Law of Criminal Procedure

Date: 2015-10-07; view: 440.

Once a crime has been committed, criminal law defines every phase of procedure from the investigation, through the trial, to the type and length of punishment if there is a conviction. In the investigatory phase the police play a primary role in the pretrial stage. They are responsible for the arrest of suspects, searching and investigating suspects' and victims' homes for evidence, the questioning of witnesses, and the carrying out of searches and seizures. A warrant empowers police to arrest a suspect or to search premises and seize property to obtain evidence.

Once a suspect is in custody, charges are brought against him by a prosecuting attorney or by a grand jury. The suspect is normally granted a pretrial hearing before a judge, at which time the charges against him are read. At this hearing the judge determines whether there is sufficient evidence to justify further action.

All defendants have a right to legal representation from the time of their arrest. The defense lawyer takes part in all procedures from the pretrial hearing to post-conviction stage.

Private citizens have the right to bring charges against a person they think has committed a crime. This is most often done by contacting the police. There are some offenses for which there is no prosecution unless the victim decides in favor of prosecution.

Defendants in criminal trials have the right to a jury, but they can choose to be tried before a judge only. Some nations do not have the jury system; it has been almost entirely abandoned in Europe, surviving only in Austria, Belgium, Norway, and parts of Switzerland. If a defendant admits before the court to being guilty there is no need to call a jury.

In Anglo-American law evidence is presented by both the prosecution and the defense. The function of the judge is to enforce the rules regarding evidence and to ask questions to clarify the facts. In European procedures one of the main tasks of the judge is to get evidence by questioning witnesses and experts. Defendants do not have the right to take the stand to testify in their behalf as they do in British and American trials. Instead they are questioned by the presiding judge but they may choose to keep silent.

A basic rule of criminal law is that guilt must be established beyond a reasonable doubt. The burden of proof rests upon the prosecution. This is the basis of the often-heard “A person is innocent until proven guilty”. American law generally requires that every person on a jury must agree on a person's innocence or guilt before they reach a verdict, but in European law a two-third majority of the judges is sufficient for a verdict. Once a defendant has been found guilty, the sentencing takes place at a special hearing before a judge. In crimes that can be punished by death, a jury may be asked to pass sentence or at least express an advisory opinion.

After a conviction, or verdict of guilty, the defense lawyer may ask for a new trial on the grounds that the evidence was insufficient to support the verdict, that the court was mistaken in its ruling on admission of evidence, or that new evidence has come to light. The legality of the conviction may also be challenged by an appeal to a higher court.

In the United States a case may be appealed all the way to the Supreme Court after it has been heard by lower courts of appeal. Great Britain, too, has an appeals system, proceeding from magistrates' courts all the way to the House of Lords, the supreme court of the United Kingdom. Upon appeal the original verdict may be upheld, the verdict may be set aside and a new trial ordered, or the verdict may be reversed and the defendant released.