CHAPTER 1 INTRODUCTION TO CRIMINAL PROCEDURE

• Jurisdiction: United States

Chapter 1 INTRODUCTION TO CRIMINAL PROCEDURE

§ 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 accused may not receive competent representation during the adjudication process, 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 may affect legislative decisions about the substantive criminal law. In particular, to the extent criminal procedure rules make it harder 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 may also be seen in procedural rules governing criminal investigations, as when the existence of minor crimes such as traffic offenses or certain possession offenses may be used to expand police authority to investigate more serious crimes that procedural requirements of probable cause and reasonable suspicion otherwise restrict.³

Third, some legal doctrines involve a mixture of procedure and substance. Consider the constitutional rule that the government must prove beyond a reasonable doubt "every fact necessary to constitute the crime . . . charged."⁴ This is a procedural rule, but it cannot properly be enforced unless the term "crime," a substantive criminal law concept, is defined. For example, does the "crime" of murder include as an ingredient the "absence of a legitimate claim of self-defense" — that is, is "murder" a killing that occurs in the absence of self-defense — or is self-defense an affirmative defense to the "crime" of murder? In short, the answer to the procedural question — who has the burden of proof regarding the matter of self-defense? — depends on the definition of murder, a substantive criminal law concept.

§ 1.02 SOURCES OF PROCEDURAL LAW

[A] Formal Sources

Various layers of laws and regulations govern the conduct of the participants in the criminal justice system. First, starting at the highest level, various provisions of the United States Constitution, in particular those found in the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, restrict the power of law enforcement officers in their relations to persons suspected of criminal activity and also govern the adjudication of criminal cases. The United States Supreme Court and lower federal and state courts frequently are called upon to interpret these federal constitutional provisions. As a result of substantial constitutional litigation, the study of some aspects of criminal procedure — in particular, police practices — is principally a study of constitutional law.

Second, at the state level, state constitutions are an increasingly important source of procedural law. In the past few decades, as the United States Supreme Court and lower federal courts have become less sympathetic to the federal constitutional claims of individual petitioners, a body of state constitutional jurisprudence has developed, in which some state courts, interpreting their own constitutions, have granted relief to their residents that would be unavailable under the federal Constitution.⁵ This trend is significant because a state supreme court is the final arbiter of the meaning of its own constitution.⁶

Third, legislatures have enacted statutes and courts have adopted written rules of criminal procedure governing many aspects of the state and federal criminal justice systems. For example, at the federal level, Congress has enacted laws governing such matters as electronic surveillance of private conversations,⁷ pretrial detention of dangerous persons,⁸ and the qualifications for jury service.⁹ Also, Congress has granted authority to the Supreme Court to promulgate written rules to govern proceedings in the federal courts, which the Court has done in the form of the Federal Rules of Criminal Procedure. In turn, Federal Rule 57 authorizes District Courts (trial courts) to make rules governing local practice.

Fourth, some law enforcement agencies promulgate written regulations that their employees are required to follow. For example, police departments frequently have rules governing, among other matters, the use of deadly force to effectuate arrests, the techniques to be followed in conducting lineups, and the procedures to be used in inspecting the contents of automobiles taken into police custody. Prosecutors' offices, in turn, often have internal guidelines governing such matters as charging decisions and plea bargains.¹⁰ Although these regulations do not have the force of law, their violation may result in internal sanctions.

Fifth, on occasion the Supreme Court invokes its so-called "supervisory authority" over the administration of criminal justice in the federal courts to announce rules that apply throughout the federal judicial system. Similarly, some federal circuit courts have developed rules that apply to the district courts within their jurisdiction. These rules based on federal supervisory authority, which do not apply in the state courts, are subject to revision by Congress. State courts also develop common-law rules governing some procedures in state prosecutions.

[B] Informal Sources: A Taste of Reality

Although criminal procedural rules are primarily promulgated "from on high" — by the United States Supreme Court, state supreme courts, and federal and state legislatures — the law that is enforced daily on the streets often looks considerably different. As Professor Anthony Amsterdam once observed about United States Supreme Court case law: "[o]nce uttered, these pronouncements will be interpreted by arrays of lower appellate courts, trial judges, magistrates, commissioners and police officials. Their interpretation . . . , for all practical purposes, will become the word of God."¹¹ Put more bluntly, the law at the end of a billy club or police firearm may look very different than the law handed down by nine justices of the United States Supreme Court or by a legislative body.¹²

This dichotomy between formal and informal law is inevitable. The United States Supreme Court, and each state's highest court, lack daily supervisory control over the actions of the police. Judicial authority is limited to litigated cases, and most of what occurs on the street between police officers and the citizenry is legally invisible. Even among cases that enter the criminal justice system, their vast number — over 13.6 million arrests in 2003¹³ — restricts the ability of high courts, with their limited dockets (the U.S. Supreme Court heard 33 criminal law related cases that year)¹⁴ to govern the day-to-day world of criminal proceedings.

§ 1.03 STAGES OF A CRIMINAL PROSECUTION

[A] In General

Analytically and in law school curricula, "criminal procedure" is often divided into two parts, the investigatory and the adjudicatory stages. In the investigatory phase, the primary actors in the "drama" are police officers and those whom they suspect of criminal activity. This is the "cops and (alleged) robbers" stage of the process.

The adjudicatory phase begins when the government commits itself to bringing a suspect to trial for her alleged criminal conduct. In this stage, the focus of attention turns to the legal profession — the prosecutors, defense lawyers, and judges — who participate in the adversarial judicial system. This is the "bail to (maybe) jail" phase of the process.

In studying criminal procedure, it is important to understand the context in which the legal rules apply. What follows, therefore, is a very brief overview of the stages of a typical criminal prosecution. Because adjudicatory procedures differ by state and depend on whether the defendant is charged with a felony or a misdemeanor, primary emphasis in this summary is on felony prosecutions in the federal system.

[B] Investigatory Stage¹⁵

A criminal investigation commonly begins when a police officer, on the basis of her own observations and/or those of an informant, comes to believe that criminal activity may be afoot or has already occurred. Because there are no formal stages of a criminal investigation, most Criminal Procedure courses survey...