Criminal Procedure

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Definition: Criminal Procedure

Full Definition of Criminal Procedure

The framework of laws and rules that govern the administration of justice in cases involving an individual who has been accused of a crime, beginning with the initial investigation of the crime and concluding either with the unconditional release of the accused by virtue of acquittal (a judgment of not guilty) or by the imposition of a term of punishment pursuant to a conviction for the crime.

Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals.

The main constitutional provisions regarding criminal procedure can be found in Amendments IV, V, VI, and VIII to the Constitution. The Fourth Amendment covers the right to be free from unreasonable searches and arrests:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A warrant is a paper showing judicial approval of a search or arrest. The Supreme Court has determined that the Fourth Amendment does not require a warrant for all searches; rather, it prohibits unreasonable searches. All warrantless searches are unreasonable unless they are executed pursuant to one of several exceptions carved out by the Court.

The Fifth Amendment covers an array of procedural concerns, including the death penalty, multiple trials for the same criminal offense (double jeopardy), self-incrimination, and the general right to due process. It reads, in relevant part,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.

The Sixth Amendment addresses the procedures required at trial. It holds,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Finally, the Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

At first, these amendments were construed as applying only to federal prosecutions. The states were free to enact criminal procedures contrary to them until the passage of the Fourteenth Amendment in 1868. The Fourteenth Amendment forbids the states to “deprive any person of life, liberty, or property, without due process of law” (§ 1). Under the Fourteenth Amendment, states must provide most of the criminal safeguards found in the Fourth, Fifth, Sixth, and Eighth Amendments.

Federal courts must comply with all the criminal procedures listed in the amendments to the Constitution. For state courts, the U.S. Supreme Court has adopted a “selective incorporation” approach to determine precisely what process is due a criminal defendant. Under this approach, only fundamental rights are protected.

According to the Supreme Court, fundamental rights in criminal procedure include freedom from unreasonable searches and seizures, freedom from cruel and unusual punishment, assistance of counsel, protection against self-incrimination, confrontation of opposing witnesses, a speedy trial, compulsory process for obtaining witnesses, a jury trial for prosecutions for cases in which the defendant could be incarcerated, and protection against double jeopardy. The only protections not specifically required of states are the Eighth Amendment prohibition against excessive bail and the Fifth Amendment requirement that infamous crimes be prosecuted by grand jury.

The judicial interpretation of fundamental rights has allowed states considerable leeway in shaping their own criminal procedures. Although their procedural rules and statutes are similar in many respects, federal and state legislatures are responsible for their own criminal procedures, and procedures can vary from state to state.

State and federal governments may not limit the protections guaranteed by the Constitution, but they may expand them. An example of this principle may be seen in the automobile exception to the Constitution’s search warrant requirement. Under the automobile exception, states may allow the warrantless search of an automobile if the police officer reasonably believes that the vehicle holds evidence of a crime. The Supreme Court has determined that this exception is not a violation of the Fourth Amendment because drivers have a “reduced expectation of privacy” and because a vehicle is inherently mobile.

However, states are not required to adopt the automobile exception. The New Hampshire Supreme Court, for example, has determined that all warrantless searches are unreasonable except for a group of well-defined such searches, and this group does not include warrantless automobile searches (State v. Sterndale, 139 N.H. 445, 656 A.2d 409 [1995]). Thus, in New Hampshire, a police officer may not base the warrantless search of a vehicle on the mere fact that the place to be searched is a vehicle. New Hampshire, therefore, provides expanded protections under the Fourth Amendment.

Conversely, a state may not allow the search of any vehicle without reasonable suspicion. A vehicle search conducted in the absence of reasonable suspicion would be an infringement of guaranteed Fourth Amendment protection, and a court would strike down such an infringement as unconstitutional. See also Automobile Searches In Focus: Is the Fourth Amendment in Jeopardy?


Criminal prosecutions officially begin with an arrest. However, even before an arrest, the law protects the defendant against unconstitutional police tactics.

The Fourth Amendment protects persons against unreasonable searches and seizures by law enforcement officers. Generally, a search warrant is required before an officer may search a person or place. This general requirement is waived for many searches and seizures, including a search incident to a lawful arrest, a stop and frisk for weapons, a seizure of items in plain view, a search of an automobile, a search consented to by the suspect, a search after a hot pursuit, and a search in exigent, or emergency, circumstances.

When an officer seeks a search warrant, the officer must present evidence to a judge or magistrate. The evidence must be sufficient to establish probable cause that evidence of a crime will be found at the place to be searched. Probable cause is a level of belief beyond mere suspicion but short of full certainty. Whether an officer can establish probable cause to obtain a search warrant depends on the facts of the case. For example, if an arrested person is discovered with a small amount of marijuana, this alone will not justify a search of the person’s home. However, if the person is discovered with a large amount of marijuana, the quantity may support the suspicion that more marijuana may be found in the person’s home, and the large amount may be used as the basis for obtaining a search warrant.

Police officers seeking a search warrant must state, under oath and with particularity, the facts supporting probable cause. If the search warrant is later found to be lacking in probable cause, or if important statements made by the officers are found to have been intentionally misleading, the evidence seized pursuant to the warrant may be excluded from trial. Also, if the search goes beyond the scope granted in the warrant, the evidence seized as a result of that encroachment may be excluded from trial. For example, if the warrant states that the officers may search only the suspect’s apartment, they may not expand the search to a storage closet outside the apartment.

The exclusionary rule protects the right to be free from unreasonable searches. This rule holds that evidence illegally obtained by police officers must be excluded from trial. Along with the right of appeal, the exclusionary rule is a defendant’s chief remedy for a violation of criminal procedure.

The exclusionary rule deters police misconduct in searches. Without use of the evidence at trial, the case against the alleged criminal may be dismissed, and the officer’s actions in gathering that evidence will have been wasted effort. The exclusionary rule also prohibits the use of evidence obtained in violation of other constitutional rights, such as statements of the accused that are elicited in violation of the right against self-incrimination.

The most important exception to the exclusionary rule is the good faith exception. Essentially, the good faith exception allows the use of evidence obtained in violation of a person’s constitutional rights if the officer who obtained the evidence acted in a reasonable manner. If evidence is illegally seized and does not fall under an exception but is erroneously admitted at trial by the judge, a guilty verdict will be reversed on appeal if the prosecution cannot show beyond a reasonable doubt that the evidence did not contribute to the conviction.

When officers have collected evidence pursuant to a search warrant, the burden is on the defendant to show that the warrant lacked probable cause or that other problems tainted the collection process. For a warrantless search, the prosecution bears the burden of proving that the search was reasonable. These arguments are usually heard in a suppression hearing held before trial.

The law of search and seizure is detailed and complex. Special issues include consent searches, inventory searches of impounded automobiles, electronic surveillance, emergency searches, searches by private parties, and administrative searches by government agencies. The manner in which the police obtained evidence is almost always an issue in a criminal trial.


The general rule is that to make an arrest, the police must obtain an arrest warrant. However, if an officer has probable cause to believe that a crime has been committed, and there is no time to obtain a warrant, the officer may make a warrantless arrest. Also, an officer may make a warrantless arrest of persons who commit a crime in the officer’s presence.

An invalid arrest is not generally a defense to prosecution. However, if an arrest is unsupported by probable cause, evidence obtained pursuant to the invalid arrest may be excluded from trial.

When an arrest is made, the arresting officer must read the Miranda warnings to the arrestee. The Miranda warnings apprise an arrestee of the right to obtain counsel and the right to remain silent. If these warnings are not read to an arrestee as soon as he or she is taken into custody, any statements the arrestee makes after the arrest may be excluded from trial.

After the arrest, the police must follow certain guidelines during their investigations. For example, if the arrestee requests an attorney or expresses a wish to remain silent, the officers must honor the request and refrain from questioning the arrestee. The police may, however, attempt to confirm that they have arrested the right person. They may do so by showing a victim a photo array that includes a picture of the suspect; by arranging a lineup of live persons at the police station, with the suspect included in the lineup; or by organizing a show-up, which is a personal showing of the arrestee to the victim shortly after commission of the crime.

Where photo arrays or lineups are used, the police must refrain from highlighting the arrestee. For example, if an arrestee is white, an officer cannot show a witness a series of photographs in which all the other subjects are black. If an identification procedure is too suggestive, any identification by the victim may be excluded from trial.


At trial, a criminal defendant has a number of constitutional rights, including the right to counsel, the right to a public trial, the right to a trial by jury, the right to a fair and impartial trial, the right to confront witnesses in court, the right to compulsory process to obtain witnesses, and the privilege against self-incrimination. Violation of any of these rights may result in the reversal or vacation of a conviction on appeal.

There are exceptions and nuances to most of the procedural trial rights. Under the Sixth Amendment, if a defendant is indigent, or unable to afford an attorney, the court will appoint an attorney. This right applies only for felony charges and cases in which actual imprisonment may be imposed. This means that an indigent who is not represented by counsel at trial cannot be sentenced to incarceration, regardless of whether conviction of the offense warrants incarceration (Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). However, a defendant will not be appointed an attorney if the defendant is able to pay for a private attorney.

A criminal defendant has the right to an attorney from the first critical stage of the criminal process to the end. This means that an attorney must be present at the request of the defendant during such events as interrogation, lineup identifications after charges have been filed, preliminary hearings before the court, trial, and sentencing.

The Sixth Amendment right to counsel includes the mandate that a defendant’s counsel must be effective and not incompetent.

A defendant is free to reject counsel and proceed pro se, or by self-representation. However, a judge may disregard the defendant’s request and appoint an attorney if the pro se defendant engages in dilatory or disruptive tactics.

The Sixth Amendment right to a trial by jury does not guarantee a jury in all cases. The right generally applies only in “serious cases”—which are generally considered to be those in which conviction can result in incarceration for more than six months. When a jury trial is not guaranteed, the trial court judge will hear the case and make a decision.

In federal court, a jury verdict must be unanimous. This directive is not applicable to the states. In some states, a vote of nine out of twelve jurors is sufficient to convict or acquit. States may even provide as few as six jurors. Six is the minimum amount, because juries should represent a cross section of the community. If a jury of six is used, the verdict must be unanimous.

Under the Confrontation Clause of the Sixth Amendment, a defendant has the right to cross-examine all prosecution witnesses at trial. Under limited circumstances, the statements of a witness absent from court may be offered through the testimony of a third party. For example, this evidence, known as hearsay, can be admitted if the statements were made under oath, the statements were subject to cross-examination by the defendant’s attorney, and the witness is unavailable despite the best efforts of the prosecution.

The Fifth Amendment privilege against self-incrimination extends from the moment of custody. A defendant need not make statements or testify at trial, and that right is absolute. However, with a sufficient showing of need by the prosecution, self-incrimination may come from sources other than the defendant’s statements or testimony. For example, a court may force a defendant to provide a blood sample, appear before witnesses for identification, give handwriting samples, give fingerprints, repeat certain words or gestures, and give a voice sample.

If the defendant does testify, she or he may be questioned by the prosecutor about previously inadmissible statements that contradict the testimony. Thus, the Fifth Amendment privilege against self-incrimination does not apply if the defendant has made statements contrary to testimony given on the witness stand.

The Compulsory Process Clause of the Sixth Amendment gives a defendant the right to obtain favorable witnesses. This means that the defendant has the same power as the prosecutor to subpoena witnesses. However, if the government, acting in good faith, deports a potential defense witness (makes the witness leave the jurisdiction), it does not violate compulsory process rights.

The Sixth Amendment grants the right to “an impartial jury of the State and district wherein the crime shall have been committed.” This clause gives a defendant the right to question jurors for bias and prejudice. The right belongs to both the defense and the prosecution, and it is exercised in a proceeding called voir dire. In voir dire, both sides are allowed to question jurors and reject a certain number of jurors, until the jury pool is complete. The rejection of jurors may not be based on race, sex, or national origin.

At trial, the prosecution has the burden of proving the defendant’s guilt beyond a reasonable doubt. This level of belief is abstract and has been described in a number of ways. The best definition is that any doubt regarding the defendant’s guilt should not be fanciful or conjured up to avoid delivering a verdict of guilty. This standard is reserved for criminal trials; it is a higher standard than “by a preponderance of the evidence” and “by clear and convincing evidence,” the burdens of proof used in civil trials.

The vast majority of criminal cases are resolved with a plea of guilty before, or sometimes during, trial. Prosecutors may use their discretion to reduce charges in exchange for a guilty plea, in an arrangement known as a plea bargain. A plea of guilty cannot be revoked after it has been accepted by a court. Generally, it can be appealed only if the right to a trial was not knowingly, intelligently, and voluntarily waived.

Prosecutors are often content with a plea bargain because it satisfies the criminal justice system’s goal of encouraging people to accept responsibility for their actions, and because plea bargains avoid costly, time-consuming trials. A prosecutor may also agree to defer prosecution and drop charges after a specified period if the defendant fulfills certain conditions. A defense attorney may seek a plea bargain if the evidence against the defendant is overwhelming. Both sides are free to reject any plea bargains and proceed to trial.

If a defendant is acquitted of all criminal charges, the prosecution may not subsequently prosecute the defendant for the same act that produced those charges. This right is derived from the prohibition of double jeopardy found in the Fifth Amendment. In a jury trial, double jeopardy protection attaches when the jury is impaneled and sworn in. For bench trials, or cases presented to a judge only, double jeopardy protection begins when the first witness is sworn in. Under double jeopardy protection, the prosecution may not deliberately cause a mistrial if the trial is going poorly for the prosecution. However, if the jury cannot reach a verdict and a mistrial is declared by the court, the defendant may be retried for the same offense.

Generally, a defendant may not face both federal and state prosecutions for the same offense. One exception to this general rule is that a defendant in state court may face charges in federal court for the same act with the permission of the attorney general, but only if the offense is within the jurisdiction of the federal court. For example, a conviction for driving while intoxicated raises no federal concerns; federal laws do not address that offense. Thus, the attorney general cannot authorize the federal prosecution of a defendant acquitted in state court of driving while intoxicated. The acquitted defendant may, however, face a civil lawsuit for damages, because civil actions do not put a person “in jeopardy of life or limb,” and therefore double jeopardy does not apply to them (U.S. Const. amend. V, cl. 2).



After conviction, a defendant may be allowed to remain free until sentencing. The decision on this issue is made by the court, and it depends on the nature of the conviction and the nature of the defendant’s perceived character. For example, a court will not allow a convicted murderer or rapist to remain free until sentencing. A court may, however, allow a nonviolent convict to post a bond and remain free pending sentencing.

Sentencing for a felony conviction is usually heard by the court in a separate hearing held several days or weeks after the verdict. At a felony sentencing hearing, the prosecution makes a recommendation of punishment, and the defendant usually argues for leniency. For lesser offences, such as misdemeanours and violations, sentencing may immediately follow the verdict.

Judges generally have wide discretion to craft individualized sentences within statutory guidelines. In federal court, however, some convictions, such as drug convictions, call for mandatory minimum sentences. Statutory directives for these convictions remove sentencing from the discretion of the judge.

Sentencing can include any combination of community service, forfeiture of property, fines, and incarceration. Courts may also exercise their sentencing discretion and order a term of probation.

Under state and federal forfeiture laws, law enforcement authorities are authorized to confiscate the property of certain criminal defendants. Under federal law, persons convicted of controlled substance violations or racketeering schemes may be forced to relinquish much of their personal property, including real estate, stocks, cash savings, and vehicles. States also authorize forfeitures for the violation of certain state laws, such as those regarding controlled substances and the solicitation of prostitution.

Probation releases a convicted defendant into the community under the supervision of a probation officer. This is generally reserved for first-time offenders, to give them an opportunity to reform and rehabilitate.

A probationer will be called back into court and sentenced to serve a term of incarceration if he or she breaks the terms of the probation. For example, suppose a person convicted of marijuana possession and sentenced to probation has been ordered to complete treatment for chemical dependency and report to a probation officer two times a week. If the probationer fails to complete these tasks, the court may order the defendant to serve a period of incarceration for the marijuana offence.

If probation is revoked, the probationer is entitled to counsel. However, an indigent probationer is not automatically entitled to a court-appointed attorney. Whether a probationer receives free counsel depends on a number of factors. Generally, the court will appoint an attorney if an indigent probationer denies committing the alleged act and faces lengthy imprisonment.

Under the Eighth Amendment prohibition of cruel and unusual punishment, sentencing and confinement in jail or prison may not involve torture or barbarity. The Eighth Amendment is also construed as meaning that the punishment should fit the crime. For example, it would be cruel and unusual punishment to sentence a person convicted of trespassing to the same punishment as a person convicted of homicide.

According to the Supreme Court and many state legislatures, it is not cruel and unusual punishment to sentence a defendant to death for the commission of first-degree murder. Such a sentence is called capital punishment, and it is generally reserved for persons convicted of first-degree murder. A death penalty sentence cannot be imposed automatically. State courts must provide a separate hearing before a judge or jury to determine whether it is appropriate, and the jury must be unanimous in its decision to execute the defendant.

When an inmate faces prison discipline such as solitary confinement, the inmate generally has no right to an attorney. The inmate is entitled to other due process rights, such as advance written notice of the charge and a written statement of the fact-findings, evidence, and reasons for the action taken.


Contrary to popular belief, the Constitution does not guarantee the right to appeal a criminal conviction. Most states do provide the right to an appellate review of criminal convictions, to protect against trial court errors. However, many states limit their review of state court convictions by hearing only short oral arguments and issuing decisions without explanation.

Federal statutes grant criminal defendants in federal court the right to appeal. Only one review is granted as a matter of right, and this is to a U.S. court of appeals. Review of state and federal convictions in the U.S. Supreme Court is discretionary.

Where a criminal appeal is granted by state law as a matter of right, the court is required to appoint an attorney to represent indigent defendants on appeal. An indigent defendant is also entitled to a free trial transcript or other means of affording appellate review; this applies to any indigent defendant, including one punished only with a fine.

On appeal, the burden is on the defendant to prove that an error occurred in the trial or that the evidence was insufficient to convict. A trial error can come from a variety of sources; it can be committed by a judge, a prosecutor, or even a defense attorney. Transgressions by a juror can also be grounds for the reversal or vacation of a conviction. Defendants must raise all claims of trial error in their first appeal in order to preserve the claims for future appeals.

Habeas Corpus Petition

After an incarcerated defendant has exhausted all appeals without success, she or he may file a writ of habeas corpus. This is a civil suit against the warden of the prison, challenging the constitutionality of the incarceration. There is no right to the assistance of an attorney for habeas corpus petitions.

A habeas corpus petition is not another appeal. The only basis for a writ of habeas corpus is the deprivation of a constitutional right. For example, an inmate may claim that she or he was denied the assistance of counsel guaranteed by the Sixth Amendment because the defense attorney was incompetent. Significantly, violations of the Fourth Amendment search warrant requirement cannot provide the basis for a federal writ of habeas corpus if a state court defendant had an opportunity to argue the issue in state court.


If an inmate is released on parole and then violates the terms of the parole, he or she must attend a hearing to determine if parole will be revoked. The parolee may be entitled to the assistance of counsel at the revocation hearing. This entitlement will depend on a number of factors, including whether the parolee denies committing the alleged acts, and the rules of the parole board. If the parolee can afford a private attorney, he or she is free to hire one; there is no bar to representation in parole revocation hearings.

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Definition Sources

Definitions for Criminal Procedure are sourced/syndicated and enhanced from:

  • A Dictionary of Economics (Oxford Quick Reference)
  • Oxford Dictionary Of Accounting
  • Oxford Dictionary Of Business & Management

This glossary post was last updated: 18th March, 2020 | 2 Views.