Criminal Procedure

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Criminal procedure is the method by which a reported Crime leads to the punishment of an individual for that crime. Part of the process takes place before the formal court process is involved, part of the process takes place afterwards. Both parts of the process are heavily regulated by the United States Constitution. While much of Civil Procedure involves paperwork or events that happen outside of court, almost all steps of the formal court process (and much of the outside of court process) in criminal cases happens orally and in person in open court.

Overview

In a typical felony case, a burglar caught leaving the scene of a break in by a policeman alerted by 9-1-1 calls from neighbors, for example, police make a cursory initial investigation (in this case, perhaps receiving phone calls and seeing a suspicious individual fleeing a house with broken windows with a sack over his shoulder), there is an arrest of an individual, and that person is taken to a police station and booked.

Various police procedures follow. They may include efforts by the police from the time of the arrest onward to interrogate the person arrested, lineups and other identifications of the person arrested by witnesses, a search of the premises, a search of the suspect's residence, a subpoena of records (such as pawn shop records or cell phone records or survelliance camera recordings), and a variety of other procedures. "Non-emergency" searches must generally be made with the consent of the property owner or with a warrant from a judge. Lineups not made in compliance with the applicable law (e.g. too suggestive of the suspect) may not make it into a courtroom. Some jurisdictions allow prosecutors to issue subpoenas without court approval, while others require a prosecutor to convene a grand jury to issue a subpoena. A line of cases most famously including Miranda v. Arizona govern when pre-trial interrogations are admissible at trial.

Typically within 24-48 hours of an arrest, a person arrested is brought before a judge, his identity is confirmed, an attorney is assigned for him (or her), a bail bond amount (i.e. a sum of money which must be deposited in the court as security to insure that the person returns to a scheduled hearing date) is set, some sort of preliminary statement of the crimes with which the individual is charged is recited, and the individual is advised of his legal rights either by the judge or an assigned lawyer. If the bail bond amount set by the court is low or a "personal recognizance bond," then the prisoner is typically released upon signing a few pieces of paperwork and given a next court date. If the bail bond amount is more than the prisoner is able to provide, the prisoner stays in a jail (typically run by a county or city government) until the next court date. Typically 10-20% of criminal defendants do not make bond and stay in jail until trial. This first appearance typically lasts a few minutes in a performance well practiced by the judge, prosecutor and defense attorney, often done en masse for large numbers of defendants in quick succession. Minor cases (especially matters like prostitution and public drunkeness) are sometimes plea bargained at this stage.

Typically after the arrest, but before the first appearance described above, the police will consult with a deputy district attorney who will decide on what charge, if any, to bring in the case. The District Attorney typically has completely unlimited freedom to charge or not charge someone with an offense. For example, a District Attorney can charge someone with a crime not usually prosecuted in his area (e.g. bigamy or statutory rape where the victim does not complain) simply because he believes that the defendant is really guilty of another uncharged crime. As long as the charge made can be supported with probable cause in a preliminary hearing or before a grand jury, the District Attorney can go forward. Likewise, a District Attorney doesn't have to prosecute a crime, even if the DA is 100% sure that an individual committed a crime and has solid evidence to prove it in court. For example, many District Attorneys choose not to devote their resources to prosecute defendants for white collar crimes even if the people accused of the crime are obviously guilty.

Almost every state state then requires in felony cases that either a preliminary hearing be held, or that a grand jury indict the prisoner, or both, in the near future. (In misdemeanor cases, it is common to promptly proceed directly to a trial). In both a preliminary hearing and before a grand jury the question to be decided is whether the government has "probable cause" to believe that this individual committed the crime charged. A preliminary hearing is conducted in open court in front of a judge and is a mini-trial at which both the prosecution and defense present and cross-examine witnesses. A grand jury proceeding is secret, witnesses are called only by the prosecutor, defense lawyers are not allowed in the grand jury room as a general rule, and the decision to "indict" (meaning that probable cause to prosecute exists) is made by the grand jury. Grand jury proceedings are required in federal practice, are common near the East Coast, in fraud cases, in organized crime cases, and in political cases. Grand juries are sometimes used to investigate and indict defendants before an arrest. In the vast majority of cases in the Western United States, a preliminary hearing is used instead.

Felonies are often transferred from a lower court that handled the preliminary matters to a higher court that will conduct any eventual trial at this point.

A defendant is typically arraigned in the higher court after it is transferred from a lower court. At an arraignment, he is informed of the exact charge upon which he will be trial, a trial date is set, and often, at this stage, the defendant enters a bargained plea. Plea bargains may include dropping some charges in exchange for lesser charges, agreeing to recommend a lenient sentence to the judge for a charged crime, and/or a deferred judgment (i.e. an agreement not to go forward with a case if the defendant meets certain conditions going forward). The trial date is governed by statutes and court cases defining how soon a case must be heard to constitute a "speedy trial".

Prior to trial, the prosecution must provide to the defense the bulk of the evidence which will be presented in what is called "discovery". Challenges to that admission of that evidence are often litigated in motions to the judge. Evidence obtained in an illegal search or from an illegal confession may be thrown out. The obligation of the defense to proivde information to the prosecution is much more limited, but basic issues of trial strategy (such as a decision to present an insanity or alibi defense) must be made at this stage.

Unless the prosecution and defense agree to a trial before a judge, criminal trials are normally conducted before a twelve person jury presided over by a trial court judges (six people is typical in misdemeanor cases). Criminal trials are familiar from television (and/or real life) to most Americans, and the defendant is not required to offer any evience at trial, while the jury must find guilt beyond a reasonable doubt to convict a defendant. A jury may find a person guilty, not guilty, or deadlock. If the verdict is not guilty, there is no appeal, the defendant may not be retried on the charge, and the defendant may go free. If found guilty, the case proceeds to a sentencing hearing before a judge (based on a pre-sentence report compiled by court investigators), and the sentence begins (unless stayed pending an appeal and the posting of a bond). If there is a hung jury (it cannot agree on a verdict) or a mistrial (e.g. because a hurricane disrupts the proceeding), the defendant goes free but may be tried again.

Every defendant convicted of a crime may appeal of right to a higher court (the constitution does not guarantee the right to an appeal, but every state provides for an appeal, and the constitution does guarantee a defendant a lawyer for a first appeal if a state does provide an appeal option). Even individuals who plea guilty may appeal their sentence. (Indeed, in most states, criminal appeals outnumber criminal trials for that very reason). But, generally speaking, only serious errors of law may be corrected on appeal -- as to issues of fact, only jury verdicts with no factual basis at all in the trial record will be reversed. Because defendants have a right to an appeal at no cost to them, and there is little downside to a defendant to appealling a case, a large proportion of criminal cases which go to trial are appealed and a large proportion of the criminal cases appealled are affirmed on appeal.

An appeal of right may be followed by a discretionary appeal (typically to a state supreme court) and after that may be followed by a "collateral attack" on the conviction in a Habeas Corpus petition (typically alleging the both the trial court and the appellate court failed to protect a defendant's constitutional rights in the court process).

Once all appeals have been exhausted, a convicted defendant is released not later than the end of the maximum prison term assigned by the judge after the trial (with any revisions made necessary by a successful appeal). Sometimes an earlier date of release is agreed to by a parole board (a decision largely not subject to review by the courts). Rarely, a governor or President will pardon an individual or commute his sentence, allowing for an early release. Individuals sentenced to more than one year are typically sent to a state prison (or federal prison if a federal crime is implicated). Individuals sentenced to less than one year (typically for misdemeanors) typically serve their sentences in a county or city jail.

Policy Issues

Many characteristics of American Criminal Procedure are controversial.

The exclusionary rules which, to grossly oversimplify, keep out evidence seized in improper searches and confessions obtained without Miranda warnings, because they often let guilty people go free due to police screw ups, are often targets of questioning. (The theory is to discourage such illegal activity by making it useless for proving a case).

Many aspects of death penalty case procedure, such as the requirement that a jury be "death qualified" (i.e. exclude from the guilt phase of the trial anyone who is opposed to the death penalty in principal, resulting in a more pro-prosecution jury pool in such cases), are items of dispute.

The relative role of the jury and judge in finding facts related to sentencing is the subject of a great deal of litigation, all the way up to the U.S. Supreme Court at the moment.

The limited ability of the criminal justice system to overturn wrongful convictions made by juries is controversial at times, as is the inability of the courts to retry individuals aquitted of offenses which later evidence makes it seem likely that they committed.

How open trials should be, particularly in rape cases, is a frequently matter of contention.

The discretion of a prosecutor not to charge an individual with a crime is often controversial in cases of police brutality, where prosecutors often go easy on defendants.

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