If you would like to be referred
to High Profile Federal Criminal Defense Lawyers and Federal Criminal
Defense Law Firms, please click here.
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. 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
a trial. 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.
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.
About the Courts of Appeals
Courts of Appeals, formerly Circuit Courts of Appeals, in the
federal judiciary system of the United States, courts created
by Congress in 1891 to relieve the Supreme Court of its great
burden of work and thus to give speedier justice to litigants.
These courts make decisions on appeals from lower federal courts
subject to review in the U.S. Supreme Court. In practice, however,
the Supreme Court reviews only a few cases-usually those that
involve a novel constitutional question or an interpretation of
federal statutory law when there is a conflict among the various
courts of appeals. The Supreme Court rules on the law and then
returns the case to the appeals court for disposition on the basis
of that ruling. Cases involving the constitutionality of legislation
or the interpretation of treaties between the U.S. and other governments
need not pass through the courts of appeals; they may be appealed
directly from the lower courts to the Supreme Court.
A court of appeals functions in the District of Columbia and
in each of the 11 federal judicial circuits. In addition, a court
of appeals for the federal circuit was created in 1982 to review
certain cases involving copyright, tax, patent, and federal employment
law, as well as claims against the U.S. for money damages. Each
court consists of at least three judges appointed for life by
the president and approved by the Senate.
A "crime" is any act or omission (of an act) in violation
of a public law forbidding or commanding it. Crimes include both
felonies (more serious offenses -- like murder or rape) and misdemeanors
(like petty theft, or jaywalking). No act is a crime if it has
not been previously established as such either by statute or common
Historically, most crimes have been established by state law,
with laws varying significantly state to state. There is, however,
a Model Penal Code (MPC) which serves as a good starting place
to gain an understanding of the basic structure of criminal liability.
In recent years the list of Federal crimes has grown.
All statutes describing criminal behavior can be broken down
into its various elements. Most crimes (with the exception of
strict-liability crimes) consist of two elements: an act, or "actus
reus" and a mental state, or "mens rea." Prosecutors
have to prove each and every element of the crime to yield a conviction.
If you have any questions about the information provided above,
please contact us.
If you would like to be referred to High Profile Federal Criminal
Lawyers and Federal Criminal Defense Law Firms, please click
Learn more about Criminal Law
Criminal Law, branch of law that defines crimes, establishes
punishments, and regulates the investigation and prosecution of
people accused of committing crimes. Criminal law includes both
substantive law, which is addressed in this article, and criminal
procedure, which regulates the implementation and enforcement
of substantive criminal law.
Substantive criminal law defines crime and punishment-for example,
what act constitutes murder or what punishment a murderer should
receive. On the other hand, criminal procedure is concerned with
the legal rules followed and the steps taken to investigate, apprehend,
charge, prosecute, convict, and sentence to punishment individuals
who violate substantive criminal law. For example, criminal procedure
describes how a murder trial must be conducted.
This article discusses criminal law in the context of the common
law system, which is found in countries such as England, Canada,
and the United States. In the common law system, judges decide
cases by referring to principles set forth in previous judicial
decisions. Common law systems are typically contrasted with civil
law systems, which are found in most Western European countries,
much of Latin America and Africa, and parts of Asia. In civil
law systems, judges decide cases by referring to statutes, which
are enacted by legislatures and compiled in comprehensive books
In legal systems based on common law, criminal law is distinguished
from what is known as civil law. In this context, the term civil
law refers to the rules regulating private relationships, such
as marriage, contracts, and personal injuries. In contrast, criminal
law governs actions and relationships that are deemed to harm
society as a whole.
PURPOSE OF CRIMINAL LAW
Criminal law seeks to protect the public from harm by inflicting
punishment upon those who have already done harm and by threatening
with punishment those who are tempted to do harm. The harm that
criminal law aims to prevent varies. It may be physical harm,
death, or bodily injury to human beings; the loss of or damage
to property; sexual immorality; danger to the government; disturbance
of the public peace and order; or injury to the public health.
Conduct that threatens to cause, but has not yet caused, a harmful
result may be enough to constitute a crime. Thus, criminal law
often strives to avoid harm by forbidding conduct that may lead
to harmful results.
One purpose of both civil law and criminal law in the common
law system is to respond to harmful acts committed by individuals.
However, each type of law provides different responses. A person
who is injured by the action of another may bring a civil lawsuit
against the person who caused the harm. If the victim prevails,
the civil law generally provides that the person who caused the
injury must pay money damages to compensate for the harm suffered.
A person who acts in a way that is considered harmful to society
in general may be prosecuted by the government in a criminal case.
If the individual is convicted (found guilty) of the crime, he
or she will be punished under criminal law by either a fine, imprisonment,
or death. In some cases, a person's wrongful and harmful act can
invoke both criminal and civil law responses.
THEORIES OF CRIMINAL PUNISHMENT
Various theories have been advanced to justify or explain the
goals of criminal punishment, including retribution, deterrence,
restraint (or incapacitation), rehabilitation, and restoration.
Sometimes punishment advances more than one of these goals. At
other times, a punishment may promote one goal and conflict with
Retribution: The theory of retribution holds that punishment
is imposed on the blameworthy party in order for society to vent
its anger toward and exact vengeance upon the criminal. Supporters
of this theory look upon punishment not as a tool to deter future
crime but as a device for ensuring that offenders pay for past
Deterrence: Those who support the deterrence theory believe that
if punishment is imposed upon a person who has committed a crime,
the pain inflicted will dissuade the offender (and others) from
repeating the crime. When the theory refers to the specific offender
who committed the crime, it is known as special deterrence. General
deterrence describes the effect that punishment has when it serves
as a public example or threat that deters people other than the
initial offender from committing similar crimes.
Restraint: Some believe that the goal of punishment is restraint.
If a criminal is confined, executed, or otherwise incapacitated,
such punishment will deny the criminal the ability or opportunity
to commit further crimes that harm society.
Rehabilitation: Another possible goal of criminal punishment
is rehabilitation of the offender. Supporters of rehabilitation
seek to prevent crime by providing offenders with the education
and treatment necessary to eliminate criminal tendencies, as well
as the skills to become productive members of society.
Restoration: The theory of restoration takes a victim-oriented
approach to crime that emphasizes restitution (compensation) for
victims. Rather than focus on the punishment of criminals, supporters
of this theory advocate restoring the victim and creating constructive
roles for victims in the criminal justice process. For example,
relatives of a murder victim may be encouraged to testify about
the impact of the death when the murderer is sentenced by the
court. Promoters of this theory believe that such victim involvement
in the process helps repair the harm caused by crime and facilitates
Conflicts Among Goals: The various justifications for criminal
punishment are not mutually exclusive. A particular punishment
may advance several goals at the same time. A term of imprisonment,
for example, may serve to incapacitate the offender, deter others
in society from committing similar acts, and, at the same time,
provide an opportunity for rehabilitative treatment for the offender.
On the other hand, the goals of punishment may at times conflict.
The retributive and deterrence theories call for the infliction
of unpleasant experiences upon the criminal, including harsh prison
treatment; but the prison environment may not be conducive to,
or may even defeat, rehabilitation.
No one theory of punishment addresses all the goals of criminal
law. A combination of theories and goals plays a part in the thinking
of the legislators who establish the ranges of punishment for
various crimes, the judges and jurors who sentence offenders within
these ranges, and the parole authorities who have the power to
release certain prisoners.
CLASSIFICATION OF CRIMES
Crimes are classified in many different ways: common law crimes
versus statutory crimes, and crimes that are mala in se (evil
in themselves) versus those that are mala prohibita (criminal
only because the law says so). An important classification is
the division of crimes into felonies or misdemeanors. This distinction
is based on the severity of the crime and is rooted in common
In many jurisdictions in the United States, felonies are crimes
punishable by death or imprisonment in a state prison or penitentiary
and misdemeanors are those punishable by fine or imprisonment
in a local jail. (The term jurisdiction refers to the authority
of a political entity, such as a state or a county, or the territory
over which that authority is exercised.) In other jurisdictions,
crimes punishable by imprisonment for one year or more are felonies,
and those punishable by fine or imprisonment for less than one
year are misdemeanors. Since each jurisdiction determines the
penalties for offenses it defines, a misdemeanor in one jurisdiction
may constitute a felony in another. Some jurisdictions have an
additional classification for petty offenses, also called infractions,
which are usually punishable by a small fine.
If you have any questions about the information provided above, please contact us.
Call us or click here
to get a referral to an ASN's panel lawyer or law firm.
Go back to Top