CRIMINAL PROCEDURE

nIntroduction

nCriminal procedure is a set of regulations that define the process of administration of justice in enforcement of criminal law. Various institutions including the state, municipalities and federal governments have distinct criminal codes that define types of conduct in criminal activities. The federal crimes deals with cases that are either beyond the control of states law or that directly influence the federal law. The Federal Rules of Criminal Procedure highlights the stages of carrying out trials involving federal crime. Also, state laws have set their own procedure of conducting criminal trials that is alike to the federal rules. The criminal rules incorporate all the provisions as stipulated in the bills of rights in the U.S constitution. Criminals are guaranteed the right to equal protection and due process, the right not to testify against oneself and right to a jury trial. Therefore the U.S constitution accounts for the fair process of administration of justice to criminals. This procedure include investigatory and accusatory of police, pre-trial process, criminal trial process and sentencing. In addition, the defendant has the rights to appeal after sentence is delivered.

nInvestigatory and Accusatory Procedures of Police

nThe law enforcers must follow criminal procedures as stipulated in the U.S constitution. When the procedure is not followed it may lead to evidence suppression or the arrested person may be released. Substantive Due process demands that the law enforcers should allow the defendant to know their rights before the suspect makes any statement in case the police would like to utilize the statement against the defendant. The United States Constitution in the Fourteenth amendment provides for rights of substantive due process to state criminals defendants. Therefore, the law enforcers must make the criminal suspect well aware of their rights as stipulated before the accused makes any statement that the police intend to use in court as evidence. This helps to ensure that the suspect is not coerced or induced into yielding the required information that can be used to incriminate them. In addition, the police must allow the defendant to have his or her attorney as entitled for in sixth amendment. However, the defendant can waive those rights to enable the law enforcers to utilize any statement as evidence in court against the suspect.

nThe police should also avoid unreasonable searches and seizures in the suspects property as provided in the fourth amendment.

nThe court can suppress evidences from the investigators acquired through arbitrary seizures and searches and offered against the suspect. In order to avoid arbitrary searches and seizure of property of the accused, the police must obtain search warrants. To acquire search warrants, the police should provide reasonable cause, and must explain their reasons by affirmation or oath. Besides, they should describe the particular location they intend to search and the materials they intend to seize. A justice can determine credible reason only by evaluating the entirety of the situation. There exist exclusions to warrants but these exclusions include searches conducted at or close to the borders. In addition, exceptions exist where the articles are in the automobile or in case of a stop-and-frisk arrest. These provisions also apply where the private individual makes the search or where law enforcement personnel have prior reason for searches to obtain evidence relating to crime. Therefore, they must obtain a search warrant if they intend to do so.

nPre-trial Procedure

nThe U.S constitution guarantees for the right of faster trial for the criminal defendant as stipulated in the Sixth Amendment. Therefore, the prosecutor cannot take a lot of time before filling charges against the criminal defendant. Before the trial begins the suspect should be given an opportunity to call their preferred attorney and witnesses while the prosecution scrutinizes the available evidence and ensuring that there is pre-trial access to the prosecution witnesses. This ensures that all relevant facts are available in the court involving that particular case. Most federal courts offers a case management order immediately the complaints and answers are filed. This order stipulates the discovery procedures and limitations for the pre-trial and criminal trial. The case management order also presents the anticipated schedules for the finalisation of discovery and witness exchange. Moreover, exact dates and time periods of the pre-trial and criminal trial procedures will be provided. In case the court does not provide a case management order, the defence counsel has the legal rights to seek hearing to get guidance and discuss these issues with the court early in the case. This is essential when the criminal defendant is concerned with discovery process consuming a lot of time or when the trial date is being delayed. Therefore, the accused can request the court to produce a time schedule for the conclusion of discovery, setting of pre-trial conference and exchange of witness and exhibit lists. Discovery is a legal term referring to official procedure of investigation in litigation. The main types of litigation include interrogatories, depositions, requests to admit, requests to produce, site visits, non-party production subpoenas and product testing.

nAfter pre-trial discovery are conducted, the attorneys request the court a Notice for Trial setting in case the trial date has not been set. In this notice the defence informs the court that all discoveries have been completed and that they are requesting the setting of a pre-trial conference and criminal trial setting. Therefore, the court holds a pre-trial conference with attorneys nearly two to three weeks prior to the criminal trial proceeding. There law requires filing of a separate or joint pre-trial memorandum during pre-trial conference. Pre-trial memorandum contains an overview report of the charges to be presented to the venire, list of each party, lay experts and each party witness lists, outstanding motions lists and proposed jury instructions. In most cases the prosecution and defence sides agree to the jury instructions and verdict becomes a part of the joint pre-trial memorandum process. This helps to prepare the case for trial and provides enough time for preparing motions in limine. In case the defence and the prosecution do not agree to the motions of limine, they are required to file them simultaneously with the pre-trial memorandum.

nDuring the pre-trial conference, the trial determines the following; date, location and time when jury selection will begin, opening statements, and days of the week the criminal trial will take place. Additionally the pre-trial conference determines the technology that will be used in the courtroom and what technology will the attorneys provide e.g. television, or videos. Additionally, it will also determine the jury selection, opening statement, direct examination, cross examination, jury instructions, closing arguments and verdict. In addition, the prosecutor cannot delay the prosecution after filling charges in the court. The Federal Speedy Trial Act provides for rules to ensure that the criminal defendant gets a speedy trial. The act demand that a criminal trial should start within a period not exceeding 70 days after the prosecuting attorney files the accusation.

nThe Sixth Amendment in U.S Constitution provides for the right of proceedings by an impartial justice in a public trial of ones peers. The impartial jury should lead the criminal case to ensure that it is fair to every party in the case. The criminal justice system ensures that both sides select the jury using the peremptory challenges. In case either party utilises the peremptory challenge against any of the jury member, the court should excuse that particular judge from judges panel. This challenge helps to eliminate any potential bias that may exist in the proceedings. In addition, neither side is required by law to explain the details for the peremptory challenge. However, the law restrict application of peremptory challenge against the jury based on race or gender. For instance, the defence counsel or the prosecutor must not discharge the judge from the trial based on racial background.

nFurthermore, through the provisions of Due Process the criminal defendant must be accorded a fair trial. The judge is responsible to implement the gag-order to minimise the effects of publicity in cases of highly-publicity trials. This is crucial because it eliminate external influences during trial proceedings. For instance, members of the victims family at Musladins murder trial sat at the front row of the gallery wearing buttons portraying the image of the victim. The court applied the gag-order discontinuing with Musladin case to compel the victims family members not to wear the buttons.

nDue Process provides for the right of the criminal defendant to call their own witnesses, present their own evidence before the court or mount their own facts. For the purpose of the defendant to prepare his/her own defence, the prosecution must disclose all the evidence witnesses against the criminal defendant. The Fifth Amendment in the US constitution prohibits states from manipulating or pressing charges on the same criminal defendant through the Double Jeopardy. The pre-trial gives a chance to the defence of the accused to raise issue of Double Jeopardy. This helps to protect the defendant from undergoing the same proceedings and substantively the same delinquency on the same evidences. The pre-trial procedure extends the protection of the criminal suspect by ensuring that the prosecution team only defeats the presumption of innocence in case there is availability of evidence beyond reasonable doubts to ascertain guilt. This significantly strengthens the canons of natural justice in the criminal procedure in the U.S justice system.

nCriminal procedure

nThe criminal trial involves stages that are systematic to ensure that no legal imperfections are experienced in administration of justice so that the accused person gets a fair trial. It is the presiding justices responsibility to determine whether sufficient evidence is available to press charges against the defendant or to order further investigations. The judges can also amend the bail depending on the amount of evidence tabled against the suspect before the court. The criminal trial also involves motion before the judges advising the court of law whether to confine particular evidence or call some people to testify before the court. They also advise the court whether the judges should terminate all the charges against the accused for lack of sufficient evidence.

nAfter the beginning of trial law provide more rights to the criminal defendant. The law provides for presumption of innocence of the defendant so that an innocent defendant is not convicted. The prosecutor must also proof beyond the reasonable doubts that the defendant is guilty of crimes presented before the court. The defence counsel is empowered by the constitution to cross examine the prosecutions witness. The Sixth Amendment guarantees right to Confront Clause. The confrontation clause enables the criminal defendant to cross-examine the witnesses who are to testify against them. However, the confrontation clause may not be used when an exception to the confrontation right is recognised at the founding.

nIn addition, the sixth amendment provides for the right to assistance during trial to the defendant by his or her counsel. In circumstance where offender is unable to afford an attorney the law demands that the government should provide the defendant with the state attorney. In such a case, the offender acquires the legal representation from the office of Public Defender. The provisions of the Criminal Procedure in Federal rules guarantee that the suspect acquires a defence counsel at every stage of the proceeding. The defence counsel is provided by the state beginning with the defendants initial appearance. During the police interrogation if the accused requests the presence of attorney, the law enforcers should halt the grilling until the suspects defence is present. Nonetheless, the offender may freely choose to relinquish his/her right on legal representation by a defence counsel. In such a case, the accused shall represent him/herself without the assistance of the counsel. This is known as “pro se” representation. The defendant must also receive effective counselling from the legal counsel. In case the legal counsel provides ineffective counsel it may be the basis of for establishment of a new trial. Establishment of ineffective assistance by the counsel may result to unfair trial hence the need to develop new proceedings.

nIn addition, during trial proceeding, the law provides for the rights against self-incriminatory testimony. Self-incrimination is the act of involving oneself in criminal prosecution. The defendants cannot be compelled to incriminate themselves and cannot be chastised for declining to do so. The defendant may choose not to answer specific questions or take the stand that self-incriminate. Therefore, the defendant may decide not take the stand. The right against self-incrimination in criminal procedure is provided for in the U.S Constitution Fifth Amendment

nCriminal Trial Stages

nThe judge may set free the suspect after the police arrest the suspect. The judge determines the suspects initial bail that provides an allowance for the accused to be free of jail after initial arrest. Besides, court refunds the money to the defendant if he or she presents him or herself during the appropriate dates of the hearing of the case. However, if the defendant misses the date set up for the case, court issues a warrant of arrest and keeps the bail.

nThereafter, the defendant is arraigned in court. During courts arraignment the judge calls for the name of the charged person. After calling the person charged, the judge read out the charges against the suspect. Besides, the suspect is asked whether he or she has a counsel or requires support of court-appointed advocate. The judge will thereafter ask the defendant to plead and then make verdicts on whether to amend the early bail. The jury will also set the dates of the future proceedings.

nFollowing the arraignment, the court will hold the preliminary hearing. At this stage the judge determines whether the case meets the required threshold to continue with the trial. This occurs through determination of whether the evidence is adequate for the hearing to sustain its burden of persuasion. This means the availability of adequate evidence to sustain a case or make the defendant stand trial. Moreover, the defence counsel is allowed to cross examine the government witness at this stage during this proceeding. A grand jury rather than the judge under federal law determines when the suspect will face infamous or capital crimes as stipulated in the Fifth Amendment in U.S Constitution.

nAfter preliminary hearing, a pre-trial hearing is held. At this stage the defence and prosecution teams submit the file motions before the judge. In the pre-trial chamber, the motion concern whether the court must withdraw certain evidence. Similarly the pre-trial chamber judges determines whether certain witnesses will attest or whether the jury will terminate the case for insufficient of evidence.

nFollowing the preliminary stages the accused must stand full trial. First, the prosecution and defence teams offer opening statements. However, the defence teams can withhold their opening statements pending prosecution. After opening statements, the prosecutor launches direct examination of the first witness. This serves as the prosecution team first approach to prove the case and can last up to several months.

nDuring this process the prosecutor can present evidence before the court such as weapons found in the crime scene. Then, defence teams can cross-examine, ask questions to the prosecution witnesses or offer their evidence and witnesses. Following the cross examination of the defence attorney, the prosecutor asks final question to the witness in order to clarify any confusing testimony to the jury. This is known as redirect examination. After the defence rests, it presents a closing argument. Similarly, prosecution presents concluding argument. During direct or cross examination, the defence attorney or prosecution can make an objection to a piece of evidence or a question to the judge.

nCommon objections include relevance and hearsay. Relevance demands that the evidence and testimony presented in court should be relevant to the case. Secondly, hearsay is where the witness makes a statement that he or she did not see or hear about the incident in question but was informed about through second-hand information. Lastly following final argument, trier of facts reflects and makes a verdict. If the offender is guilty there are different motions that can be initiated after the trial is over. These are referred to as post-trial motions and they include, firstly, motion for New Trial where the judges can discard the judgement and allow for a fresh trial. However, this is rarely practiced but can be initiated if the interest of justice demands. Secondly, motion for Judgement of Acquittal is where the jury may set aside the courts verdict and allow the accused to go free. Thirdly, motion to Vacate, Correct a sentence or Set Aside is normally convened for the purpose of reviewing clerical error in the sentence.

nSentencing

nThis often happens immediately for misdemeanour and infractions. In case of minor delinquencies, the accused may get simple penalties such as probation or fines. The accused may also get short-term incarcerations, suspended sentence or long-term incarcerations. Other sentences may include community service, compensation of to the victim, or alcohol or drug rehabilitation. The judges get assistance and guidance from different sources in order to sentence a defendant. For instance, the U.S sentencing commissions have established a set of sentencing guidelines that recommends particular punishment for certain crimes while accounting for various factors.

nSerious criminalities lead to the trier of facts, evidence hearing. In addition, arguments from both defence and prosecution teams take place concerning the necessary verdict. In certain jurisdiction, judges are responsible to determine the sentence while in others; it will have different trial. While determining the appropriate sentence, the prosecution team exposes evidence of aggravating factors. On the other hand, the defence presents evidence of mitigating factors.

nThe accused is eligible to allocution prior the judges state the sentence. This means that the defendant has the right to directly speak to juror without the support of his or her advocate. While addressing the judge directly, the defendant may ask for pardon or may add any other undisclosed facts. Moreover, the defendant may provide an apology for the unlawful behaviours. This gives the defendant an opportunity to portray remorse or to present his or her reasons behind the criminal act. The judge may decide then decides whether to grant some leniency based on the personal explanation of the defendant

nThe death sentence can only be executed on defendants found guilty of capital offences. These offences include treason, murder and genocide, kidnaping or killing of a congressman, a Supreme Court judge, or the President of United States. In such a case, jury decides to impose a death sentence. However, many states have stopped using the death sentence in their criminal justice administration. In addition, the Supreme Court has found that when death sentence is imposed to mentally challenged and the juvenile at the time of crime may be unusual and cruel punishment pursuant to the U.S constitution.

nAppeal

nAfter the judgement is delivered the accused can appeal to the Circuit Court. This happens if he or she has reasons that he/she was wrongly sentenced or the judgement was not appropriate. However, an appeal is not alternative hearing but it is a chance given to the criminal to raise specific areas that were not accounted at the criminal procedure trials. In most cases, the accused objects decisions made by the court. Sometimes the appeals can direct the case to go back to the court proceedings. A particular judgement may be reversed, or the appellate judges may order a fresh criminal trial if the Appeals Court demands a particular course of action.

nMoreover, when the verdict is delivered by appellate judges, the accused can appeal that ruling to the Supreme Court in Washington, D.C. In U.S.A, the Supreme Court is the chief appellate court in the countrys judicial system. Therefore, the Supreme Court makes the final judgments concerning a defendants appeal. However, the Supreme Court is not required to hear all appeals in every case; it only hears small number of cases each year.