paralegal power break: the law of criminal procedure

Paralegal Power Break

The Law of Criminal Procedure

Constitutional Basis of Criminal Procedure

• Criminal procedure follows many patterns of civil procedure– Differences largely due to special provisions of U.S.

Constitution• Provisions of U.S. Constitution usually echoed

in state constitutions

Constitutional Basis of Criminal Procedure

• Constitution expresses basic code of criminal procedure by enumerating rights of citizens against government intrusion and rights of those accused of crimes– Especially first 10 Amendments

• Bill of Rights

Constitutional Basis of Criminal Procedure: Annotations

• Writ of habeas corpus brought by petition– Purpose:

• Challenge lawfulness of detention by government• Ex post facto law

– Penal law that operates retroactively• Right to jury trial applies to all criminal

prosecutions


• Right to be free from unreasonable searches and seizures– Designed primarily to protect citizens from

excessive intrusions by government and police into homes and persons


• Double jeopardy– Prevents person from being tried twice for same

crime– Jeopardy attaches once accused has been put on

trial before judge or jury• Until that time, case may be postponed without violating

this provision


• Person cannot be held to be “witness against himself”– Usually referred to as privilege against self-

incrimination


• “[No person may . . .] be deprived of life, liberty, or property, without due process of law”– Important feature of criminal law– Includes words “life” and “liberty”

• Primary means of punishing criminals are execution and incarceration


• Defendant has “right to a speedy and public trial”

• Right to “impartial jury” fundamental to criminal justice system

• Defendant must be informed of nature and cause of accusation to prepare defense


• Right of defendant to be confronted with witnesses against him– Protection against anonymous accusers– Ensures right to cross-examine witnesses


• Compulsory process– Power of defendant in criminal case to force

witnesses to attend trial under subpoena issued by court


• Right to be free from imposition of excessive bail is self-explanatory– What is excessive may be judged relative to what is

usual bail under similar circumstances• Right against imposition of cruel and unusual

punishments– Relative concept


• Due process clause– Demands fair procedure and reasonable laws

• Equal protection clause– Imposes test of equality before law against

discriminatory practices

Exclusionary Rule• Developed from series of U.S. Supreme Court

interpretations of Fourth, Fifth, and Fourteenth Amendments

• Applies to excluding evidence illegally obtained by government

• Enforces adversarial principle in criminal proceedings

Exclusionary Rule• Excludes from trial evidence obtained in

violation of defendant’s constitutional rights• In most jurisdictions, motion to suppress

(physical evidence or confession) is pretrial motion that tests applicability of exclusionary rule to circumstances of case

Plea Bargaining• Nearly all convictions are result of negotiation• Defendant agrees to plead guilty in return for

beneficial treatment by prosecution• Present system could not work without plea

bargaining• Less than 5 percent of criminal cases go to trial

– Same is true of civil cases

Steps in Processing a Crime• Steps in criminal procedure tend to follow

more consistent routine than those of civil procedure because of legal limitations

• Burden of proving guilt beyond reasonable doubt forces police and prosecutor to monitor cases carefully– As opposed to “a preponderance of the evidence”

Steps in Processing a Crime• Outline of steps involved in criminal process:

– Detection of crime– Arrest and complaint

• Some jurisdictions use a warrant instead of complaint– Initial appearance

• Bail is set– Preliminary hearing

• Examines the legal basis for charges against defendant


– Grand jury indictment• Infamous crimes• Felonies

– Information• Written accusation by prosecutor

– Arraignment • Defendant enters plea


– Pretrial– Trial – Sentencing– Appeal

• Limited to questions of law– Habeas corpus

• In criminal trial often used in addition to appeal

paralegal power break: the law of criminal procedure

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