3.12: Procedural Law

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Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, & Shanell Sanchez
Southern Oregon University via OpenOregon

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Phases of the Criminal Justice Process

Investigative Phase

affidavit (sworn statement). When an individual is arrested without a warrant, judges will need to promptly review whether there is probable cause exists to hold them in custody before trial.

Pretrial Phase

Trial Phase

petit jurors (trial jurors); the rules of evidence (statutory and common law rules governing the admissibility of certain types of evidence such as hearsay or character evidence, the competency and impeachment of witnesses, the existence of any privilege, and the exclusion of witnesses during the testimony of other witnesses); the right of the defendant compulsory process (to secure favorable testimony and evidence); the right of the defendant to cross-examine any witnesses or evidence presented by the government against him; fair trials free of prejudicial adverse pre-trial or trial publicity; fair trials which are open to the public; and the continued right of the defendant to have the assistance of counsel and be present during his or her trial.

Sentencing Phase

right of allocution (right to make a statement to the court before the judge imposes sentence); any victims’ rights to appear and make statements at sentencing; the defendant’s rights to present mitigation evidence and witnesses; and the defendant’s continued rights to the assistance of counsel at sentencing. In capital cases in which the state is seeking the death penalty, the trial will be bifurcated (a trial split into the “guilt/innocence phase” and the “penalty phase”) and the sentencing hearing will be more like a mini-trial.

Post-Conviction Phase (Appeals Phase)

appeal of right (the initial appeal which must be reviewed by an appellate court) and right to file a discretionary appeal; the defendant’s right to have the assistance of counsel in helping to file either the appeal of right or a discretionary appeal. The post-conviction phase is also governed by rules and laws concerning the defendant’s ability to file a writ of habeas corpus (a civil suit against the entity who is currently holding the defendant in custody) or a post-conviction relief suit (a civil suit similar to a habeas corpus suit but one which can be filed by the defendant regardless if he or she is in custody). The post-conviction phase would also include any probation and parole revocation hearings.