Procedural Law

1. Procedural Law By Felix Romero

2. Review-Procedural Law • “Mandates the steps in the criminal justice process and provides legal protections for criminal suspects, defendants, and convicted offenders” (Smith 2003). • Legal protections from governmental actions are known as constitutional rights.

3. The Criminal Justice Process • Investigation • Searching for Evidence • Interviewing and Questioning • Arrest • Pretrial Process • Initial Appearance • Bail • Preliminary Hearing • Grand Jury • Trial • Trial Process • Trial Decision

4. Investigation • Searching for evidence • Officers employ broad discretion in conducting investigations. • Individuals are protected by the 4th Amendment which requires the officer to have sufficient information to constitute “probable cause” in order to seek a search warrant (Smith 2003). • However, the U.S. Supreme Court has defined certain situations where the police officers can conduct warrantless searches.

5. Investigation Con’t • “The purpose of the warrant requirement is to ensure that a neutral, detached decision maker determines that there is an adequate justification before criminal justice officials invade a person’s property” (Smith 2003). • Interviewing and Questioning • 5th Amendment protects people from compelled self-incrimination, and the 6th Amendment guarantees the right to counsel. • Limits police activities in questioning suspects.

6. Arrest • Police can make arrest without warrants in two situations (Smith 2003): • Use their discretion to make arrest when they have probable cause to believe that a person is committing or has committed a felony. • Officers can make warrantless arrest for misdemeanors committed in their presence that involves a breach of the peace.

7. Pretrial Process • Initial Appearance • Serves several important purposes (Smith 2003): • If it was a warrantless arrest, the judge must determine if there was probable cause. • Judge informs suspect of their rights. • Judge appoints counsel if the suspect deems that he or she is too poor to afford one. • Bail • Judge sets up bail after the initial hearing. • Involves the suspect putting forward money or property that will be forfeited if he or she does not appear in court.

8. Pretrial Process Con’t • Initial Hearing • Prosecutor and police present evidence to persuade a judge that there is sufficient evidence to pursue criminal charges (Smith 2003). • Grand Jury • A body of citizens from the community to hear evidence from witnesses to determine if the suspect should be charged.

9. Grand Jury • If the grand jury determines that there is sufficient evidence, then they issue an indictment which serves as a formal charging mechanism (Smith 2003). • The suspect then goes to the arraignment and is informed of the charges lodged by the prosecutor and/or grand jury (Smith 2003).

10. Plea Bargaining • Defendant agrees to enter a guilty plea in exchange for lighter sentencing. • Many cases are resolved by plea bargaining (Smith 2003).

11. Trial • Trial Process • Jury is selected. • Potential jurors may be excluded on two challenges (Smith 2003). • Challenges for cause state that a juror should be excluded because of his or her biases. • Peremptory challenges are exemptions that the prosecutor and defense attorney can use to exclude a juror for no reason. • Limited

12. Trial Con’t • Trial Decision Making • Prosecutor bears the burden of proof. • Prosecutors must demonstrate guilt “beyond a reasonable doubt” for criminal charges, and a “preponderance of evidence” for civil charges (Smith 2003).

13. References • Smith, C.E. (2003). Criminal procedure. Belmont, CA: Wadsworth/Thomson Learning, Inc.