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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.

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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 law.

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.

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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 called codes.

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 another.

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 misconduct.

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 community reconciliation.

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 law.

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.

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