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Criminal Procedure, body of law regulating the inquiry into whether
a person has violated criminal law. Criminal procedure governs
the investigation of crimes; the arrest, charging, and trial of
accused criminals; and the sentencing of those convicted (found
guilty of a crime). It also regulates the convicted person's possible
appeal for review of the trial court's decision.
II JUDICIAL SYSTEMS Legal systems based on the common law tradition,
such as those in England, Canada, and the United States, are typically
contrasted with civil law systems, which are found in many Western
European countries, much of Latin America and Africa, and parts
of Asia. Civil law and common law systems have entirely different
approaches to criminal procedure. Most countries with civil law
systems use what is known as the inquisitorial system. Common
law countries use what is called the adversarial system.
A Inquisitorial System The inquisitorial process is characterized
by a continuing investigation conducted initially by police and
then more extensively by an impartial examining magistrate. This
system assumes that an accurate verdict is most likely to arise
from a careful and exhaustive investigation. The examining magistrate
serves as the lead investigator-an inquisitor who directs the
fact-gathering process by questioning witnesses, interrogating
the suspect, and collecting other evidence. The attorneys for
the prosecution (the accuser) and defense (the accused) play a
limited role in offering legal arguments and interpretations that
they believe the court should give to the facts that are discovered.
All parties, including the accused, are expected (but not required)
to cooperate in the investigation by answering the magistrate's
questions and supplying relevant evidence.
The case proceeds to trial only after completion of the examining
phase and the resolution of factual uncertainties, and only if
the examining magistrate determines that there is sufficient evidence
of guilt. Under the inquisitorial approach, the trial is merely
the public finale of the ongoing investigation. At this point,
the accused assumes the burden of refuting the prima facie (apparent)
case of guilt developed in the examining phase. Critics argue
that the inquisitorial system places too much unchecked power
in the examining magistrate and judge, who both investigate and
adjudicate (legally determine) the case.
B Adversarial System In a common law system, an adversarial approach
is used to investigate and adjudicate guilt or innocence. The
adversarial system assumes that truth-that is, an accurate verdict-is
most likely to result from the open competition between the prosecution
and the defense. Primary responsibility for the presentation of
evidence and legal arguments lies with the opposing parties, not
with a judge. Each side, acting in its self-interest, is expected
to present facts and interpretations of the law in a way most
favorable to its interests. The approach presumes that the accused
is innocent, and the burden of proving guilt rests with the prosecution.
Through counterargument and cross-examination, each side is expected
to test the truthfulness, relevancy, and sufficiency of the opponent's
evidence and arguments.
The adversarial system places decision-making authority in the
hands of neutral decision makers. The judge ascertains the applicable
law and the jury determines the facts. The system emphasizes procedural
rules designed to ensure that the contest between the parties
is a fair fight. Critics of the adversarial approach argue that
the pursuit of winning often overshadows the search for truth.
Furthermore, inequalities between the parties in resources and
in the abilities of the attorneys may distort the outcome of the
III CRIMINAL PROCEDURE IN THE UNITED STATES The English colonists
who came to North America in the 17th century brought their legal
traditions with them. After the American Revolution (1775-1783),
the English common law-including the adversarial approach to criminal
procedure-remained as the basis of law in the United States.
The United States has a federal system, meaning that power is
divided between a central authority and many state or local authorities
(see Federalism). Thus, there are 51 different sets of criminal
procedural law in the United States-that of the federal government
and one for each of the 50 states. In addition, separate criminal
procedures exist for military courts and for federal territories.
The procedures adopted by each state and the federal government
vary. However, the shared heritage of the English common law provides
significant similarities in the basic structure of the process.
Furthermore, the Constitution of the United States imposes some
limitations on the states in formulating their criminal procedure.
A Federal Criminal Procedure A person prosecuted in the federal
courts on a charge of violating a federal criminal law is subject
to federal criminal procedure. Federal procedure is governed,
first of all, by certain provisions of the U.S. Constitution,
especially those contained in the Bill of Rights (the first ten
amendments to the Constitution). The Constitution guarantees certain
procedural rights that the government must afford a federal criminal
defendant, unless the defendant knowingly and voluntarily waives
(surrenders) these rights (see Constitution of the United States:
Rights of the Accused).
The Fourth Amendment protects citizens from unreasonable searches
and seizures and describes how law enforcement officials can obtain
warrants (court orders permitting a search or arrest). The Fifth
Amendment protects individuals accused of crimes from having to
testify against themselves and from being tried more than once
for the same offense. It also requires that any criminal charges
result from the proceedings of a grand jury-a body of citizens
convened to determine whether sufficient evidence exists to have
Finally, the Fifth Amendment requires that government procedures
adhere to due process of law, which means basic standards of fairness
and equity. Under the Sixth Amendment, a defendant is guaranteed
a speedy and public jury trial during which the defendant will
get notice of the charges he or she faces and may call witnesses
and face his or her accusers. The Sixth Amendment also guarantees
that the trial will take place in the district where the alleged
crime was committed and that the defendant will have the assistance
of legal counsel. The Eighth Amendment prohibits excessive bail,
excessive fines, and cruel and unusual punishments.
These constitutional guarantees provide a starting point for
federal criminal procedure. The Federal Rules of Criminal Procedure,
issued by the Supreme Court of the United States and enacted by
the Congress of the United States in 1945, supplement the constitutional
guarantees. The rules contain detailed provisions relating to
the pretrial, trial, and appeal stages of federal prosecutions.
Other details of federal criminal procedure are covered in federal
statutes enacted by the U.S. Congress. Finally, a substantial
part of the law of federal criminal procedure is found in the
reported decisions of the federal courts.
B State Criminal Procedure A person prosecuted in the courts
of a particular state on a charge of violating the criminal laws
of that state is subject to state criminal procedure. State criminal
procedure is found in the constitution, statutes, rules, and judicial
decisions of that state. Furthermore, portions of the U.S. Constitution
are applicable to state criminal defendants.
State constitutions generally guarantee a state criminal defendant
most of the same rights that a federal defendant is provided by
the Bill of Rights. Some states have provisions that vary from
federal constitutional requirements. For example, in a number
of states criminal charges need not result from the proceedings
of a grand jury. Instead, a judge determines whether or not the
accused person should be tried after reviewing the evidence during
a preliminary hearing. States may provide greater rights for criminal
defendants than the U.S. Constitution guarantees.
The Supreme Court of the United States has required states to
provide to criminal defendants most of the procedural guarantees
in the U.S. Constitution. For example, states must recognize the
Fifth Amendment right to avoid self-incrimination. In addition
to these specific rights, the states are required by the U.S.
Constitution to guarantee due process. The 14th Amendment, passed
after the American Civil War (1861-1865), reads in part, "nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws." Like the
5th Amendment, which applies to federal criminal procedure, the
14th Amendment requires the states to maintain certain minimum
standards of fundamental fairness in their laws concerning criminal
procedure. For instance, prosecutors may not systematically exclude
members of a particular race or gender from a jury. State convictions
that result from proceedings that violate the minimum standards
required by the 14th Amendment can be set aside by the federal
courts through the process of appeal if the state courts themselves
do not do so first.
IV JURISDICTION For a criminal conviction to be valid, both the
sovereign power (the state or federal government) and the specific
court that tries the accused must have jurisdiction (authority)
over the crime charged. Jurisdiction refers to a court's authority
to hear and decide a case. The jurisdiction of state courts is
restricted by the geographical boundaries of the state. Jurisdiction
is also limited by the type or subject matter of a case. For example,
a family court with jurisdiction over child custody and placement
cannot try a murder case.
According to the laws of some states, a crime is committed in
only one place and only the sovereign that controls that place
has the power to try the accused for the wrongdoing. Therefore,
if a woman standing in one state shoots and kills a man who is
just over the state line in another state, the murder is committed
in the state where the lethal bullet hit the victim. Only the
state where the victim was injured has jurisdiction to try the
woman. However, some states have enacted statutes conferring jurisdiction
on the state where the crime was partly committed.
Because in many instances only the state where the crime was
committed may prosecute the accused, laws have been enacted providing
a process for acquiring custody of individuals accused of committing
a crime in one state who then flee to another state or country.
The U.S. Constitution provides for interstate extradition-that
is, each state must surrender people who flee to that state upon
a request by another state in which the person is accused of committing
a crime. Many countries have adopted treaties that specify how
suspected criminals who flee from one country to another can be
returned to the country from which they fled.
V PRETRIAL EVENTS The rules of criminal procedure affect many
actions prior to the formal trial of the defendant. Even before
a suspect is arrested, certain procedural rules govern the activities
of the police and the rights of the suspect. After an arrest is
made, a series of events takes place leading up to either release,
a guilty plea, or a trial to determine the accused person's guilt
or innocence. All of these events are governed by the rules of
criminal procedure. Because each jurisdiction develops its own
procedures, the names of the various pretrial proceedings and
the order in which they occur vary.
A Investigation and Arrest The first step in a criminal prosecution
is normally the arrest of the suspect. Arrests can be made with
or without a warrant (a document issued by a court prior to an
arrest that clearly specifies the nature of the offense for which
the suspect is being arrested). An arrest is the process of taking
a person into custody for the purpose of charging that person
with a crime. An arrest is typically preceded by a prearrest investigation
in which the police seek to determine (1) whether a crime was
actually committed; and (2) if it was committed, whether there
is sufficient information pointing to the guilt of a particular
individual to justify arresting that person.
The prearrest investigation may involve, among other techniques,
personal observation by a police officer, questioning of witnesses
and the suspect, and collecting and examining physical evidence
left at the scene of a crime (see Crime Detection). Before questioning
a suspect in custody, the police must inform him or her of certain
legal rights, including the right to remain silent and the right
to have an attorney present during questioning. These Miranda
warnings are named after the 1966 Supreme Court case, Miranda
v. Arizona, in which the Court declared the necessity of such
A judge may issue an arrest warrant if either a police officer
or a private person swears under oath that the accused has committed
a crime, or that a crime has been committed and there is probable
cause for believing the accused committed it. For certain crimes,
a summons may be used in place of an arrest. A summons is a formal
document notifying a person that he or she is required to appear
in court to answer a charge. A police officer may properly make
an arrest without a warrant if a felony (serious crime) is committed
or attempted in the officer's presence, or if the officer reasonably
believes a felony has been committed and that the accused did
it. A police officer may also make an arrest for any misdemeanor
(minor offense) committed or attempted in the officer's presence.
Even a private citizen may properly make a warrantless arrest
in certain limited circumstances, but such citizen's arrests are
B Booking Once the suspect has been taken into custody and transported
to a police facility, he or she is booked. Booking is the clerical
process by which an administrative record is made of the arrest.
The name and address of the person arrested (sometimes referred
to as the arrestee), the time and place of arrest, the name of
the arresting officer, and the arrest charge are entered in the
police log. Booking can also involve searching, fingerprinting,
photographing, and testing the arrestee for drugs and alcohol.
If booked on a minor offense, the arrestee may be able to obtain
release immediately by posting cash (known as station house bail)
as security to ensure his or her appearance before a magistrate
at a later date. If arrested on a serious offense, the accused
will be placed in a holding facility to await the filing of an
initial charging document (complaint) and a first appearance before
a judge or magistrate.
C First Judicial Appearance Within a reasonable time after the
arrest, the accused must be taken before a magistrate and informed
of the charge. The magistrate will ascertain that the person before
the court is, in fact, the individual referred to in the complaint.
The magistrate also will notify the accused of various legal rights,
such as the right to remain silent and the right to assistance
of counsel. If the accused is indigent (poor) and desires the
assistance of an appointed attorney, the process for securing
an attorney at the state's expense will be initiated. In some
jurisdictions, the government retains a staff of attorneys, known
as public defenders, specifically to defend those who cannot afford
a private attorney. Public defenders specialize in criminal law.
In other areas, the court appoints private lawyers from the community
to represent indigent defendants. Some areas have a mix of the
In most jurisdictions, either before or during the first appearance,
the magistrate will review the evidence to ensure that the arrest
and complaint are supported by sufficient information to establish
probable cause to believe the accused committed the crime charged.
If temporary pretrial release was not secured at an earlier stage,
the magistrate will consider whether the accused is entitled to
be released on bail and, if so, the conditions the accused must
meet to gain release from custody pending the trial. If charged
with a minor offense, the accused may be asked to enter a plea
regarding his or her guilt or innocence, and the magistrate may
have the authority to proceed to trial if the defendant has pled
not guilty. If the accused is charged with a serious offense,
he or she does not enter a plea at the initial appearance.
D Bail: Bail refers to the security that the accused gives to
the court to guarantee his or her appearance at subsequent judicial
proceedings. The accused person's promise to return for trial
is secured by some form of collateral, such as money or property,
that the accused forfeits if he or she does not show up for trial.
The bail system attempts to balance the due process rights of
the accused with the state's need to ensure that a person accused
of a crime will return for trial. The amount of bail is fixed
by the judge or magistrate.
Although a money bail system is in place in many states, the
trend is to encourage the release of accused persons without attaching
financial conditions. If the court believes the accused is likely
to return for further proceedings, the court may release the accused
on his or her own recognizance-that is, an unsecured promise to
return. On the other hand, most jurisdictions either authorize
or require magistrates to deny bail for individuals who have demonstrated
a high risk of fleeing, such as individuals charged with an offense
committed while out of jail on bail, parole, or probation. Similarly,
bail is typically unavailable for people charged with offenses
that could result in capital punishment (the death penalty). In
some jurisdictions, the accused may be preventively detained prior
to trial if the prosecution can demonstrate to the court that
he or she poses a danger to others.
E Preliminary Hearing or Indictment Under federal criminal procedure
and in about half of the states, a person must be indicted (formally
charged) by a grand jury before a felony trial can take place.
Other states provide for a preliminary hearing, also called a
preliminary examination, after the initial judicial appearance.
In a few states a prosecutor may take a case to a preliminary
hearing, or avoid that public process by going to a grand jury,
which holds its proceedings in secret.
In both types of proceedings, a neutral body-either a group of
citizens or a judge-reviews the case against the accused and decides
whether he or she should be tried. These proceedings are designed
to review the government's decision to prosecute in order to prevent
governmental abuse of power. If, after hearing the evidence, the
presiding judge or grand jury finds there is probable cause to
believe the accused committed the offense, legal proceedings against
the accused continue. If the prosecution's evidence is found insufficient,
the charges are dismissed and the accused is released. However,
the person can be rearrested and recharged if the prosecutors
develop or find further evidence supporting the charge.
The grand jury typically hears only the evidence presented by
the prosecution. The accused does not have a right to be present
at grand jury proceedings, which are conducted in secret, or to
present evidence or cross-examine the prosecution's witnesses.
However, some states permit someone under investigation to present
evidence to the grand jury under certain circumstances. If the
grand jury finds sufficient evidence to justify a trial on the
crime charged, it issues an indictment-a formal document containing
a plain statement of the facts constituting the offense charged.
A preliminary hearing is a public, adversarial proceeding in
which the prosecution and the defense briefly present their cases
to a judge. The accused, represented by counsel, is entitled to
challenge the prosecution's evidence and introduce evidence on
his or her own behalf. The judge decides whether sufficient evidence
exists to justify a trial. As an alternative to grand jury indictment,
the prosecutor can issue an information, a document roughly equivalent
to an indictment.
The indictment or information replaces the complaint as the formal
charging document in the case. Once the formal accusation has
been issued, the accused is referred to as the defendant. A copy
of the accusation is given to the defendant before he or she is
F Arraignment on the Indictment or Information At the arraignment,
which takes place in the court in which the defendant will be
tried, the indictment or information is read. The defendant is
called upon to answer the charge by pleading not guilty, guilty,
or nolo contendere (no contest). Before pleading, the defendant
may file a formal document, known as a motion, asking the court
to dismiss the case. A judge can dismiss the charges if, for example,
he or she concludes that the grand jury was not properly assembled
or determines that the conduct charged does not constitute a crime.
If the defendant does not make such motion or if the court denies
the motion, the defendant must enter a plea.
If the defendant pleads guilty, there is no trial and the case
is set for sentencing. With the court's permission, the defendant
may be allowed to plead nolo contendere. This plea has the same
consequences as entering a guilty plea, but it does not require
the defendant to admit guilt. A plea of nolo contendere can be
especially important if a person charged with a crime also faces
a civil lawsuit stemming from the same event. If the defendant
pleads guilty to the criminal charge, the plea can be used against
the defendant in a civil lawsuit. If the defendant refuses to
enter a plea, a not guilty plea is entered. Some states have added
a special plea of not guilty by reason of insanity (see Criminal
Law: Defenses). If the defendant pleads not guilty, the case is
set for trial.
GPreparation for Trial The defendant is entitled to a speedy
trial, although not so speedy as to deny sufficient time to prepare
an adequate defense. The defendant may ask for a postponement
if more time is needed. Although the defendant is entitled to
be tried in the county or district where the crime was committed,
he or she may file a motion asking the court for a change of venue-that
is, a move of the trial to a court in another locality. A change
of venue is common when a fair trial in the district would be
impossible due to pretrial publicity or public hostility to the
defendant. Prior to the trial, the prosecutor is required to turn
over to the defendant information favorable to him or her on issues
that will be tried.
The defense may file a variety of pretrial motions objecting
to various aspects of the prosecution. These motions may challenge
the sufficiency and form of the charging documents or the composition
and conduct of the grand jury. Or they might request that the
prosecution share the evidence it has obtained. If the defense
believes that the prosecution's evidence has been obtained illegally,
the defendant may file a motion to suppress the evidence. If the
court grants such a motion, the prosecutor will not be permitted
to introduce the evidence at trial.
VI TRIAL A criminal defendant who pleads not guilty is entitled
to a public trial and has the right to be present at the trial.
During the trial a judge or jury determines whether the defendant
is guilty or not guilty based upon the application of criminal
law to the facts of the case. The criminal defendant must be given
the opportunity to confront and cross-examine the prosecution's
witnesses and to present evidence in his or her own defense.
A Jury The criminal defendant generally is entitled to a trial
by jury in all felony cases and in any misdemeanor case punishable
by more than six months imprisonment. A typical state jury trial
includes between 6 and 12 jurors, who must decide unanimously
whether to acquit or convict. A few states permit conviction on
less than a unanimous verdict in some cases. Federal juries consist
of 12 persons, and their verdict must be unanimous. The jurors
must be impartial and the jury must represent a fair cross-section
of the community. The exclusion of prospective jurors solely on
the basis of race or gender violates the U.S. Constitution.
Briefly, a jury trial consists of (1) the selection of the jury;
(2) opening statements by prosecution and defense attorneys during
which each side states what it expects to prove; (3) the presentation
of evidence (first by the prosecution, then by the defense) and
the questioning of witnesses; (4) closing arguments in which each
side states what the evidence has proved or failed to prove; (5)
instructions by the trial judge to the jury concerning the law
to be applied to the facts that the jury may find; (6) the jury's
deliberations and verdict (formal decision); and (7) the sentence,
if the verdict is guilty.
B Evidence The evidence presented by the prosecution or by the
defense may consist of the oral testimony of witnesses, documentary
evidence, and physical evidence, such as a murder weapon with
the defendant's fingerprints on it. During direct examination,
the oral testimony of witnesses is first presented by the party
(prosecution or defense) who called the witness. The witness is
then subject to a cross-examination, in which the opposing party
attempts to discredit the testimony or demonstrate that it is
incomplete. Following cross-examination, the original party may
conduct a redirect examination of the witness in order to explain
away matters brought out on cross-examination. The opposing party
may then recross-examine the witness.
The privilege against self-incrimination allows the defendant
to decline to take the witness stand in his or her own defense.
It also generally entitles the defendant to have the judge instruct
the jury that failure to testify shall not be taken as evidence
of guilt. The prosecution must not knowingly use perjured (false)
testimony against the defendant or suppress evidence favorable
to the defendant. Generally speaking, the prosecution may not
use evidence obtained in violation of the defendant's constitutional
rights. For example, evidence collected during an unreasonable
police search or confessions obtained by torture are inadmissible
at the trial to prove the defendant's guilt.
C Trial Motions When all of the prosecution's evidence has been
presented and the prosecution rests its case, the defense often
asks the trial judge to direct the jury to return a verdict of
acquittal (not guilty). The defense's motion for a directed verdict
is based on the premise that the prosecution's evidence, even
when viewed in the light most favorable to the prosecution, fails
to prove that the defendant committed the crime charged. If the
motion is granted, the defendant is acquitted. If it is denied,
the defendant may then present evidence in opposition to the prosecution's
evidence. After the defense rests-that is, finishes presenting
its evidence-the defendant may renew the motion for a directed
verdict. If the judge again denies the motion, the case goes to
the jury after the judge provides instructions concerning the
D Burden of Proof In criminal cases, the defendant is presumed
innocent until the prosecution proves each element of the crime
beyond a reasonable doubt. Thus, the law requires the jury to
acquit the defendant unless it is convinced of the defendant's
guilt beyond a reasonable doubt. The jury in a criminal case may
not convict on a finding that the defendant's guilt is more likely
than not. On the other hand, the law does not require absolute
certainty. The standard for determining guilt is somewhere in
between these two standards of proof.
E Hung Jury A jury that is unable to agree on whether to convict
or acquit is called a hung jury. In some states the jury must
be unanimous in their verdict, whereas other states permit less
than unanimous verdicts in some cases. If the jury is unable to
reach a verdict, the defendant, not having been acquitted, may
be retried later before another jury. A retrial following a hung
jury does not violate the Fifth Amendment's prohibition against
double jeopardy, which generally prevents a person from being
tried twice for the same offense (see Jeopardy). The prosecution
may or may not choose to retry the accused.
VII MOTIONS AFTER TRIAL After a guilty verdict is issued, but
generally before sentencing, the convicted defendant may make
a motion for a new trial on the premise that a mistake prejudicial
(harmful) to the defendant was made at the trial. Prejudicial
errors include errors in the judge's rulings on the admissibility
of evidence or instructions to the jury, or some misconduct by
the jury, judge, or prosecutor. The defendant may also move for
a new trial based on the argument that the evidence was not sufficient
to support the jury's guilty verdict. A motion for a new trial
on the basis of newly discovered evidence that, had it been available
at the trial, might have resulted in an acquittal may be made
after the defendant has been sentenced; however, there is generally
a time limit on this. If the trial judge grants the motion for
a new trial, the conviction is set aside and the defendant may
be tried again by a new jury. If the motion is denied, the defendant
will be sentenced.
VIII SENTENCING Once guilt has been determined, either by verdict
following a trial or by the entry of a guilty plea, the defendant
must be sentenced. Generally, the trial judge imposes the sentence,
which must be within the statutory limits set by the legislature
for the crime in question. In a few states, the jury fixes the
sentence. Available sentences include fine, forfeiture (loss of
property), restitution, probation, some form of incarceration
or deprivation of liberty, or a combination of these. For certain
very serious offenses, the convicted offender may be sentenced
The sentencing options available to the judge are often defined
by the legislature. In jurisdictions that use indeterminate sentencing,
the judge has discretion to set the sentence at a maximum and
minimum term within a broad range permitted by law. Parole authorities
then determine the actual release date within those limits depending
on the prisoner's behavior and progress toward rehabilitation.
In contrast, a determinate sentence imposes a fixed term of incarceration
with no early release through parole. In jurisdictions that use
presumptive sentencing, the judge sentences the offender to a
term that falls within a narrow range prescribed by the legislature,
and offenders are expected to serve this term. However, a judge
may permit a departure from this presumptive sentence-either an
increase or decrease in the length of the term-if specific justification
is shown. Legislators often spell out in detail the factors that
justify a judge's departure from the presumptive sentence. Some
states have enacted statutes that provide for long and often mandatory
terms of imprisonment upon proof that the defendant has a prior
record of criminal activity.
A Probation Judges often have the option to place a convicted
offender on probation. Probation means the offender will remain
in the community (rather than be sent to jail) subject to certain
conditions prescribed by statute or by the judge. One condition
of probation is supervision by a probation officer. If the offender
violates the conditions of probation, probation can be revoked
and the offender can be incarcerated. See also Probation.
B Parole In many jurisdictions, a defendant sentenced to prison
may be eligible for release on parole after a portion of the sentence
has been served. Parole authorities grant parole based on factors
such as the prisoner's behavior while in jail and the predicted
potential for the prisoner to refrain from further criminal activity.
The possibility of parole does not exist for some serious criminal
offenders. If parole is granted, the person on parole (known as
the parolee) remains under the supervision of a parole officer
until the expiration of the sentence or a term otherwise specified
by law. If the parolee violates the conditions of parole, the
parole authorities may revoke parole, returning the parolee to
prison for the remainder of the unexpired sentence.
IX APPEALS A convicted criminal
may appeal his or her conviction and sentence to a higher court,
known as an appellate court. The appellate court will review all
or part of the written record of what transpired at the trial
to determine whether any error prejudicial to the defendant was
made. If any such error occurred, as where the trial court erred
in its rulings on the admissibility of evidence or in its instructions
to the jury on the law to be applied, the appellate court usually
remands (returns) the case for a new trial. Sometimes, however,
the error is of a type that leads to a reversal of conviction
and the release of the defendant. For example, if the trial court
incorrectly refused to declare unconstitutional the statute on
which the prosecution was based, the appellate court would nullify
the conviction, and the defendant would go free. In such a situation
a new trial based on the unconstitutional statute is not permitted.
If the appellate court finds no error or deems any errors harmless-that
is, not substantial and not prejudicial to the interests of the
defendant-it affirms the conviction.
X HABEAS CORPUS A person who
has been convicted, sentenced to imprisonment, and incarcerated
may apply to a court for a writ of habeas corpus, a court order
to release the defendant from imprisonment. (Habeas corpus is
a Latin phrase meaning "you have the body.") Through
such a writ the individual tests the legality of his or her detention
and seeks to redress fundamental defects in the process leading
to conviction. The grounds for granting relief (release from detention)
under the habeas corpus writ are limited and vary slightly depending
on the jurisdiction. Many jurisdictions limit the scope of the
habeas corpus writ to situations in which the convicting court
lacked jurisdiction over the defendant or over the crime. Others
grant relief in circumstances in which the conviction was obtained
in violation of the defendant's constitutional rights and there
is no other remedy to correct the violation.
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