Criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces substantive criminal law. Municipalities, states, and the federal government each have their own criminal codes, defining types of conduct that constitute crimes. Title 18 of the U.S. Code outlines all federal crimes. Typically, federal crimes deal with activities that either extend beyond state boundaries or directly impact federal interests.
The U.S. Supreme Court, pursuant to its authority under the Rules Enabling Act, first promulgated the Federal Rules of Criminal Procedure, (F.R.Crim.Pro.) which Congress, in turn, passed. The Federal Rules outline the procedure for conducting federal criminal trials. Similarly, states have their own codes of criminal procedure of which many closely model the Federal Rules. The Federal Rules incorporate and expound upon all guarantees included within the U.S. Constitution's Bill of Rights. A few of the rights guaranteed to criminal defendants by the Constitution include the guarantees of due process and equal protection under the laws, the right to have legal counsel present, the right to confront witnesses, the right to a jury trial, and the right to not testify against oneself. While state constitutions and procedural rules may increase the protection afforded to criminal defendants, they may not offer less protection than that guaranteed by the U.S. Constitution.
Investigatory and Accusatory Police Procedure
The U.S. Constitution, the Federal Rules and the federal court system's interpretations of both provide guidance and procedural canons that law enforcement must follow. Failure to follow such procedure may result in the suppression of evidence or the release of an arrested suspect.
Substantive due process requires police to make criminal defendants aware of their rights prior to the defendant making any statements if the government intends to use those statements as evidence against the defendant. For example, law enforcement must ensure that the defendant understands the right to remain silent and the right to have an attorney present, as the Fifth and Sixth Amendments respectively provide. The defendant must knowingly, intelligently, and voluntarily waive those rights in order for the government to use any statements as evidence against the defendant. See Miranda v. Arizona, 384 U.S. 436 (1966).
Law enforcement also must abide by the confines of the Fourth Amendment, which prohibits the government from performing unreasonable searches and seizures. Courts ordinarily suppress evidence obtained during an unreasonable search or seizure and offered against the accused. See Mapp v. Ohio, 367 U.S. 643 (1961).
In order to avoid illegally searching or seizing the property of a suspect, law enforcement personnel typically obtain search warrants. To obtain a search warrant, law enforcement must show probable cause, must support the showing by oath or affirmation, and must describe in particularity the place they will search and the items they will seize. A judge can find probable cause only be examining the totality of the circumstances. Exceptions to the warrant requirement exist, however. These exceptions include searches made at or near the border; a search following a lawful arrest; a stop-and-frisk arrest; where the seized items are in plain view; where the articles are in an automobile; where the private individual makes the search; and under exigent circumstances, where the officer has probable cause for a search to find a crime or evidence relating to a crime.
The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to a speedy trial. Consequently, prosecutors cannot wait an inordinate amount of time before filing charges or proceeding with the prosecution after filing charges. To create more precise rules for ensuring a speedy trial, Congress passed the federal Speedy Trial Act, which requires that a trial begin within 70 days of the prosecutor filing the indictment.
The Sixth Amendment also guarantees the right to a public trial by an impartial jury of one's peers. The criminal justice system provides for an impartial jury by permitting both sides to utilize peremptory challenges during jury selection. If a party exercises a peremptory challenge against a prospective juror, then the court must excuse that particular juror from the panel. These challenges occur during jury voir dire to root out bias. Neither side must explain their reasons for a challenge; however, a party may not strike a jury purely because of the juror's race or gender. Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting race-based challenges); J.E.B. v. Alabama, 511 U.S. 127 (1994) (prohibiting gender-based challenges).
Due Process requires that criminal defendants receive a fair trial. In high-publicity trials, trial judges have the responsibility to minimize effects of publicity, perhaps by implementing a gag-order on the parties and to eliminate outside influences during the trial. An interesting question of outside influence went to the U.S. Supreme Court in 2007 in Carey v. Musladin, 549 U.S. 70 (2006). After the victim's family wore pictures of the victim on buttons during the trial, the jury convicted Musladin of murder. The Supreme Court overturned the Ninth Circuit's grant of post-conviction habeas relief for a lack of due process because no clear federal rule existed regarding spectator conduct.
Due Process further commands that defendants have the right to call their own witnesses, mount their own evidence, and present their own theory of the facts. In order to properly mount a defense, the prosecution must turn over all evidence that will be presented against the defendant and have pre-trial access to depose all of the prosecution's witnesses.
Pre-trial would also be the point at which the defense might raise a defense of double jeopardy, if such a defense existed in the particular case. The Fifth Amendment, through the Double Jeopardy Clause prohibits states from charging the same defendant with substantially the same crime on the same facts.
Criminal Trial Procedure
Once a trial begins, the U.S. Constitution affords further rights to criminal defendants. Trying to avoid convicting an innocent defendant at all costs, the law only permits the prosecution to overcome the defendant's presumption of innocence if they can show the defendant's guilt beyond a reasonable doubt. This very high burden differs drastically from a civil trial's much lower standard in which the plaintiff must only prove a claim by a preponderance of the evidence.
One such right includes the right to cross-examine the prosecution's witnesses. Defendants derive this right from the Sixth Amendment's Right to Confront Clause. The U.S. Supreme Court took up the Right to Confront Clause in Giles v. California (07-6053) (2008). After domestic violence resulted in a woman's murder, the Supreme Court overturned a court's admission of a murder victim's statements under a theory of forfeiture by wrongdoing The Court reached this holding because the Framers did not recognize the forfeiture exception to the Confrontation Clause at the time of the Constitution's founding.
The Sixth Amendment guarantees a defendant the right to assistance of counsel during trial. If a defendant cannot afford an attorney, the government is required to provide the defendant an attorney. Such defendants receive legal representation from the Public Defender's Office. The Federal Rules of Criminal Procedure provide that an accused shall have access to counsel at every stage of the proceedings, beginning with the defendant's initial appearance. If a defendant demands the presence of counsel during police interrogation, police must stop the interrogation until the defendant's counsel is present.
However, if a defendant voluntarily and intelligently chooses to waive assistance of counsel and self-represent, the defendant may do so. This is called "pro se" representation.
The legal counseling received must also constitute "effective counseling." Ineffective assistance of counsel may serve as grounds for a new trial. Establishing ineffective assistance of counsel requires establishing that the prevailing professional norms at the time of trial render the actual assistance received inadequate and that the ineffective assistance caused a fundamentally unfair result.
At all times during the trial, the defendant enjoys a right of not having to provide self-incriminating testimony. Thus, the defendant can choose not to take the stand, or the defendant can choose to take the stand but not answer certain questions that would self-incriminate. The Fifth Amendment of the U.S. Constitution provides this right.
Stages of the Criminal Trial
After law enforcement arrests a suspect, a judge will set the suspect's initial bail, which is a specified amount of cash that allows the defendant to get out of jail after the initial arrest. If the defendant shows up for the proper court dates, the court refunds the bail, but if the defendant skips the date, then the court keeps the bail and issues a warrant for the individual's arrest.
The arraignment comes next. During an arraignment, a judge calls the person charged and takes the following actions: reading the criminal charges against the accused, asking the accused whether the accused has access to an attorney or needs the assistance of a court-appointed attorney, asking the accused to plead, deciding whether to amend the initial bail amount, and setting the dates of future proceedings.
The preliminary hearing follows the arraignment. At the preliminary hearing, the judge determines whether enough evidence exists for the prosecution to meet its burden of persuasion. The burden of persuasion refers to whether the prosecution even has enough evidence to make the defendant stand trial. The defense has the right to cross examine the government witnesses during this proceeding. Under federal law, a grand jury, rather than a judge, makes this determination when the defendant faces "capital or infamous crimes" pursuant to the U.S. Constitution's Fifth Amendment. Unlike the other rights afforded to criminal defendants, the U.S. Supreme Court has not found the Fifth Amendment grand jury right incorporated into state law through the Fourteenth Amendment.
A pre-trial hearing is the next step in the process. The prosecution and the defense team use the pre-trial to file motions before a judge. These motion usually concern whether the court should suppress certain evidence, whether certain individuals can testify, or whether the judge should dismiss all charges for lack of evidence.
After all these preliminary stages, the defendant stands trial. Both sides offer opening statements first, although the defense can reserve their opening statement until the prosecution rests. The prosecution presents its witnesses and evidence first. Then, the defense presents its witnesses and evidence. After the defense rests, the defense offers a closing argument, and then the Prosecution offers the final closing argument. After closing arguments, the trier of fact deliberates and returns a verdict.
Sentencing usually occurs immediately for infractions and misdemeanors. For such minor infractions, penalties may include probation; fines; short-term incarceration; long-term incarceration; suspended sentence, which only takes effect if the convict fails to meet certain conditions; payment of restitution to the victim; community service; or drug and alcohol rehabilitation.
More serious crimes result in the trier of fact hearing evidence and arguments from both the prosecution and the defense regarding the appropriate sentence. Some jurisdictions allow the judge, alone, to determine the sentence; others will have a separate sentencing phase trial, complete with a new jury, to determine the sentence for certain crimes.
During a sentencing trial, the prosecution presents evidence of aggravating factors, and the defense presents evidence of mitigating factors. The U.S. Supreme Court has interpreted the U.S. Constitution to protect the right to a jury sentencing trial for all defendants facing the death penalty.
Before the judge announces the sentence, a defendant is entitled to allocution. Allocution is the right of the defendant to directly address the judge without the help of counsel. During this direct address, the defendant may offer a personal explanation of any unknown facts, may ask for mercy, or may offer an apology for the criminal behavior. This opportunity for defendants to show remorse or to offer the motivations behind their criminal acts may influence whether the judge grants some leniency.
For more information on sentencing, see the Sentencing page.
menu of sources
U.S. Constitution and Federal Statutes
Federal Court Rules
Federal Judicial Decisions
- U.S. Supreme Court:
- U.S. Circuit Courts of Appeals: Recent criminal procedure decisions
State Judicial Decisions
- N.Y. Court of Appeals:
- Appellate Decisions from Other States
Conventions and Treaties
- Dealing with Human Rights (Including in the Criminal Justice Context)
Key Internet Source
- Nolo: Proof and Defenses in Criminal Cases
- ABA Criminal Justice Section, Committee on Criminal Procedure, Evidence and Police Practices Committee
- Litigator's Internet Resource Guide: rules of court
- Federal Judicial Center Publications
- Senate Judiciary Committee
- House Judiciary Committee
- Vera Institute of Justice
Online Journal Abstracts
- Criminal Law & Procedure (abstracts of working papers & articles accepted for publication in the criminal law & procedure fields)
Useful Offnet (or Subscription - $) Sources
- Good Starting Point in Print: Wayne R. LaFave & Jerold H. Israel, Hornbook on Criminal Procedure, West Group (2003)