Temas Criminal Law

Arrest
Booking
Initial
Appearance

ARREST, FORMAL CHARGES, AND FIRST APPEARANCE

Crimes are classify in two categories
1. Felonies: are the most serious crimes. Some examples of felonies are: Kidnapping, murder, rape. Most
of the states as well as the Federal Government have established that felonies carry a sentence of death,
or imprisonment of more than one year.
2. Misdemeanors: is a minor wrong doing, a minor offense. It is punished with a sentence of less than one
year of imprisonment.

Arrest
According to the fourth Amendment of the United States of America's Constitution 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 persons or things to be seized. (The words in bold
are proper)
The arrest can be defined as When a person is taken into custody for the purpose of commencing a criminal
action.
1
A police officer has to have a reasonable belief, known as probable cause that is the suspicion that a
person committed a crime, is not only a suspicion but the existence of the facts and circumstances within the
[officers] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to
warrant a man [sic] of reasonable caution in belief that an offense has been or is being committed.
2

The probable cause is fulfilled when there is an affidavit or a testimony containing facts or circumstances that
will lead a person to a reasonable conclusion.

1
KAPLAN, PMBR. Kaplan PMBR Finals: Criminal Procedure: Core Concepts and Key Questions. Kaplan Publishing.
United States of America. 2009. Page 1.
2
BURNHAM, William Introduction to the Law and Legal System of the United States. West Pusblisher. 5
th
Edition.
United States of America. 2011. Page. 270.
2

Is important to establish that a valid arrest can occur without a warrant, generally theres no need for a warrant to
make an arrest, because of the exceptions permitted by law; to mention some
3
:
1. Search incident to a lawful arrest: when the police is trying to protect the evidence.
2. Stop and Frisk: when there is suspicion that the defendant is armed.
3. Plain View: the doctrine establishes that the police must have a broad vision of the situation and the
evidence must incriminate a person.
4. Automobile exception: if there is a probable cause to stop and search a car, it justifies the whole search
of every part of it.
5. Consent: is when the defendant agrees with the arrest.
6. Hot pursuit: the pursuing is commenced by the police when probable causes concluded, that an
individual is dangerous.
7. Exigent circumstances: it is seen as protection of evidence.
After an arrest is made, a higher police officer with the help of the prosecutor will determine if the evidence is
sufficient to accuse the defendant with the charges of the corresponding crime. In some jurisdictions, police
decide not to file charges in 10 to 15% of their arrests, most of them misdemeanors. After the police file the
charges, the prosecutor reviews them. The prosecutor generally decides not to continue the case in 30 to 50% of
felony charges.
4
The actions of the police officers are independent which means that they are not under the
supervision of the prosecutor, however they have to demonstrate the arrests before the prosecutor creates the
case in criminal courts.
Formal Charges
These charges are allegations of the specific crimes for which the defendant will stand trial.
5
Formal charges
are different from arrest charges, the formal charges is the criminal code applied to the specific case, facts and
circumstances, and the formal charges are made by the prosecutor. For instance, a police may arrest someone for
first degree murder, but the prosecutor may accused the defendant for manslaughter. Also, the police tend to be
backward looking in attempting to justify an arrest, whereas the prosecutor is forward looking in attempting
to predict the likelihood of successful prosecution.
6

3
KAPLAN, PMBR. Kaplan PMBR Finals: Criminal Procedure: Core Concepts and Key Questions. Kaplan Publishing.
United States of America. 2009. Page 20.
4
BURNHAM, William Introduction to the Law and Legal System of the United States. West Publisher. 5
th
Edition.
5
TRAVIS III. Lawrence F. Introduction to Criminal Justice Publisher Elsevier. Printed in the United States of America.
2011. Page 224.
6
LOC CIT.
3

There are two ways to file formal charges:
1. Indictment by the grand jury:
The grand jury is a group of citizens that reunites to review if the evidence is sufficient to continue the
proceedings, so there can be a justifiable trial. In the case United States v. R. Enterprises the Supreme Court said
A grand jury may compel the production of evidence of the testimony of witnesses as it considers appropriate,
and its operation is unrestrained by the technical procedural and evidentiary rules governing the conduct of
criminal trials. To illustrate this, the grand jury is authorized to cast subpoenas to witnesses, or even defendants.
The most three common cases in which the grand jury will investigate is: I. Organized criminal cases; II.
Political cases; and III. Abuse of private corporate power cases.

2. Information process:
The defendant and his attorney are able to be present to review all the evidence. For instance they can be present
for a witness declaration.
The decision of which system is to be electing depends on the jurisdiction, and sometimes on the discretion of
the prosecutor, who may decided which process will be followed.
The above concept is called prosecutorial discretion, and refers that the prosecutor may or may not dismiss a
case even if there is sufficient evidence, removing charges before the final judging and sentencing.
What happens if the prosecutor authorizes the charges? A complaint is filed in court so its the turn of the judge
to examine the case from the beginning, since the police reports and complaint. The complaint operates as the
initial charging instrument. In a misdemeanor case, the complaint serves as the charging instrument throughout
the proceedings. In a felony case, and indictment or information replaces the complaint.
7

First Appearance
The first appearance is the phase in which the defendant stands before a judge or magistrate. The final objectives
of the first appearance are:
To guarantee that there is a concordance between the person who is being arrested and the individual
appointed in the complaint.
To explain the defendant his/hers rights during the proceedings, for example: the right to be assisted by
lawyer.

7
BURNHAM, William Introduction to the Law and Legal System of the United States. West Publisher. 5
th
Edition.
4

To decide if the defendant will be release on bail until the trial arrives, release on bail is known as a
bond amount that the defendant must pay to secure release.
8
The decision on how much does the
defendant has to pay lies on the judge or magistrate, whom may decide the full bail or a portion of it in
relation of the case, the factors of the offense, and financial circumstances of the defendant.
There are three ways of non financial release
1. Release on recognition: in which the defendant recognizes the obligation to present himself/herself for
future hearings.
2. Conditional release: the defendant has to perform some activities while the release, such as: drug test.
3. Unsecured bail: In this way, if the defendant do not presents himself in a future's hearing, hes comply to
pay the total amount of the bail.
Nowadays, the courts use the electronic tether, an electronic device that shows where the defendant is, warning
the police of every movement the defendant makes and his intentions on manipulating the device. In 2002, 34%
of state felony defendants were granted financial release and 28% were released on non- financial; 32% could
not meet their bail conditions and 6% were denied bail. Of those released, 78% appeared at all later court dates
and 22% did not. Of the 22%, 16% eventually returned to court while 6% remained at large a year later.
9

Comparison in Common Law and Civil Law
Comparison Common Law Civil Law
Arrest 1. The arrest can occurred when the
probable cause is fulfilled, that is
when the police believe that a
suspect committed a crime.
2. A valid arrest can also occur
with or without a warrant; there
are some exceptions to make a
valid arrest without a warrant.
1. The arrest only occurs when
there is a warrant issued by
judge.
2. An arrest without a warrant can
only happened when there is a
flagrante delicto.
Formal Charges 1. After a crime has been reported
the police investigate the facts of
the crime. When the police
learn of the alleged commission
of a crime, they will begin to
investigate immediately.
10

1. Once a crime has been
announced, the prosecutor
begins the investigation.
2. Usually the witnesses, victims
and defendant will be called to
trial to bear their statements.

8
LOC CIT.
9
LOC CIT. Page 273.
10
OConnor, Vivienne. Practitioners Guide Common Law and Civil Traditions. International network to promote the
rule of law. March 2012. Page. 26
5

2. The police can interview
witnesses, victims or even the
defendant.
3. The formal charges are made by
the grand jury if the crime is
considered as a felony, after the
study, and examination of
evidence the Grand Jury can
institute its Indictment
4. If the offense is considered as a
misdemeanor the police can
establish the formal charges.
3. The formal charges, known as
the Indictment, are made by the
Prosecutor, after the expiration
of the probationary period in
which the prosecutor agents and
prosecutor himself investigated
the crime. The indictment will
describe the acts committed by
the suspect, and outline the
applicable law and evidence
upon which the accusation
rests.
11

First Appearance 1. The first appearance is in
presence of the judge or
magistrate, in most cases is the
stage where the defendant names
his/hers lawyer. The judge
explains the defendant his/hers
rights and the judges decision if
there will be a release on bail
until the trial arrives.
1. The first appearance is in
presence of the judge, the judge
explains the defendant his/hers
rights, and the defendant can
bear his declaration. The first
appearances purpose is to
establish if there is relation
between the suspect and the
crime that can link him to the
process.

Cases Law
1. State of Maryland vs Joseph Jermaine Pringle
2. Stack vs. Boyle
PLEA BARGAINING:
Actually the criminal law theory, determines the commission of a crime, when has occurred an specific
human conduct contained in a law, for this commission three elements are required to exist the criminal offense,
there would be; a.) a wrongful act, that is a human voluntary act, provides by a physical act or a omission, that
causes a wrongful result to other person. b.) guilty state of mind, the second element is considered in other way,
the mens rea, which is the intention to commit a crime, there are three different levels o guilty, the intention,
recklessness and negligence. c.) causation of injury, this one is the specific result caused to a victim by the
commission of a crime; this fact determines the level of defendant responsibility. Because depending of the
seriousness of the crime committed, will be the responsibility of the criminal.

11
LOC CIT. Page 28.
6

Otherwise criminal law, qualify the level of the responsibility of a criminal, because the crime can be classified
in different stairs, obviously a murder cannot be treated the same way as a weapon illegal porting, thats the
reason of a plea bargaining figure, common law establish this option for defendants that commit a criminal act
figured in the less severity crimes, this kind of acts gives the opportunity to the defendant to declares the
confession of the act committed, exchanging by a considerable less penalty. However, to understand this figure
is necessary to attend the literal meaning, that is Agreement between a prosecutor and a defendant whereby the
defendant is allowed to plead guilty to a lesser charge rather than risk conviction for a graver crime in order to
avoid a protracted trial or to win the defendant's cooperation as a witness
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. Understanding a plea bargaining
as a benefit for thedefendant, reward of the courage act of recognizes his responsibility. Other important point of
this definition is the agreement between the prosecutor and the defendant, because this is an essential
requirement for the plea bargaining, because the persecutor has to be agree with the application of this solution
and more than this have to approve this way to solve the criminal persecution.
In the same way, the author Willian Burnham defines the plea bargaining as a is an agreement by which the
defendant agrees to plead guilty in return for either a reduction in the charge or some some special dispensation
regarding the sentence. The advantage from the defendants position is clear: the disposition of the case is made
more certain and usually more lenient than if the defendant went to a trial.
13
The reductions provide can be up
to one third less than the original charge, this partial absolution of the charges derived of the recognition of the
responsibility, this declaration gives the defendant the opportunity of negotiation between the defendant and the
persecutor and the state, about his charges and his responsibility in a crime committed.
This figure have a specific goal, that is avoid saturation of process in the justice system, saving possible
expenses and many loss of time, in the other hand the state can solve criminal process based on less serious
crimes without a trial, saving in that way resources. That point of view is shared by this author, that establish:
the advantage of the plea bargaining for the persecutor and the court is that the plea agreement saves time a
resources because once defendant pleads guilty, there is no need of a trial.
14

However the advantages raised, this way to solve criminal process have many other deficient points, that have to
be considered to the application of this figure, because this way to solve process represent the most part of the
cases solved in common law, nevertheless this deficiencies are present and appears in many cases where the plea
bargaining was applied. Those particular points can be:
a.) an innocent person who is accused of the commission of a crime, can declare a fake confession
exchanging a short charge by a possible worse penalty in a process.

12
www.dictionary.com: http://ask.reference.com/web?s=t&q=plea%20barganing&l=dir&qsrc=2891&o=10616 03/10/13
11:10 pm
13
BURNHAM, WILLIAM, Introduction to the Law and Legal System of the United States, pag. 281
14
7

b.) the habitual criminals can receive a soft treatment for the commission of a crime and they could be
out of jail in a pretty short time.
For this reasons the plea bargaining has many criticisms, this posture in shared by social groups, this author
establish plea bargaining has come under considerable attack. Some critics feel that plea bargaining in too
lenient on the criminal. Others fear that it induces defendants who may be innocent or have a defense to the
charge to plead guilty anyway for fear that they might nonetheless be convicted at trial. But a series of U.S.
Supreme Court rulings has upheld plea bargaining as a constitutional. Plea bargaining, it has declared, is an
essential component of the administration of justice and, properly administered, it is to be encouraged.
15

Regardless of this important thing, plea bargaining is applied day by day in common law as a way to solve
criminal process.
Spite of these deficiencies, the plea bargaining figure represent many benefits for the administration of justice
and the defendants, these benefits would be:
a.) Celerity: a plea bargaining provides, a very quick way to solve a criminal process, because the duration
of a normal trial could be months or maybe years, plus a lot of tension for the parties and expenses in a
legal assessor for the defense, all of this things can be saved by a plea bargaining that during in many
cases, just minutes.
b.) Decrease of charges: the charges attributed to a criminal can be less serious than the original charges,
giving de defendant a better image, because the charges consigned in his criminal files will be less
severe.
c.) Reduction of the penalty: when a defendant admits the commission of a crime, he could reduce the
penalty of the crime on up to third part of the original penalty.
d.) Avoid legal management: many criminals use the plea bargaining to avoid the task to find a legal
assessor for a trail, avoiding in the same way the discomfort to established a strategy for the defense and
more than this the expenses resulting by a trail.
e.) Avoid the publicity of the process: another important thing in that many people use a plea bargaining as
a non publicity way to fix their penal position, maintained their penal responsibility in a secret.
In the same way, is important to determine the role of the judge in plea bargaining, because the judge is always
the representative of the administration of justice and more than this, the judge need to have many important
reasons to approve the constant application of plea bargaining in common law. But the important thing in the
role of the judge in a plea bargaining is the no participation of the judge. In a charge bargaining or a sentence
bargaining, the participation of the judge is indispensable, because he have to be informed of this, before a guilty

15
8

plea take a place in the criminal process. In the other hand in a plea bargaining the judge dont take an important
part in the process, because the most important thing here, in the negotiation between the persecutor and the
defendant giving to those parties all the conditions to negotiate and get an agreement. The judge does not
usually become involved in the plea bargaining discussions and most often allows the persecutor and defendant
to reach will dispose of the case
16
.
These are some of the characteristics of the plea bargaining in common law, explaining these elements in a very
general form, concentrated in the pros and cons derived of a figure like this.
1. Comparison between plea bargaining with a equivalent in civil law:
Now I will try to compare the plea bargaining against the equivalent in civil law, but this could be difficult,
because civil law doesnt have a specific figure like this. The principal rule that governs the civil law is the
contradiction rule, this rule determines that each parties of the process have to contribute with the evidence to
support their strategy and position in a trail, and the most important thing is that the evidence has to contradict
the position of the opponent who are confronting in the trial. Thats totally the opposite in common law,
sometimes the plea bargaining is called the non contradiction rule, where the partiers negotiate a middle point,
obtaining a solution for the dispute, avoiding a possible future trial. For this specific reason, I considered that
civil law doesnt have a specific figure like plea bargaining.
For sample in civil law, when a defendant confesses the commission of a crime, this declaration is integrate in
the trial taking a place as a evidence, and the trial continues taking this evidence as element to decrease the
duration of the penalty, but the defendant never get the total absolution of a crime, he have to be punished for the
acts committed.
After this distention, the conclusion is that civil law doesnt have a figure like plea bargaining, however civil law
has a term that similar from plea bargaining, this figure is called in Spanish procedimiento abreviado, this
determines that a person who commit a crime can opiate for a procedimiento abreviado as well as possible the
crime committed can be framing in that the penal law call a less gravity crimes. Crimes that are considered as
that kind, because the penalty for a person who to do a less gravity crime, is less than few years (five years in
Guatemala for example). With a procedimiento abreviado the responsible of a crime, can get a resolution of a
judge in less time than a normal trial, because all the phases of the process are quickly. Nevertheless a big
difference between this term a plea bargaining is absent, this difference is that in a procedimiento abreviado the
person who commit the crime is always the responsible of the crime, who is condemned to comply a punish that
it would be jail or a monetary fine.

16
9

Another term that is similar to a plea bargaining in civil law is the figure that is called criterio de oportunidad,
this figure suppose that the institution charged to execute the penal persecution by the state, have the option to
refrain the penal persecution, when the crime committed is not typify with a penalty of jail, when the crime
committed dont constitute an public action crime or well the crime committed have a penalty less than five
years of jail. The application of this figure is always considered in cases where the public interest o citizens
security could be threatened. For example the penal process code establish: ARTCULO 25.- Criterio de
oportunidad. Cuando el Ministerio Pblico considere que el inters pblico o la seguridad ciudadana no
estn gravemente afectados o amenazados, previo consentimiento del agraviado y autorizacin judicial, podr
abstenerse de ejercitar la accin penal en los casos siguientes: 1) Si se tratare de delitos no sancionados con
pena de prisin;2) Si se tratare de delitos perseguibles por instancia particular; 3) En los delitos de accin
pblica, cuya pena mxima de prisin no fuere superior a cinco aos con excepcin de los delitos tipificados en
la Ley contra la Narcoactividad
17

2. Examples of common law:
- North carolia vrs. Alford:
- Puckett vrs United States 2009:
SEARCH & SEIZURE
Amendment IVThe 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
persons or things to be seized.
18

In the British colonies this amendment becomes part of several cases that give place to the right of a person to
protect his house and properties against the unlawful entry of the Kings militaries. Also recognized the authority
of the Kings government to entry a house with a previous notice to arrest someone or execute the Kings
procedures. One of the famous cases was Semaynes case that make the maxim Every mans house is his stle
famous in England and also Entick v. Carrington case.
19

17
CODIGO PROCESAL PENAL, GUATEMALA. Art. 25
18
Amendment Four Constitution of the United States of America.
19
PDF Document Fourth Amendment Authenticated by th U.S. Government GPO. Semaynes case. The poorest man may in his
cottage bid defiance to all the force of the crown. It may be frail its roof may shakethe wind may blow through itthe storm may enter,
the rain may enterbut the King of England cannot enterall his force dares not cross the threshold of the ruined tenement. Entick v.
Carrington case. Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and
boxes, and seized many printed charts, pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the
behavior it authorized subversive of all the comforts of society, and the issuance of a warrant for the seizure of all of a persons papers
rather than only those alleged to be criminal in nature contrary to the genius of the law of England.
10

This amendment is part of the famous Bill of Rights of the United States Constitution, and it appears to protect
people from the abuse of authority of the police or any other power of the State to violate their privacy and their
property. The fourth amendment born and it was first introduced in the Congress of the U.S.A. in 1789. Later in
1789 on September 28, this amendment was submitted to all the states of the United States. It was ratified on
December 15 in 1791 when the votes of the necessary states confirm the adoption of the fourth amendment to be
applied in all the country.
Because of the introduction of this amendment in the Constitution of the United States, the right of the
government and their officers to search and seizure become limited by the requirement to the need of law
enforcement of a competent authority to make an intrusion onto private property. But also the Supreme Court
with the Katz v. United States case
20
declares a series of exceptions to this requirement when the search and
seizure refers to:
Consent searches
Motor vehicle searches
Evidence in plain view
Exigent circumstances
Border searches
The fourth amendment also refers to a rule that is recognized by the name: Exclusionary Rule. What this rule
tries to prevent is to not consider evidence that was obtained through a violation of the fourth amendment
admissible to a criminal process.
There has to be two issues to consider when the police exercise his power to investigate, to become a
constitutional or an unconstitutional search and seizure, and those issues are:
- If the action constitute a search or a seizure?
- Whether the necessary judicial approval was obtained under the rules by which a warrant should be
obtained?

20
Katz Case v. United States. Charles Katz used a public pay phone booth to transmit illegal gambling wagers from Los
Angeles to Miami and Boston. The FBI use this recordings to convict him and he claimed that it violate his right of the fourth
amendment. The Court said that there was no physical penetration of any constitutional protected area. But Mr. Katz have a reasonable
expectation that his conversation would be private so this becomes a search and the police should submit an application of a warrant to
approve this search. ORACLE Education Foundation, website was consulted: http://library.thinkquest.org/2760/cases.htm
11

Meaning of Search
According to the Oxford dictionary search means: try to find something by looking or otherwise seeking
carefully and thoroughly.
21
Also according to a legal dictionary Search is: The act to examine another's
premises (including a vehicle) to look for evidence of criminal activity. It is unconstitutional under the 4th and
14th Amendments for law enforcement officers to conduct a search without a "search warrant" issued by a judge
or without facts which give the officer "probable cause" to believe evidence of a specific crime is on the premises
and there is not enough time to obtain a search warrant.
22

The violation of the fourth amendment occurs when a government employee violates a reasonable expectation of
privacy. There could not be an expectation of privacy in the next situations:
1. Open fields is the outside areas in where there is no scope of protection of this amendment.
2. When the person exposes information or does something that allows the public to know the information
that held private.
3. Does not protect bank records or garbage set out for collection.
4. Plain view, does not protect when the police can see an illegal action or object in a place they have the
right to be, like the view of a police helicopter.
5. Also the police do not have to justify the investigation when they use a drug dog that is trained for that
specific task.
6. When a person gives his consent to make a search doesnt constitute a violation of the fourth
amendment.
Meaning of Seizure
According to the legal dictionary Seizure means: a seizure is the forcible taking of property by a government
law enforcement official from a person who is suspected of violating, or is known to have violated, the law.
A Search Warrant usually must be presented to the person before his property is seized, unless the circumstances
of the seizure justify a warrantless Search and Seizure.
23

A seizure occurs when the police interfere with an individual possessory interest in property, it also must have
had an expectation of privacy with the object that pretend to be seized. To have the expectation of privacy this
must have the subjective requires that means there exists the claimant of privacy. Also the objective requires that
refers to the circumstances that if a person in a similar situation would have expected privacy at that moment.

21
OXFORD UNIVERSITY PRESS, website was consulted: http://oxforddictionaries.com/definition/english/search
22
Farlex Inc. 2013, website was consulted: http://legal-dictionary.thefreedictionary.com/search
23
Farlex Inc. 2013, website was consulted: http://legal-dictionary.thefreedictionary.com/seizure
12

The reasonableness of a search and seizure
There must be legal reasons to search and seizure the privacy and property of an individual, this means that there
has to be a probable cause and also a warrant that approve to search and seizure in which has to be identify the
place that can be search and the items to be seized. Probable Cause means that the judge or magistrate had the
information that was trustful and worthy to consider particular evidence will be found in a specific place. In the
warrants needed to permit a search there is different types:
1. Searches with probable cause and warrant
When there is a search outside a judicial process and there is no warrant approving it, is a manifest
unreasonable search. It is important to understand that the reasonable clause and the warrant clause
are linked, thats why it cannot be allowed to search and seizure unless it exist a probable cause
supported by an oath or affirmation identifying the place ant items that should be search and seizure.
It exist a warrant procedure that has to be follow in order to have a lawful warrant.

24

2. Searches with probable cause and without a warrant
This type of search refers when the police have an emergency situation ant it was impossible to get a
warrant. For these situations there must be exigent circumstances in which the situation turns

24
OXFORD UNIVERSITY PRESS Answers Corporation, website was consulted: http://www.answers.com/topic/amendment-iv-to-the-
u-s-constitution#ixzz2heoqkxXp
Police have to
submit aplication
for warrant to a
judicial officer
Judicial officer
must qualify as a
neutral and
detached
magistrate
Warrant:
- place
- persons
- things
Affidavit
(statement made
under penalty of
perjury)
Explain
circumstances of
probable cause
13

difficult to submit an application for a warrant. In these cases is always job of the trial to analyze and
review if there really was an emergency situation.
3. Searches without warrant and probable cause
It is when the police is entitled to search with non-investigatory reasons and the conduct of a person
claims to be contrary the provisions of the law. Also the police may search and seize when there is a
lawful arrest, because of the protection of themselves and the rest of the people in the area of the
arrest. The items that can be seize in this situation should have probable cause to believe that those
can be evidence of the crime committed.
Executing Searches
There are two types of the execution of Searches:
Knock and Announce
Is when the police have a warrant to do the legal search, so they have to knock the door of the residence
and announce they presence.
No knock
It is when a police officer is allow to enter a place without an announcement, this occurs in the cases
when it exists the possibility that the person inside destroy the evidence before the search.
Differences Civil Law and Common Law
In both systems the government has the authority to search and seizure with a warrant that has been obtained by
a legal procedure. Also in the civil law it is necessary the permission of the owner to enter a house that is use for
housing. The warrant procedure in the civil law has to be submitting to an entitled judge then he pronounces with
a warrant if he considers the reasons are valid enough for the search.
Cases
California v. Greenwood 6-2 Vote May 16, 1988
Chimel v. California 6-3 Vote June 23, 1969

14

THE LAW OF CONFESSIONS

The confession should be voluntary, essentially free and unconstrained. The self -incrimination is described in
the 5th amendment said nobody shall be compelled in any criminal case to be a witness against himself
25
.
The constitution prohibits involuntary confession.
The court must examine the totality of all the surrounding circumstances both the characteristics of the accused
and details of the interrogation.
26

Then the court should examine coercive conduct by police in the moment of get confession and must exclude the
coerced confession if exist physical brutality such: a beating, deprivation of food, water, or sleep, or threats of
violence, extended periods of incommunicado interrogation. This is important examine because physical torture
can induce persons falsely to accuse themselves, a substantial risk of unreliability is evident.
27
Nowadays the
confession is unreliable, but for police investigation the confession is as queen evidence.

Due process requires that a jury not hear a confession before the judge determines in the pretrial that the
confession was voluntary. The jury will decide to what extent to believe the confession
28
. For this reason it
makes diference between admissibility and weight of the confession as evidence. Admissibility is determined by
the judge, considers if the confession is voluntary and the weight is determined by jury considers the probative
value of the confession.

Exist the Miranda Warnings, that is decision Supreme Court in the case Miranda vs Arizona in which said that
protection against interrogation was insufficient and that involuntary confessions are usually obtained.
Recognizing that self-incrimination and certain rights should not be violated, so police must warn to suspects of
their rights. In sometime the police reads a suspect their right or usually used the following sentence: you have
the right to remain silent. Anything you say can and will be used against you in a court of law. You have the

25
US Constitution.
26
William Burnham. Introduction to the Law and Legal System of the United States. P. 299
27
Joseph D. Grano. Confessions, Truth and the Law. Michigan. 1996. P. 24.
28
William Burnham .
15

right to consult an attorney and have an attorney with you during questioning. If you cannot afford an attorney,
one will be appointed for you
29

The most important thing is to warn the suspect reasonably and sustancial their rights, no matter how the police
officer warned a suspect because they do not required to use the phrase prior written.
Also the suspect can waiver the right to remain silent and the right to have attorney present during interrogation,
but this decision must be voluntary and conscious.

The suspect may waiver of the right to remain silent still valid, only if prior to interrogation know their rights
and the Miranda warning. In any case the police officer`s indicate suspect waiver of the right to remain silent,
but the police officer use their skills to get a involuntary waiver of the suspects or not said a suspect their right.
However the suspect have the right to remain silent even if prior waiver of the right, because in any time prior
or during the interrogation the suspect can express their wish of remain silent and for this the reason must cease
the interrogation.
30

Other reason for ceases the interrogation is if the suspect indicates a desire to speak to a lawyer, the
interrogation must cease until a lawyer is present. If the suspect consult with a lawyer, the police may not
reinitiate interrogation without the lawyer present.
31

The Miranda warning are required only if there is custodial interrogation. This is defined as questioning
initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.
32
This is different in the case that the person not under arrest, because
the suspect is free to leave or ask the police to leave, there is less likelihood that the suspect suffers some abuse
because they have no control over him.

29
William Burnham.
30
William Burnham. P. 300
31
William Burnham.
32
William Burnham.
16

Miranda exceptions:
Supreme Court created exceptions to the Miranda warning requirement, recognized a public safety exception in
the case New york vs. Quarles in that case, police had informed that a rapist had fled into grocery store armed
with a weapon, when police frisked him, found his holster empty, the officer asked where the gun was and the
defendant indicated its location
33
. In this case is not considered violated the Miranda warning, because the
interrogation was guided to protection a public safety that means this action is danger for society.

Other exception is covert custodial interrogation, recognized exception in the case Illinois vs. Perkins in that
case, an undercover police officer was placed in a jail cell with the defendant and have conversation with the
defendant in whom the defendant made incriminating statement
34
. In this case is not considered violated the
Miranda warning, because the confession in this specific case is voluntary and not coercive. The police officer
not uses torture or any physical brutality for gets confession. This exception given usually when the suspect not
knows that is speaking with police officer.

Comparison of the application of the said subject in Common Law and Civil Law or criminal procedure

Civil Law:
In system of civil law indicates the subject of confession law in the Constitution, as procedure beginning from
legal detention, describe in article six that mention no person may be detained or arrested, but will be arrested
if make a crime or exist a judicial order, those arrested must be made available to the competent judicial
authority within a period not exceeding six hours and not be able to be subject to another authority.
35
Whereas
when given the detention will continue with the questioning, as in common law in which the Miranda warning is
required when arrested to suspect and starts the interrogation. Exist the prerequisite to require Miranda warning
is that the suspect be in custody.

33
William Burnham. P.301.
34
William Burnham.
35
Constitution Guatemala.
17

Is similar in common law indicate the right to suspect when suspect was arrested, being a prerequisite to
interrogation, detention, because at the time of arrest can to give abuse from officer police to the right of the
suspect because the police want to get evidence, but the judge can observe whether the detainees have suffered
some abuse which obtained involuntary confession. The civil law also protects the rights of the suspect when he
was arrested as a result to prevent abuse and involuntary confessions.

The most important article is the eight that mention all those arrested should be immediately informed of their
rights in a way that is understandable, also indicate that it may have an attorney who may be present at all police
and court proceedings. The arrested should not be compelled to confession but can confess before competent
judicial authority.
36
This is a difference with a common law because in civil law, confession make before
competent judicial authority not is same in common law that confession make before police officer. And other
difference is that in civil law not use an specific sentence from warning of their right, only explain the right in
a way that is understandable as quickly as possible. Similar in common law the explain the right to suspect
inmediately.

In the article nine of the Constitution mention judicial authorities are the only competent to interrogate
detainees or prisoners. This hearing should take place within a period not exceeding twenty-four hours.
37

In this prior written article shows another difference, because in the common law is interrogate without a specific
term, but in civil law exist a term that may be interrogated the arrested.

In the article sixteen of the Constitution mention the statement against or relatives and indicate that no person is
compelled to confession against himself, against his husband or her wife or against relatives.
This is other difference because in the common law in the 5th amendment mention the prohibit self
incrimination in which indicate that any person shall be compelled to be a witness against himself but not
mention against relatives or his husband or her wife. In the civil law not given self-incrimination and also not
permit confession against relatives.

36
37
18

Two examples of the case law explaining the specific subject in criminal law or criminal procedure

The case Brown vs Mississippi this is the first case to prohibit the use of a confession in a state court, because
the police brutally beat suspects. Summary of the case: two individuals were convicted of murder, the only
evidence of which was their own confessions that were procured after violent interrogation.
The arrested appealed to the Supreme Court of Mississippi arguing that their Fourteenth Amendment rights were
violated. The Supreme Court of Mississippi affirmed the trial courts judgment, concluded (1) that immunity
from self- incrimination is not essential to due process of law; and (2) that the failure of the trial court to exclude
the confessions after the introduction of evidence showing their incompetency, in the absence of a request for
such exclusion, did not deprive the defendants of life or liberty without due process of law.
The states highest court also observed after the state closed its case on the merits, the appellants, for the first
time, introduced evidence from which it appears that the confessions were not made voluntarily but were
coerced. The majority observed, the trial court was fully advised by the undisputed evidence of the way in which
the confessions had been procured. The trial court knew that there was no other evidence upon which conviction
and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction
and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could
be challenged in any appropriate manner.
38

In this case the resolution of the trial violated the 5
th
amendment because the trial admits the confession, which
knows that it was procured by the coercion and allow the selfincrimination, when it is forbidden by the
constitution. Also not observe the features to have a confession, because the confession must be voluntary,
essencially free and unconstrained. Finally be considered as physical torture may induce people to falsely
accuse themselves, which creates a lack of reliability as noted previously.

The case Florida vs Powell in in this case must observed the subject about advice of the right to talk to a lawyer
before answering any of police question, and that he can invoke this right at any time during police interview,
satisfies Miranda warning. This case is popular and important because recognize Miranda warning and indicate
that right not vary. Summary of the case: In this case, Mr. Powell was being charged with being a felon in
possession of a firearm. He was arrested and questioned by the police. But before he was questioned he was

38
http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-weinreb/the-privilege-against-self-
incrimination/brown-v-mississippi/

19

read his Miranda rights. However, the officers said You have the right to talk to a lawyer before answering any
of our questions and you have the right to use any of these rights at any time you want during the interview. Mr.
Powell did not invoke his right to talk to an attorney and made some statements to the officers that helped to
convict him. On appeal, Mr. Powell argued that his rights were violated because the officers failed to inform him
that he also had the right to have an attorney present during the interrogation. The Supreme Court accepted the
case, and (as we have seen in the past) used this opportunity to remind the courts that the exact language of the
Miranda warning is not set in stone. Miranda requires that the individual be informed of their rights, but it
doesn't give explicit language. The Supreme Court held that because Mr. Powell was told that he had the right to
talk to a lawyer before being questioned, and could invoke that right at any time during the questioning, it
was equivalent to telling Mr. Powell that he had the right to have an attorney present during questioning. In this
case demonstrate that Miranda warning are not ignored or weakens, but in this case reaffirms the fact that the
officers don't have to provide a specific monologue.
39

In this case the resolution of the trial recognize the Miranda right and said the most important is explain to
suspect their right no matter how it is disclosed, this is important because is intended that the detainee
understands their rights and do not violate or abuse of the rights. Is not necessary to use the famous phrase that
advises the suspect of his rights, usually seen in TV programs. No matter in what order they may make known
the suspect their rights, but what if it is important to take into consideration is that when given to know their
rights should be performed in a transparent manner, in a language that is not complicated and for easy
comprehension.

Finally it is important to understand the suspect their rights to prevent a violation of the 5
th
amendment self-
incrimination because Constitution prohibits an involuntary confession against himself and at the same time is
protected from physical abuse used by police to obtain evidence through the confession. Also be added that in
this case should be considered to be given the four warnings from Miranda were required, in this case not said
complete the Miranda warning, and miranda rights violated because the suspect did not understand their right
and did not said all their right.

39
http://www.aschemansmith.com/florida-v-powell---us-supreme-court---case-review
20

RIGHTS AT TRIAL
The Constitution of the United States recognizes a sequence of basic rights that all defendants in criminal
procedures shall enjoy. Those basic constitutional rights, guarantee the defendant a fair and impartial trial and
the achievement of justice, and also protect him from arbitrary and illegal decisions against him. This essay
pretends to briefly explain the most important rights at trial, and to compare them to its equivalent in the civil
law system.
1. Right to a Speedy Trial
The legal basis of this right is found in the 6
th
Amendment of the Constitution of the United States that declares
that In all criminal prosecutions, the accused shall enjoy the right to a speedy trial
40
. This amendment
guarantees the right of all defendants to be judged and, condemned or released, depending on the case, as soon as
possible, in a fast and speedy way. This provision is an important safeguard to prevent undue and oppressive
incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the
possibility that long delay will impair the ability of an accused to defend himself.
2. Right to a Public Trial
This guarantee is also found in the 6
th
Amendment which provides that In all criminal prosecutions, the
accused shall enjoy the right to a public trial
41
. This is an important right, because the presence in
courtrooms of a defendant's family and friends, ordinary citizens, and the press can help ensure that the
government observes important rights associated with trials.
42
The right to a public trial mean the hearings of
the trial should as a rule, be conducted orally and publicly, without a special request by the defendant to that
effect. This right means a guarantee is not only for the defendant, but also for the general public in a democratic
society.
3. Right to a jury trial
The right trial by jury in all criminal prosecutions for all non-petty offenses, is guaranteed in the 6
th

Amendment. Under this Amendment, in all criminal prosecutions, the accused criminal has the right to an

40
Constitution of the United States of America
41
Constitution of the United States of America
42
Taken from http://www.nolo.com/legal-encyclopedia/defendants-rights-during-court-trial-29793.html, seen on October
10
21

impartial jury of the state and district in which the individual allegedly committed a crime.
43
A petty offense
is a minor crime, the maximum punishment for which is generally a fine or a short term in a prison or a house of
correction. How it has been already said, this right is only for defendants who are accused of committing non
petty offenses, which means crimes for which the potential punishment is more than 6 months. The number of
jurors on a jury has always been 12, but nowadays, in some states, it has been allowed, that a jury can be
conformed by six persons. In that case the defendant cant be condemned if the jury isnt unanimous.
4. Right to an Impartial Jury
This guarantee means that all defendants are entitled to be tried by juries drawn from a pool representing a fair
cross-section of the community. The rationale of this provision is to avoid the arbitrariness and/or bias that
would potentially arise if criminal charges were to be decided on by a political body or an administrative
agency.
44
. Personally, I believe this is one of the most important rights, because if the jury is not impartial, it
would be impossible to have fair decisions, which means there would be no real justice. It is very important to
keep in mind that the purpose of a jury is to guard against the exercise of arbitrary power, and that is possible,
only if the jury remains pure and no juror is biased.
5. Right Not to Testify
The Fifth Amendment to the United States Constitution is very clear and provides that No person shall be held
to answer for a capital, or otherwise infamous crime nor shall be compelled in any criminal case to be a
witness against himself This means that the prosecutor, the judge, and even the defendants own lawyer cannot
force the defendant to testify as a witness against his or her will. Something very important about this guarantee
is that it necessarily includes within it the right not to have that silence used against the defendant. Its also
important to say that a defendant can waive to this right, but once he takes the witness stand, this particular right
is considered waived throughout the trial. A defendant who does choose to testify cannot answer some
questions but not others.
45

6. Right to Confront Accusers

43
Taken form http://www.law.cornell.edu/wex/right_to_jury_trial, seen on October 10
44
Taken from http://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdf, seen on October 10
45
Taken from http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html seen on
October 10
22

The 6
th
Amendment gives the right to the defendant to be confronted with the witnesses against him. This
guarantee consists in that the prosecution may not use any statement against the defendant, unless the defendant
had the opportunity to cross examine that witness at the time the statement was made.
46

This right is exclusively for those statements that are testimonial. This Amendment does not include
statements that were not made thinking in a post-incident trial. So, for example, a domestic battery victims
statement recorded in a phone call to the police, while a house robbery, can be admissible in the trial, because
the call was intended to warned the police about the emergency, not the product of post-incident police
investigation efforts. Like other rights, the right to a face to face confrontation with accusers can be considered
waived. If the defendant uses vile language or engaged in other disruptive behavior, he can be excluded from his
own trial. If so, the defendant can return to the trial anytime, if he agrees to behave himself.
7. Right to Counsel at Trial
The 6
th
Amendment also states that In all criminal prosecutions, the accused shall enjoy the rightto have the
Assistance of Counsel for his defense. This guarantee establish that a defendant enjoys of a constitutional right
to be represented by a counsel during trial. It also establish that, in the case, the defendant cannot afford to pay
an attorney, its the government obligation to appoint him one, to handle the case, at no cost to the defendant.
The court held that lawyers in criminal courts are necessities, not luxuries, and that in our adversary system of
criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assure a fair trial
unless counsel is provided for him.
47
There has been a controversy about this specific right, is the question of
when, in the process of criminal prosecution, the defendant gains this guarantee. The Supreme Court has
determine, in the case Brewer vs. Williams (1976) that a defendant gains the right to a counsel at trial at or
after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary
hearing, indictment, information, or arraignment.
48
However, all defendants have the right to waive his right
and represent himself at his criminal trial. Another important fact about this right, is that it also means the right
to an effective assistance.
8. Burden of Proof
Burden proof is the obligation placed upon a party on a trial, to prove or disprove a controversial fact. It
implicates the burden of persuasion, by which the party with the burden of proof must establish or refute a

46
Burnham, William, Introduction to the Legal System of the United States, Thomson West, 2011, page 312

47
Burnham, William, Introduction to the Legal System of the United States, Thomson West, 2011, page 312
48
Taken from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0430_0387_ZO.html seen on October 10
23

disputed factual issue. In criminal cases, this responsibility relapse on the prosecution, who has the obligation to
demonstrate that the defendant is guilty before jurors may convict him. That means that the prosecution must
prove that the defendant is guilty, beyond a reasonable doubt. Beyond a reasonable doubt means that the
standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical
explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the
presumption that a person is innocent until proven guilty.
49
It has been said that if the jury have no doubt that
the defendant is guilty of committing a crime, or that if their doubts are unreasonable, than the prosecutor has
proven that the defendant is guilty, and he can be pronounced guilty and condemned.
- Other Constitutional Protections
It has to been taken in consideration that there are more rights not mentioned in the Bill of Rights. Some of the
practices prohibited in all criminal procedures, that can be considered as rights of the defendants are: defense
discovery rights, improper closing argument by the prosecutor, violation of the right to counsel at parole
revocation proceedings, prohibiting the defendants access to evidence, entrapment, judicial bias, and charges
motivated by prosecutorial vindictiveness.
RIGHTS AT TRIAL IN THE CIVIL LAW SYSTEM
First of all, its important to establish that there are not many differences between the rights at trial of the
defendants in the common law and the rights at trial in the civil law. It is possible to say that both law systems
share the same minimum guarantees and rights that every defendant shall enjoy, in a criminal procedure.
The guatemaltecan criminal procedure code, in its article 5, provides that the process aims to criminal
investigation into the commission of an act constituting a crime or offense, the circumstances in which this was
committed and the accused's participation in it
50
The criminal process seeks the truth, and this should be
done in a quick and impartial way. That means that the criminal proceedings should be completed in the fastest
way possible, without undue delay, in order to ensure fundamental rights of the accused.
In the Civil Law system, defendants have the same guarantees as in the United States. Most of these guarantees
are established in the Constitution of the Republic of Guatemala and some others are established in the Criminal
Procedure Code. The ones that the Constitution provides are: a) right to a jury trial (article 7, but in this case, its
not right to a jury trial because, the civil law do not have jurors, but right to be tried by a legal judge.); b) right
not to testify (article 16, this right includes not only the right to not testify against himself, but also the right to
not to testify against his family); c) right to a counsel at trial (article 8); d) burden of proof (article 14, its called

49
Taken from http://legal-dictionary.thefreedictionary.com/Beyond+a+Reasonable+Doubt seen on October 10
50
Criminal Procedure Code (Guatemala) Article 5.
24

presumption of innocence, which means that every person is innocent until proven guilty) and e) right to a public
trial (article 14). The rights that the Criminal Procedure Code provides are: a) right to an impartial jury (article 7,
in civil law its the same only that instead of an impartial jury its an impartial judge).
At last the right to a speedy trial is found in the article 7.5 of the American Convention on Human Rights.
Cases
- Griffin vs. California
- Davis v. Alaska

The double jeopardy guarantee
The double jeopardy guarantee is one of the oldest protections in the common law traditions and the
western civilization. Its origins reside in Roman Law. This principle in mentioned in the Digest of
Justinian (533 A.C) as the precept that the governor should not permit the same person to be again accused
of a crime of which he had been acquillet.
51
. Its also a legal traditional Greco-Roman rule.

The double jeopardy guarantee is established in the 5
th
Amendment to the U.S. Constitution, which declares
that no person shall be subject for the same offence to be twice put in jeopardy of life and limb Its
defined as the principle that declares that a defendant cannot be retrial for the same offence. Its part of the
constitutional guarantees, Due process and Equal Protection clauses established in the 14
th
Amendment.
It () means that no one may be tried twice for the same crime by any state government or by the
federal government. It does not mean, however, that a person may not be tried twice for the same action if
that action has violated both national and state laws
52
.

The double jeopardy is a procedural guarantee that protects the defendant against same crime charges; this
means that the State should act in order to prevent causing embarrassment, and a continuous state of
insecurity and anxiety provoked, from the possibility that he may be found guilty and punished.

51
Digest of Justinian. Book 48 Title 2 Note 7.
52
Outline of the US Legal System. Bureau of International Information Programs United States Department of State.
2004. Page. 106.
25

The essence of double jeopardys protection against retrial is not just the possibility of a worse result for
the defendant in the second trial, however. It is also the continuing state of anxiety and insecurity and the
embarrassment, expense, and ordeal of a second trial.
53
.
The Court has said that the double jeopardy guarantee includes three rules It protects against a second
prosecution for the same offense after acquittal. It protects against a second prosecution for the same
offense after conviction. And it protects against multiple punishments for the same offense
54
.
-The jury must declare a verdict. There must be a sentence declaring the defendant guilty or not guilty.
The double jeopardy prohibition searches for the integrity of a final judgment or decision. This means that
the first prosecution must be terminated to jeopardy to attach. Its considered that jeopardy operates since
the jury is sworn
55
and empanelled (when the case is filed before a jury), and when the prosecution its
opening statement (when the case is filed before a judge). In Wade v. Hunter, the Court established that a
defendant has a valued right to have his trial completed by a particular tribunal.
56
.
According to the Nolos Plain English Law Dictionary Double Jeopardy operates, when: A defendant is
put "in jeopardy" once the jury is sworn. If the prosecutor moves to dismiss the case after that, the
defendant cannot be retried. When a judge dismisses a case, however, a retrial is generally possible unless
the dismissal was engineered by the prosecutor's misconduct, or there was no overriding necessity to
dismiss the case.
57

Retrial after a Mistrail: Double jeopardy problems generally occur in two instances: (1) in the case of
acquittal, the prosecutor searches for a new trial or (2) in the case of a conviction, by the prosecutor retrials
the defendant to punish him for a more serious crime or to obtain a higher sentence. But not all process are
terminated with a conviction or acquittal, theres also the possibility to a mistrial to take place. If the case
were aborted, that causes the judge to declare a mistrial. Its considered that retrial is not allowed after a
mistrial granted on a ground that lend(s) itself to prosecutorial manipulation and could allow the
prosecution the opportunity to strengthen its case
58
.

53
Burnham, William. "Introduction to the Law and Legal System of the United States"P.315.
54
North Carolina v. Pearce. 395 U.S.. 711, 717. 1969.
55
Crist v. Bretz.
56
Wade v. Hunter, 336 U.S. 684, 689 (1949).
57
Nolos Plain English Law Dictionary
58
26

- Dual Sovereignty doctrine:
Successive prosecutions by state and federal governments for criminal offenses arising out of the same
criminal episode are not barred by double jeopardy. These are permitted under the dual sovereignty
doctrine. This doctrine is the only exception to the double jeopardy prohibition, being a product of United
States federalism and the sovereignty of the States. Double Jeopardy attaches only related to origin
jurisdiction () which is why a defendant can be tried in federal court after being tried in state court.
Double jeopardy does not prevent trial in a civil court on underlying facts that previously formed the basis
of a criminal trial.
59

This means that its possible to have successive prosecutions by federal and state governments for the
same offense without violating the Double Jeopardy Clause. The reason is that if a specific fact is
typify as a serious crime for state and federal law, is an offense against the peace and dignity of both
and may be punished by each
60
.
The successive or multiple prosecutions by federal and state governments, depends of the seriousness
of the crime.

-A second trial is not considered to be double jeopardy, when the defendant has chosen to appeal the
original conviction.
61
The defendant has the right to appeal only if he is declared guilty. The re trial rule
depends on the defendant position.
The prosecution, cant appeal an acquittal, because that would initiate a second trial and it would violate the
Double Jeopardy clause. However, the prosecution is able to appeal certain aspects of the sentence, as long
as it doesnt requires a second trial.

What is Same offence or transaction?
For double jeopardy to apply, the second prosecution must be for the same offence. The guarantee
protects the defendant from being twice trialed for the same facts or offences.

59
Nolos Plain English Law Dictionary
60
United States vs. Lanza, 260 US 377 (1922)
61
Outline of the US Legal System. Bureau of International Information Programs United States Department of State.
2004. P. 117.
27

This means that () crimes under different states are different offenses if any element is different: if each
offense requires proof of an additional fact wich the other does not. This would mean at the very least that
a crime and any of its lesser-included offenses would be considered to be the same offense. A lesser-
included offense of a crime is any offense that is less serious than that crime and whose elements are all
included within the definition of a more serious crime
62

According to the double jeopardy clause, the prosecutor cannot retrial the defendant for a more serious
crime, when he was already trial by a less serious crime.
In the case where there are several facts, the court must decide based on the analysis of the same
transaction, which states that the prosecution should be joint, where the defendant had incurred, in an
interval of time, various crimes with the same intention or goal. This analysis is commonly used in state
courts.
Comparison to civil law principle: Non bis in idem
The non bis in idem principle in civil law is the equivalent to double jeopardy in common law. Its a Roman
law principle which refers to the prohibition the State has to trial a person for the same offense or crime. Its
established in Article 17 of the Criminal Procedure Code as unique persecution.
Its the procedural and constitutional guarantee that establishes the prohibition of judging twice a person for the
same offense. Also means that no person should be punished twice for the same offence or crime when in trial,
the Court sentence declares the defendant guilty or innocent. Only if theres the possibility to reduce the
punishment, to benefit the condemned, its possible to review a firm sentence. Its related to the In dubio pro
reo.
This principle is mostly a procedural guarantee, elaborated in order to avoid the jeopardy of a multiple,
simultaneously or successive penal persecution of the same offense, when the trial is finished or its still on
curse.
From there comes the right to file litis pendentia and res judicata exceptions, to show that the defendant has
already been trial for the same offense. Three elements are necessary to apply non bis in idem: 1). Same
person; 2). Same object; 3). Same cause.
Blockburger v. United States (1932):

62
28

This is one of the most important cases related to the Double Jeopardy guarantee. The Court established the
concept of same offense also known as same transaction. It established a rule, that is used to determine the
liability or multiple or successive prosecution and punishment. Its also called the default rule or the
Blockburger test.
The defendant was charged with violations of the Harrison Narcotics Act Statute. He was accused of selling
drugs (morphine), in five different occasions. The Court sentence the defendant to pay a US $ 2,000.00 fine
for each count and five year punishment in jail.
The Court established that in that particular case, there was no Double Jeopardy violation, because the crimes
where entirely different, and, the defendant could be prosecuted simultaneously or successively, for both
offenses. The elements of the crime were clearly established in the statute, therefore, there wasnt double
jeopardy.
One of the crimes required that the sell were made in or from the stamped package, and the other required that
the sell needed to be based on a written order of the buyer. The Court established that the defendant had violated
both offenses, and could be punished by both.
The Court established that the government is able to prosecute multiple offenses, arising from one conduct, then
each of the offenses requires a specific proof or fact that the other doesnt. It means that a defendant could be
persecuted for the same criminal episode, charged of two or more offenses if the crimes are different and have
different elements.
The prosecutor must examine each offense to determine if the lesser offense is included in the more serious
offense, to search for the punishment of all the offenses, considered like one.
Ashe v. Swenson (1970)
Its related to the Collateral Estoppel, also called issue preclusion. This doctrine was established in this case, to
avoid that the defendant could be prosecuted successively for different crimes when in the first one hes
acquittal.
In this case, the defendant was prosecuted by robbing one of six players in a card game. First, the defendant was
acquittal, but the prosecution started another trial, accusing him of robbing the second player. It doesnt matter
that the offense involved a different victim (second player). The retrial constitutes a violation to the Double
Jeopardy clause, because there was a final judgement. The Court established that there was no sufficient
evidence to reach a conviction, and the time to proof had already precluded.
29

The Collateral Estoppel declares that "once a court has decided an issue of fact or law necessary to its judgment,
that decision precludes relitigation of the issue in a suit on a different cause of action involving a party to the
first case.
63

The Double Jeopardy is a procedural guarantee to protect the defendant from being twice juzge by the same fact
or offense. Its a clause that protects the defendants rights at trial, based on the idea that facing a trial put the
person into an anxiety state.
The Burden of Proof in the Common Law System and the Guatemalan Law System:
The Burden Of Proof in the United States Common Law System:
The United States Constitution grants many rights to those accused of committing a crime, these rights constitute
important protections to those individuals in conflict with the law. The most important rights related to the
individuals accused of committing crimes are established on the US Constitution 5
th
and 6
th
amendments, being
the presumption of innocence the most important of these rights. This presumption of innocence means that all
criminal defendants are innocent until they are proven guilty in a court of law.
64
In consequence, the Burden of
Proof relies with entirety on the prosecutor, so he has the duty of proving the elements of the case.
65

The prosecutor has the difficult task of proving that the accused committed a crime, and also that he is guilty
beyond a reasonable doubt, which means that the evidence should be so convincing that no reasonable person
would every question whether or not he or she is guilty. Therefore, if any reasonable doubts remain, the
defendant cannot be convicted of the crime.
66

Also, in addition with the important rights aforementioned, the Burden Of Proof in the United States Common
Law System is closely related to the due process principle contained in the US Constitution 5
th
amendment, and
it constitutes one of the main functions and duties of the prosecutor, because he has the burden of proof as to
every fact necessary to constitute the charge crime and that those facts must be proved beyond reasonable
doubt
67
. The Burden Of Proof is based on the basic right that any U.S. citizen who has been accused of a

63
San Remo Hotel v. San Francisco, 545 U.S. 323 (2005), fn. 16.
64
Prosecution. Burden of Proof.org. Found in: http://www.burdenofproof.org/prosecution.html. 10/5/2013.
65
66
67
BURNHAM, WILLIAM. Introduction to the Law and Legal System of the United States. West Publishing Company,
College & School Division. Page 313.
30

criminal offense has the right to have his or her case tried in front of a judge or jury
68
, this right was established
on the 5
th
amendment of the US Constitution, and it means that the accused is innocent until proven guilty. In
consequence, the state assumes the duty of proving that the individual accused of committing a criminal offense
is guilty, therefore under the U.S. judicial system the burden of proof is on the state; the accused is presumed
innocent until the government proves otherwise beyond a reasonable doubt.
69
Also, one of the duties of the
judge is to remind the jury that the burden of proof is on the state and that the accused is presumed to be
innocent. If, after considering all the evidence, the jury still has a reasonable doubt as to the guilt of the accused;
it must bring in a not guilty verdict.
70

Closely related to the right established by the US Constitution 5
th
amendment is the right of the accused to be
assisted by an attorney, this right was established in the US Constitution 6
th
amendment, which indicated: In 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.
71

Likewise, in the US Common Law system there are three standards of proof: Preponderance of Evidence,
Clear and Convincing Evidence and Reasonable Doubt
72
. These standards are appropriately defined in
Blacks Law Dictionary, which establishes that the Preponderance of the Evidence is the greater weight of
evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that
has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly

68
Burden of Proof. Burden of Proof.org. Found in: http://www.burdenofproof.org/. 10/5/2013.
69
BUREAU OF INTERNATIONAL INFORMATION PROGRAMS, UNITED STATES DEPARTMENT OF STATE.
Outline of the US Legal System. Page.106.
70
BUREAU OF INTERNATIONAL INFORMATION PROGRAMS, UNITED STATES DEPARTMENT OF STATE.
Outline of the US Legal System. Page.119.
71
United States Constitution 6th amendment. Found in: http://www.law.cornell.edu/constitution/sixth_amendment.
10/5/2013.
72
JOHN T. FLOYD LAW FIRM. Standards of Proof. Found in: http://www.johntfloyd.com/blog/standards-of-proof.
10/5/2013.
31

from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather
than the other.
73

This standard is also known as balance of possibilities and is constituted by the most compelling evidence;
consequently a large number of witnesses are not necessarily required because of the nature and the certainty of
the evidence. Certain doctrines tie this standard with most of the non criminal cases.
As for the Clear and Convincing Evidence, the Blacks Law dictionary sets the next definition: The Clear and
Convincing is the Evidence indicating that the thing to be proved is highly probable or probably certain. This is
a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than
evidence beyond a reasonable doubt, the normal in criminal trials.
74
This standard serves as an indicative of
the probability that the act happened, and is one of the most certain and clearer standards.
Finally, the aforementioned legal dictionary defines Reasonable doubt as The doubt that prevents one from
being firmly convinced of a defendants guilt, or the belief that there is a real possibility that the defendant is not
guilty. Beyond a reasonable doubt is the standard used by a jury to determine whether a criminal defendant is
guilty. In determining whether guilt has been proved beyond a reasonable doubt, the jury must begin with the
presumption that the defendant is innocent.
75
In conclusion, beyond a reasonable doubt means that the charges
must be proved in consideration of all the evidence presented in the trial, so there is no room for probabilities.
The evidence must serve to proof the certainty that the accused is guilty of the charge made against him.
76

Burden of Proof in the Guatemalan Law System:
In many, if not all, of the Civil Law System countries the Burden Of Proof is based on the legal principle of
Presumption of Innocence, which is also a basic human right of all individuals, internationally guaranteed in the
Convencin Americana de Derechos Humanos and the Pacto Internacional de Derechos Civiles y Polticos.
77

73
BLACKS LAW DICTIONARY. 8
th
edition. 1990. Found in: http://www.johntfloyd.com/blog/standards-of-proof.
10/5/2013.
74
th
edition. http://www.johntfloyd.com/blog/standards-of-proof
75
th
edition. http://www.johntfloyd.com/blog/standards-of-proof
76
Reasonable doubt. Mass. Found in: http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/jury-
instructions/criminal/pdf/2180-reasonable-doubt.pdf. 10/5/2013.
77
NOGUEIRA ALCAL, Norbeto. Consideraciones sobre el derecho fundamental a la presuncin de inocencia. Found in:
http://www.scielo.cl/scielo.php?pid=S0718-00122005000100008&script=sci_arttext. 10/5/2013.
32

This basic right of the individuals is extended to all the phases of the criminal process, and it cannot be violated
nor reduced.

The Burden Of Proof in the Guatemalan Law System is based on the 14
th
article of the Constitucin Poltica de
la Repblica de Guatemala, which establishes the Presumption of Innocence and Publicity of the Trial: Any
person is innocent as long as he has not been declared to be judicially responsible in a sentence duly issued.
The detained, the aggrieved [ofendido], the Public Ministry and the lawyers who have been
designated by the interested parties in oral or written form are entitled to know personally all the actions,
documents, and criminal proceedings without any reservation whatever and immediately.
78
; also, the Cdigo
Procesal Penal de la Repblica de Guatemala, which serves as the procedural law in Guatemalan Criminal Law,
establishes: The accused must be treated as innocent during the duration of the process, and as long as a firm
sentence declares him responsible of the crime, imposing him a penalty or a security measure.
79

Therefore the accusing part has the duty to prove the culpability of the accused, being this part the Ministerio
Pblico, which is the public institution, entitled to promote the criminal prosecution and elaborate the
investigation of the act denounced as crime or fault. This important institution in the Guatemalan Law System is
legally bound to act in accordance to the law principles of objectivity, impartiality and legality, and has the labor
of directing the police forces (or Polica Nacional Civil) in the investigation of the delictual acts. His functions
are established on the Constitucin Poltica de la Repblica de Guatemala and the Ley Orgnica del Ministerio
Pblico.
In conclusion, the Burden of Proof in the Guatemalan Criminal Law, exclusively concerns to the State (through
the Ministerio Pblico), because they are enforced to prepare a detailed investigation of the facts deemed illegal,
and in consequence they are legally bound to exercise the accin penal pblica, or criminal public action. This
criminal public action and its exercise needs to be based on a previous investigation, in order to avoid damages
or false accusations against individuals, because the conviction or being subject to a criminal procedure can take
diverse consequences on the individual accused of committing the crime, most likely, these consequences will be
surely suffered by him in the form of damages and injuries against his reputation, honor and integrity.

Therefore, in Guatemala, all individuals accused of committing acts against the law have basic and fundamental
rights, that protects them against false accusations and maintains them as innocent, until proven guilty.

Related cases with the Burden of Proof in the Common Law System:

78
Constitucin Poltica de la Repblica de Guatemala (Political Constitution of the Republic of Guatemala). Article 14.
79
Cdigo Procesal Penal de la Repblica de Guatemala (Criminal Procedural Law of the Repblic of Guatemala. Article 14.
33

One of the most important cases related to the Burden of Proof in criminal law is the In re Winship
80
case or
resolution of the United States Supreme Court, where 12 year old minor and juvenile, Samuel Winship was
charged with theft of money from a woman, and later found guilty of the crime, so he was sentenced to one and a
half years in a training school. The importance of this case lies in the analysis made of the charge and whether if
a juvenile can be charged with an act that would constitute a crime if an adult made it. The charge in these case,
and all related cases must proved accordingly to the standard of beyond reasonable, as it is "essential of due
process and fair treatment" required during the adjudicatory stage when a juvenile is charged with an act that
would constitute a crime if committed by an adult. So, Proof beyond a reasonable doubt, which is required by
the Due Process Clause in criminal trials, is among the "essentials of due process and fair treatment" required
during the adjudicatory stage when a juvenile is charged with an act that would constitute a crime if committed
by an adult.
81

As Justice Harlan expressed in this case: bottomed on a fundamental value determination of our society that it
is far worse to convict an innocent man than to let a guilty man go free.
82
This quote tends to reinforce the
importance of the burden of proof in all of the criminal cases, and also serves as an example of the difficult task
that judges must perform, in relation to determine the innocence and culpability of the accused, and the practical
consequences of doing so. The proof is a main aspect of all criminal procedures, whether if they are followed on
the common law or civil law.
Other important case, related with the Burden of Proof in criminal law is the Brinegar v. United States
83
case,
argued on October 18 and 19, of 1948 and decided on June 27 of 1949. This case followed in the United States
Supreme Court, and was based on the next facts: Brinegar was convicted of the importation of intoxicating
liquor into Oklahoma from Missouri, which in that time constituted a violation of a federal statute that prohibited
such importations. The sentence of this case was dictated in base of the liquor seized from his automobile during

80
10/10/2013.
81
In Re Winship. States Supreme Court Report 397 U.S. 358 (1970). Found in:
http://supreme.justia.com/cases/federal/us/397/358/case.html
82
In Re Winship. States Supreme Court Report 397 U.S. 358 (1970). Found in:
http://supreme.justia.com/cases/federal/us/397/358/case.html
83
10/5/2013.
34

the alleged unlawful importation.
84
The importance of these case lies in its resolution, which concluded with the
next argument: Guilt in a criminal case must be proved beyond a reasonable doubt, and by evidence confined
to that which long experience in the common law tradition, to some extent embodied in the Constitution, has
crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of
our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life,
liberty and property.
85
Therefore guilt needs to be proved beyond a reasonable doubt, in observation with the
evidence that constitutes the elements of proof, based on previous standards established by the common law
tradition.

EXCLUSIONARY RULE IN CRIMINAL PROCEDURE
All criminal procedure involves an individual who has been accused of a crime, because of this fact the criminal
procedure begins with the initial investigation of the crime and it is concluded by a judgment of not guilty or by
the imposition of a term of punishment because of the conviction for the crime. During the investigation in a
criminal procedure the purpose is to avoid the indiscriminate application of criminal laws and the wanton
treatment of suspected criminals by respecting the constitutional rights of criminal suspects and defendants.
There are 27 Amendments that constitute the Bill of Rights of the United States, being the most important the
IV, V, VI and VIII to the United States, they regulate the right of people to be secure against unreasonable
searches and seizures, right to due process, the right to a speedy and public trial, and the right to a non cruel and
unusual punishments inflicted.
In this section we are interested in the fourth amendment that established 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 persons or things to be seized
86
. This amendment protects all individuals who
have been accused of a crime from unreasonable searches and seizures by law enforcement personnel as we can
see in the text mentioned above. Based on this Amendment the exclusionary rule was created. The U.S Supreme

84
Binegar v. United States. United States Supreme Court Report 338 U.S. 160, 174 (1949). Found in:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0338_0160_ZO.html. 10/10/2013.
85
Binegar v. United States. United States Supreme Court Report 338 U.S. 160, 174 (1949). Found in:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0338_0160_ZO.html. 10/10/2013.
86
Rich Smith, BILL OF RIGHTS: DEFINING OUR FREEDOMS, Rich Smith, BILL OF RIGHTS: DEFINING
OUR FREEDOMS, ABDO, 2010. Page 10.
35

Court considered necessary to improve a way to enforce The Fourth Amendment, because this amendment does
not specify a remedy if a constitutional violation occurs. That`s why the U.S Supreme Court decide to create this
rule in the early 1900`s. Before the creation of this rule, any evidence was admissible in a criminal procedure if
the judge considered that the evidence was relevant to the trial.
In 1914, the U.S. Supreme Court applied the Fourth Amendment to the case of Weeks v. United States and
Boyd v. United Sates, this two cases were the ones that established the foundation for what would become the
rule that individuals were entitled to keep illegally acquired evidence out of criminal proceedings.
In 1917 the exclusionary rule was passed, this rule was created and passed to exclude all evidence obtained in
violation of a criminal defendant`s fourth Amendment rights.
In 1961 the exclusionary rule was imposed upon the state courts through its incorporation into Due Process.
So Exclusionary rule provides that evidence obtained by violating the defendants constitutional rights may not
be introduced by the prosecution, at least for purpose of providing direct proof of the defendants guilt.
87

When law enforcement officials obtain evidence against a person in violation of the Fourth Amendment, the
legal principle that prohibits the admission of that evidence in a criminal trial is known as the exclusionary
rule.
88

The Exclusion will act as a deterrent to violations of the Constitution, since in many cases the police will have
no motive to conduct an unlawful search, interrogation, etc., if they know that they will not be able to use its
fruits in evidence. It is not required when it does not serve a deterrent effect.
89

It is important to know that the exclusion is not a personal right; this exclusion is just a possible remedy. This is
because the exclusionary rule was adopted as the constitutionally required remedy for a Fourth Amendment
violation in the federal courts.
Suppose that you are walking down the street and a police officer with no justification under the Fourth
Amendment stop you on the street and ask you questions, in this case you have the right based on the Foruth
Amendment to refuse to answer and go on with your business. So the Police Officer cannot stop pedestrians and

87
Tracey Maclin, THE SUPREME COURT THE FOURTH AMENDMENT EXCLUSIONARY RULE, Oxford University
Press, 2012. Page 7.
88
89
36

conduct any kind of search without first having a reasonable and articulable suspicion that the person is involved
in a criminal activity.
The police officers have to obtain a search warrant that indicates the probable cause, description for the place
that they will search and the items they will seize.
THE FRUITS OF POISONOUS TREE DOCTRINE:
The exclusionary rule applies not only to evidence obtained directly as a result of improper police conduct but
also to evidence obtained indirectly from that improper conduct. Evidence derived from initial improper conduct
is called fruit of the poisonous tree.
90

According to the doctrine of the fruit of the poisonous tree, any additional evidence obtained as a result of
illegally obtained evidence must be excluded from trial.

So for example if the police enters your house and find a key to a storage locker, the key is a direct result of
the wrongful entry and is inadmissible. If the police then use the key to unlock the storage locker and find
illegal drugs, the drugs are excluded as fruit of the initial wrongful entry.
The fruit of the poisonous tree doctrine is applicable if improperly or illegally obtained evidence is the basis for
the discovery of:
Other evidence that otherwise would not have been found
A witness who otherwise might not have been found
A confession or incriminating admission thtat would not have been made if the suspect or defendant had
not been confronted with the tainted (soiled) evidence.
91

EXCEPTIONS TO THE FRUIT OF THE POISONOUS TREE DOCTRINE

90
Thomas J. Gardner, Terry Underson, CRIMINAL EVIDENCE: PRINCIPLE AND CASES, Cengage Learning, 2009. Page
184

91
T Thomas J. Gardner, Terry Underson, CRIMINAL EVIDENCE: PRINCIPLE AND CASES, Cengage
Learning, 2009. Page 184.

37

The exclusionary rule will be applied if the evidence is obtained directly and exclusively from improper police
conduct. The Supreme Court of the United States have developed some exceptions to this rule.
One of this exceptions is the independent source that states that if at the same time that a police has discovered
an evidence another proper source leads to the same evidence being this one a proper source of independent
evidence that is not affected by the improper conduct, the evidence is admissible.
When a search is conduct with a good faith belief that is a legal search, the exclusionary rule will not be applied
in this case, so consequently the evidence will be admitted. For example when a police officer believes that it is
not necessary to have a warrant to make a search and seize, in this case the police is acting in good faith, so the
evidence that he acquires will be admitted in the trial.
Another exception is if the discovery of the evidence was inevitable, this is because in this case the police officer
didnt make an illegal search that caused the evidence to be found.
WHERE DOES THE EXCLUSIONARY RULE DOES NOT APPLY
The exclusionary rule does not apple in a civil case, in a grand jury proceeding, or in a parole revocation hearing.
The exclusionary rule is applied in those cases where evidence unlawfully is obtained from government officials;
it is not applied when the evidence unlawfully is obtained from a private person.
The evidence will be excluded if the illegal search violated the constitutional rights of the person that is making
the court motion, this means that it will not be apply to protect the privacy rights of a third person or party during
the criminal procedure.
The defendant cannot take advantage of the situation (police breaching rules) to turn the case to his advantage, in
face of other evidence against himself. This falls under the exigent circumstances exception.
COMPARISON OF THE APPLICATION OF THE SAID SUBJECT IN COMMON LAW AND CIVIL
LAW SYSTEM;
Evidence in Civil and Common Law Legal Systems
Common Law System Civil Law system
Exclusionary Rule There are no exclusionary rules of evidence.
All admissible evidence must be relevant, but not all
relevant evidence is admissible.
if the evidence is relevant to the facts in issue, it is
admitted.
The court or its officers take an active role in finding The responsibility for adducing and examining
38

and scrutinizing evidence. evidence is placed on the litigants.
Separate rules of evidence or separate code of
evidence law.
There is no separate code of evidence law. Rules of
evidence are sparsely distributed in both substantive
and procedural laws.
The rules determine what evidence is admissible and
what evidence is not admissible.
In civil law the admissible of the evidence is
determined by the judge at the moment of the
valuation of the evidence.
The reason is that the juries are non lawyers so they
have little experience in analyzing evidence
objectively.
The judges have to be a lawyer so they have more
knowledge of evidence than in common law

As we can see common law system versus civil law system related to exclusionary rule are completely different
because first of all in civil law does not exist an exclusionary rule, there is not a rule that determines what
evidence was obtained violating the constitutional rights to be excluded from the criminal procedure. The main
difference between the two systems is that in common law there is an specific code, separate form other laws or
codes that regulates all related to evidence, someone can ask why in civil law there is no a code that regulates
this aspect and in common law there is, the answer is no to complicated, the reason is because in civil law the
judges are lawyers so they know the law and can determined what evidence is not violating a right and what
evidence is violating a right, another difference is that exclusionary rule is applied to the cases where police
officers are the ones that are obligated to obtain the evidence, in the case of civil law, the one who have to obtain
the evidence and presented into the criminal procedure are the litigants. So the different mentioned above are
the more relevant to determined what does evidence is regulated in common law and in civil law.
Cases:
Weeks v. United States
Kyllo v. United States.
Another case that can exemplify how the exclusionary rule functions in the United States is Killo V. United
States. In this case the police used a thermal imaging device to search Danny Lee Kyllo`s Home without entering
his house. The thermal imaging was created to recorder the heat being emitted from the home, this device
demonstrates that in the roof of a house there is an amount of heat radiating. It is usually that this happened when
growing marijuana indoors, because this heat help the plants to photosynthesize. By this process the police
discovered over 100 marijuana plants inside Kyllos home. The police argued that this search was a legal search
because the thermal imaging device does not penetrate walls or windows to reveal conversations or human
activities, the device only discovered the heat being emitted from the home. The decision of the Supreme Court
39

was that even the thermal imaging can constituted a search, the way the police used this product in this case was
unreasonable and unconstitutional, because the police didnt have a warrant to used the device, and search
Kyllos house. The Supreme Court also argued that by this action the police was violating the right of privacy of
Kyllo in his house. There is a violation of rights because even the police didnt enter the house they took an
evidence that was inside the house with a technological product. So by this act the police was violating the
Fourth Amendment of Bill of Rights and thats why the Supreme Court established that the evidence have to be
excluded from the criminal procedure because is was unconstitutional. In this case we can see that there is a
specific protection to the fourth amendment trying to avoid that evidence that constitute a violation of the rights
that are recognized in Bill of Rights.
LIMITATION ON PUNISHMENTS

The Eight Amendment of the United States Constitution states: Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted. The cruel and unusual
punishments are restricted and may not be applied to people convicted of a criminal offense. The Us
Supreme Court based on the Eight Amendment and the due process princles struck down the death
penalty statutes in some states based on the argument that those statutes left juries the liberty to impose
or not the death penalty.
In 1791, the same phrase "cruel and unusual punishments" was adopted with little debate as part of the
eighth amendment of the United States Constitution.It is quite clear at the framers intended to outlaw
barbarous punishments. The first eighth amendment cases to come before the Supreme Court
established that punishments involving lingering death or torture, which were acceptable to our Anglo-
Saxon legal forebearers, were cruel and unusual under the interdiction of the eighth amendment.
92

LIMITATIONS ON DEATH PENALTY
Since 1976 states started revising their laws in order to limit the discretion of judges and juries to
impose the death penalty. If a judge pretends to impose the death penalty is obligated to consider some
criteria that will mitigate or aggravate the circumstances in the concrete case and will permit or deny
the possibility of application of the death penalty.

92
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2355&context=flr
40

When the Eight Amendment was ratified in 1791 the death penalty was consider a cruel punishment,
The Supreme Court has admitted that death penalty, indeed, is a cruel punishment but has denied that is
a unusual punishment
93
. That is why the application of the death penalty is limited by some principles.
Death penalty or capital punishment is consider the most cruel punishment, its application is based on
the necessity of the state to punish certain acts that due to its severity, have to be punish with the with
the death penalty. The argument that the death penalty is cruel has been challenged in recent years, as it
is considered that the modern methods of execution are painless. The main issue dealing with the
application of death penalty is that it cannot be ensured that an innocent person will not be convicted to
the death penalty.
PROBLEMS WITH THE DEATH PENALTY
RISK OF EXECUTING THE INNOCENT
Problems in the criminal justice system may result in the execution of an innocent person. In the last
years over seventy persons sentenced to the death penalty have been released because of the new
evidence that has emerged as result of the new scientific investigation techniques.
94

At the end of most criminal procedures, it is certain that the defendant is guilty, but in some others the
evidence shows that a person could commit the crime but there are still some doubts about the
guiltiness of the defendant although that the death penalty is applied. In the case of other offenses
punishable by imprisonment this is not as serious, but in the case of the death penalty is necessary to
note that its consequences are irreversible.
Humans make mistakes, and one of those errors may have resulted in the death of an innocent. Arising
from the above, the death penalty should be applied only in those cases in which there is absolute
certainty about the guilt of the accused
DISCRIMINATORY
The death penalty has been considered discriminatory, because the percentages of African American
persons or minorities are sentenced to the death penalty is higher than white people percentages. In

93
Gregg v. Georgia. The US Supreme considered that the death penalti was appropiated for some crimes.
94
State v. Poole: This is evidence in State v. Poole in which Samuel Poole was convicted to death penalty and then the
sentence was overturned because of the lack of evidence.
41

McCleskey v. Kemp The US Supreme Court declare that the argument that in Georgia African
Americans are convicted in a higher rate than white people is not sufficient to overturn a guilty verdict,
The Supreme Courts opinion was based on the fact that the evidence was not enough to reverse the
petitioners conviction and conclude that the lower court had properly applied the law.
The death penalty, both in the U.S. and around the world, is discriminatory and is used
disproportionately against the poor, minorities and members of racial, ethnic and religious
communities.
95

PROPORTIONALITY OF PUNISHMENT
The penalty has to be proportional to the criminal conduct; the severity of the punishment depends on
the gravity of the act committed, fairness is required to the punishment. Criminal law has a utilitarian
tradition; arising that, the punishment must be deserved. The punishment is limited to the severity of
the crime committed, sanctions must be appropriate and reflect a rational consequence that depends
on the seriousness of particular criminal offenses.
The cases have developed a generally accepted three-pronged test to determine whether a
sentence is so excessively disproportionate to the crime that it violates the eighth amendment.
The three steps are: first, a judgment by the court of the gravity of the offense; second, a
comparison of the sentence under review with that imposed in the same jurisdiction for other
crimes which the court considers to be more serious; and third, a comparison of the challenged
sentence with those imposed in other jurisdictions for the same crime.
96

Cases like Carmona v. Ward and Coker v. Ward are important precedents of the equivalence between
the magnitude of the crime and the sentence and the criteria that should be taken into account so that
the punishment is proportionate.
PROBLEMS WITH THE EXECUTION
The execution of the death penalty has been considered cruel and pitiless The US Supreme Court ruled
out that the mechanism of application of the death i.e. the three drug lethal injection was not cruel and

95
http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts
96
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2355&context=flr
42

unusual, even sometimes the prisoner may suffer pain before the death, it is caused for a wrong dosage
and in most of the cases the proper administration of the drug guarantee a painless death.
Under the 1988 federal death penalty law, no method of execution was provided in the statute.
President Bush did issue regulations in 1993 authorizing lethal injection as the method of execution.
Under the 1994 law, the manner of execution will be that employed by the state in which the federal
sentence is handed down. If that state does not allow the death penalty, the judge may choose another
state for the carrying out of the execution. The federal Bureau of Prisons has converted an old cell
block in Terre Haute, Indiana, into a new facility for condemned federal prisoners. See also, methods of
execution by state.
97

Currently the execution method is in most of the states the three drug lethal injection, this injection
formula is supposed to be a painless execution method. Even that in Baze v Rees, the lethal injection
method was questioned, endangering the application of lethal Injection in the United States (the
formula is almost the same in all states). The Supreme Court upheld that the lethal injection method
was constitutional.
MITIGATING AND AGRAVATING CIRCUMSTANCES
In order to impose the death penalty de jury and judges must consider all the circumstances. Is essential
that the defendant has the opportunity to prove his innocence and all mitigating circumstances that
applies to the case. The circumstances in which the crime has been committed can mitigate or
aggravate the crime; the penalty applied depends on the mitigating or aggravating circumstances.
Mitigating circumstances:
1) Impaired capacity. The defendants capacity to determine the wrongfulness of the act.
2) Duress. The defendant act result of duress
3) Minor participation. The defendants participation in the crime was minor.
4) Equally culpable defendants. If other defendant, equally culpable was not punished with death
penalty, no other defendant should be punished with death penalty.

97
www.deathpenaltyinfo.org/federal-death-penalty
43

5) No prior criminal record. The defendant has no criminal record.
6) Disturbance. The defendant suffers mental or emotional disturbance.
7) Victims consent: The criminal act was consented.
8) Other factors: Like the criminals background for example.
Agravating circumstances:
1) The death occurred because of the accomplishment of another crime.
2) If the defendant has been previously convicted for committing a violent crime using a firearm.
3) If the defendant has been previously convicted to the capital punishment or life imprisonment.
4) If the defendant has been previously convicted of serious offenses.
5) If the accomplishment of the crime is a grave risk of death of other persons.
6) If the crime committed is heinous, cruel, or depraved.
7) If the crime is committed with the intention of obtaining a remuneration.
10) The crime is committed with wide planning and premeditation.
10) If the defendant has been previously convicted because of drug felonies.
11) If the crimes victim is vulnerable, like a kid or elderly.
12) If the defendant has been previously convicted to a federal crime.
CRIMES THAT WARRANT DEATH PENALTY
Due to the proportionality principle, the death penalty should only be used if the crime committed
involves the death of a person. If the crime is the death of a person it would be fair that the defendant is
punished with the death penalty. Despite the above, death penalty has also been applied to other crimes
44

that are not murder. Crimes convicted with death penalty are called capital crimes (only two persons
have been convicted to death penalty for crimes different than murder).
98

The death penalty in the United States is used almost exclusively for the crime of murder. Although
state and federal statutes contain various capital crimes other than those involving the death of the
victim, only two people were on death row for a non-murder offense (Patrick Kennedy and Richard
Davis in Louisiana) when the U.S. Supreme Court addressed this issue in 2008. No one has been
executed for such a crime since the death penalty was re-instated in 1976. In 1977, the U.S. Supreme
Court in Coker v. Georgia, 433 U.S. 584, held that the death penalty for the rape of an adult was
"grossly disproportionate" and an "excessive punishment," and hence was unconstitutional under the
Eighth Amendment. The Court looked at the relatively few states that allowed the death penalty for
rape and the few death sentences that had been handed down.
99

CLEMENCY
For Federal Death Row inmates, the President alone has pardon power. New guidelines have been
issued that require that an inmate be given 120 days notice of an execution date and allowing 30 days
to file a clemency petition once the execution date has been set.
100

Any person convicted for death penalty has the right to request amnesty. Pardon is the forgiveness of
the crime and as its consequence the penalty is canceled. Clemency is important for death penalty,
because the person convicted has the right to request it.
LIMITATIONS ON CRUEL AND UNUSUAL PUNISHMENTS
The principle of proportionality of punishment doesnt applies exclusively to the death penalty, every
sanction should be deserved by the defendant. The punishment must be consistent and result of the act
committed.
101
This also applies to fines that is a pecuniary punishment, the Eight Amendment prohibits

98
In Coker v Georgia Supreme Court upheld that the death penalty was extremely disproportionate for the
crime committed (rape). Kenedy v. Lousiana the Supreme Court also upheld that death penalty should not be
used in crimes that did not involve death of the victim in those cases death penalty will be disproportionated.
99
http://www.deathpenaltyinfo.org/death-penalty-offenses-other-murder
100
http://www.deathpenaltyinfo.org/federal-death-row-prisoners
101
Graham v Florida: juvenile offenders can not be convicted to life imprisionment. It will be a cruel punishment
45

the disproportionate or excessive fines.
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The punishment is limited to the circumstances in which is
committed.
DIFFERENCES AND SIMILITUDES WITH CIVIL LAW
SIMILITUDES
PROPORTIONALITY ON PUNISHMENT
Civil Law and Common Law have the same principle of Proportionality of Punishment, Sanctions
(fines, imprisonment or death penalty) must be deserved and fair. The penalty used depends on the
severity of the committed act. Civil Law countries Constitutions protect people of disproportionate or
excessive punishments.
Criminal Law establish the term of the imprisonment or the amount of penalty that may be applied.
MITIGATING AND AGRAVATING CIRCUMSTANCES
The punishment is limited to the circumstances in which is committed, Civil Law judges are obligated
to consider the aggravating and mitigating circumstances in order to punish the defendant. The severity
of the punishment is in relation with the aggravating or mitigating circumstances,that are almost the
same in Common Law and Civil Law systems.
CLEMENCY ON DEATH PUNISHMENT
In Civil Law systems those who have been sentenced to death penalty have the right to request the
pardon of the president. No one can be executed if the pardon has not been denied.
DIFFERENCES
DEATH PENALTY IN CRIMES DIFFERENT THAN MURDER
Some crimes different than murder can be punished with death penalty in Civil Law system countries,
for example in Guatemala crimes like kidnapping, rape of a juvenile, forced disappearance are
punished with death penalty.
PEOPLE WHO CAN NOT BE SENTECED TO DEATH PENALTY

102
Plymouth Sedan v Pennsylvania: Civil forfeiutere can not be applied if the evidence is obtained in a ilegal form
46

In Civil Law system countries, the capital punishment cannot be applied to certain people like: woman,
elderly, for political reason. In the United States woman can be sentenced to death penalty.
ABOLISIONIST TREND
Almost every Civil Law System countries have struck down death penalty.

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