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Constitutional Protections

5 October, 2015 - 17:25

Generally, two types of constitutional protections exist. First, a defendant can challenge the constitutionality of a criminal statute or ordinance (from this point forward, the term statute includes ordinances unless otherwise noted). Recall from Introduction to Criminal Law that these codified laws cannot conflict with or attempt to supersede the Constitution. An attack on the constitutionality of a statute can be a claim that the statute is unconstitutional on its face, is unconstitutional as applied, or both. A statute is unconstitutional on its face when its wording is unconstitutional. A statute is unconstitutional as applied when its enforcement is unconstitutional. The difference between the two is significant. If a statute is unconstitutional on its face, it is invalid under any circumstances. If the statute is unconstitutional as applied, it is only unconstitutional under certain circumstances.

A second type of constitutional protection is procedural. The defendant can protest an unconstitutional procedure that occurs during prosecution. Procedure during prosecution includes, but is not limited to, arrest, interrogation, search, filing of charges, trial, and appeal. The defendant can make a motion to dismiss the charges, suppress evidence, or declare a mistrial. The defendant can also appeal and seek to reverse a conviction, among other remedies.

This book concentrates on criminal law rather than criminal procedure, so the bulk of this chapter is devoted to unconstitutional criminal statutes, rather than unconstitutional procedures. The exception is the right to a jury trial, which is discussed shortly.