CRIMINAL PROCEDURE

CRIMINAL PROCEDURE

The framework of laws and rules that govern the
administration of justice in cases involving an
individual who has been accused of a crime,
beginning with the initial investigation of the
crime and concluding either with the uncondi-
tional release of the accused by virtue of acquittal
(a judgment of not guilty) or by the imposition of
a term of punishment pursuant to a conviction for
the crime.

Introduction

Criminal procedures are safeguards against
the indiscriminate application of criminal laws
and the wanton treatment of suspected crimi-
nals. Specifically, they are designed to enforce
the constitutional rights of criminal suspects
and defendants, beginning with initial police
contact and continuing through arrest, investi-
gation, trial, sentencing, and appeals.
The main constitutional provisions regard-
ing criminal procedure can be found in Amend-
ments IV, V, VI, and VIII to the U.S.
Constitution. The FOURTH AMENDMENT covers
the right to be free from unreasonable searches
and arrests:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized. A warrant is a paper that
shows judicial approval of a search or arrest.
The U.S. Supreme Court has held that the
Fourth Amendment does not require a war-
rant for all searches; rather, it prohibits
unreasonable searches. All warrantless
searches are unreasonable unless they are
executed pursuant to one of several excep-
tions carved out by the Court.
The FIFTH AMENDMENT covers an array of
procedural concerns, including the death
penalty, multiple trials for the same criminal
offense (DOUBLE JEOPARDY), SELF-INCRIMINA-
TION, and the general right to DUE PROCESS.It
reads, in relevant part,
No person shall be held to answer for a capi-
tal, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury
. . . 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.
The SIXTH AMENDMENT addresses the pro-
cedures required at trial. It provides,
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 commit-
ted, which district shall have been previously
ascertained by law, and to be informed of the
nature and cause of the accusation; to be con-
fronted with the witnesses against him; to
have compulsory process for obtaining wit-
nesses in his favor, and to have the Assistance
of Counsel for his defence.
Finally, the EIGHTH AMENDMENT states,
“Excessive bail shall not be required, nor exces-
sive fines imposed, nor cruel and unusual pun-
ishments inflicted.”
At first, these amendments were construed
as applying only to federal prosecutions. The
states were free to enact criminal procedures
contrary to them until the passage of the FOUR-
TEENTH AMENDMENT in 1868. The Fourteenth
Amendment forbids the states to “deprive any
person of life, liberty, or property, without due
process of law” (§ 1). Under the Fourteenth Amendment, states must provide most of the criminal safeguards found in the Fourth, Fifth,
Sixth, and Eighth Amendments.
Federal courts must comply with all the
criminal procedures listed in the amendments to
the Constitution. For state courts, the U.S.
Supreme Court has adopted a “selective incorporation”
approach to determine precisely what
process is due a criminal defendant. Under this
approach, only fundamental rights are protected.
According to the Court, fundamental rights
in criminal procedure include freedom from
unreasonable SEARCHES AND SEIZURES; freedom
from CRUEL AND UNUSUAL PUNISHMENT;
assistance of counsel; PROTECTION AGAINST
SELF-INCRIMINATION; confrontation of opposing
witnesses; a SPEEDY TRIAL; compulsory
process for obtaining witnesses; a jury trial for
prosecutions for cases in which the defendant
could be incarcerated; and protection against
double jeopardy. The only protections that are
not specifically required of states are the Eighth
Amendment prohibition against excessive bail
and the Fifth Amendment requirement that
infamous crimes be prosecuted by grand jury.
The judicial interpretation of fundamental
rights has allowed states considerable leeway in
shaping their own criminal procedures.
Although their procedural rules and statutes are
similar in many respects, federal and state legislatures
are responsible for their own criminal
procedures, and procedures vary from state to
state. State and federal governments may not
limit the protections guaranteed by the Constitution,
but they may expand them.
Automobile Exception to the
Warrant Requirement
An example of this principle may be seen
with the so-called automobile exception to the
Constitution’s search-warrant requirement.
Under the automobile exception, states may
allow the warrantless search of an automobile,
except for the trunk, if the police officer reasonably
believes that the vehicle holds evidence of a
crime. The U.S. Supreme Court has determined
that this exception is not a violation of the
Fourth Amendment because drivers have a
“reduced expectation of privacy” and because a
vehicle is inherently mobile. This reduced expectation
of privacy also allows police officers with
PROBABLE CAUSE to search a car to inspect drivers’
and passengers’ belongings that are capable
of concealing the object of the search, even if
there is no proof that the driver and passenger
were engaged in a common enterprise.Wyoming
v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L.
Ed. 2d 408 (1999).
However, states are not required to adopt the
automobile exception. The New Hampshire
Supreme Court, for example, ruled that all warrantless
searches are unreasonable except for a
group of well-defined such searches, and this
group does not include warrantless AUTOMOBILE
SEARCHES (State v. Sterndale, 139 N.H. 445,
656 A.2d 409 [1995]). Thus, in New Hampshire,
a police officer may not base the warrantless
search of a vehicle on the mere fact that the place
to be searched is a vehicle. New Hampshire,
therefore, provides expanded protections under
the Fourth Amendment.
Conversely, a state may not allow the search
of any vehicle without reasonable suspicion. A
vehicle search that is conducted in the absence of
reasonable suspicion would be an infringement
of guaranteed Fourth Amendment protection,
and a court would strike down such an infringement
as unconstitutional. A state law may not
diminish the scope of the automobile exception
by authorizing a warrantless search of an entire
vehicle following a traffic stop in which the
driver is issued a citation for speeding. Although
law enforcement may conduct a full vehicle
search if the defendant is formally arrested, the
issuance of a traffic citation does not justify the
considerably greater intrusion of a full-fledged
search. Knowles v. Iowa, 525 U.S. 113, 119 S. Ct.
484, 142 L. Ed. 2d 492 (1998)
Investigation
Criminal prosecutions officially begin with
an arrest. However, even before the arrest, the
law protects the defendant against unconstitutional
police tactics. The Fourth Amendment
protects persons against unreasonable searches
and seizures by law enforcement officers. Generally,
a SEARCH WARRANT is required before an
officer may search a person or place, although
police officers may lawfully prevent a criminal
suspect from entering his or her home while
they obtain a search warrant. Illinois v.
McArthur, U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d
838 (2001).
Police officers need no justification under
the Fourth Amendment to stop persons on the
street and ask questions, and persons who are
stopped for questioning are completely free to
refuse to answer any such questions and to go
about their business. But the Fourth Amendment does prohibit police officers from detaining
pedestrians and conducting any kind of
search of their clothing without first having a
reasonable and articulable suspicion that the
pedestrians are engaged in criminal activity. The
U.S. Supreme Court has held that reasonable
suspicion is provided for a stop-and-frisk type
of search when a pedestrian who, upon seeing
police officers patrolling the streets in an area
known for heavy narcotics trafficking, flees from
the officers on foot. Illinois v.Wardlow, 528 U.S.
119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)
The warrant requirement is waived for many
other searches and seizures as well, including a
search incident to a lawful arrest; a seizure of
items in plain view; a search to which the suspect
consents; a search after a HOT PURSUIT; and
a search under exigent or emergency circumstances.
Nor does the Fourth Amendment
require the police to obtain a warrant before
seizing an automobile from a public place when
they have probable cause to believe that the
vehicle is forfeitable contraband. Florida v.
White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed.
2d 748 (1999).
However, the Fourth Amendment does prohibit
police use of a thermal-imaging device
aimed at a private home from a public street to
detect relative amounts of heat within the home.
Such devices are typically employed to determine
whether a suspect is using a high-intensity lamp
to grow marijuana in his or her home. The U.S.
Supreme Court has ruled that the use of thermal-
imaging devices constitutes a “search”
within the meaning of the Fourth Amendment,
and thus their use is presumptively unreasonable
without a warrant. Kyllo v. United States, 533 U.S.
27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).
The Supreme Court also ruled that a state
hospital conducted an unreasonable search
when it undertook warrantless and nonconsensual
urine testing of pregnant women who had
manifested symptoms of possible cocaine use.
The governmental interest in using the threat of
criminal sanctions to deter pregnant women
from using cocaine did not justify a departure
from the general rule that an official nonconsensual
search is unconstitutional if not authorized
by a valid search warrant. Ferguson v. City of
Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L.
Ed. 2d 205 (2001).
The U.S. Supreme Court’s Fourth Amendment
JURISPRUDENCE is splintered over the constitutionality
of using fixed checkpoints or
roadblocks to conduct warrantless and suspicionless
vehicle seizures. The Court has held that
the Fourth Amendment allows law enforcement
to perform warrantless vehicle seizures at a fixed
checkpoint along the nation’s border to intercept
illegal ALIENS, so long as the search is reasonable
in light of the “totality of the
circumstances”. United States v. Arvizu, 534 U.S.
266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). The
Court also ruled that roadblocks may be used to
intercept drunk drivers. However, the Court
rejected on Fourth Amendment grounds the use
of a roadblock to perform warrantless and suspicionless
searches of automobiles for the purpose
of drug interdiction. Indianapolis v.
Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed.
2d 333 (2000).
When an officer seeks a search warrant, he
or she must present evidence to a judge or magistrate.
The evidence must be sufficient to establish
probable cause that evidence of a crime will
be found at the place to be searched. Probable
cause is a level of belief beyond mere suspicion
but short of full certainty. Whether an officer
can establish probable cause to obtain a search
warrant depends on the facts of the case. For
example, if an arrested person is discovered with
a small amount of marijuana, this alone will not
justify a search of the person’s home.However, if
the person is discovered with a large amount of
marijuana, the quantity may support the suspicion
that more marijuana may be found in the
person’s home, and the large amount may be
used as the basis for obtaining a search warrant.
Police officers seeking a search warrant must
state, under oath and with particularity, the facts
supporting probable cause. If the search warrant
is later found to be lacking in probable cause, or
if important statements made by the officers are
found to have been intentionally misleading, the
evidence seized pursuant to the warrant might
not be admissible at trial.Moreover, if the search
goes beyond the scope granted in the warrant,
the evidence seized as a result of that encroachment
might not be admissible at trial. For example,
if the warrant states that the officers may
search only the suspect’s apartment, they may
not expand the search to a storage closet outside
the apartment.
In executing a search warrant pursuant to
the Fourth Amendment, law enforcement officers
may enter private property without knocking
or announcing their presence if the officers
have reasonable suspicion that knocking and announcing would be dangerous, futile, or
would inhibit an effective criminal investigation
by allowing the destruction of evidence. While
the lawfulness of a “no-knock” entry does not
depend on whether property is subsequently
damaged during the search, excessive or unnecessary
destruction of property in the course of
the search might violate Fourth Amendment
rights, even though the entry itself is lawful and
the fruits of search are not subject to suppression.
United States v. Ramirez, 523 U.S. 65, 118 S.
Ct. 992, 140 L. Ed. 2d 191 (1998).
The Exclusionary Rule
The EXCLUSIONARY RULE protects the right
to be free from unreasonable searches. This rule
holds that otherwise incriminating subject matter
that police officers have obtained illegally
must be excluded from evidence. Along with the
right of appeal, the exclusionary rule is a defendant’s
chief remedy for a violation of his or her
rights in a criminal procedure.
The exclusionary rule deters POLICE MISCONDUCT
in searches.Without the admission of
the evidence at trial, the case against the alleged criminal may be dismissed, and the officer’s
actions in gathering that evidence will have been
wasted effort. The exclusionary rule also prohibits
the use of evidence obtained in violation
of other constitutional rights, such as statements
of the accused that are elicited in violation of the
right against self-incrimination.
The most important exception to the exclusionary
rule is the good-faith exception. Essentially,
the good-faith exception allows the use of
evidence obtained in violation of a person’s constitutional
rights if the officer who obtained the
evidence acted in a reasonable manner. If evidence
is illegally seized and does not fall under
an exception but is erroneously admitted at trial
by the judge, a guilty verdict will be reversed on
appeal if the prosecution cannot show BEYOND A
REASONABLE DOUBT that the evidence did not
contribute to the conviction.
When officers have collected evidence pursuant
to a search warrant, the burden is on the
defendant to show that the warrant lacked
probable cause or that other problems tainted the
collection process. For a warrantless search, the prosecution bears the burden of proving that
the search was reasonable. However, before evidence
seized during a warrantless search will be
excluded from trial, the defendant must prove
that he or she had a reasonable expectation of
privacy in the place that was searched. Homeowners,
for example, enjoy a reasonable expectation
of privacy in items that they keep inside their
homes. However, houseguests might not have a
similar expectation of privacy in the homes they
are visiting, especially when they do not stay
overnight and their sole purpose for being inside
the house is to participate in criminal activity
such as a drug transaction. Minnesota v. Carter,
525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373
(1998). Disputes over the application of the
exclusionary rule are usually resolved at a pretrial
proceeding called a “suppression hearing.”
Arrest
The general rule is that to make an arrest, the
police must obtain an arrest warrant. However,
if an officer has probable cause to believe that a
crime has been committed, and there is no time
to obtain a warrant, the officer may make a warrantless
arrest. An officer also may make a warrantless
arrest of persons who commit a crime
in the officer’s presence.
An invalid arrest is not generally a defense to
prosecution. However, if an arrest is unsupported
by probable cause, evidence obtained
pursuant to the invalid arrest can be excluded
from trial.
When an arrest is made, the arresting officer
must read the Miranda warnings to the arrestee.
These warnings apprise an arrestee of the right
to obtain counsel and the right to remain silent.
If these warnings are not read to an arrestee as
soon as he or she is taken into custody, any
statements that the arrestee makes after the
arrest may be excluded from trial.
After the arrest, the police must follow certain
guidelines during their investigations. For
example, if the arrestee requests an attorney or
expresses a wish to remain silent, the officers
must honor the request and refrain from questioning
the arrestee. However, the police may
attempt to confirm that they have arrested the
right person. They may do so by showing a victim
a photo array that includes a picture of the
suspect; by arranging a lineup of live persons at
the police station, with the suspect included in
the lineup; or by organizing a show-up, which is
a personal showing of the arrestee to the victim
shortly after commission of the crime.
Where photo arrays or lineups are used, the
police must refrain from highlighting the
arrestee. For example, if an arrestee is white, an
officer may not show a witness a series of photographs
in which all of the other subjects are
black. If an identification procedure is too suggestive,
any identification by the victim may be
excluded from trial.
Trial
At trial, a criminal defendant has a number
of constitutional rights, including the RIGHT TO
COUNSEL, the right to a public trial, the right to
a trial by jury, the right to a fair and impartial
trial, the right to confront witnesses in court, the
right to compulsory process to obtain witnesses,
and the PRIVILEGE AGAINST SELF-INCRIMINATION.
Violation of any of these rights may result
in the reversal or vacation of a conviction on
appeal.
There are exceptions and nuances to most of
the procedural trial rights. Under the Sixth
Amendment, if a defendant is indigent, or
unable to afford an attorney, the court will
appoint an attorney. This right applies only for
felony charges and cases in which actual imprisonment
may be imposed. Accordingly, an indigent
who is not represented by counsel at trial
may not be sentenced to incarceration, regardless
of whether conviction of the offense warrants
incarceration (Scott v. Illinois, 440 U.S. 367,
99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). However,
a defendant will not be appointed an attorney
if the he or she is able to pay for a private
one.
A criminal defendant has the right to an
attorney from the first critical stage of the criminal
process through the end. An attorney must
be present at the request of the defendant during
such events as interrogation, lineup identifications
after charges have been filed, preliminary
hearings before the court, trial, and sentencing.
The Sixth Amendment right to counsel
includes the mandate that a defendant’s counsel
must be effective and not incompetent. Attorneys
must generally consult with their clients
about trial strategy and tactics, in order to be
effective and competent. However, a criminal
defense attorney’s failure to consult with a client
before deciding against filing a post-conviction
appeal does not necessarily render his or her
assistance ineffective or incompetent.While the
better practice would be for attorneys to always
consult with their clients regarding the possibility of appeal, the Sixth Amendment only
requires such consultation when there is reason
to believe either (1) that any rational defendant
would want to appeal; or (2) that this particular
defendant reasonably demonstrated to counsel
that he was interested in appealing. Roe v. Flores-
Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed.
2d 985 (2000).
A defendant is free to reject counsel and to
proceed pro se, or by self-representation. However,
a judge may disregard the defendant’s
request and appoint an attorney if the pro se
defendant engages in dilatory or disruptive tactics.
Additionally, state courts of appeal may disregard
a defendant’s request to represent himself
or herself on appeal without violating Sixth
Amendment rights.Martinez v. Court of Appeals
of California, Fourth Appellate Dist., , 528 U.S.
152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000)
The Sixth Amendment right to a trial by jury
does not guarantee a jury in all cases. The right
generally applies only in “serious cases”—which
are generally considered to be those in which
conviction can result in incarceration for more
than six months. When a jury trial is not guaranteed,
the trial court judge will hear the case
and make a decision.
In federal court, a jury verdict must be
unanimous. This directive is not applicable to
the states. In some states, a vote of nine out of
twelve jurors is sufficient to convict or to acquit.
States may even provide as few as six jurors. Six
is the minimum, because juries should represent
a cross section of the community. If a jury of six
is used, the verdict must be unanimous.
Under the Confrontation Clause of the Sixth
Amendment, a defendant has the right to crossexamine
all prosecution witnesses at trial. In
limited circumstances, the out-of-court statements
made by a witness who is absent from
court may be offered through the testimony of a
third party. Known as HEARSAY statements, this
type of evidence may be admitted if the statements
were made under oath and subject to
cross-examination by the defendant’s attorney,
and if the witness is unavailable to testify at trial
despite the best efforts of the prosecution. However,
a defendant’s Sixth Amendment right to
confront and to cross-examine the accuser in
open court is violated when the prosecution
introduces the incriminating hearsay statements
of a non-testifying co-defendant in a joint trial,
even if the defendant’s name is redacted from
the incriminating statements, because juries will
often realize that the redacted portions are referring
to the defendant.Gray v.Maryland, 523 U.S.
185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)
The Fifth Amendment privilege against selfincrimination
extends from the moment of custody.
A defendant need not make statements or
testify at trial, and that right is absolute. However,
with a sufficient showing of need by the
prosecution, self-incrimination may come from
sources other than the defendant’s statements or
testimony. For example, a court may force a
defendant to appear before witnesses for identification;
to provide handwriting or blood or
voice or fingerprint samples; or to repeat certain
words or gestures.
However, the mere fact that a defendant has
pled guilty to a criminal act does not waive the
privilege against self-incrimination during the
sentencing phase.As a result, a defendant has the
right to remain silent, during sentencing, about
facts that bear upon the severity of the sentence,
and the sentencing court may not draw an
adverse inference from the defendant’s silence.
Mitchell v. United States, 526 U.S. 314, 119 S. Ct.
1307, 143 L. Ed. 2d 424 (1999).
If the defendant does testify, he or she may
be questioned by the prosecutor about previously
inadmissible statements that contradict
that testimony. Thus, the Fifth Amendment
privilege against self-incrimination will not
apply if the defendant has made statements that
are contrary to testimony given on the witness
stand.Nor does the Fifth Amendment prohibit a
prosecutor from calling the jury’s attention during
closing arguments to the fact that the defendant
had the opportunity to hear all other
witnesses testify and to tailor his testimony
accordingly. The Fifth Amendment prohibits the
prosecution from commenting to the jury about
the defendant’s failure to testify at trial, but it
does not prohibit the prosecution from making
comments that impeach the defendant’s credibility
after her or she has testified. Portuondo v.
Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d
47 294 (2000).
The Compulsory Process Clause of the Sixth
Amendment gives a defendant the right to
obtain favorable witnesses. This means that the
defendant has the same power as the prosecutor
to subpoena witnesses. However, if the government,
acting in GOOD FAITH, deports a potential
defense witness (i.e., makes the witness leave the
jurisdiction), it does not violate compulsory
process rights.
The Sixth Amendment grants the right to
“an impartial jury of the State and district
wherein the crime shall have been committed.”
This clause gives a defendant the right to question
jurors for bias and prejudice. The right
belongs to both the defense and the prosecution,
and it is exercised in a proceeding called VOIR
DIRE. In voir dire, both sides are allowed to
question jurors and to reject a certain number of
jurors, until the jury pool is complete. The rejection
of jurors may not be based on race, sex, or
national origin.
At trial, the prosecution has the burden of
proving the defendant’s guilt beyond a REASONABLE
DOUBT. This level of belief is abstract and
has been described in a number of ways. The
best definition is that any doubt regarding the
defendant’s guilt should not be fanciful or conjured
up to avoid delivering a verdict of guilty.
This standard is reserved for criminal trials; it is
a higher standard than “a preponderance of the
evidence” and “clear and convincing evidence,”
the burdens of proof used in civil trials.
The vast majority of criminal cases are
resolved with a plea of guilty before, or sometimes
during, trial. Prosecutors may use their
discretion to reduce charges in exchange for a
guilty plea, in an arrangement known as a pleabargain.
A plea of guilty cannot be revoked after
a court has accepted it. Generally, it is appealable
only if the right to a trial was not knowingly,
intelligently, and voluntarily waived.
Prosecutors are often content with a pleabargain
because it satisfies the criminal justice
system’s goal of encouraging people to accept
responsibility for their actions, and because pleabargains
avoid costly, time-consuming trials. A
prosecutor also may agree to defer prosecution
and to drop charges after a specified period if the
defendant fulfills certain conditions. A defense
attorney may seek a plea-bargain if the evidence
against the defendant is overwhelming. Both
sides are free to reject any plea-bargains and to
proceed to trial.
If a defendant is acquitted of all criminal
charges, the prosecution may not subsequently
prosecute the defendant for the same act that
produced those charges. This right is derived
from the prohibition of double jeopardy that is
found in the Fifth Amendment. In a jury trial,
double jeopardy protection attaches when the
jury is impaneled and sworn in. For bench trials,
or cases presented to a judge only, double jeopardy
protection begins when the first witness is
sworn in. Under double jeopardy protection, the
prosecution may not deliberately cause a mistrial
if the trial is going poorly for the prosecution.
However, if the jury cannot reach a verdict,
and the court declares a mistrial, the defendant
may be retried for the same offense.
Generally, a defendant may not face both
federal and state prosecutions for the same
offense. One exception to this general rule is that
a defendant in state court may face charges in
federal court for the same act with the permission
of the attorney general, but only if the
offense is within the jurisdiction of the federal
court. For example, a conviction for driving
while intoxicated raises no federal concerns; federal
laws do not address that offense. Thus, the
attorney general may not authorize the federal
prosecution of a defendant who has been
acquitted in state court of driving while intoxicated.
The acquitted defendant may, however,
face a civil lawsuit for damages, because civil
actions do not put a person “in jeopardy of life
or limb,” and therefore double jeopardy does not
apply to them (U.S. Const. amend.V, cl. 2). Similarly,
the Double Jeopardy Clause is not violated
when a defendant faces both criminal and
administrative proceedings arising out of a single
wrongful act. Hudson v. United States, 522
U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).
Postconviction
Sentencing After conviction, a defendant
may be allowed to remain free until sentencing.
The decision on this issue is made by the court,
and it depends on the nature of the conviction
and the nature of the defendant’s perceived
character. For example, a court will not allow a
convicted murderer or rapist to remain free
until sentencing. A court may, however, allow a
nonviolent convict to post a bond and to remain
free pending sentencing.
Sentencing for a felony conviction is usually
heard by the court in a separate hearing held
several days or weeks after the verdict. At a
felony sentencing hearing, the prosecution
makes a recommendation of punishment, and
the defendant usually argues for leniency. For
lesser offenses, such as misdemeanors and violations,
sentencing may immediately follow the
verdict.
Judges generally have wide discretion to
craft individualized sentences within statutory
guidelines. However, states violate defendants’
Sixth Amendment right to trial by jury in capital
cases when they authorize the sentencing judge alone to determine the presence or
absence of aggravating factors required for the
imposition of the death penalty. Ring v. Arizona,
536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556
(2002). And where a capital defendant’s future
dangerousness is at issue and the only sentencing
alternative to death available to the jury is
life imprisonment without the possibility of
PAROLE, due process requires the court to allow
the defendant to inform the jury of his or her
parole ineligibility, either by a jury instruction
or in arguments by counsel. Shafer v. South Carolina,
532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed. 2d
178 (2001).
Sentencing can include any combination of
community service, FORFEITURE of property,
fines, and incarceration. Courts may also exercise
their sentencing discretion and order a term
of PROBATION.
Under state and federal forfeiture laws, law
enforcement authorities are authorized to confiscate
property of certain criminal defendants.
Under federal law, persons who have been convicted
of controlled-substance violations or
RACKETEERING schemes may be forced to relinquish
much of their PERSONAL PROPERTY,
including real estate, stocks, cash savings, and
vehicles. States also authorize forfeitures for the
violation of certain state laws, such as those
regarding controlled substances and the solicitation
of prostitution.
Probation releases a convicted defendant
into the community under the supervision of a
probation officer. This type of sentence is generally
reserved for first-time offenders, to give
them an opportunity to reform and rehabilitate.
A probationer will be called back into court
and sentenced to serve a term of incarceration if
he or she breaks the terms of the probation. For
example, suppose that a person who has been
convicted of marijuana possession and sentenced
to probation has been ordered to complete
treatment for chemical dependency and to
report to a probation officer twice a week. If the
probationer fails to complete these requirements,
the court may order the defendant to
serve a period of incarceration for the marijuana
offense.
If probation is revoked, the probationer is
entitled to counsel. However, an indigent probationer
is not automatically entitled to a courtappointed
attorney. Whether a probationer
receives free counsel depends on a number of
factors. Generally, the court will appoint an
attorney if an indigent probationer denies committing
the alleged act and faces lengthy imprisonment.
Under the Eighth Amendment prohibition
of cruel and unusual punishment, sentencing
and confinement in jail or prison may not
involve torture or barbarity. The Eighth Amendment
is also construed as meaning that the punishment
should fit the crime. For example, it
would be cruel and unusual punishment to sentence
a person who has been convicted of trespassing
to the same punishment as a person who
has been convicted of HOMICIDE.
With regard to the amount of punishment
that may be inflicted, the prohibition against
cruel and unusual punishment also bars punishment
that is clearly out of proportion to the
offense committed. The U.S. Supreme Court has
considered the issue of proportionality, particularly
in the context of the death penalty. In Coker
v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed.
2d 982 (1977), the Court held that death was a
disproportionate penalty for the crime of raping
an adult woman.
But the high court has held that the death
penalty itself is not inherently cruel, instead
describing it as “an extreme sanction, suitable to
the most extreme of crimes” (GREGG V. GEORGIA,
428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859
[1976]). Modern methods of administering
CAPITAL PUNISHMENT, such as shooting, hanging,
electrocution, and lethal injection, have
been upheld as constitutional by federal and
state courts. The U.S. Supreme Court has held
that statutes providing a mandatory death sentence
for certain degrees or categories of murder
are unconstitutional because they preclude sentencing
authorities from considering aspects of
a particular defendant’s character or record, or
from considering circumstances that might mitigate
a particular crime (see Lockett v. Ohio, 438
U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]).
In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct.
2595, 91 L. Ed. 2d 335 (1986), the Court held
that the Eighth Amendment prohibits states
from inflicting the penalty of death upon a prisoner
who is insane.
The U.S. Supreme Court has also ruled that
the execution of mentally retarded criminals
violates the Eighth Amendment’s guarantee
against cruel and unusual punishment. ATKINS
V. VIRGINIA, 536 U.S. 304, 122 S. Ct. 2242, 153 L.
Ed. 2d 335 (2002). Citing “evolving standards of
decency,” the Court stated that its decision was informed by a national consensus reflected in
deliberations of the American public, legislators,
scholars, and judges. Atkins overruled Penry v.
Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed.
2d 256 (1989), a decision rendered just 13 years
earlier. However, in Stanford v. Kentucky, 492
U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306
(1989), the Court found that there was no
national consensus prohibiting the execution of
juvenile offenders over age 15.
Appeal Contrary to popular belief, the U.S.
Constitution does not guarantee the right to
appeal a criminal conviction. Most states do
provide the right to an appellate review of criminal
convictions, to protect against trial court
errors. However, many states limit their review
of state court convictions by hearing only short
oral arguments and issuing decisions without
explanation.
Federal statutes grant criminal defendants in
federal court the right to appeal. Only one
review is granted as a matter of right, and this is
to a U.S. court of appeals. Review of state and
federal convictions in the U.S. Supreme Court is
discretionary.
Where a criminal appeal is granted by state
law as a matter of right, the court is required to
appoint an attorney to represent indigent defendants
on appeal. An indigent defendant is also
entitled to a free trial transcript or other means
of affording appellate review; this applies to any
indigent defendant, including one who is punished
only with a fine.
On appeal, the burden is on the defendant to
prove that an error occurred in the trial or that
the evidence was insufficient to convict. Appellate
courts reviewing a defendant’s challenge to
the appropriateness of a particular sentence
must generally apply a deferential standard of
review. Sentencing courts are in a better position
than are appellate courts to decide whether a
particular set of individual circumstances justifies
the imposition of a given sentence under the
sentencing guidelines, the U.S. Supreme Court
has observed. Burford v. United States, 532 U.S.
59, 121 S. Ct. 1276, 149 L. Ed. 2d 197 (2001).
Defendants must raise all claims of trial error in
their first appeal in order to preserve the claims
for future appeals.
Habeas Corpus Petitions After an incarcerated
defendant has exhausted all appeals without
success, he or she may file a writ of HABEAS
CORPUS. This is a civil suit against the warden of
the prison (in his or her professional capacity),
challenging the constitutionality of the incarceration.
There is no right to the assistance of an
attorney for habeas corpus petitions.
A habeas corpus petition is not another
appeal. The only basis for a writ of habeas corpus
is the deprivation of a constitutional right.
For example, an inmate may claim that he or she
was denied the assistance of counsel guaranteed
by the Sixth Amendment, because the defense
attorney was incompetent. But defendants generally
may not rely on habeas corpus proceedings
to challenge a federal sentence on the
ground that the prior state convictions upon
which the federal sentence was based had been
unconstitutionally obtained. Daniels v. United
States, 5532 U.S. 394, 121 S.Ct. 1567, 149 L. Ed.
2d 608 (2001).
Parole If an inmate is released on parole
and then violates the terms of the parole, he or
she must attend a hearing to determine whether
parole will be revoked. The parolee may be entitled
to the assistance of counsel at the revocation
hearing. This entitlement will depend on a number
of factors, including whether the parolee
denies committing the alleged acts, as well as the
rules of the parole board. If the parolee can
afford a private attorney, he or she is free to hire
one; there is no bar to representation in parolerevocation
hearings.
Inmates who seek parole often cite mitigating
factors that existed either before, after, or at
the time the crime was committed. However,
parole boards and related EXECUTIVE BRANCH
departments are under no obligation to give
mitigating evidence any weight, and may typically
reject an inmate’s request for parole without
providing any reason for doing so.
Accordingly, the federal Bureau of Prisons has
the authority to adopt regulations that categorically
deny early-release incentive to prisoners
whose current offense was a felony attended by
“the carrying, possession, or use of a firearm.”
Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.
Ed. 2d 635 (2001).
FURTHER READINGS
Arkin, Marc M. 1992. “Rethinking the Constitutional Right
to a Criminal Appeal.” University of California at Los
Angeles Law Review 39.
Israel, Jerold H., Yale Kamisar, and Wayne R. LaFave. 1993.
Criminal Procedure and the Constitution: Leading
Supreme Court Cases and Introductory Text. St. Paul,
Minn.:West.
PMBR. 1993. “Criminal Procedure.” Multistate Workbook.
vol. 2.Multistate Legal Studies.
CROSS-REFERENCES
Automobile Searches “Is the Fourth Amendment in Jeopardy?”
(In Focus); Custodial Interrogation; Incorporation
Doctrine; Prisoners’ Rights; Public Defender; Right to
Counsel.

The Stages of a Criminal Prosecution

Acriminal prosecution usually
begins with an arrest. In some
cases, the arrest is the culmination of a
police investigation; in other cases, it may
occur with minimal police investigation.
Either way, the manner in which the
police investigate suspects and collect
evidence is almost always an issue in a
criminal case.
During an arrest, a criminal suspect
is advised of his or her Miranda rights.
These include the right to remain silent
and the right to an attorney. After arrest,
the defendant is subjected to a cursory
search for weapons and contraband.
The defendant is then
driven to the nearest jail, police
station, or detention center for
booking. During booking, the
defendant is photographed
and fingerprinted, and the
arrest is entered into the police
log, or blotter. The defendant is informed
of the charge or charges if she or he has
not already been so informed. The defendant
is also allowed to make one telephone
call. After being stripped of all
personal items, belts, and shoelaces, the
defendant may be placed in a holding
cell to await presentation before a magistrate.
For misdemeanors, which are less
serious than felonies, the defendant may
be released with the posting of a cash
bond and a promise to appear before a
magistrate.
While the person waits for this first
appearance before the court, a police
officer prepares a complaint against the
suspect. The complaint is a document
that describes the alleged crime. It is
screened by prosecutors and then submitted
to the court. The court reviews
the complaint to determine whether
there is sufficient legal basis to hold the
person in custody. If the magistrate finds
that the facts alleged do not establish
PROBABLE CAUSE to believe that the
suspect committed the crime, the magistrate
must dismiss the complaint and
order the release of the person from
custody.
The first appearance must
be held without unnecessary
delay. Many jurisdictions
impose a twenty-four-hour
limit on initial detention
before a hearing, but this limit
may extend to seventy-two
hours if the arrest is made on a
Friday.
In the first appearance, the magistrate
informs the defendant of the charge
or charges as set forth in the complaint.
The magistrate also informs the defendant
of his or her rights, such as the right
to remain silent and the right to an attorney.
If the defendant in a felony case is
not already represented by private counsel
and is unable to afford private counsel,
the court appoints an attorney. This is
usually a public defender, but it may be a
private defense attorney paid by the court
or working free of charge. In most states,
the attorney meets with and represents
the defendant in the first appearance. The
defendant in a misdemeanor case does
not always qualify for a free attorney.
If the magistrate finds probable
cause, the magistrate sets bail in the first
appearance. Bail consists of the conditions
the defendant will have to meet to
gain release from custody pending trial.
Acceptable bail is usually cash or other
liquid assets. Bail is intended to guarantee
the defendant’s appearance at trial. In
some jurisdictions, if the magistrate
determines that the defendant presents a
danger to the community or may attempt
to flee, the magistrate may refuse to set
bail. In such a case, the defendant is
forced to remain in jail until the case is
resolved.
If the charge is a misdemeanor, the
first appearance serves as an ARRAIGNMENT,
where the defendant enters a plea
of guilty or not guilty. The magistrate
then allows the defendant to post bail or
leave on her or his own recognizance,
with the understanding that the defendant
will reappear for trial.
Following the first appearance, a
felony case proceeds to a PRELIMINARY
HEARING. Before this hearing is held, the
prosecutor and the defense attorney
communicate to see if there is any possibility
of a plea bargain, or a mutually
acceptable disposition of the case. If a
deal can be reached, and it is acceptable
to the defendant, it is presented to the
court for approval at the preliminary
hearing.
The preliminary hearing is conducted
by the magistrate to determine
whether the prosecution has sufficient
evidence to continue the prosecution.
Unlike the first appearance, the preliminary
hearing is adversarial. The prosecutor
relies on witnesses to present the
prosecution’s evidence, and the defendant
may do the same. Both sides are
allowed to question, or cross-examine,
the opposing side’s witnesses. After this
hearing, the court may dismiss the
charges if they are not supported by
probable cause.
In some states, review by a GRAND
JURY is also required before a felony
prosecution may continue; this review is
not required for a misdemeanor prosecution.
A grand jury is a group of private
citizens summoned to review, in private,
the prosecution’s evidence. Generally, a
grand jury consists of more jurors than a
trial jury, which usually numbers twelve.
In a grand jury proceeding, the prosecutor
presents the evidence against the
defendant to the grand jurors, and the
grand jurors may ask questions of the
prosecutor. The prosecutor then presents
a proposed indictment, or a written accusation
sworn to by the prosecutor. If a
majority of the grand jury finds no probable
cause for the prosecution, it returns
a no bill, or a refusal of the indictment. If
a majority finds probable cause, the
grand jury returns a true bill, and prosecution
continues.
Following a true-bill finding by a
grand jury, the prosecution files the
indictment with the trial court.Where no
grand jury was required and only a preliminary
hearing was held, the prosecution
files an information, which is similar
in form to an indictment but written and
approved by the prosecutor alone.
After the indictment or information
courts review criminal convictions for
trial court errors. They rarely overturn
verdicts on evidentiary bases. Even if an
appeals court finds a trial court error, it
will affirm the conviction if it feels the
error did not affect the outcome of the
case.
Generally, state court defendants
appeal to a first court of appeals, then to
the highest state court (usually the state
supreme court), and then to the U.S.
Supreme Court. In federal cases, defendants
appeal to a U.S. court of appeals
and then to the U.S. Supreme Court. The
review of appeals after the first appeal is
discretionary; that is, the court may
decline to hear the case.
After exhausting all appeals, a defendant
sentenced to incarceration may collaterally
attack the conviction and
sentence. This means the defendant
attacks the conviction in an action other
than an appeal. The most common
method of collateral attack is submission
of a petition for a writ of HABEAS CORPUS.
This is a civil action against the warden
of a prison, challenging the legality of
the imprisonment. If the court approves
the writ, the inmate must be set free.
A habeas corpus petition is not an
appeal; courts will grant a writ of habeas
corpus only if the defendant can prove
that the court that sent the petitioner to
prison was actually powerless to do so or
that such detention violated the petitioner’s
constitutional rights. Generally,
an inmate will ask for the writ in state
court before filing in federal court.
All states also have a procedure in
place to hear claims of newly discovered
evidence. However, no relief is granted if
the new evidence would not have made a
difference in the verdict.
Some inmates are given early release
from prison, or PAROLE. Parole is
granted by the state or federal parole
board or correctional board. It allows the
inmate to finish the prison sentence in
the community. The court requires a
paroled defendant, or parolee, to meet
certain conditions on release and to meet
regularly with a parole officer for the
duration of the sentence.
In some states, if the conviction was
for first-degree murder, the defendant
may be sentenced to death. Where the
sentence is death and the defendant has
lost all appeals and collateral attacks, the
defendant may ask the governor of the
state for clemency. For federal crimes, the
president retains the power of clemency.
Clemency is forgiveness and mercy, and it
usually comes in the form of a pardon or
of a commutation of a sentence. A pardon
releases the inmate from custody
and restores his or her legal rights and
privileges, such as voting and gun ownership.
A commutation decreases or
suspends an inmate’s sentence. A commutation
is a lesser form of clemency
because it does not restore the legal rights
of the inmate.

CROSS-REFERENCES
Criminal Procedure; Double Jeopardy.