Criminal procedure

Criminal procedure is the adjudication process of the criminal law. While criminal procedure
differs dramatically by jurisdiction, the process generally begins with a formal criminal charge
with the person on trial either being free on bail or incarcerated, and results in the conviction or
acquittal of the defendant. Criminal procedure can be either in form of inquisitorial or
adversarial criminal procedure.

Basic rights

Currently, in many countries with a democratic system and the rule of law, criminal procedure
puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the
defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that
they are innocent, and any doubt is resolved in favor of the defendant. This provision, known as
the presumption of innocence, is required, for example, in the 46 countries that are members of
the Council of Europe, under Article 6 of the European Convention on Human Rights, and it is
included in other human rights documents. However, in practice it operates somewhat differently
in different countries. Such basic rights also include the right for the defendant to know what
offence he or she has been arrested for or is being charged with, and the right to appear before a
judicial official within a certain time of being arrested. Many jurisdictions also allow the
defendant the right to legal counsel and provide any defendant who cannot afford their own
lawyer with a lawyer paid for at the public expense.

Difference in criminal and civil procedures

Most countries make a rather clear distinction between civil and criminal procedures.

For example, an English criminal court may force a defendant to pay a fine as punishment for
his crime, and he may sometimes have to pay the legal costs of the prosecution. But the victim of
the crime pursues his claim for compensation in a civil, not a criminal, action. In France, Italy,
and many countries besides, the victim of a crime (known as the "injured party") may be
awarded damages by a criminal court judge.

The standards of proof are higher in a criminal action than in a civil one since the loser risks not
only financial penalties but also being sent to prison (or, in some countries, execution). In
English law the prosecution must prove the guilt of a criminal “beyond reasonable doubt”; but
the plaintiff in a civil action is required to prove his case “on the balance of
probabilities”."Beyond reasonable doubt" is not defined for the jury which decides the verdict,
but it has been said by appeal courts that proving guilt beyond reasonable doubt requires the
prosecution to exclude any reasonable hypothesis consistent with innocence: Plomp v. R. In a
civil case, however, the court simply weighs the evidence and decides what is most probable.
Criminal and civil procedure are different. Although some systems, including the English, allow
a private citizen to bring a criminal prosecution against another citizen, criminal actions are
nearly always started by the state. Civil actions, on the other hand, are usually started by
individuals.

In Anglo-American law, the party bringing a criminal action (that is, in most cases, the state) is
called the prosecution, but the party bringing a civil action is the plaintiff. In both kinds of
action the other party is known as the defendant. A criminal case in the United States against a
person named Ms. Sanchez would be entitled United States v. (short for versus, or against)
Sanchez if initiated by the federal government; if brought by a state, the case would typically be
called State v. Sanchez or People v. Sanchez. In the United Kingdom, the criminal case would be
styled R. (short for Rex or Regina, that is, the King or Queen) v. Sanchez. In both the United
States and the United Kingdom, a civil action between Ms. Sanchez and a Mr. Smith would be
Sanchez v. Smith if started by Sanchez and Smith v. Sanchez if begun by Smith.

Evidence given at a criminal trial is not necessarily admissible in a civil action about the same
matter, just as evidence given in a civil cause is not necessarily admissible on a criminal trial.
For example, the victim of a road accident does not directly benefit if the driver who injured him
is found guilty of the crime of careless driving. He still has to prove his case in a civil action.

In fact he may be able to prove his civil case even when the driver is found not guilty in the
criminal trial. If the accused has given evidence on his trial he may be cross-examined on those
statements in a subsequent civil action regardless of the criminal verdict.

Once the plaintiff has shown that the defendant is liable, the main argument in a civil court is
about the amount of money, or damages, which the defendant should pay to the plaintiff.

Differences between civil law and common law systems

The majority of civil law jurisdictions ('civil law' as a type of law system, not as opposed to
criminal law) follow an inquisitorial system of adjudication, in which judges undertake an active
investigation of the claims by examining the evidence at the trial (while other judges contribute
likewise by preparing reports).

In common law systems, the trial judge presides over proceedings grounded in the adversarial
system of dispute resolution, where both the prosecution and the defence prepare arguments to
be presented before the court. Some civil law systems have adopted adversarial procedures.

Proponents of either system tend to consider that their system defends best the rights of the
innocent. There is a tendency in common law countries to believe that civil law / inquisitorial
systems do not have the so-called "presumption of innocence", and do not provide the defence
with adequate rights. Conversely, there is a tendency in countries with an inquisitorial system to
believe that accusatorial proceedings unduly favour rich defendants who can afford large legal
teams, and are very harsh on poorer defendants.

Criminal procedure also 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.

Federal prosecutions follow the Federal Rules of Criminal Procedure, cited as Fed. R. Crim. P.,
which the U.S. Supreme Court promulgated and Congress passed. The Federal Rules outline the
procedure for conducting federal criminal trials. The Federal Rules incorporate and expound
upon all guarantees included within the U.S. Constitution's Bill of Rights, such as the guarantee
to due process and equal protection, the right to legal counsel, the right to confront witnesses,
the right to a jury trial, and the right to not testify against oneself.

State prosecutions follow the criminal procedure code of the individual state. Although every
state has its own criminal procedure code, many states choose to mimic the Federal Rules. State
procedural rules may offer greater protection to a defendant in a criminal trial than the U.S.
Constitution or the Federal Rules, but may not offer less protection than guaranteed by the U.S.
Constitution.

Investigatory and Accusatory Police Procedure

The U.S. Constitution, the Federal Rules, state and local rules, and court interpretation of these
documents not only set out how trials are run, but also prescribe the procedures that law
enforcement agencies must follow. Should an officer fail to abide by the proper procedure, the
trial court may suppress evidence obtained in violation of proper procedure, which could even
lead to the suspect's acquittal.

Law enforcement agencies are limited in their abilities well before an arrest is made. A portion
of the criminal procedure process deals with an officers’ ability to stop individuals, search them
or their properties, and seize any incriminating evidence the officer finds. This pre-arrest
investigation is limited by the Fourth, Fifth, Sixth, and Fourteenth Amendments.

Fourth Amendment

The Fourth Amendment protects individuals from unreasonable searches and seizures. As the
Supreme Court explained in Mapp v. Ohio, 367 U.S. 643 (1961), evidence obtained by searches
and seizures in violation of the U.S. Constitution is inadmissible in a criminal trial. 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.
Just as criminal procedure limits what is a reasonable search, so criminal procedure specifies
what constitutes a reasonable interrogation. In Miranda v. Arizona, 384 U.S. 436 (1966), the
Supreme Court held that police must make defendants aware of their rights prior to the
defendant making any statements, provided the government intends to use those statements as
evidence against the defendant. The Fifth Amendment and the Sixth Amendment require law
enforcement to ensure that defendants understand their right to remain silent and their right to
have an attorney present during the interrogation.

The Fourteenth Amendment applies all the aforementioned substantive due process rights to
state criminal defendants.

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 right guaranteed by the Sixth Amendment is the right of an individual to confront witnesses.
The difficulty of upholding this right arises when a witness testifies to the police and passes
away shortly after. In such a case, the prosecution would be unable to allow the defendant to
cross-examine the witness.

-Right to Effective Counsel

The Sixth Amendment also 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. In Gideon v. Wainwright, 372 U.S. 335 (1963), the
Supreme Court held that the Sixth Amendment's guarantee of counsel applies to state criminal
proceedings as well.

However, a defendant may choose to voluntarily and intelligently waive assistance of counsel
and self-represent. 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.

Right Not To Self-Incriminate

Under the Fifth Amendment of the U.S. Constitution provides, the defendant enjoys a right of not
having to provide self-incriminating testimony. At the stage of a trial when the jury determines
guilt or innocence, a jury cannot infer the defendant's failure to appear or answer as an
admission of guilt.

Stages of a Trial

-Bail

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.

-Arraignment

The arraignment comes next. During an arraignment, a judge calls an individual charged with
committing a crime, reads to the individual the criminal charges against laid against him or her,
asks the accused whether the accused has access to an attorney or needs the assistance of a
court-appointed attorney, asks the accused to plead, decides whether to amend the initial bail
amount, and sets the dates of future proceedings.

-Preliminary Hearing

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 the Fifth Amendment, a grand jury, rather than a judge, makes
this determination when the defendant is charged with a "capital or infamous crime.”

-Pre-Trial Hearing

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.

-Trial
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”—
finishes presenting their case. 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 its final closing argument. After closing
arguments, the jury deliberates and returns a verdict.

-Sentencing

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.

-Allocution

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 is an opportunity for defendants
to show remorse or to offer the motivations behind their criminal acts, so as to influence the
judge to be lenient.

-Sentencing Guidelines

The federal government and state governments have created various sentencing guidelines.
Federal courts use the Federal Sentencing Guidelines, while state courts will look at state-
specific sentencing guidelines.

Bibliografy : Richard Powell (1993). Law today. Harlow: Longman , Criminal Procedure and
the Constitution: Leading Supreme Court Cases and Introductory Text. St. Paul, MN: West
Publishing , Israel, Jerold H.; Kamisar, Yale; LaFave, Wayne R. (2003).
(https://en.wikipedia.org/wiki/Criminal_procedure;
https://www.law.cornell.edu/wex/criminal_procedure;

https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2018)043-e:

https://www.britannica.com/topic/procedural-law/Criminal-procedure)