2.6: Overview of the Criminal Procedure

Every state and the federal government also has its own criminal procedural rules. The Federal Rules of Criminal Procedure are written by judicial advisory committees and promulgated by the Supreme Court, subject to amendment by Congress. State criminal procedural rules are usually defined by the state legislatures. Of the 23 separate rights noted in the first eight amendments to the Constitution, 12 concern criminal procedure. Before World War II, these rights were held only to protect the individual against the federal government. Since World War II, practically all of these rights have been incorporated through the Fourteenth Amendment’s due process clause and applied to state law enforcement as well. The federal Constitution sets a floor, not a ceiling, on the rights of the citizenry against police, prosecutors, courts, and prison officials. The states may grant more rights to criminal defendants. For example, states such as New York are substantially more protective of the rights of criminal suspects and criminal defendants than is the U.S. Supreme Court.

In American legal parlance, criminal procedure refers to the constitutional, statutory, and administrative limitations on police investigations—searches of persons, places, and things; seizures and interrogations—as well as to the formal steps of the criminal process. Both the Fourth and Fifth Amendments protect the citizenry, not just criminals and criminal suspects, from over-reaching police activity.

Due Process

The Fifth Amendment's due process clause, among other rights, guarantees a presumption of innocence. The government must prove guilt beyond a reasonable doubt. Fifth Amendment “due process,” confers on defendants a broad array of protections and rights. The amendment also protects defendants against double jeopardy (being tried more than once for the same crime by the same authority), and against being required to testify against themselves in criminal cases.

Right to Counsel

The Sixth Amendment guarantees defendants a “speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.” It also entitles defendants to be confronted by (and to cross-examine) the witnesses against them and to have the “assistance of counsel” for their defense. The right to counsel begins when the suspect becomes the accused, that is at the initiation of judicial proceedings. If the accused is indigent, the judge assigns him/her a defense counsel at the first court appearance. A U.S. Supreme Court decision—Gideon v. Wainwright (1963) —held that the government must appoint defense lawyers for indigents accused of felonies. Later cases extended that ruling to cover all cases where the defendant could be sent to jail or prison.

The Verdict: Gideon v. Wainwright

Watch this video to learn more about the importance of the Supreme Court decision in this landmark case: Gideon v. Wainwright.

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Bail and Pre-Trial Detention

If the accused pleads not guilty, the judge must decide on pre-trial release and, if so, whether bail or other conditions ought to be imposed. Historically, the courts have held that a defendant ought to be released unless he presents a risk of flight. Typically, despite the supposed link between bail and assuring appearance at trial, judges set a high bail for individuals arrested for serious offenses because they are concerned about public safety, i.e., the defendant committing more crimes if released. Federal law permits pre-trial detention without bail in certain situations where the court finds that the defendant poses a serious threat of future danger to the community and that no combination of release conditions can reasonably assure community safety.

Formal Accusation and the Grand Jury - Indictment

American prosecutors have extensive discretion over whether to charge, what to charge and how many charges to bring against an arrestee. However, most prosecutors dismiss charges against a substantial percentage of arrestees at an early point in the process because:

• the arrestee’s conduct did not constitute a crime;
• while there was a crime, it was too insignificant to prosecute;
• while there was a crime, it is not provable against this person at this point; and
• while there was a crime, the prosecutor believes that pre-trial diversion to a treatment or other program is the most appropriate disposition.

Until the trial begins, the prosecutor may voluntarily dismiss the charges against the accused without prejudice, and thus can bring the same charges at a later date. The Sixth Amendment provides that there shall be no criminal prosecution except upon indictment by a grand jury. A grand jury is an investigative body that determines whether there is sufficient evidence to indict. However, the Supreme Court has held that this is one of the few rights included in the Bill of Rights that is not binding on the states. Thus, each state can decide for itself whether to use a grand jury to initiate the formal criminal proceeding.

The accused must be arraigned and formally charged within a short period of time. At the arraignment, the judge reads the formal charges and with respect to each charge, asks the defendant to plead guilty, not guilty, or not guilty by reason of insanity. Most states also permit a plea of nolo contendere (no contest) which, for practical purposes, is equivalent to a guilty plea. A plea of not guilty can subsequently be changed to a plea of guilty. Only in limited circumstances can a guilty plea be withdrawn.

Preliminary Hearing – Information

While the grand jury is a way to formally charge and determine if enough evidence exist to proceed to trial, the more common method is called a preliminary hearing. Also known as a preliminary examination, preliminary inquiry, evidentiary hearing, or probable cause hearing is a formal hearing after the district attorney has filed a complaint outlining the charges against the defendant. In a preliminary hearing, like the grand jury hearing, the district attorney must present enough evidence to a judge and demonstrate probable cause the crime was committed by the defendant.

At a preliminary hearing, two key questions must be shown by the district attorney.

1. There is probable cause the crime occurred, and it is within the court’s jurisdiction.
2. There is probable cause to believe the defendant charged with the crime committed the crime.

If the judge determines the district attorney has proven probable cause to both questions, the defendant is “held to answer” the charges proven in the preliminary hearing. It is important to understand, that all the charges outlined in the complaint must be found true. If the district attorney fails to prove probable cause, the case will cease. Additionally, if the district attorney only proves certain charges, those charges that were not proven cannot proceed to trial. At the end of the preliminary creates a new charging document called the information which identifies the charges that were proven and will proceed to trial.

Grand Jury Indictment v. Preliminary Hearing

The district attorney decides whether they will take the case to the Grand Jury or Preliminary hearing. So how or why does the district attorney chose one process or another? There are key differences to each process. The district attorney often uses the process appropriate to the specific issues of the case. The Grand Jury process is held outside of the public view. The defendant and his counsel are not present for the presentation of the evidence. However, the district attorney must prove their case to a panel of grand jurors. This is not an adversarial process, and the district is the only one presenting evidence. However, the district attorney is required to present exculpatory evidence (evidence that suggests the defendant may not be guilty). In contrast, the preliminary hearing is a public hearing and both the defendant, and his attorney are present for the evidentiary hearing. It is an adversarial process, and the defense counsel may cross-examine the district attorney’s witnesses. It also gives the defense counsel an opportunity to preview the state’s case against the defendant. The district attorney only must prove probable cause to the judge as opposed to a jury panel.

The district attorney with examine all these procedural requirements to determine how to best manage their case. For example, in high profile cases, the district attorney may not want all the crime details available to the public before the actual trial, or they may want to protect the accused from damaging information if no charges are filed, or it may be used to protect the witnesses and allow them to feel more comfortable to testify more freely and truthfully. Of course, the secrecy of the grand jury process has some significant issues. Some critics indicate the grand jury process is a “rubber stamp” for the prosecution and they do not evaluate the evidence as critically as a judge would making it easier for an indictment.

Pre-Trial Motions

The rules of criminal procedure provide that the defendant and his or her attorney have a certain number of days to make pre-trial motions challenging the legal sufficiency of the indictment or information or seeking the suppression of evidence. In addition, the defendant may move for the limited discovery of certain evidence held by the prosecutor. Under most states’ rules, the defense, if it makes the request, has a right to a copy of any statements made by the accused, copies of scientific tests, and a list of the prosecution’s witnesses. In some jurisdictions, the defendant must notify the prosecution in advance of its intent to rely on certain defenses such as an alibi or insanity.

Plea Bargaining

The American practice of “plea bargaining” is often misunderstood. The practice might more accurately be referred to as a system of guilty plea “discounts.” More than 90 percent of convictions are the result of guilty pleas. For most defendants who plead guilty, there has been no “bargaining.” Rather, the defendant has accepted the prosecutor’s offer to drop some charges in exchange for the defendant’s plea of guilty to one or more remaining charges. At the federal level, there is a tradition of “charge bargaining,” that is, the prosecutor drops the most serious charge, and the defendant pleads guilty to a lesser one. In some counties and cities, the judge explicitly offers sentencing discounts. For example, the defendant is promised a 3-year minimum, 5-year maximum prison term if he/she pleads guilty before the trial takes place; however, he/she will face a5–10-year minimum, 15-year maximum prison term if found guilty at trial.

Right to Trial

The defendant has a right to a public trial. Thus, American courtrooms are open to the public, including journalists. Indeed, the Supreme Court has held that the defendant cannot waive the right to a public trial because the citizenry also shares this right; nor can a judge prohibit the press from reporting on criminal trials. However, this does not mean that television cameras must be allowed in the courtroom. Some states, like California, permit live television coverage of criminal trials. Supporters argue that television coverage provides legal education for a public that otherwise would never see a criminal trial. Critics contend that TV cameras in the courtroom distort the conduct of the lawyers, judge, and jurors, and alter the courtroom atmosphere. There are no cameras in federal courtrooms.

Under the Sixth Amendment, the criminal defendant has a constitutional right to a speedy trial. Statutes of limitation, not the speedy trial right, govern the delay between the commission of a crime and the filing of charges. The Constitution dictates that there must not be an undue delay between indictment and trial. The Supreme Court, however, has never specified a definite period of time, which, if exceeded, violates this right. Every case has to be assessed individually. Every state has a speedy trial law that establishes time constraints within which the prosecution and the courts must bring the defendant to trial.

The Sixth Amendment also guarantees a criminal defendant the right to a jury trial. However, like most rights, the jury trial right may be waived. The defendant may elect a bench trial before a single judge or plead guilty. Usually, defendants have a better chance of acquittal by a jury. One-fourth to one-third of jury trials end in acquittals. But some defendants prefer a judge to a jury: because they believe a judge would be more likely to see the gaps in the prosecution’s case; the judge would sentence more leniently after a “bench” trial; or that the nature of the crime would inflame the jury against the defendant.

Although not constitutionally required, in the federal system and practically every state, the jury must reach a unanimous verdict. A jury that cannot agree is called a “hung jury.” In the event of a hung jury, a mistrial is declared, and the prosecution must decide whether to try the defendant again. There is no limit on how many times a defendant can be retried, but very few defendants are tried more than three times.

The Trial

Only 10 percent or less of American criminal cases are resolved by trials. The criminal trial is based upon the adversary system. The defense lawyer vigorously represents his/her client, whether or not he believes him guilty. The prosecutor represents the state and the people but also bears an ethical responsibility to act as a minister of justice.

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According to the Supreme Court, the Constitution requires that, in order to find the defendant guilty, the factfinder, whether jury or judge, must determine that the prosecution has proven every element of the offense beyond a reasonable doubt. This is the meaning of the oft-quoted maxim that the “defendant is presumed innocent.”

Both sides have the right to call their own witnesses and to subpoena witnesses who will not appear voluntarily. The lawyers subject their own witnesses to direct examination and their adversary’s witnesses to cross-examination. The judge, but not the jurors, may ask the witnesses questions, but in practice, the lawyers ask practically all the questions and the judge acts as an impartial umpire. A witness may refuse on Fifth Amendment grounds to testify if he/she has a well-founded belief that the testimony could incriminate him/her. The prosecution may grant the witness immunity and then may compel the witness to answer every question. (The defense has no such power.) Immunity extends to any crime the witness admits to, as well as to any crime that investigators uncover as a result of the witness's immunized testimony.

Sentencing

The legislatures, courts, probation departments, parole boards, and, in some jurisdictions, sentencing commissions all play a role in the sentencing process. In the first instance, criminal sentences, or at least the maximum permissible sentence for each offense, are prescribed by legislatures. State sentencing statutes vary considerably and sometimes the same state has different types of sentencing statutes for different crimes. The sentence is imposed by the judge after a sentencing hearing at which the prosecutor and defense attorney argue for the sentence each thinks is appropriate. The defendant is usually given an opportunity to address the court prior to the sentence. In some jurisdictions, the victim or the victim’s representatives may address the court as well. The defense lawyer is likely to emphasize the defendant’s remorse, family responsibilities, good job prospects, and amenability to out-patient treatment (if necessary) in the community; the prosecution is likely to emphasize the defendant’s prior criminal record, injuries to the victim, and the victim’s family, and the need to deter other would-be offenders.

The judge is advised by the probation department, which independently investigates the defendant’s background, prior criminal record, circumstances of the offense, and other factors. The judge does not have to make formal factual findings and need not write an opinion explaining or justifying the sentence. As long as the sentence is within the statutory range, it cannot be appealed.

The Eighth Amendment rules out “excessive bail” for defendants and prohibits “cruel and unusual punishments.” This last prohibition has been interpreted by the courts to limit the kinds of punishments that can be inflicted. In 1972, the death penalty statutes of 38 states were effectively voided based on this constitutional provision. Some 40 states then passed new death penalty statutes in uniformity with the Supreme Court’s decisions. Neither Congress nor the states can pass laws that violate the Constitution.

Sanctions

Probation is the most common sentence meted out by American criminal court judges. In effect, the defendant avoids prison as long as he/she keeps out of trouble and adheres to the probation department’s rules, regulations, and reporting requirements. The judge determines how long the probationary term will last; several years is not uncommon. The judge may also impose special conditions, like participating in a drug treatment program, maintaining employment or staying in school, if the offender is a juvenile.

Imprisonment is a very widely used sentence; in 2004, on any given day there were more than 2 million persons in U.S. prisons and jails. Each state and the federal government has its own prison system. The prison department classifies (according to danger risk, escape risk, age, etc.) offenders and assigns them to an appropriate maximum-, medium-, or minimum-security penal institution.

Forfeiture of property has increased dramatically as a criminal sentence in recent years, especially in drug and organized crime cases. Typically, forfeiture laws provide that, as part of the criminal sentence, the judge may order the defendant to forfeit any property used in the crime (including car, boat, plane, and even house) and/or the proceeds of his/her criminal activity (business, bank accounts, securities, etc.).

Fines are less frequently imposed by U.S. courts. When they are imposed, it is usually in addition to other sanctions. Historically, the size of fines has been low, indeed, much lower than the fee a private criminal lawyer charges. Recently, however, maximum fines have increased dramatically. When fines are imposed, the Supreme Court has held that a defendant cannot be imprisoned for failure to pay the fine, unless the failure is willful.

Appeal and Post-Conviction Remedies

The Constitution does not guarantee a convicted offender a right of appeal, but every jurisdiction allows at least one appeal as a right, and many states have two levels of appellate courts and two levels of appeals. For some second-level appeals, the court has the discretion to hear only those cases that it chooses. Because of the guarantee against double jeopardy, the prosecution may not appeal a not-guilty verdict. Thus, an acquittal stands, even if it was based upon an egregious mistake by the judge in interpreting the law or upon an incomprehensible factual finding by the judge or jury.

After an offender’s state court appeals have been exhausted, he/she may file a habeas corpus petition in federal district court alleging that he/she is being held in state custody in violation of his/her federally guaranteed statutory or constitutional rights. (Federal prisoners may also petition the federal courts for post-conviction relief in the event, for example, that new evidence which could not have been discovered before trial, demonstrates innocence.) The right of habeas corpus is guaranteed by the Constitution and implemented by a federal statute. In some limited circumstances, an offender who was unsuccessful in the first habeas corpus proceeding may bring additional habeas corpus petitions alleging other constitutional violations.

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Parole, Remission and Commutation

Traditionally, parole boards have played a major role in releasing offenders from prisons. Each state has its own parole board whose members are appointed by the governor. The parole board is usually one component of a large parole agency that supplies post-prison supervision to offenders after they are released from prison. The point at which a prisoner is eligible for parole is a matter of state law, so there is considerable variation among the states.

In a sentencing system in which the judge only specifies a maximum sentence, the prisoner might, for example, become eligible for parole after serving one-third of the sentence. Members of the parole board typically hold brief interviews with the prospective parolees at the prison. The board is generally interested in the prisoner’s adjustment within the prison, but it will invariably consider the facts of the crime and the prisoner’s previous criminal record.

Finally, the governor of each state has the power to pardon or commute the sentences of offenders in that state. The president of the United States has similar authority for federal offenders. Frequently, the law provides for the appointment of a pardon board, which sifts through petitions, conducts investigations, and makes affirmative recommendations to the chief executive. Governors, especially in the most prolific death sentencing states, are frequently called upon to commute death sentences. Unlike in many countries, general amnesties are not a part of American law or tradition.