Under our federated system of government, each state and the federal government have their own criminal justice processes. The federal system must comply with the constitutional prerequisites set forth in the Bill of Rights, and the state systems must comply with those Bill of Rights' provisions made applicable to the states by the Fourteenth Amendment,1 but those constitutional prerequisites allow considerable room for variation from one jurisdiction to another. In many respects, the fifty states and the federal government have used that leeway to produce considerable diversity in their respective criminal justice processes. At the same time, however, one can readily identify certain common notions that run through the fifty-one American criminal justice processes. Those notions are the subject of this article. A small group of "cornerstone" objectives shape both the basic structure and the governing legal principles of the process in each state and in the federal system. Various elements of these cornerstone objectives are mandated by the federal constitution, but their widespread acceptance was not a product of the Constitution. The state processes were not subject to federal constitutional prerequisites until the adoption of the Fourteenth Amendment after the civil war, but the objectives were established long before then. Indeed, most of the cornerstone objectives existed in the criminal justice processes of the original states and the initial federal system, both of which borrowed largely from English common law. Two centuries later, the premises underlying these objectives continue to be at the core of the American criminal justice process, notwithstanding major modifications in specific procedures and in institutions of administration. Though the cornerstone objectives themselves are well established, there has always been considerable disagreement as to the precise scope of each objective and the weight accorded a particular objective when balanced against another. These disagreements explain in large part the differences in the content of each jurisdiction's implementation of the criminal justice process. The disagreements also are reflected in the frequent divisions within the United States Supreme Court as to the interpretation of the constitutional limitations shaped by the objectives. This article does not reach those disagreements, but concentrates on the prerequisites for their analysis -- identifying the general character of the criminal justice cornerstones, and identifying the major elements of the process that reflect their general influence.
Israel, Jerold H. "Cornerstones of the Judicial Process." Kan. J. L. & Pub. Pol'y 2 (1993): 5-30.