Posted: March 18th, 2024

Criminal Law

Criminal Law: An Analytical Perspective
1. Introduction
This book explores the definition and the historical development of criminal law and highlights the importance of criminal law in society. Criminal law is a system of law that focuses on punishing those who commit wrongs against the public order. In criminal law, a crime is defined as an act or a failure to act that violates a public law. English criminal law has been developed and continues to develop over a period of more than 900 years. The early common law was written down in a document called “the common law” which was referred to by the courts and lawyers to help solve the cases. Modern criminal law is mainly contained in the Crimes Act 1961 and a number of other enactments. However, some of the most important principles of criminal law are to be found in the common law and is of great constitutional importance. The common law continues to define and to develop the major crimes, such as murder and manslaughter. Over the 900 years, the advisors to the king, the judges and the commons begun to find ways of taking the law out of the hands of the king and to make it more certain and available to the people. This lead to the idea of the law being written down and circulating so that all could see it; the idea of a common law. The development in criminal law is highly influenced by social changes and along with social changes in the late 20th and early 21st century’s, some new crimes have been developed, such as identity theft. Also, subject to continual development of cyber crime. Cyber crime is a fast-growing area of crime, with new forms of offending, new methods and the criminals themselves are continually evolving. The government and the law are involved in the process of crime creation, criminalization, how crime is controlled, denied and the punishment of offenders. The criminal law is crucial in seeking to tackle and prevent criminal behavior. This is also important in providing and maintaining the stability and the public confidence in the society. By providing a legal system to determine who commit crimes and who are to punished will allow the society to be in a stable situation. The criminal law provides a mechanism that can be used to solve and to control dispute and also to provide guidance for the behavior of individuals, organizations and to the society. It also provides a way to protect and to create a better society for everyone. By recognizing what is criminal behavior in society is, this give an opportunity for the lawyers, the law enforcers and the commissioners to develop and practice the criminal law under a clear framework which is necessary for maintaining the order in the society.
1.1. Definition of Criminal Law
The term ‘crime’ is not defined in the Criminal Code, but it has a very special meaning: as can be seen in s. 2 of the Code, which declares that “everyone who commits an offence”. Crime is in fact so many sided that the criminal law has chosen not to attempt any overall definition of it: so many are the definitions which have been offered, from the idealistic ‘crime is a breach of the criminal law and is subject to official punishment’ to which one eminent writer has objected, that the expression ‘criminal law’ is in it, to the pragmatic ‘crime is what the police and other criminal justice agencies recognize as such, and make it their business to detect and deal with it’. It is perhaps a sufficient and practical definition to say that, with every forbidden act there is associated a prescribed punishment, and it is by focusing attention on the possible implications of the variety of ways in which a relationship of this kind might be defined that the complexities and interest of the subject is best revealed. In the first place, such a definition makes us aware of the essentially and inescapably penal character of criminal law, a fact often overlooked in the emphasis which legal education and much of the discussion of the subject tend to lay upon the rules of substantive law: it places in the forefront the significance of criminal sanctions as those without which the law would indeed be a mere ineffective exercise of moral judgement, the reflection of a disapproving society it underlines the idea that criminal law operates through fear of punishment, an odious notion which the sceptical ‘new’ criminologists see as a fundamental weakness of theories of criminal behavior which postulate rational choice and evaluate the significance of the certainty and swiftness of punishment. Second, the definition takes us to the heart of some of the deep difficulties and problems of principle with which the study of criminal law is especially concerned, inviting contemplation of the two alternative ways in which such actions and their sanctions may be related. On the one hand, one could say that punishment is assigned to the infringements of rules, that the criminal act consists in breaking the regulatory rules of the established order and the criminal justice process is concerned with convicting those who are ‘deviant’ by this test. On the other hand, it is open to us to argue that a criminal offence can properly be identified as just that kind of undertaking of a particular risk of harm to others to which it is fit that the sanctions of the criminal law should be attached. Such a definition has the merit of associating criminality with the liberties and well-being of others and recognizes the state’s right to intervene, in a sense, in situations which might arise between private individuals, ‘where the balance of relative positions and the existence of the special protection of communal living may have left a social wrong immune from other forms of redress’ (per Lord Parker in DPP v. Smith; and it makes it clear that the process of identifying such actions, of isolating, defining and describing them both in legal language and in the language of expert witnesses, is a crucial feature of the modern certainty that criminal trials have come to demand. Thirdly, and lastly, the absence of an all-embracing definition highlights the importance of those whose task it is to describe and apply the substantive concepts of criminal law: the courts, and the judges and magistrates who direct them, are enabled by the variety of meanings and emphases and by the interaction of legal argument and social debate which are possible within a definition such as the one suggested to make the law a subtler, richer thing as it builds and grows in the close texture of an unconditional community’s reaction to conduct which everyone recognizes as scandalous and dangerous.
1.2. Historical Development of Criminal Law
The first stage in the development of modern criminal law was the reform of the old system of private vengeance and the assertion of royal power. In Anglo-Saxon England, the concept was that no one should be driven to seek private vengeance but should go to the ‘folkmoot’, or people’s meeting – a forum for the settlement of disputes in which the local great men, or thanes, participated. If the accused failed to answer to his name when the crime was presented before the ‘hundred court’ (an assembly of all freemen), the accuser was entitled to follow him and kill him. There were no prisons as we know them today; the ultimate sanction for any serious offence was death. If a criminal managed to flee or hold off the initial hue and cry, this then grew into a longer-term campaign of pursuit and resistance called a feud. In 1275, in the first year of his reign, King Edward I convened a Parliament and asked the nobles to produce a common law – that is, to set down in writing “those.
1.3. Importance of Criminal Law in Society
From the dawn of our legal and political systems, government has played a significant role in our society. A government is maintained and controlled by means of its ability to coerce or to use force. This coercive power is important not only in maintaining order and in ensuring the government’s survival, but also in furthering the public good. The criminal law is one of the means by which the government demonstrates its capacity to use force to protect and maintain order in society. The criminal law serves many objectives and is the basis for maintaining order and peace in a society. All the criminal law procedures, starting from the investigation to the trial, serve an important function in the criminal justice system. This is because such procedures are designed to safeguard the accused persons’ constitutional rights by providing due process and ensuring fairness. In this view, criminal law is a means to a greater societal good – the assurance of a peaceful and orderly society. It is not just the legislators and judges who define what is criminal and what is not. Despite the criticism that criminal law is too confusing, too unpredictable, or too formalistic, the fact remains that the citizens have a hand in enclosing and confining criminal wrongs within limits at the collective and individual level. Because the criminal code is a part of society’s general body of normative rules, it serves as a maximum expression and as a reflection of the dominant social morality. By participating in the criminal laws, whether it is simply by abstaining from crime or by actively reporting criminal activity, citizens are sharing in the essential function of maintaining crimes within limits. In a sense, criminal law and people’s participation in its procedures play a vital role in connecting citizens’ shared morality and the ultimate objectives of a government that is to maintain social order.
2. Elements of a Crime
Among these two elements, which is actus reus and mens rea, the initial focus is on actus reus. Actus reus refers to the physical element of a crime. This means the prosecution has to show that a defendant’s acts have caused or are associated with the illegal act. For example, in “Larsonneur v Murrphy” [1939] case, where the defendant was accused of the breach of the peace, she was taken from Ulster to Ireland under the order of deportation. However, on arrival, the Irish police would rather have her removed from their country. So, they immediately took her to the adjourned port to send her back to the UK. The prosecution alleged that she was permitting to be in Ireland unlawfully. Therefore, she should be kept in custody and was brought before the High court judge for habeas corpus. However, she was released but was immediately arrested by the police office of Hammersmith. She was charged under a section of the Aliens Order, 1920 by failing to conform to the regulations in that she created a breach of peace. The defense argued that the actus reus was not proved, and whether she was still in breach of the peace at the time of arrest. It was held that the actus reus proven. Also, in some cases, ‘omission’ can constitute the actus reus of an offence, for example a statutory duty or contractual obligation. However, there is no general duty to act even when the consequence of inaction is serious or fatal. However, in a certain circumstance, a duty can be found where caused by a defendant’s creation of a dangerous situation. Next, we move on to study the concept of mens rea, which means the mental element in any crime. It is a vital principle of criminal law that the act of a defendant is not sufficient to create criminal liability. The prosecution must establish that the defendant has acted in a prohibited state of mind. The most serious level of mens rea is intention. This means the defendant’s aim or purpose was to cause a particular consequence or to bring about a particular result. For example, in the famous case of “R v Cunningham” [1957], the defendant was charged under section 23 of the Offence Against the Person Act 1861. This provided that it was an offence to administer any ‘poison or stupefy’ so as to ‘endanger life or inflict grievous bodily harm’. It has been illustrated that mens rea can be established by satisfying that the defendants, either direct intention or oblique intention, have the necessary intention required. Both of these two intentions mean that a defendant is acting with the aim or purpose of achieving a particular consequence. In the actus reus, one fair example showing mens rea can be established by satisfying that the defendants have the necessary intention required. It has been illustrated that mens rea can be satisfied by satisfying that the defendants, either direct intention or oblique intention, have the necessary intention required. Both of these two intentions mean that a defendant is acting with the aim or purpose of achieving a particular result. However, the difference between these two intentions is that in the direct intention, the consequence is desired by the defendant. For the oblique intention, the defendants foresee the consequence will occur and they seek to bring about some other consequence, and that foreseen consequence acts only as a side effect of the defendant’s act.
2.1. Actus Reus: The Physical Element
Actus reus, or “guilty act,” is the physical element of a crime. An actus reus is composed of different components. First, there must be some act. This can be as easy as an individual walking or as complicated as arranging the murder of a different individual. An individual cannot be held criminally liable for inner thoughts alone. They ought to result in some physical act. However, if a statute doesn’t specify a necessary mental state, a court will figure out how much, if any, mental state is required. This is vital. Criminal liability may be based totally on either a positive act or an omission to act. An omission to act can only form an actus reus where the defendant was under a legal duty to act. For example, there may be a legal duty to take wonderful steps to assist a person in peril. This is set by the criminal regulation. Next, the act must be voluntary. This would rule out situations where someone has a fit of tooth and hits someone else. It is essential to note that if someone cannot control their actions, this can suggest that they are not acting voluntarily. However, an actus reus is not always a crime. This is because there are typically positives and negatives within the same situation. An instance is a situation where the defendant hits someone. If the defendant is acting in self-defense, then their actions may not constitute an actus reus. However, if the defendant was the initial aggressor, then they can be criminally liable. It is the prosecution with the obligation to prove each detail of actus reus to the ideal standard of proof. There are slight variations between how the elements of actus reus and mens rea are proved. However, in review, there are common elements. First, each detail needs to be proved beyond reasonable doubt. Secondly, the absence of any detail can be fatal to a prosecution. Finally, most of the elements needed to be proved or been obtained during the act complained of. That means that the prosecution cannot simply say that because the defendant is better now, then a mental illness should not have been present at the time of the act complained of.
2.2. Mens Rea: The Mental Element
“Mens rea” is the mental element of a crime that is necessary for it to exist. The concept of mens rea developed in England when judges began to say that the devil himself knows what a man’s intentions are, and only bad intent, sufficient to corrupt, should make criminal. This translates into modern criminal law as the general understanding that a crime consists not only of doing something criminal, but also having the necessary bad intent. It must be noted that some crimes do not need any mens rea – these are known as “strict liability offenses”. With these offenses, it does not matter what the defendant’s mental state was at the time of the crime; so long as the act was voluntary, the defendant is guilty. Despite this, the existence of mens rea is seen as an important principle in criminal law. The probative potential of the existence of mens rea provides a number of guarantees to society and to the criminal legal system. For that matter, it is often required that the prosecution prove that the accused possessed a particular state of mind in order to secure a conviction. Firstly, the requirement that there be a guilty mind as well as a prohibited act imports an element of fairness into the criminal justice system. This is because an accused person can only be found guilty of a criminal offense if he has caused the actus reus with a guilty act to occur. In other words, if the accused has no mens rea for the commission of the crime, then the accused cannot be held criminally responsible. Secondly, the mens rea requirements for the various crimes act as a safeguard against the creation of criminal offenses that are ambiguous in scope. This serves to protect individual freedom of choice and ensures that there is adequate warning of what conduct will give rise to criminal liability. Thirdly, focusing on the mental element is integral to individualizing criminal liability, in that it permits an inquiry into the accused’s mental capacity and awareness. By enabling the consideration of such mitigating factors, the requirement of mens rea provides the mechanism through which the prosecution and punishment of socially blameless, morally innocent individuals for conduct that is not truly their fault may be resisted. Lastly, the need to prove mens rea promotes the deterrent purposes of criminal law by requiring an inquiry into the rationality and justifiability of the accused’s awareness or intention. This ensures that the societal messages sent by the imposition of both criminal and civil liability are justified and morally acceptable, rather than possibly being based on ignorance or political expedience. It also provides a stronger basis for the imposition of moral condemnation through the criminal law.
2.3. Concurrence: The Coexistence of Actus Reus and Mens Rea
Concurrence refers to the requirement that the actus reus and mens rea exist simultaneously. Without concurrence, the defendant’s action and state of mind would be considered separately. Criminal liability would be difficult to justify because the defendant’s guilt would amount to him simply being aware that he was performing the act in question. Courts have time and time again had to define and redefine the actus reus and mens rea elements to ensure that concurrence are met. This can be noted in a number of leading case authorities from Le Brun to Fagan and even in statute law such as the Sexual Offenses Act 2003. Nevertheless, the emphasis on the necessity of concurrence commences at common law, demonstrated by Lord Bingham CJ in Church, where he declared that ‘nothing less will suffice when a crime consists of conduct and consequences as distinct elements, not that mens rea is required to produce the actus reus; mens rea must produce the actus reus’; in modern terms the actus reus must be the product of the mens rea. Hence, from this we can deduce that it matters not under which of these circumstances it is believed that the offense has been committed; whether the actus reus has produced the mens rea or the mens rea has brought about the actus reus, concurrence will still be required. Secondly, Sanders, showing that despite the modern shift towards subjective recklessness, at the time when the House of Lords ruled Sanders as per the Cunningham recklessness test, it was settled that ‘it is not enough to prove that he had done an act which was wrongful in itself, he must have been conscious that the act was wrongful and it must have been such as all sober and reasonable people would inevitably recognize.’ This is an example of using concurrence to determine the level of mens rea required to obtain a conviction; in this case not only did it highlight the importance of concurrence, but it also showed that known as Cunningham recklessness did not form the necessary mens rea under s47 OAPA 1861.
2.4. Causation: The Link between the Act and the Harm
Causation is a key element of actus reus. It provides the link between the defendant’s act and the harm suffered by the victim. A broad approach to causation is taken in criminal law. The defendant’s act will be regarded as the cause of the result if it contributed significantly to that result. This is known as the ‘substantial cause’ test and is used in cases of both factual causation and legal causation. It means that in order for the defendant’s act to be regarded as the cause of the harm, it must have been a significant cause of that harm. If the act has only made a minimal contribution, it will not be regarded as the cause. For example, in the case of R v Pagett, the defendant used his pregnant girlfriend as a shield against police gunfire. When she was accidentally shot and killed by the police, it was held that although the police had fired the fatal shot, it was the defendant’s actions that were the substantial cause of her death. Factual causation looks at whether the defendant’s act was actually the cause of the harm. It uses the ‘but for’ test – the defendant’s act will be regarded as the cause of the harm if the harm would not have occurred ‘but for’ the defendant’s act. This test was established in the case of R v White. The defendant’s mother died of a heart attack and he was found guilty of murder, even though he hadn’t actually caused her death. His act of poisoning her with cyanide had not been the cause of her death as she died from a heart attack, but obviously she wouldn’t have had the heart attack ‘but for’ the defendant’s act.
3. Classification of Crimes
The classification of crimes helps to provide standardization across the criminal justice system. These classifications are particularly important when it comes to the collection of statistical data and the job of creating and amending legislation. There are six main categories of crime. These categories are: (1) felonies, (2) misdemeanors, (3) offenses that do not have a classification, (4) inchoate offenses, (5) regulatory offenses, and (6) juvenile offenses. Offenses against the person, such as murder, are given the most serious classification – that of a felony. This is because they are of most concern to the public and often carry significant sentences, including life imprisonment. More minor offenses, such as stealing a bar of chocolate, are known as misdemeanors. In comparison with felonies, misdemeanors are less serious and therefore.
3.1. Felonies: Serious Offenses
In comparison with misdemeanours, felonies are much more serious offences. The punishment for a felony is typically imprisonment for a year or more in a federal facility, and in some cases, it can be life imprisonment or even the death penalty. There are some states of the USA that classify felonies by category – for example, by ‘class’ or ‘degree’ – depending on the maximum possible sentence. Offenders who are found guilty of committing a felony will also face consequences beyond imprisonment; for example, they may lose their right to vote, to carry a weapon, to serve on a jury, or to hold public office. In many states of the USA, a convicted felon will lose their right to vote until and unless the right is restored at some point, often when they have completed probation or parole. In addition, if a person is accused of a criminal offence and they have had their legal right to possess a firearm taken away – either because of a felony conviction or because of an active order of protection – that person faces a criminal charge if they possess a firearm and ammunition. Felonies, as the most serious type of crime, include elements such as violence, severe harm to victim, threat to national security and so on. For instance, murder, sexual assault, kidnapping, human trafficking, terrorism, and hacking would all be classified as felonies. On the other hand some examples of behaviour often, but not always, classified as misdemeanours in the USA include disrupting the peace, petty theft, drunk driving, and shoplifting. Felonies lead to more serious implications and regional and federal agencies outline which crimes are classified as felonies and which crimes are classified as misdemeanours.
3.2. Misdemeanors: Lesser Offenses
Misdemeanors are less serious than felonies. The key difference between felonies and misdemeanors is the maximum punishment that may be imposed. For a particular act, the same conduct might be classified as either a felony or a misdemeanor. In such cases, the prosecution has discretion in determining how the crime should be charged. Most jurisdictions categorize misdemeanors based on the severity of the offense, such as “high misdemeanors,” “ordinary misdemeanors,” or “petty misdemeanors.” High misdemeanors are the most serious and may result in imprisonment for more than one year. Petty misdemeanors are the least serious and may only result in a fine or no penalty at all. Some examples of conduct that might constitute a misdemeanor include disorderly conduct, disturbing the peace, simple assault, public intoxication, vandalism, trespass, reckless driving, and certain types of theft. Misdemeanors are typically punishable by less than one year of imprisonment. The imprisonment is usually served in a local jail, as opposed to a state or federal penitentiary. In addition, the sanctions for misdemeanor convictions may also include probation, community service, and restitution. In contrast, felonies carry a potential punishment of imprisonment for one year or more. The imprisonment is usually served in a federal or state penitentiary. Other potential felony sanctions include death, fines, probation, and restitution. Some jurisdictions have created an extended category of a misdemeanor called “wobbler offenses.” A “wobbler” is an offense that may be charged as either a felony or a misdemeanor. The classification of the offense is left to the prosecutor’s discretion or is determined by the facts of the case and the defendant’s criminal history. This provides substantial flexibility and allows the prosecutor to take into account a defendant’s background and the surrounding circumstances of the case when deciding how to charge a particular crime.
3.3. Inchoate Offenses: Uncompleted Crimes
An inchoate offense is an unfinished criminal act. To be more specific, it is some steps taken towards the commission of another offense. There are three types of inchoate offenses, the most common being “attempt.” The crime of attempt occurs if 1) there is intent to commit a certain offense; and 2) any act is done which is a substantial step towards committing that offense. The Model Penal Code adds that the act must be “strongly corroborative of the actor’s criminal purpose.” Importantly, the attempt does not merge with the completed crime. What this means is that the defendant can be charged, convicted, and punished for both the attempt to commit a crime and the completed offense. This is important for prosecutors because the facts and evidence surrounding the attempt may be stronger or more clear than those for the completed crime. In certain cases, one act may constitute an attempt to commit more than one offense. However, in most states, the defendant can only be punished for one criminal act, even if his conduct was “multifarious.” For example, merely lying in a store and taking notes of security and camera locations does not constitute attempt to commit. This is because although there is a “substantial step” in the eyes of the law, there is not yet the possession of the “criminal tools” necessary for a convicted attempt. This act would at most constitute “conspiracy” or “solicitation.” Inchoate crimes exist as a way for the legal system to provide a means for prosecuting people that attempt to commit a crime but – for one reason or another – are not able to complete the act. These offenses also have the added benefit of protecting individual freedom and liberty by ensuring that people cannot be prosecuted and punished for mere preparation or “mere thought” crimes alone.
3.4. Strict Liability Offenses: Crimes without Mens Rea
There are, nonetheless, some constitutional limits on the power of legislatures to dispense with mens rea. For example, the Supreme Court of the United States has held that it is a violation of due process for a state to criminalize private, consensual sexual activity by adults without requiring any showing of mens rea. Because the criminalization of such conduct impinges on an area of individual liberty and is not aimed at public health or safety, the Court held that a showing of a guilty state of mind by the defendant is necessary. However, other than such exceptional cases, the majority of courts generally accept and enforce strict liability offenses.
Despite the lack of mens rea requirement, the prosecution must still prove actus reus, which is the physical act of committing the crime. For example, if a law prohibits driving faster than the posted speed limit and carries a punishment of a fine, the prosecution must prove that the defendant was actually driving and was driving faster than the speed limit, regardless of whether the defendant knew the speed limit and regardless of the defendant’s mental state. However, the prosecution does not need to prove that the defendant knew what the speed limit was or that the defendant acted purposely, knowingly, recklessly, or negligently.
Strict liability offenses are often regulatory or public welfare offenses that do not carry the stigma of imprisonment. For example, traffic offenses, public health laws, and laws regulating food and drug safety are considered notable examples of strict liability offenses. However, in recent years, many state and federal legislatures have been moving towards imposing more strict liability crimes, including serious felonies such as statutory rape and certain manslaughter offenses.
Strict liability offenses are crimes that do not require the defendant to possess a guilty state of mind. In other words, there is no mens rea requirement for these offenses. This means the prosecution does not need to prove that the defendant had a particular mental state when committing the crime. Instead, it is enough for the prosecution to establish that the defendant engaged in the prohibited act.
4. Criminal Procedure
The investigation and arrest process typically begins with an officer witnessing a crime or being called to a crime scene. The officer may conduct a brief investigation, including interviewing the victim and any witnesses and making preliminary findings. If the officer has reasonable grounds to believe that a crime has been committed and that a particular person is responsible for committing the crime, the officer can arrest that person. An arrest occurs when the person is deprived of his or her freedom. The person is then taken into custody and is no longer free to leave. Once a person has been arrested, the arresting officer must advise the person of the reason for the arrest and the person’s rights. This notification is called advising the person of his or her Miranda rights, which include the right to remain silent and the right to an attorney. Although there is no precise formula for determining whether probable cause exists, the officer’s decision must be based on factual evidence, and not on a mere hunch. At a minimum, probable cause requires more than a mere suspicion that activity is criminal. The officer must be able to articulate reasons for the belief that a particular person committed a specific crime. The decision of the Supreme Court case Illinois v Gates established the test for probable cause. The Court reasoned that the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. It is from this common-sense standpoint that the facts must be judged. The decision in Illinois v Gates is consistent with the idea that probable cause is a practical, non-technical standard. The test does not require the same precision as beyond a reasonable doubt, which is the standard required for a guilty verdict at a criminal trial.
4.1. Investigation and Arrest
In case of a criminal offense, the main task of the authority is to investigate and identify the person responsible for the offense. In this regard, a number of key steps are involved in a criminal investigation. The first step involves the police, and it is concerned with conducting the preliminary investigation. This refers to the inquiry of the fact, which is done to establish whether a crime has been committed and whether the defendant is responsible for the crime. The next step involves the arrest of a suspect. An arrest takes place when a person suspected of a crime is taken into custody. This may involve the use of physical restraint, or it can be simply telling the person that they are under arrest. In most cases, arrests are made under the authority of an arrest warrant which gives the police the authority to arrest the suspect. However, many arrests in a criminal investigation take place without an arrest warrant. After the arrest, the suspect will be taken to a police station for booking. The booking process involves the recording of the arrest in official police records and taking the suspect’s fingerprints and photographs. The suspect may be put in a police line-up, which is an identification process where members of the public are shown the suspect and other similar looking people from behind a glass screen. Most often, the police are required to obtain a court order allowing such identification. Upon the arrest of a suspect, the police must inform the suspect of his rights before interrogating him. These rights are famously known as the Miranda rights, which includes the right to remain silent and the right to have an attorney present during police questioning. This is intended to protect the suspect from self-incrimination and to ensure that any confession provided by the suspect is not an involuntary one. The police must also inform the suspect of the reason for the arrest. Failure of the police to adhere to these rules means that any evidence obtained during the interrogation will be excluded from the prosecutor’s case at trial because it will be considered illegally obtained. This will greatly weaken the case against the suspect.
4.2. Charging and Initial Appearance
When police officers arrest a suspect and bring him before a judge for the first time, it is important for the operation of the criminal justice system that certain basic procedures be followed. The first formal stage of a criminal prosecution is the suspect’s appearance before a magistrate or a judge soon after arrest. The purpose of this initial proceeding is to advise the suspect of his rights and to determine in a summary fashion whether there is probable cause to believe that he has committed a crime. These rights include the right to be informed of the charges, the right to remain silent, the right to counsel, and the right to bail. If the court finds that there is no probable cause, the suspect is released. If the court finds that there is probable cause, the suspect is given a date for a preliminary hearing. In a preliminary hearing, the prosecution must establish that probable cause exists to believe that the suspect committed the crime. The suspects are represented by counsel at the preliminary hearing and the rules of evidence are more stringently applied than they are at an initial appearance. Pre-trial discovery may take place at this point in the proceeding. Pre-trial discovery is the exchange of basic information between the prosecution and defense. The purposes of discovery are to prevent the trial of defendants on the basis of incomplete or incompetent evidence, to save court time, to protect witnesses from unnecessary harassment or subpoena, and to provide the defendant with sufficient information to make an informed plea. At this time, the defense may file pre-trial motions. Pre-trial motions are formal requests that certain matters be resolved before trial. Such matters might include the admissibility of certain evidence at trial, the suppression of certain statements made by the defendant, or challenges to the form or content of the charges themselves. If the defendant is indicted by a grand jury, an arraignment will follow. The purpose of an arraignment is to formally advise the defendant of the charges against him and to allow him to enter a plea of not guilty, guilty, or no contest. If the defendant pleads not guilty, the matter will be set down for trial.
4.3. Pre-Trial Proceedings
Pre-trial criminal procedures are designed to address two primary concerns: the state’s interest in ensuring a defendant’s appearance at trial and the state’s interest in preserving the availability of evidence. Once a suspect has been arrested, the first step in the pre-trial criminal process is the initial appearance before a magistrate. At the initial appearance, the defendant is advised of the charges against him, advised of his rights, and given the opportunity to have counsel appointed if he cannot afford an attorney. The magistrate must also determine whether there is probable cause to believe that the defendant committed the offense. If the defendant cannot be released, the next stage in the pre-trial criminal process is the preliminary hearing. This is the prosecution’s first opportunity to prove the defendant’s guilt. The prosecution does this by presenting evidence and calling witnesses to testify. The defendant has the right to be represented by an attorney at the preliminary hearing, and the right to cross-examine witnesses called by the prosecution. If the magistrate finds that there is indeed probable cause that the defendant committed the offense, the magistrate will bind the case over for consideration by a grand jury. A grand jury is a panel of private citizens, chosen from the rolls of registered voters in the county, who are summoned to serve for a six-month term of court. A grand jury serves two functions: to determine whether there is probable cause to believe that a federal felony has been committed and to protect citizens against unfounded criminal prosecutions. However, the defendant is not present at the grand jury’s consideration of the case and does not have the right to be represented. If the grand jury believes that the prosecution has presented sufficient evidence in support of the criminal charge, the grand jury will return an indictment. An indictment is a written statement of the essential facts of the offense charged, and is issued to command the defendant to appear in court and answer the charge. However, if the defendant does not waive formal presentation of the indictment, then the defendant has a right to be present at the arraignment. An arraignment is generally the first opportunity that the defendant has to hear the formal charge and to enter a plea. The defendant may plead guilty, not guilty, or, with the consent of the court, nolo contendere or no contest. If the defendant refuses to plead, the court will enter a plea of not guilty.
4.4. Trial and Sentencing
Fourth, a trial date is set. A case may be tried to a judge (bench trial) or to a jury. A trial can be broken down into the following stages: jury selection, opening statements, presentation of the prosecution and defense cases, jury instructions, closing arguments, jury deliberation and verdict, and sentencing. The trial and sentencing phase of criminal procedure can be quite complex, and often time consuming. Both state and federal laws require that a sentence be imposed without unreasonable delay. Nevertheless, in some cases, the sentencing phase can take weeks and sometimes months to complete. In the federal system, Rule 32 of the Federal Rules of Criminal Procedure generally requires that a defendant be sentenced without unnecessary delay, but there are exceptions. For instance, a presentence investigation and a presentence report are often required in federal court before a person can be sentenced. A presentence investigation generally involves the preparation of a background investigation and report on a person convicted of a federal crime, and is usually carried out by a United States Probation Officer. The presentence report will usually assign a range of months for an appropriate sentence. At the actual sentencing hearing, which is presided over by a judge, both the prosecution and the defense will have the opportunity to argue for or against the punishment that has been suggested in the presentence report. If the judge is inclined to deviate from the suggested sentence, he or she is required to give advance notice and a proper explanation for the deviation. The sentencing phase is a critical stage of a criminal proceeding; once a person is convicted, he or she may face legal penalties such as imprisonment, probation and fines. However, the imposition of such penalties is under the careful discretion of the trial judge. A sentence must be in line with the kind of punishment that is reasonably necessary to rectify the particular offense. Also, a sentence must not be based upon any improper considerations. For instance, United States Sentencing Guidelines provides a system which controls how the sentence is determined, and what kind of sentence can be imposed. According to the guidelines, in figuring out the “right range” sentence, the trial judge has to take into consideration the specific offense characteristics, the defendant’s criminal history category, and, if applicable, any potential departures and/or variances from the suggested range. For instance, in a white collar crime such as securities fraud and money laundering, it is important for the trial judge to consider, among other things, the actual or intended loss amount, the number of victims, the defendant’s motive, and the defendant’s level of involvement in the criminal activity. With the help of technological advancement, some of the more routine and mechanical processes in criminal procedure in this digital age have been automated. For example, electronic filing is now widely used in most, if not all states, providing for the electronic transmission of documents from the attorneys or the parties to the court, and in some instances even to opposing counsel. Electronic filing is considered more time and cost effective, and is environmentally friendly. Judges, too, have been adapting to the use of new technologies. In many courts across the country, judges are now utilizing “bench books” which are electronic copies of court opinions and related staff works. Such technology not only enables judges to work more efficiently, but also to have additional resources literally at their fingertips.
4.5. Appeals and Post-Conviction Remedies
Appeals in the United States are a matter of right, and not a matter of grace. In other words, an appellate court must hear first tier appeals from the trial court, and not simply choose which cases it wants to hear. Trial courts might not like to be overturned on appeal, but they have to follow the decisions handed down by appellate courts. If an appeals court does reverse a trial court decision, the case is often remanded – sent back to determine issues found by the appellate court not to have been satisfactorily dealt with. While both the defense and the prosecution may appeal verdicts and findings of law, only the defense may appeal findings of fact, such as a jury’s rejection of an insanity defense or a judge’s refusal to suppress evidence. There are certain grounds for an appeal to be heard. For example, the trial court may have erred in the application of law in the case, or abused its discretion in the making of a ruling. However, corrective action by an appellate court may be limited by the doctrine of harmless error – a court may acknowledge that an error in the case was made, but find that it was not material, and thus not justify reversal of the decision. Usually, defendants may challenge a conviction on appeal even if they have pleaded guilty or no contest at the trial level. For example, they can appeal if their attorney’s performance fell below the standard of effective assistance of counsel established by the Supreme Court in 1984. This type of appeal is often based on a claim that an attorney was ineffective in representing the defendant because the attorney’s actions or inactions deprived the defendant of a potentially fair trial, or made the outcome of the proceeding unreliable. Appeals and post-conviction remedies consist not only an appeals procedure but also the mechanisms by which a person who is in custody as a result of a judgment or sentence of a federal or state court may secure an order requiring that he be brought before a court so that it may be determined whether he is being held unlawfully. These procedures are quite separate from the appellate process itself, and involve initiating an application for certain specific writs (court orders) that are designed to challenge the execution of a sentence or its validity. Thanks to the advent of what is known as the Antiterrorism and Effective Death Penalty Act of 1996, some limits have been placed both on what issues can be raised in federal post-conviction remedies and the length of time allowed for filing. More on this and the concept of ‘finality’ of decisions will be examined in the later part of this chapter.

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