Lesson 7 Criminal procedure
1. Adversary proceeding / system / trial
Two parties---the state v. defendant
A neutral decision-maker---jury (fact-finder) or judge (law-finder) to determine the faces and apply the law.
The decision-maker, the judge and the jury, are neutral, passive participants. They have no
responsibility to go out and develop a case. Rather, they sit back and largely work with what they are given.
Inquisitorial system: based on the premise that the truth is best discovered through a
disinterested inquiry conducted by a magistrate (judge)---places too much authority in the hands
of the judge and takes from the defendant too large portion of his control over his own destiny.
Moreover , it is argued , the system appears to favor the state.
2. Accusatory procedure : the prosecutor takes the leading role, rather than inquisitorial, with the judge taking the leading role. The key to an accusatorial process of proof is that the party making the accusation of wrongdoing bears the burden of proving that the accusation is true. This burden of persuading the jury is described legally as the “ burden of proof ”
Placement of the burden of proof on the prosecution means that the defendant need not establish his innocence; it is the prosecutor that must establish his guilt. Moreover, the prosecutor’s evidence must be so convincing as to meet another basic standard of the criminal justice process----that the proof establish guilt beyond a reasonable doubt.
Standards of Proof and Levels of Action (legal English 339)
(a) No significant proof: complete doubt, resulting in investigation not involving restraints upon the person;
(b) Reasonable basis: belief that there is a significant possibility that individual has commited or is about to commit a crime, resulting temporary restrain( e.g., stopping the suspect on the street); (c ) probable cause: sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime.
(d) proof beyond a reasonable doubt : belief, considering all of the evidence presented, that
individual is so clearly guilty as to eliminate any reasonable doubt, resulting in conviction of crime.
3. criminal code: penal code
In the United States, a criminal proceeding includes many stages, from investigation to
sentencing. Some of them are pretrial actions; while others are in-court procedures.
4. Pretrial actions:
To take or hold a suspected criminal with legal authority, as by a law enforcement officer. An
arrest may be made legally based on a warrant issued by a court after receiving a sworn
statement of probable cause to believe there has been a crime committed by this person, and an arrest may be made legally without warrant if the report is based upon police observation and the
police believe that they have probable cause to believe the suspect committed a crime .A "citizen's
arrest" can be made by any person when a crime has been committed in his/her presence. However, such self-help arrests can lead to lawsuits for "false arrest" if proved to be mistaken, unjustified or involving unnecessary holding.
b. Filing the complaint
the initial charging instrument authorized by the prosecutor is filed that take place before or
within 48 hours after the arrest.
The hearing in which a person charged with a crime is arraigned in his or her first appearance before a judge. This is the initial appearance of a criminal defendant (unless continued from an earlier time) in which all the preliminaries are taken care of. This will be the accused’s first
contact with the judicial system. It is called arraignment.
The magistrate or judge will advise the accused of the charge against him and inform him
of his rights- particularly of his right to be represented by a lawyer. If the accused is too poor to retain private legal counsel a public defender will be assigned to assist him.
? the accused plea:
if the charge is a minor one, a petty misdemeanor, the accused’s plea( Guilty, not guilty , no contest) can be accepted.
? release on Bail or recognizance (具结；保证 刑事案件的被告人保证在指定日期按时到庭或遵
守法纪) or condition:
if the charge is a more substantial one, such as felony, a plea will not be taken at this time; the matter will be set for a preliminary hearing and, typically, the accused will be permitted to make bail.
d. Preliminary hearing( examination)
The preliminary hearing takes place before a judge or magistrate a few weeks after the first appearance( arraignment). At the preliminary hearing it is determined by a judge whether there
are reasonable grounds for believing that a crime has been committed and that there is
probable cause to believe that the defendant committed it. If both questions are answered in
the affirmative, the accused will be bound over for trial unless he enters a “guilty” or “no
contest” plea. He can again be released on bail; if he has been unable to post bound he will be
remanded to jail to await trial.
During this process, the prosecutor is required to present enough of the government’s case against the defendant to establish probable cause to believe that the defendant committed the offense charged. On the other hand, the defendant has the right to present evidence, but also has a constitutional right not to say anything or to produce any evidence.
? plea bargain: in criminal procedure, a negotiation between the defendant and his attorney on one side and the prosecutor on the other, in which the defendant agrees to plead "guilty" or "no contest" (admitting the facts, but unwilling to plead "guilty," some crimes, in return for reduction of the severity of the charges, dismissal of some of the charges, the prosecutor's willingness to recommend a particular sentence or some other benefit to the defendant. Sometimes one element of the bargain is that the defendant reveal information such as location of stolen goods, names of others participating in the crime or admission of other crimes (such as a string of burglaries). The
judge must agree to the result of the plea bargain before accepting the plea. If he does not, then the bargain is cancelled. Reasons for the bargain include a desire to cut down on the number of trials, danger to the defendant of a long term in prison if convicted after trial and the ability to get information on criminal activity from the defendant.
e. Pre-trial motions
During the period between arrest and trial there may be a flurry of activity by defense counsel, often taking the form of motions made before a judge. The defense may move to dismiss the
accusation on the ground that it is technically defective. In a case that has attracted a great deal of prejudicial local publicity, the defense may move for a change of venue, which means a change
of the place of trial to a locality in which there has not been saturating publicity. The defense may move to suppress(exclude)evidence that is believes is inadmissible.
Counsel for the defendant will also take pre-trial steps to learn what the prosecution’s
evidence is expected to be, and will demand a list of the witnesses that the prosecutor intends to
call to the stand at trial.
5. Prosecutor’s information and Grand jury indictments
Prosecutor’s Information: an accusation or criminal charge brought by the public prosecutor (District Attorney) without a Grand Jury indictment. This "information" must state the alleged crimes in writing and must be delivered to the defendant at the first court appearance
Grand jury indictment: a charge of a felony (serious crime) voted by a Grand Jury based
upon a proposed charge, witnesses' testimony and other evidence presented by the public prosecutor (District Attorney).
6. the trial