Criminal procedure

Definition: Stages and points at which particular decisions are made in the criminal justice process that are mandated by statutes and constitutional judicial decisions

Significance: The procedural steps in the processing of criminal cases are designed to ensure that correct decisions are made about guilt and innocence and that authorities respect the rights of criminal defendants.

Every country has the authority to decide how it will determine which individuals will be punished for committing crimes. In some systems, the police or the army may have complete authority to identify and punish wrongdoers. The individual suspect may have no ability to question the law-enforcement officers’ decisions or swift imposition of punishment. In the United States, however, criminal procedure has been established to ensure that only guilty defendants receive punishment and to protect the public from abusive practices that police and prosecutors might employ in investigating, convicting, and punishing suspected criminals.

Historical Background

American criminal procedure, like other aspects of law, traces its roots to legal practices in England. The practice of using trials as a procedural mechanism to determine guilt and innocence began in England. Originally, England used physical trials to identify guilty offenders. Suspects were forced to place their hands in boiling oil, for example, or fight in a public duel with the assumption that God would protect the innocent but injure the guilty during such events. Eventually, the church discontinued its sponsorship of such events, and England gradually shifted to the use of trials involving the presentation of testimony and the use of witnesses and jurors. Juries assumed an important role by protecting the public against abusive decisions by prosecutors. If there was insufficient evidence of guilt presented by the prosecutor, then the jury could acquit the defendant and the defendant would go free. The American jury trial, a key component of criminal procedure, developed from these English origins.

The U.S. Constitution

The first ten amendments to the US Constitution, commonly known as the Bill of Rights, contain several provisions that mandate procedures to be followed in the investigation, prosecution, and punishment of criminal offenders. The Fourth Amendment protects people against “unreasonable searches and seizures.” It also requires that search warrants and arrest warrants be supported by probable cause and that they specifically describe places to be searched and persons or things to be seized.

The Fifth Amendment requires indictment by a grand jury before serious charges are prosecuted. The amendment also provides protection against compelled self-incrimination and the possibility of being tried twice for the same offense. The Sixth Amendment provides rights to speedy and public trials by impartial juries, as well as the right to be informed of charges, to obtain relevant documents and witnesses, to be confronted by adverse witnesses, and to have the assistance of a defense attorney. The Eighth Amendment prohibits excessive bail and fines and bans cruel and unusual punishments. The Fourteenth Amendment, which was added to the Constitution in 1868, provides additional rights to due process and equal protection of the laws. All of these provisions help shape the procedures used in criminal cases by defining suspects’ rights, limiting the authority of police, prosecutors, and judges, and mandating elements that must be incorporated into the legal process.

The provisions of the Bill of Rights originally applied only in federal court cases concerning defendants accused of violating criminal laws enacted by Congress. From the 1920s through the 1960s, the U.S. Supreme Court made many decisions that incorporated individual provisions of the Bill of Rights into the due process clause of the Fourteenth Amendment and made them applicable in state criminal cases. The only federal constitutional right concerning criminal procedure that has not been incorporated is the Fifth Amendment right to be indicted by a grand jury. State courts are not required by the Supreme Court to use grand juries, but many use such proceedings on their own. States are required to abide by all the other provisions of the Bill of Rights concerning criminal procedure.

State and Federal Criminal Justice System

The legislatures for each state have the authority to design procedures that will be used within their state courts to process the cases of criminal defendants. Congress possesses this authority with respect to the federal courts. In addition, all court systems must obey the U.S. Supreme Court’s decisions that apply to them and mandate the use of certain procedures or respect for specific rights. State court systems must also obey the decisions of their own state supreme courts. The highest court in each state has the authority to interpret its state constitution and apply those decisions to the procedures used in processing criminal cases within that state. If legislatures want to change the kinds of procedures used within their own state’s courts, they can enact reforms as long as those reforms respect the relevant provisions of the state and federal constitutions as interpreted by the state supreme court and the U.S. Supreme Court.

Because each state legislature and Congress possess the power to design procedures for the courts under their authority, there are differences in the criminal procedures used in different court systems. Although certain requirements of the U.S. Constitution that apply to all court systems, such as the use of defense attorneys and the availability of jury trials, provide common elements to all systems, other aspects of states’ criminal procedure are quite different, especially with respect to preliminary proceedings.

Pretrial Proceedings

Immediately after an arrest is made by police officers, the individual arrested by the police is processed through the various steps of the state or federal court’s criminal procedure. Two issues are decided shortly after arrest: first, whether the defendant will be released from custody on bail while the case is being processed; second, whether there is enough evidence to justify pursuing charges against the person arrested.

The process for setting bail varies from state to state and from county to county within states. If suspects are arrested for minor charges, the police may have the authority to release them after fingerprinting them, photographing them, and obtaining relevant personal information. Suspects may be released on their “own recognizance,” which means that they do not have to post any amount of money with the police or court in order to gain release. The suspects merely sign promises to appear at scheduled court dates. They may also be required to post set amounts of money, which will be forfeited if they fail to appear in court. It is more common for bail to be set by judges in initial court hearings, and judges always handle bail decisions when suspects are charged with very serious crimes.

In some state constitutions, there is a right granted for each defendant to have bail set. Judges, however, will set a very high bail, perhaps even in the millions of dollars, if they do not want the person released while the case is being processed. In the federal courts and some states, the judge can deny bail by finding that the person would endanger the community if released or by deciding that no amount of money would guarantee that the person would return to court. In other states, suspects arrested for the most serious crimes, such as first-degree murder, may not be eligible for bail at all.

If a suspect is arrested through a decision by a police officer rather than through an arrest warrant issued by a judge upon the presentation of evidence, then the suspect is entitled to an initial hearing to make sure that evidence exists to support the arrest. The U.S. Supreme Court has interpreted the Fourth Amendment’s prohibition on unreasonable seizures to require that initial hearings be held within forty-eight hours after a warrantless arrest (County of Riverside v. McLaughlin, 1991).

People who are arrested have a right to have an attorney represent them in court. The police must inform them of this right before any questioning takes place (Miranda v. Arizona, 1966), and defendants who are too poor to hire an attorney have a right to have an attorney provided for them by the government (Gideon v. Wainwright, 1963; Argersinger v. Hamlin, 1972). Attorneys need not be provided immediately after arrest if the police do not intend to question the suspect or if the suspect agrees to answer questions without an attorney present. Attorneys must be made available, however, to represent defendants at arraignments in which an initial plea is entered and at preliminary hearings in which a judge determines whether there is enough evidence to proceed with the case. Attorneys can also seek to have bail set or the amount of bail reduced by presenting arguments at a bail hearing.

At arraignments, the courts officially inform the suspects of the charges against them and give the suspects the opportunity to plead “guilty” or “not guilty.” Few suspects plead guilty at felony arraignments because their attorneys have just begun to work for them, and even if they will plead guilty eventually, as most defendants do, their attorneys need time to develop plea-bargain proposals. It is more common for guilty pleas to be entered immediately in traffic courts or in misdemeanor cases, because defendants usually face only fines or probation and are anxious to get the cases resolved quickly. At preliminary hearings, prosecutors must present enough evidence to persuade a judge that sufficient grounds exist to proceed in a case against the defendant.

In some states, arraignments and preliminary hearings take place in lower level courts, often called municipal courts or district courts. After these initial proceedings, felony cases will be transferred to upper-level courts, often called superior courts, circuit courts, or courts of common pleas. Defendants frequently waive formal proceedings for arraignments and preliminary hearings because they are aware of the charges and they already know that enough evidence exists to move the cases forward.

Some states and the federal government use grand jury proceedings to make the final determination about whether sufficient evidence exists to prosecute a defendant on serious charges. Grand juries are composed of citizens drawn from the community who meet in secret proceedings to hear witness testimony and examine the prosecutor’s other evidence to determine whether charges should be pursued. The suspect has no right to be present in the grand jury proceedings. Defense attorneys are barred from the courtroom when grand juries meet. If the grand jury believes that charges are justified, it issues an indictment against the defendant.

Defense Attorneys and Criminal Procedure

Beginning with the preliminary hearing, defense attorneys file motions in an effort to have evidence excluded or to learn more about the evidence possessed by the prosecutor. Motions provide the basis to protect the defendant’s rights against unreasonable searches and seizures. The defense attorney often argues during the preliminary hearing and subsequent pretrial motion hearings that specific evidence should be excluded from trial because it was obtained in violation of the defendant’s rights.

The defense attorney also often initiates plea negotiations with the prosecutor. More than 90 percent of defendants whose cases are carried forward past grand jury indictments or preliminary hearings eventually enter guilty pleas in exchange for agreements about what punishment will be imposed. Although felony defendants have a right to have their cases decided at trial under constitutional rules for criminal procedure, most defendants prefer to make a plea agreement. Such agreements frequently produce lighter punishments than those that might have been imposed after a trial. Defendants’ guilty pleas may be entered at any point in the process, from the arraignment through the middle of a jury trial.

The Trial Process

Defendants who face felony charges are entitled to a jury trial. Many defendants choose to have a bench trial before a judge alone rather than a jury if their case is controversial or if they believe that a judge will be fairer or more understanding. Misdemeanor defendants are entitled to jury trials under some states’ laws, but they may have only bench trials under the laws of other states. The U.S. Supreme Court has said that the Sixth Amendment’s right to trial by jury applies only to serious charges (Blanton v. North Las Vegas, 1989).

Under the Supreme Court’s interpretations of the Sixth Amendment right to an impartial jury and the Fourteenth Amendment right to equal protection, jurors must be drawn from a fair cross-section of the community, and jurors cannot be excluded because of their race or gender. Through a process called voir dire, the prosecutor and defense attorney question potential witnesses and ask the judge to exclude those who might be biased because of their attitudes or personal experiences.

Although the federal government and most states use twelve-member juries in criminal cases, many states use six- to eight-member juries for misdemeanor cases. Six states use six- or eight-member juries for felony cases. The Supreme Court has declared that six-member juries must reach unanimous verdicts (Burch v. Louisiana, 1979), but nonunanimous verdicts are permissible for convicting defendants before twelve-member juries if permitted under a state’s laws (Apodaca v. Oregon, 1972).

At the trial stage of criminal procedure, the prosecutor and defense attorney present evidence, question witnesses, and raise objections to each other’s evidence and arguments. Each attorney attempts to persuade the jury or judge (in a bench trial) about the defendant’s guilt or innocence. A conviction requires a finding of guilt beyond a reasonable doubt. In considering whether the evidence presented by the prosecutor achieves that standard, jurors must follow the judge’s instructions about how to interpret the relevant law and evidence. Throughout the trial, the judge must follow the relevant laws of procedure and evidence that govern the state or federal court in which the trial is being conducted. The relevant laws are created by the state legislature for state courts and by Congress for the federal courts, and then they are refined and clarified by decisions of appellate courts, such as the state supreme court and U.S. Supreme Court. Decisions by the U.S. Supreme Court guide trial judges with respect to constitutional rights, such as those concerning double jeopardy, compelled self-incrimination, and confrontation of adverse witnesses, that can arise in the context of a trial.

Post-trial Procedures

After the jury or judge reaches a verdict, a defendant who is found guilty will be sentenced by the trial judge. In some states, juries determine the sentence in death-penalty cases. Death-penalty cases have special hearings in which the judge or jury must consider aggravating circumstances and mitigating circumstances, which are any circumstances making the crime or criminal especially deserving or not deserving of execution. Every sentence imposed for a crime must follow the punishments established by the legislature for that crime. The sentence must not violate the Eighth Amendment’s prohibitions against excessive fines and cruel and unusual punishments.

Convicted defendants have a right to appeal their convictions by filing legal actions in appellate courts. These legal actions allege that the trial judge made specific errors that violated relevant laws or the defendant’s constitutional rights. In most states, such appeals go first to an intermediate appellate court, usually called the state court of appeals, and then may be pursued in the state supreme court. In twelve states, however, there is no intermediate appellate court, so appeals go directly to the state supreme court. A few states have special appellate courts that hear only criminal appeals. There is a right to counsel only for the first appeal (Douglas v. California, 1963).

Subsequent appeals may have to be prepared and presented by the convicted offenders unless they can hire attorneys, or unless the relevant state law provides assigned counsel for convicts beyond the first appeal. Unsuccessful appeals to state supreme courts can subsequently be filed in the U.S. Supreme Court, but the nation’s highest court accepts very few cases for hearing.

Convicted offenders can also file writs of habeas corpus, a traditional legal action from English history that permits a person to seek release or a new trial through a claim of wrongful detention. In the American system, prisoners must be able to show that their federal constitutional rights were violated in the course of the case and conviction. Very few prisoners prevail in such actions, but several thousand habeas corpus petitions are filed in the federal courts each year.

Bibliography

Abraham, Henry. Freedom and the Court. 8th ed. New York: Oxford UP, 2003.

Bodenhamer, David. Fair Trial: Rights of the Accused in American History. New York: Oxford UP, 1992.

Decker, John. Revolution to the Right: Criminal Procedure Jurisprudence During the Burger-Rehnquist Court Era. New York: Garland, 1992.

Del Carmen, Rolando V. Criminal Procedure: Law and Practice. 10th ed. Boston: Cengage, 2017.

Garcia, Alfredo. The Sixth Amendment in Modern American Jurisprudence. Westport: Greenwood, 1992.

Kamisar, Yale, Wayne R. LaFave, and Jerold H. Israel. Modern Criminal Procedure: Cases, Comments, and Questions. 14th ed. St. Paul: West, 2015.