to deny or
dispose the centrality of legislative assistance

Hostility to the due process model is shared by both police and prosecutorial
organisations Which raises questions like, are the codes handcuffing the police.

The criminal processes have become in some what unveiled instrument of public policy
No systematic work has been done on the extent of the need for resources That is more
prosecutors, more judges, more police.

Lastly, the alternative package suggests Asset criteria for distinguishing the mandatory
uses of criminal sanction from optional ones And outlines the offences of narcotics
gambling and alcoholism That’s the conspicuous examples