§ 1.01 The Relationship of "Criminal Law" to "Criminal Procedure"

• Jurisdiction: United States

§ 1.01 The Relationship of "Criminal Law" to "Criminal Procedure"

At one level, the relationship of criminal procedure to criminal law is straightforward. Criminal procedural law ("criminal procedure," for short) is composed of the rules that regulate the inquiry into whether a violation of a criminal law ("substantive" criminal law, to distinguish it from "procedural" criminal law) has occurred, and whether the person accused of the crime committed it.

Logically, substance is anterior to procedure.¹ The substantive criminal code defines the conduct that society wishes to deter and to punish. Procedural law functions as the means by which society implements its substantive goals. For example, assume the criminal law makes it a crime to possess cocaine. Criminal procedure sets the rules for discovering and adjudicating violations of that criminal statute — for example, police may not subject suspects to unreasonable searches and seizures, or coerce confessions. If the police violate these or other procedural rules, various procedural consequences may arise, such as exclusion of evidence at trial or dismissal of the charge.

Yet the interrelationship of procedure and substance is more complicated than the simple description in the preceding paragraph suggests. First, procedural rules can frustrate the implementation of a community's substantive goals. For example, if the rules are unduly lax, the police may mistreat suspects, and prosecutors may be able to introduce unreliable evidence against the accused, enhancing the likelihood of unjust convictions and punishment. On the other hand, if the rules unduly hinder the police and prosecutors in their pursuit of law violators, some persons who deserve to be punished are apt to avoid criminal sanction, and the deterrent value of the criminal law is likely to be undermined.

Second, the existence of some procedural rules sometimes affects legislative decisions about the substantive criminal law. In particular, to the extent that criminal procedure rules make it more difficult for the government to investigate and prosecute crime, the legislature may enact more criminal statutes or greater penalties to offset the effect of the procedural rules.² For example, Supreme Court rulings mandating a jury role in certain sentencing systems (a change in the criminal procedure law) led to legislative proposals to raise the minimum sentence for certain crimes (a change in the substantive criminal law). Such "spillover" effects...