3.9. Procedural Law

Lore Rutz-Burri and Kate McLean

As noted previously, procedural law governs the process used to investigate and prosecute an individual who commits a crime. Procedural law also governs the ways a person convicted of a crime may challenge their convictions. The sources of procedural law include the same sources that govern substantive criminal law: the constitution, cases law or judicial opinions, statute, and common law. Whereas most substantive criminal law is now statutory, most procedural law is found in judicial opinions that interpret the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment to the U.S. Constitution, the U.S. Code, and the state constitutional and legislative counterparts. Generally, the federal and state constitutions set forth broad guarantees (for example, the right to a speedy trial), then statutes are enacted to provide more definite guidelines (for example, the Federal Speedy Trial Act) and then judges flesh out the meaning of those guarantees and statutes in their court opinions. The next sections will review the major due process protections set further in the Bill of Rights, as well as several landmark cases that elaborated on their practical meanings.

Phases of the Criminal Justice Process

Procedural law applies to every point in the criminal justice process, which can be broken down into five phases: the investigative phase, the pre-trial phase, the trial phase, the sentencing phase, and the appellate or post-conviction phase.

  Investigative Phase       

The investigative phase is governed by laws covering searches and seizures (searches of persons and places, arrests and stops of individuals, seizures of belongings), interrogations and confessions, and identification procedures (for example, line-ups and photo arrays). This phase mostly involves what the police are doing to investigate a crime.  However, when police apply for a search, seizure or arrest warrant, “neutral and detached” magistrates (i.e., judges) must decide whether  probable cause exists to issue search warrants, arrest warrants, and warrants for the seizure of property. They must also decide whether the scope of the proposed warrant is supported by the officer’s affidavit (sworn statement). When an individual is arrested without a warrant, judges will need to promptly review whether there is probable cause to hold them in custody before trial.

Pretrial Phase

The pretrial phase is governed by laws covering the initial appearance of the defendant before a judge or magistrate; the securing of defense counsel; the arraignment process (in which the defendant is informed of the charges which have been filed by the state); the process in which the court determines whether to release the defendant pre-trial; the selection and use of a grand jury or preliminary hearing processes (in which either a grand jury or a judge determines whether there is sufficient evidence that a felony has been committed); and any pretrial motions (such as motions to suppress illegally-seized evidence). During the pretrial phase, prosecutors and defendants (through their defense attorneys) may engage in plea bargaining, and will generally resolve the case before a trial is held.

Trial Phase

The trial phase is governed by procedural laws covering speedy trial guarantees; the selection and use of petit jurors (trial jurors); the rules of evidence (statutory and common law rules governing the admissibility of certain types of evidence); the right of the defendant’s compulsory process (to secure favorable testimony and evidence); the right of the defendant to cross-examine any witnesses or evidence presented by the government; 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 to be present, during their trial.

Sentencing Phase 

The sentencing phase is governed by rules and laws concerning the constitutionality of different punishments; the time period in which a defendant must be sentenced; the defendant’s 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 mitigating 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 (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) 

The post-conviction phase is governed by rules and laws concerning the time period in which direct appeals must be taken; the defendant’s right to file an appeal of right (an initial appeal which must be reviewed by an appellate court) and right to file a discretionary appeal; and the defendant’s right to have the assistance of counsel in filing either. 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 (similar to a habeas corpus suit, but one which can be filed whether or not the defendant is in custody). The post-conviction phase also includes any probation and parole revocation hearings.


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Introduction to the U.S. Criminal Justice System Copyright © 2019 by Lore Rutz-Burri and Kate McLean is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License, except where otherwise noted.

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