INTRODUCTION TO THE CRIMINAL PROCESS
The following narrative overview of the criminal process has keen designed to acquaint the student with the broad scope of criminal procedure and to place the various steps in context. Most American jurisdictions follow similar procedures when dealing with allegations of criminality, from investigation to final case disposition. The reader should be aware that not all jurisdictions follow the exact identical procedures in all cases and that there are individual differences even within a single state. The overview presented below is intended to be generally representative of procedure as practiced in the United States.
INITIAL ENCOUNTER WITH LAW ENFORCEMENT
The initial encounter with the criminal justice system which an individual normally faces involves contact with a police officer who has been activated by personal observation of crime, a citizen complaint, a grand jury indictment or a prosecutor's information. Where the officer has keen sent to arrest pursuant to an indictment, information, or an arrest warrant the officer has a non-discretionary duty to effectuate a full-custody arrest. However, in many situations, the officer possesses discretionary authority to adjust the problem where a citizen complaint or dispute has prompted the criminal justice system to action. If the existence of a crime appears well founded the officer may effectuate an arrest or issue a summons to a court hearing.
The stage prior to an arrest may involve additional investigation whether by a police officer or by a prosecutor engaged in using a grand jury to probe for additional information. Search warrants followed by searches and seizures may produce additional incriminating information. Police may request that a suspect appear voluntarily in a lineup or volunteer to give blood or hair samples. All these procedures may produce evidence which matures probable cause far an arrest.
ARREST
The Fourth Amendment legal standard utilized to decide whether an arrest constitutes an appropriate response is called probable cause for arrest. Under this standard, the law enforcement official must believe that the facts and circumstances known to the officer are based on trustworthy information and are sufficient to warrant a person of reasonable caution in believing that the suspect had committed or was committing an offense which dictated a full custody arrest. The probable cause standard is automatically met if the arrest is pursuant to a grand jury indictment.
Where an arrest constitutes the appropriate response to the facts , the law enforcement official normally must make other decisions in order to protect the evidence for use in court and to protect the constitutional rights of the arrestee. If the arresting officer determines not to question the arrestee, generally no specific warnings of constitutional rights need be given. However, where the officer desires to question the arrestee, the Miranda warnings must be read to and understood by the subject.
These judicially required warnings are designed to convey to the arrestee that he/she possesses both the right to remain silent under the Fifth Amendment and the right to consult with counsel, protected under the Sixth Amendment. Additionally, the arrestee must be informed that if he chooses to speak, the evidence divulged may he used against him by the government in a court of law. Upon arrest, the arrestee must he informed that he has a right to free counsel which will be granted prior to any questioning. To summarize the Miranda requirements, the subject must be informed of the right to remain silent, that if he speaks, anything stated may be used against him, that he has the right to speak with counsel who will be paid by the government at no expense to the arrestee.
The necessity of reading the Miranda warnings is triggered by two coexisting factors. First the subject must be in custody and second, questioning of the arrestee must occur. Not infrequently, the issue arises concerning precisely what are the attributes of custody. For most cases, the concept of custody is clear, but in others, the arrestee may have not been sure if he were in custody or whether complete freedom existed. If a person is free to leave a police station at any time, the individual has not been in custody. A secondary question, often litigated, concerns the concept of interrogation and its limits. Some statements made by a police officer could be interpreted as questions to an arrestee although ostensibly directed to another officer. Interrogation has keen interpreted ina broader context than mere questioning include actions by policewhich are designed to elicit a verbal response indicative of crime.
Once an officer effectuates an arrest, the investigatory stage of the process continues, both as to evidence at the situsof the arrest and on the person of the arrestee. The scope of a search incident to a lawful arrest extends to any objects on the person or within the clothing, and includes a full search and inventory of any personal possessions of the arrestee. Where the investigating oficers discover objects or information of an incriminating nature, courts permit the admission of the articles into evidence. Where a person has been arrested in the home, the extent of a search includes the person of the arrestee and the surrounding area from which the subject could easily and quickly obtain a weapon to frustrate the arrest or to destroy evidence. The process of searching normally concludes when the arrestee completes the booking procedure at the appropriate institution or local jail.
INITIAL APPEARANCE
An arrestee's first encounter with the prosecution and the courts normally occurs at an arraignment or preliminary hearing. Although the person who has been arrested following an indictment generally has no right to have a judicial official determine whether probable cause exists to hold the person, the same cannot be said for the individual arrested without a warrant or indictment. The judge must hold a hearing within forty-eight hours following arrest to determine whether probable cause exists to justify continued detention of the person in custody. If probable cause is found to exist, the arrestee is held for grand jury action or other disposition. Where the hearing is solely to determine probable cause, the defendant has no right to be present or be represented by counsel; however, if the hearing is a traditional preliminary hearing where defendant will plead or the judge will set bail, the arrestee has the right to be present and to be represented by counsel.
At the first appearance, whatever the name, bail may be determined and counsel may be appointed. Where the hearing is designated a preliminary hearing, in addition to the setting of bail and the appointment of counsel, the prosecution will make a presentation of a prima facie case sufficient to hold defendant further. A failure to present a prima facie case usually results in a dismissal of the prosecution's case.
THE GRAND JURY
Felony charges normally are made by a grand jury composed of citizens who hear evidence against an accused and come to a determination concerning whether probable cause exists to believe that a person has committed a crime. The public is excluded from the grand jury room where the prosecutor asks individual witnesses questions in front of the jurors. There is no attorney, generally, for the potential defendant or target, although some jurisdictions allow an attorney to privately advise the witness concerning legal matters. The grand jury members may ask questions of the witness and have the power to subpoena papers and documents from virtually any person or company. As is the case frequently, the target of the grand jury's investigation is unaware that the grand jury is considering an indictment against the individual.
The grand jury system is not mandated for use by the states under the Fifth Amendment or under the Sixth Amendment. The states which utilize the grand jury process follow this procedure because many state constitutions or statutes require the use of the grand jury. Some states allow the use of an information except for the most serious cases. The Fifth Amendment has been held to require federal prosecutions to begin all serious criminal cases with a grand jury indictment. Unless the accused consents to having an information filed against the defendant, the federal government must first procure an indictment. Even where the government obtains an indictment, it does not mean that the individual will be convicted at a subsequent trial; it simply means that a trial probably will be held unless a different disposition of the case happens.
AMENDMENT FIVE
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
AMENDMENT SIX
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
PLEA NEGOTIATIONS
Following the initial charging procedure and prior to a trial on the merits, the prosecutor and the defense attorney may engage in efforts to settle the case without trial. The prosecutor may offer to allow defendant to plead to a lesser included offense or otherwise compromise the case. Where the prosecution feels it has a weak case, it will be more likely to offer some type of plea bargain. The defendant may be anxious to settle the case in return for a conviction of a lower level offense or to prevent the possible imposition of a much longer potential sentence. Usually both sides concede points of substance in order to successfully reach an agreement. Some cases must be compromised be cause if all criminal cases went to trial, disorder would reign supreme. Sufficient numbers of prosecutors, judges, and courts are unavailable to try all criminal cases if plea bargaining were not permissible.
PRETRIAL ACTIVITY
Prior to trial, the defendant will have raised issues touching and concerning various constitutional rights. Often pretrial contentions involve the suppression of evidence allegedly seized in violation of a defendant's rights under the Fourth Amendment (search, seizure and arrest), the Fifth Amendment (self-incrimination), alleged Miranda violations, allegations that the trial would violate the protection against double jeopardy, violation of the right to a speedy trial, and a host of other complaints which need to be raised prior to a trial.
Under the Fourth Amendment, the defendant may contest the lack of probable cause for a search, allege the lack of a valid warrant for the search, or argue that the search was unreasonable as executed. Various rules have developed which require that searches be conducted in a reasonable manner. Vehicles may not require a warrant prior to a valid search while dwelling houses and other structures normally may be searched only pursuant to the judicial order of a warrant. Stop and frisk issues, touching on the Fourth Amendment protections are usually litigated prior to trial. In numerous instances, where a defendant loses a contested motion to suppress evidence, plea negotiations become serious because both the prosecution and defense actually realize the type of evidence which will be available for use at trial.
Contested issues under the Fifth Amendment include disputes concerning proper application of Miranda principles. The defendant may argue that the warnings were ineffectively conveyed to him or that he was in custody and should have keen warned of his right not to incriminate himself. In other contexts, the prosecution will take the position that no questioning occurred and that the defendant just volunteered the information. Pretrial hearings are of vital importance to a defendant who alleges a violation of the prohibition against double jeopardy. If double jeopardy claims were not to be settled as a preliminary matter, the litigant claiming rights thereunder would be forced to trial for a second time in violation of the evil which that provision was designed to eliminate.
In addition to constitutional procedural matters which are decided prior to trial, numerous evidentiary matters, not here relevant, are determined to facilitate a smooth and orderly presentation of evidence.
JURY TRIAL
Where all efforts at pretrial settlement have failed fruition, all parties proceed to the trial, prepared to present evidence in the light most favorable to the particular side. If a bench trial has not been selected, both parties assist in the selection of a jury from a fair cross-section of potential jurors. The number of jurors varies, depending on whether the proceeding is a state or federal criminal trial. Where the potential sentence is more than six months, a federal criminal defendant receives a twelve-person jury which must reach a verdict by a unanimous vote. However, under the Constitution, for serious criminal trials, the states are not required to have unanimous twelve-person juries and may permit unanimous six-person juries in non-capital cases.
TRIAL TO A JUDGE
For various reasons, some defendants prefer a trial by a judge rather than a trial by jury. The case may have gruesome photographs or contain outrageous facts which might inflame a jury but the judge may he hardened by having seen similar pictures or hear worse facts many times before. A defendant may have a complicated technical defense which a single judge might comprehend rather than have a jury consider the problem. Although a defendant has the right to a trial by jury in a serious case, a particular defendant may not wish to place the case before a jury. Where the judge hears the case, the judge rules on admission of evidence, listens to arguments from both sides, and acts as a jury of one. The judge makes the decision on guilt or innocence as a jury would have otherwise have done.
TRIAL Once the preliminary issues have been either decided or deferred pending a post trial appeal, the defendant and the prosecution begin the trial by selecting the jury and proceeding to opening-arguments. The prosecution initiates its opening arguments by explaining what the government expects to prove and the methods by which the evidence will he presented. The defense may follow the prosecution with its opening argument or reserve its opening argument until the prosecution has rested its case-in-chief.
During the course of the trial the defendant's various constitutional rights must be observed and protected. The defendant possesses the Sixth Amendment right to confront and cross examine adverse witnesses, the right to representation by counsel at trial, and the right to trial by jury. The Fifth Amendment protects the defendant from being forced to take the witness stand and testify. Consistent with the privilege, the prosecutor may not comment to the jury concerning the defendant's decision not to take the stand.
Evidence presented by either side must meet the test of relevancy, or, stated another way, must be of sufficient importance to be worth allowing the jury to consider. Where where evidence may prove to be quite important, it may still be excluded where, upon proper objection, the judge rules that its prejudicial effect outweighs its probative value.
The evidence may he presented by two different types of witnesses, expert and lay. Lay witnesses are generally not permitted to give personal opinions or interpretations of the evidence. In the usual situation, lay witnesses must relegate their testimony to factual answers to questions involving issues of what happened, who did what and where a particular activity occurred. In the other hand, expert witnesses may give testimony which includes opinions which are based on specialized knowledge in a particular field. An expert need not necessarily have a long history of university study or research; simple knowledge in a field about which the avrage person knows little will suffice in many cases.
Other rules of evidence regulate the use of hearsay evidence at trial. Hearsay evidence consists of evidence originally spoken outside the trial court which has been overheard by a third party and restated in court for proof of the truth of its contents. Since accounts of events which have keen retold may involve inaccuracies or intentional misstatements and because the out-of-court declarant was not under oath, courts require that hearsay evidence meet specified qualifications prior to entry into evidence. While the general rule concerning hearsay evidence is one of exclusion, the exceptions have come close to swallowing the rule. In any event, the exceptions to the rule which have evolved have as their basis the philosophy of ensuring truthful facts as accurately received into evidence.
When both the procession and defense have presented all the relevant evidence, the jury hears the closing arguments for each adversary, presented by the advocates for the prosecution and defense respectively. Following the closing arguments, the judge instructs the jury with reference to the law applicable to the case at bar and the jury retires to deliberate When it reaches an appropriate verdict beyond a reasonable doubt and by the appropriate number of jurors necessary to produce a decision, the jury returns to court to render a verdict.
The verdict will have varying effects on the defendant depending upon the result. Where the verdict acquits the defendant, the double jeopardy clause of the Fifth Amendment absolutely prevents any additional litigation of the crime(s) for which the defendant has been acquitted. Where the jury returns a guilty verdict, the defendant has the option of pursuing an appeal or accepting the judgment and sentence. If the defendant chooses the appellate route, generally, all objections to the double jeopardy provision are waived where the defendant has ultimate appellate success.
APPEAL
Although no federal constitutional right to appeal exists, all jurisdictions in the United States grant the right either by statute or by state constitution. Where a trial transcript is required for an appeal, the government must furnish a free transcript to an indigent defendant sufficient for appellate review. Similarly, where an indigent wishes to make the first appeal as of right, the government must supply counsel for appellate purposes at no cost to the indigent litigant.
Where the appellate avenue proves successful, the prosecution may elect to re-try the defendant, attempt to negotiate a plea, or decline to pursue the case further. In some instances, an appellate court may remand the case to the trial court with instructions to dismiss the case. Not infrequently, the defendant prevails at the first appellate level only to have the prosecution pursue the case one level higher. Here, no double jeopardy problem exists since the original conviction may be reinstated in situations where the government ultimately prevails.
COLLATERAL ATTACK
Where direct appeals have been exhausted or when the appellate approach has not been attempted, the remaining course of action open to a criminal litigant consists of a collateral attack on judgment via the writ of habeas corpus. Essentially, the defendant alleges that he is being held unlawfully in violation of the state or the federal constitution. Prior to being permitted to file a habeas corpus petition in a federal court, the defendant must demonstrate that all state remedies have been pursued in a timely fashion and all have been exhausted. Alternatively, the defendant must show just cause for a failure to comply with state requirements coupled with a demonstration of actual prejudice.
Where the defendant successfully demonstrates illegal detention by a showing of a violation of due process, abuse of the grand jury process, or other sufficient ground, the defendant may receive a grant of a new trial where the unfairness could be eliminated, or, in some instances, the defendant may be freed from incarceration entirely.
CORRECTIONS
Where direct appeals and collateral attacks have failed fruition, defendant must serve the remainder of the sentence pursuant to the rules of the convicting jurisdiction. If the litigant has been free on bail pending appeal, the defendant must begin serving sentence.