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.

Introduction

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 U.S. 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 that shows judicial approval of a search or arrest. The U.S. Supreme Court has held 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 provides,

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 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 that are 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 vary from state to state. State and federal governments may not limit the protections guaranteed by the Constitution, but they may expand them.

Automobile Exception to the Warrant Requirement

An example of this principle may be seen with the so-called automobile exception to the Constitution's search-warrant requirement. Under the automobile exception, states may allow the warrantless search of an automobile, except for the trunk, if the police officer reasonably believes that the vehicle holds evidence of a crime. The U.S. 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. This reduced expectation of privacy also allows police officers with probable cause to search a car to inspect drivers' and passengers' belongings that are capable of concealing the object of the search, even if there is no proof that the driver and passenger were engaged in a common enterprise. Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).

However, states are not required to adopt the automobile exception. The New Hampshire Supreme Court, for example, ruled 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 that is 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. A state law may not diminish the scope of the automobile exception by authorizing a warrantless search of an entire vehicle following a traffic stop in which the driver is issued a citation for speeding. Although law enforcement may conduct a full vehicle search if the defendant is formally arrested, the issuance of a traffic citation does not justify the considerably greater intrusion of a full-fledged search. Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998)

Investigation

Criminal prosecutions officially begin with an arrest. However, even before the 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, although police officers may lawfully prevent a criminal suspect from entering his or her home while they obtain a search warrant. Illinois v. McArthur, U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001).

Police officers need no justification under the Fourth Amendment to stop persons on the street and ask questions, and persons who are stopped for questioning are completely free to refuse to answer any such questions and to go about their business. But the Fourth Amendment does prohibit police officers from detaining pedestrians and conducting any kind of search of their clothing without first having a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity. The U.S. Supreme Court has held that reasonable suspicion is provided for a stop-and-frisk type of search when a pedestrian who, upon seeing police officers patrolling the streets in an area known for heavy narcotics trafficking, flees from the officers on foot. Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)

The warrant requirement is waived for many other searches and seizures as well, including a search incident to a lawful arrest; a seizure of items in plain view; a search to which the suspect consents; a search after a hot pursuit; and a search under exigent or emergency circumstances. Nor does the Fourth Amendment require the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that the vehicle is forfeitable contraband. Florida v. White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed. 2d 748 (1999).

However, the Fourth Amendment does prohibit police use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home. Such devices are typically employed to determine whether a suspect is using a high-intensity lamp to grow marijuana in his or her home. The U.S. Supreme Court has ruled that the use of thermal-imaging devices constitutes a "search" within the meaning of the Fourth Amendment, and thus their use is presumptively unreasonable without a warrant. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

The Supreme Court also ruled that a state hospital conducted an unreasonable search when it undertook warrantless and nonconsensual urine testing of pregnant women who had manifested symptoms of possible cocaine use. The governmental interest in using the threat of criminal sanctions to deter pregnant women from using cocaine did not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid search warrant. Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001).

The U.S. Supreme Court's Fourth Amendment jurisprudence is splintered over the constitutionality of using fixed checkpoints or roadblocks to conduct warrantless and suspicionless vehicle seizures. The Court has held that the Fourth Amendment allows law enforcement to perform warrantless vehicle seizures at a fixed checkpoint along the nation's border to intercept illegal aliens, so long as the search is reasonable in light of the "totality of the circumstances". United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). The Court also ruled that roadblocks may be used to intercept drunk drivers. However, the Court rejected on Fourth Amendment grounds the use of a roadblock to perform warrantless and suspicionless searches of automobiles for the purpose of drug interdiction. Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).

When an officer seeks a search warrant, he or she 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 might not be admissible at trial. Moreover, if the search goes beyond the scope granted in the warrant, the evidence seized as a result of that encroachment might not be admissible at 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.

In executing a search warrant pursuant to the Fourth Amendment, law enforcement officers may enter private property without knocking or announcing their presence if the officers have reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit an effective criminal investigation by allowing the destruction of evidence. While the lawfulness of a "no-knock" entry does not depend on whether property is subsequently damaged during the search, excessive or unnecessary destruction of property in the course of the search might violate Fourth Amendment rights, even though the entry itself is lawful and the fruits of search are not subject to suppression. United States v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998).

The Exclusionary Rule

The exclusionary rule protects the right to be free from unreasonable searches. This rule holds that otherwise incriminating subject matter that police officers have obtained illegally must be excluded from evidence. Along with the right of appeal, the exclusionary rule is a defendant's chief remedy for a violation of his or her rights in a criminal procedure.

The Stages OF A Criminal Prosecution

A criminal prosecution usually begins with an arrest. In some cases, the arrest is the culmination of a police investigation; in other cases, it may occur with minimal police investigation. Either way, the manner in which the police investigate suspects and collect evidence is almost always an issue in a criminal case.

During an arrest, a criminal suspect is advised of his or her Miranda rights. These include the right to remain silent and the right to an attorney. After arrest, the defendant is subjected to a cursory search for weapons and contraband. The defendant is then driven to the nearest jail, police station, or detention center for booking. During booking, the defendant is photographed and fingerprinted, and the arrest is entered into the police log, or blotter. The defendant is informed of the charge or charges if she or he has not already been so informed. The defendant is also allowed to make one telephone call. After being stripped of all personal items, belts, and shoelaces, the defendant may be placed in a holding cell to await presentation before a magistrate. For misdemeanors, which are less serious than felonies, the defendant may be released with the posting of a cash bond and a promise to appear before a magistrate.

While the person waits for this first appearance before the court, a police officer prepares a complaint against the suspect. The complaint is a document that describes the alleged crime. It is screened by prosecutors and then submitted to the court. The court reviews the complaint to determine whether there is sufficient legal basis to hold the person in custody. If the magistrate finds that the facts alleged do not establish probable cause to believe that the suspect committed the crime, the magistrate must dismiss the complaint and order the release of the person from custody.

The first appearance must be held without unnecessary delay. Many jurisdictions impose a twenty-four-hour limit on initial detention before a hearing, but this limit may extend to seventy-two hours if the arrest is made on a Friday.

In the first appearance, the magistrate informs the defendant of the charge or charges as set forth in the complaint. The magistrate also informs the defendant of his or her rights, such as the right to remain silent and the right to an attorney. If the defendant in a felony case is not already represented by private counsel and is unable to afford private counsel, the court appoints an attorney. This is usually a public defender, but it may be a private defense attorney paid by the court or working free of charge. In most states, the attorney meets with and represents the defendant in the first appearance. The defendant in a misdemeanor case does not always qualify for a free attorney.

If the magistrate finds probable cause, the magistrate sets bail in the first appearance. Bail consists of the conditions the defendant will have to meet to gain release from custody pending trial. Acceptable bail is usually cash or other liquid assets. Bail is intended to guarantee the defendant's appearance at trial. In some jurisdictions, if the magistrate determines that the defendant presents a danger to the community or may attempt to flee, the magistrate may refuse to set bail. In such a case, the defendant is forced to remain in jail until the case is resolved.

If the charge is a misdemeanor, the first appearance serves as an arraignment, where the defendant enters a plea of guilty or not guilty. The magistrate then allows the defendant to post bail or leave on her or his own recognizance, with the understanding that the defendant will reappear for trial.

Following the first appearance, a felony case proceeds to a preliminary hearing. Before this hearing is held, the prosecutor and the defense attorney communicate to see if there is any possibility of a plea bargain, or a mutually acceptable disposition of the case. If a deal can be reached, and it is acceptable to the defendant, it is presented to the court for approval at the preliminary hearing.

The preliminary hearing is conducted by the magistrate to determine whether the prosecution has sufficient evidence to continue the prosecution. Unlike the first appearance, the preliminary hearing is adversarial. The prosecutor relies on witnesses to present the prosecution's evidence, and the defendant may do the same. Both sides are allowed to question, or cross-examine, the opposing side's witnesses. After this hearing, the court may dismiss the charges if they are not supported by probable cause.

In some states, review by a grand jury is also required before a felony prosecution may continue; this review is not required for a misdemeanor prosecution. A grand jury is a group of private citizens summoned to review, in private, the prosecution's evidence. Generally, a grand jury consists of more jurors than a trial jury, which usually numbers twelve. In a grand jury proceeding, the prosecutor presents the evidence against the defendant to the grand jurors, and the grand jurors may ask questions of the prosecutor. The prosecutor then presents a proposed indictment, or a written accusation sworn to by the prosecutor. If a majority of the grand jury finds no probable cause for the prosecution, it returns a no bill, or a refusal of the indictment. If a majority finds probable cause, the grand jury returns a true bill, and prosecution continues.

Following a true-bill finding by a grand jury, the prosecution files the indictment with the trial court. Where no grand jury was required and only a preliminary hearing was held, the prosecution files an information, which is similar in form to an indictment but written and approved by the prosecutor alone.

After the indictment or information courts review criminal convictions for trial court errors. They rarely overturn verdicts on evidentiary bases. Even if an appeals court finds a trial court error, it will affirm the conviction if it feels the error did not affect the outcome of the case.

Generally, state court defendants appeal to a first court of appeals, then to the highest state court (usually the state supreme court), and then to the U.S. Supreme Court. In federal cases, defendants appeal to a U.S. court of appeals and then to the U.S. Supreme Court. The review of appeals after the first appeal is discretionary; that is, the court may decline to hear the case.

After exhausting all appeals, a defendant sentenced to incarceration may collaterally attack the conviction and sentence. This means the defendant attacks the conviction in an action other than an appeal. The most common method of collateral attack is submission of a petition for a writ of habeas corpus. This is a civil action against the warden of a prison, challenging the legality of the imprisonment. If the court approves the writ, the inmate must be set free.

A habeas corpus petition is not an appeal; courts will grant a writ of habeas corpus only if the defendant can prove that the court that sent the petitioner to prison was actually powerless to do so or that such detention violated the petitioner's constitutional rights. Generally, an inmate will ask for the writ in state court before filing in federal court.

All states also have a procedure in place to hear claims of newly discovered evidence. However, no relief is granted if the new evidence would not have made a difference in the verdict.

Some inmates are given early release from prison, or parole. Parole is granted by the state or federal parole board or correctional board. It allows the inmate to finish the prison sentence in the community. The court requires a paroled defendant, or parolee, to meet certain conditions on release and to meet regularly with a parole officer for the duration of the sentence.

In some states, if the conviction was for first-degree murder, the defendant may be sentenced to death. Where the sentence is death and the defendant has lost all appeals and collateral attacks, the defendant may ask the governor of the state for clemency. For federal crimes, the president retains the power of clemency. Clemency is forgiveness and mercy, and it usually comes in the form of a pardon or of a commutation of a sentence. A pardon releases the inmate from custody and restores his or her legal rights and privileges, such as voting and gun ownership. A commutation decreases or suspends an inmate's sentence. A commutation is a lesser form of clemency because it does not restore the legal rights of the inmate.

cross-references

Criminal Procedure; Double Jeopardy.

The exclusionary rule deters police misconduct in searches. Without the admission 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. However, before evidence seized during a warrantless search will be excluded from trial, the defendant must prove that he or she had a reasonable expectation of privacy in the place that was searched. Homeowners, for example, enjoy a reasonable expectation of privacy in items that they keep inside their homes. However, houseguests might not have a similar expectation of privacy in the homes they are visiting, especially when they do not stay overnight and their sole purpose for being inside the house is to participate in criminal activity such as a drug transaction. Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). Disputes over the application of the exclusionary rule are usually resolved at a pretrial proceeding called a "suppression hearing."

Arrest

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. An officer also 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 can be excluded from trial.

When an arrest is made, the arresting officer must read the Miranda warnings to the arrestee. These 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 that 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. However, the police may 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 may not show a witness a series of photographs in which all of the other subjects are black. If an identification procedure is too suggestive, any identification by the victim may be excluded from trial.

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. Accordingly, an indigent who is not represented by counsel at trial may not 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 he or she is able to pay for a private one.

A criminal defendant has the right to an attorney from the first critical stage of the criminal process through the end. 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. Attorneys must generally consult with their clients about trial strategy and tactics, in order to be effective and competent. However, a criminal defense attorney's failure to consult with a client before deciding against filing a post-conviction appeal does not necessarily render his or her assistance ineffective or incompetent. While the better practice would be for attorneys to always consult with their clients regarding the possibility of appeal, the Sixth Amendment only requires such consultation when there is reason to believe either (1) that any rational defendant would want to appeal; or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).

A defendant is free to reject counsel and to 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. Additionally, state courts of appeal may disregard a defendant's request to represent himself or herself on appeal without violating Sixth Amendment rights. Martinez v. Court of Appeals of California, Fourth Appellate Dist.,, 528 U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000)

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 to acquit. States may even provide as few as six jurors. Six is the minimum, 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. In limited circumstances, the out-of-court statements made by a witness who is absent from court may be offered through the testimony of a third party. Known as hearsay statements, this type of evidence may be admitted if the statements were made under oath and subject to cross-examination by the defendant's attorney, and if the witness is unavailable to testify at trial despite the best efforts of the prosecution. However, a defendant's Sixth Amendment right to confront and to cross-examine the accuser in open court is violated when the prosecution introduces the incriminating hearsay statements of a non-testifying co-defendant in a joint trial, even if the defendant's name is redacted from the incriminating statements, because juries will often realize that the redacted portions are referring to the defendant. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)

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 appear before witnesses for identification; to provide handwriting or blood or voice or fingerprint samples; or to repeat certain words or gestures.

However, the mere fact that a defendant has pled guilty to a criminal act does not waive the privilege against self-incrimination during the sentencing phase. As a result, a defendant has the right to remain silent, during sentencing, about facts that bear upon the severity of the sentence, and the sentencing court may not draw an adverse inference from the defendant's silence. Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999).

If the defendant does testify, he or she may be questioned by the prosecutor about previously inadmissible statements that contradict that testimony. Thus, the Fifth Amendment privilege against self-incrimination will not apply if the defendant has made statements that are contrary to testimony given on the witness stand. Nor does the Fifth Amendment prohibit a prosecutor from calling the jury's attention during closing arguments to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly. The Fifth Amendment prohibits the prosecution from commenting to the jury about the defendant's failure to testify at trial, but it does not prohibit the prosecution from making comments that impeach the defendant's credibility after her or she has testified. Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 294 (2000).

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 (i.e., 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 to 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 "a preponderance of the evidence" and "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 pleabargain. A plea of guilty cannot be revoked after a court has accepted it. Generally, it is appealable only if the right to a trial was not knowingly, intelligently, and voluntarily waived.

Prosecutors are often content with a pleabargain because it satisfies the criminal justice system's goal of encouraging people to accept responsibility for their actions, and because pleabargains avoid costly, time-consuming trials. A prosecutor also may agree to defer prosecution and to 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 to 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 that is 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 the court declares a mistrial, 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 may not authorize the federal prosecution of a defendant who has been 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). Similarly, the Double Jeopardy Clause is not violated when a defendant faces both criminal and administrative proceedings arising out of a single wrongful act. Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).

Postconviction

Sentencing 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 to 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 offenses, such as misdemeanors and violations, sentencing may immediately follow the verdict.

Judges generally have wide discretion to craft individualized sentences within statutory guidelines. However, states violate defendants' Sixth Amendment right to trial by jury in capital cases when they authorize the sentencing judge alone to determine the presence or absence of aggravating factors required for the imposition of the death penalty. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). And where a capital defendant's future dangerousness is at issue and the only sentencing alternative to death available to the jury is life imprisonment without the possibility of parole, due process requires the court to allow the defendant to inform the jury of his or her parole ineligibility, either by a jury instruction or in arguments by counsel. Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed. 2d 178 (2001).

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 property of certain criminal defendants. Under federal law, persons who have been 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 type of sentence 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 that a person who has been convicted of marijuana possession and sentenced to probation has been ordered to complete treatment for chemical dependency and to report to a probation officer twice a week. If the probationer fails to complete these requirements, the court may order the defendant to serve a period of incarceration for the marijuana offense.

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 who has been convicted of trespassing to the same punishment as a person who has been convicted of homicide.

With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The U.S. Supreme Court has considered the issue of proportionality, particularly in the context of the death penalty. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Court held that death was a disproportionate penalty for the crime of raping an adult woman.

But the high court has held that the death penalty itself is not inherently cruel, instead describing it as "an extreme sanction, suitable to the most extreme of crimes" (gregg v. georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976]). Modern methods of administering capital punishment, such as shooting, hanging, electrocution, and lethal injection, have been upheld as constitutional by federal and state courts. The U.S. Supreme Court has held that statutes providing a mandatory death sentence for certain degrees or categories of murder are unconstitutional because they preclude sentencing authorities from considering aspects of a particular defendant's character or record, or from considering circumstances that might mitigate a particular crime (see Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), the Court held that the Eighth Amendment prohibits states from inflicting the penalty of death upon a prisoner who is insane.

The U.S. Supreme Court has also ruled that the execution of mentally retarded criminals violates the Eighth Amendment's guarantee against cruel and unusual punishment. atkins v. virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Citing "evolving standards of decency," the Court stated that its decision was informed by a national consensus reflected in deliberations of the American public, legislators, scholars, and judges. Atkins overruled Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13 years earlier. However, in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15.

Appeal Contrary to popular belief, the U.S. 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 who is 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. Appellate courts reviewing a defendant's challenge to the appropriateness of a particular sentence must generally apply a deferential standard of review. Sentencing courts are in a better position than are appellate courts to decide whether a particular set of individual circumstances justifies the imposition of a given sentence under the sentencing guidelines, the U.S. Supreme Court has observed. Burford v. United States, 532 U.S. 59, 121 S. Ct. 1276, 149 L. Ed. 2d 197 (2001). Defendants must raise all claims of trial error in their first appeal in order to preserve the claims for future appeals.

Habeas Corpus Petitions After an incarcerated defendant has exhausted all appeals without success, he or she may file a writ of habeas corpus. This is a civil suit against the warden of the prison (in his or her professional capacity), 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 he or she was denied the assistance of counsel guaranteed by the Sixth Amendment, because the defense attorney was incompetent. But defendants generally may not rely on habeas corpus proceedings to challenge a federal sentence on the ground that the prior state convictions upon which the federal sentence was based had been unconstitutionally obtained. Daniels v. United States, 5532 U.S. 394, 121 S.Ct. 1567, 149 L. Ed. 2d 608 (2001).

Parole If an inmate is released on parole and then violates the terms of the parole, he or she must attend a hearing to determine whether 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, as well as 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 parolerevocation hearings.

Inmates who seek parole often cite mitigating factors that existed either before, after, or at the time the crime was committed. However, parole boards and related executive branch departments are under no obligation to give mitigating evidence any weight, and may typically reject an inmate's request for parole without providing any reason for doing so. Accordingly, the federal Bureau of Prisons has the authority to adopt regulations that categorically deny early-release incentive to prisoners whose current offense was a felony attended by "the carrying, possession, or use of a firearm." Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L. Ed. 2d 635 (2001).

further readings

Arkin, Marc M. 1992. "Rethinking the Constitutional Right to a Criminal Appeal." University of California at Los Angeles Law Review 39.

Israel, Jerold H., Yale Kamisar, and Wayne R. LaFave. 1993. Criminal Procedure and the Constitution: Leading Supreme Court Cases and Introductory Text. St. Paul, Minn.: West.

PMBR. 1993. "Criminal Procedure." Multistate Workbook. vol. 2. Multistate Legal Studies.

cross-references

Automobile Searches "Is the Fourth Amendment in Jeopardy?" (In Focus); Custodial Interrogation; Incorporation Doctrine; Prisoners' Rights; Public Defender; Right to Counsel.

TRIAL, CRIMINAL

Criminal trials have always held a special fascination for Americans and have furnished the plots for numerous books, plays, films, and television shows. Although civil trials can occasionally be of broad general interest, violations of criminal law frequently arouse strong popular emotions. Not surprisingly, horrific crimes are frequently front-page features in the newspapers. Trials that retell those crimes are often likely to be of interest to the public. To the extent that such trials deal with basic human weaknesses such as greed, anger, or jealousy, they frequently recount a fascinating tale.

In recent years, through changes in trial rules in some states, the American public has been able to get beyond newspaper coverage of criminal trials and actually watch selected criminal trials on television. Some of these trials have proven very controversial and have sparked considerable interest in our criminal trial system.

Civil versus criminal trends

Criminal trials differ from civil trials in several important respects. For one, criminal trials are always prosecuted on behalf of the state, not on behalf of victims or individual citizens. Thus a prosecutor in deciding whether or not to prosecute a possible crime or whether to offer a defendant a plea bargain has to make decisions in the public interest. For this reason, the head of each prosecuting agency is typically an elected public official who must answer to the voters for the decisions of the office.

Another important difference between criminal cases and civil cases is that criminal cases are regulated by the Constitution to a much greater extent than civil cases. Many provisions of the Bill of Rights, such as the right to indictment by grand jury, the right to counsel, the protection against compulsory self-incrimination, the right to confront witnesses, and the right to a speedy trial are directed only to criminal cases. This concern in the Constitution reflects the fact that, unlike civil cases which are usually concerned with money damages, what hangs in the balance in a criminal case is usually the freedom of the defendant and, sometimes, even the life of the defendant. For this reason, the Constitution provides defendants with guarantees aimed at ensuring that their treatment at the hands of the state is proper and that the trials they receive will be fair.

Burden of proof. The most important procedural difference between civil trials and criminal trials is the difference in the burden of proof. In civil trials where, for example, driver Smith claims that driver Jones was at fault in causing an accident and thus was responsible for Smith's damages, Smith must prove Jones's negligence by a preponderance of the evidence. This simply means that the jury must find Smith's evidence on the issue more convincing, even if only slightly so, than any evidence Jones offers. The scale must tip at least a bit in Smith's favor for Smith to prevail.

In a criminal trial the situation is quite different: the prosecution must prove the defendant's guilt beyond a reasonable doubt. This is obviously a very heavy burden of proof. To explain its meaning a standard jury instruction tells jurors that in order to find the defendant guilty they must be convinced by "proof of such convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs" (Devitt, Blackmar, and Wolff, p. 354). If, after hearing all the evidence, a jury has a reasonable doubt, then it must return a verdict of not guilty.

The reasonable-doubt standard in criminal cases is constitutionally required, and it has long been viewed as a central safeguard against erroneous conviction and the resulting loss of the wrongly convicted defendant's liberty and good name. Because a defendant in a criminal trial has at stake interests of immense importance, the U.S. Supreme Court has made it clear that due process demands that the margin of error in criminal cases be reduced in the defendant's favor by placing on the prosecution the burden of proving the defendant guilty beyond a reasonable doubt (In re Winship, 397 U.S. 358 (1970)).

Implications of proof beyond a reasonable doubt. The most obvious implication of proof beyond a reasonable doubt is that criminal cases are almost always close cases. The prosecution may have a strong case against a defendant, and yet, given the heavy burden of proof, it may still not be able to obtain a conviction from a jury. The jury may return a verdict of not guilty, even in a strong case, because the prosecution was not able to prove the defendant guilty beyond a reasonable doubt.

A second implication of the heavy burden of proof placed on the prosecution by the Anglo-American system of criminal procedure has to do with the meaning of a not guilty verdict. News accounts sometimes report that a jury in a criminal case "found the defendant innocent," and this seems to imply that the jury was convinced that the defendant was innocent or that it perhaps found the defendant's evidence more likely to be true than the prosecution's evidence. But a jury that has been properly instructed on the burden of proof and the meaning of proof beyond a reasonable doubt will often find the prosecution's evidence to be far stronger than the defendant's and yet feel compelled to acquit the defendant. Even if the defendant's explanation is rather implausible, it may leave the jury with a reasonable doubt and thus entitle the defendant to an acquittal. In short, the task of the defense in a criminal trial is not to convince the jury of the defendant's innocence, but rather to convince the jury that a reasonable doubt remains as to the defendant's guilt and that the defendant must thus be acquitted.

Adversarial versus inquisitorial trial systems. It is often suggested that Western trial systems can be divided neatly into those that are adversarial and those that are inquisitorial. In adversarial systems responsibility for the production of evidence is placed on the opposing attorneys with the judge acting as a neutral referee between the parties. By contrast, in inquisitorial trial systems responsibility for the production of evidence at trial is the job of the trial judge and it is the trial judge who decides which witnesses will be called at trial and who does most of the questioning of witnesses.

According to this claimed division among Western trial systems, the trial systems in the United States and England are considered adversarial in nature while those on the Continent in countries such as France or Germany are supposed to be inquisitorial.

But this distinction is not clear today. One reason for this is that European trial systems have all incorporated some adversarial features into their systems. Thus, for example, lawyers in Europe today have the right to question witnesses and they can also demand that certain witnesses be called to testify. By the same token, in the American criminal trial system trial judges are not always passive. They have the right to ask questions of witnesses and even to call witnesses not called by either party. Particularly, when a jury has been waived by the defendant, trial judges can be quite active in questioning witnesses.

But even if there is no litmus test that sharply distinguishes adversarial trial systems from those that are inquisitorial, it certainly remains accurate that the adversarial elements are much more emphasized in the American trial system. American lawyers have much more responsibility for the production and presentation of evidence than do lawyers in other Western trial systems, and trial judges in the United States tend to be much more passive at trial than judges in other Western trial systems. A trial in the United States is conceptualized as a battle in which the trial judge is a neutral and passive referee between the two combatants with the ultimate decision to be made by a jury.

Discovery in civil versus criminal cases. Another important difference between civil and criminal cases that affects what takes place in the courtroom is the difference in the amount of discovery that is permitted in preparing for trial. Discovery is the process by which each side preparing for trial learns about the witnesses and other evidence that the other side intends to introduce at trial.

In civil cases there is very broad discovery. For example, in civil cases both parties have the right prior to trial to take depositions of persons with information about the issues at stake in the lawsuit. A deposition provides an opportunity for lawyers on both sides of the case to question a person under oath in the presence of a court reporter who makes a record of what is said. As a result of this face-to-face questioning, the lawyers will not only learn all the information that the person being deposed may later present at trial, but they may also develop a good idea of how the witness will be perceived by a jury and thus will be able to plan for the examination or cross-examination accordingly.

Although there is considerable variation in criminal discovery from one jurisdiction to another, many jurisdictions do not require the prosecution even to disclose the names of the witnesses whom it intends to call at trial, let alone allow the defense to take wide-ranging depositions from them.

In short, in criminal cases the amount of information available to the prosecution and the defense will usually be much less than would be available to opposing sides in a civil lawsuit. As a result of this limited discovery, prosecutors and defense attorneys often question witnesses for the opposing side to whom they have not talked before the trial. Indeed, there may be witnesses of whose existence they were not even aware prior to the trial. This adds an element of uncertainty and surprise that further distinguishes criminal from civil trials.

The atmosphere surrounding the trial

Due process demands that the trial a defendant receives be a fair one. It is obvious that even if a trial is technically correct in terms of evidentiary rulings, jury instructions, and other rulings during the trial itself, a trial can still be unfair because it takes place in an atmosphere that is prejudicial to the defendant.

In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme Court reversed a murder conviction because the trial had violated due process in a case that, one hopes, represents a high-water mark in terms of a prejudicial trial atmosphere. In that case the publicity for a local murder trial was pervasive and, more important, it was very prejudicial; numerous editorials insisted on the defendant's guilt, and even news accounts were sometimes slanted against the defendant. In addition, the newspapers reported sensational rumors or "evidence" that was in fact never disclosed at the trial. Not only were the jurors not protected from this barrage of prejudicial publicity, but reporters themselves were disruptive even during trial proceedings as they moved in and around the courtroom, creating so much noise that it was difficult for witnesses or lawyers to be heard. In the Court's words, the trial was conducted in a "carnival atmosphere."

Controlling the courtroom. Many occurrences in a courtroom or courthouse can prove distracting to a jury or otherwise threaten a fair trial. Examples include reporters who move around the courtroom and even attempt to handle or photograph exhibits during recesses; spectators who are noisy or who try to intimidate particular witnesses by comments in the court-room or threatening gestures in the hall outside it, and overcrowding, which interferes with the entry or exit of witnesses and may precipitate disputes between spectators over the right to a seat.

Although there is no one solution to all these problems, a trial judge has the right to control the courtroom and the courthouse premises to help ensure that the defendant receives a fair trial. Given the limited size of most courtrooms, a judge may have to restrict the number of spectators or media representatives who can attend the trial, and may find it necessary in certain highly publicized cases to require the use of a ticket system to prevent corridors from being thronged with would-be spectators. It may also be necessary to bar spectators or media representatives from entering or leaving a crowded courtroom except during recesses.

The problem of pretrial publicity. One problem that has gotten worse for trial judges in recent years is the problem of how best to guarantee a defendant a fair trial in a high-publicity case. In such cases there can be pervasive and highly prejudicial publicity about the offense or the suspect in the period leading up to trial and this may continue even during the trial.

At one time, one weapon for countering prejudical pretrial publicity was for the trial judge to order a change of venue so that the trial would take place at a distant location from the county or city in which the crime occurred (Rideau v. Louisiana, 373 U.S. (1963)). But this is far less an effective antidote today. The concentration of new sources, the rise of cable and satellite television systems, and the ability of newspapers to publish immediately on the Internet make it harder to insulate jurors from possibly prejudicial trial publicity.

The steps in a criminal trial

Jury selection. While technically a trial begins when the jury is sworn in at the end of the jury selection process, jury selection is considered so important by trial lawyers that it is appropriate to consider jury selection as the first step in a criminal trial.

During jury selection either the lawyers or the trial judge will question potential jurors to make sure that they can be fair in deciding the case. As a result of such questioning, if the prosecutor or the defense attorney believes a certain juror cannot be fair and impartial either lawyer can challenge that juror for cause. If the trial judge agrees, the potential juror will be removed from the panel of jurors.

A second way a prosecutor or defense attorney can remove a potential juror is through a peremptory challenge. A peremptory challenge permits a lawyer to remove a possible juror without the necessity of showing a reason. Each jurisdiction allots a certain number of peremptory challenges to each side in a criminal case, and the number usually varies depending on factors such as the size of the jury or the seriousness of the crime. While the number varies from jurisdiction to jurisdiction, in a routine criminal case, such as a burglary or a theft case, the prosecutor and the defense attorney will often have five or six peremptory challenges at their disposal.

Opening statements. Because a trial can last days or even weeks, obviously it will be easier for jurors to understand how the bits and pieces of evidence that come to their attention fit together if they can be given an overview of the issues and evidence that will be central to the trial. This overview is provided by the opening statements that are delivered by the lawyers at the start of the trial.

The prosecution's opening takes place after the jury has been selected and sworn, but before the first witness has been called to testify. Although the opening does not supply the jury with any evidence (the evidence comes only from the witness stand and whatever exhibits are admitted at trial), nonetheless the prosecution's opening statement is very important. First, it provides an opportunity to explain the nature of the charge, or charges, for which the defendant is on trial. Some charges are easily understood by a jury, and in such instances it may be sufficient for the prosecutor simply to read the charging document as part of the opening. But other trials involving more complex charges, such as conspiracy or fraud, may require a more careful explanation of the elements involved.

A second function of the prosecutor's opening is to explain the evidence that will be produced in an attempt to prove the defendant's guilt beyond a reasonable doubt. This preliminary overview of the case is especially important if the trial will be protracted. But even in a trial lasting a relatively short time, an explanation of the prosecution's case can be important because witnesses may not always be able to testify in the order that a logical presentation of the evidence might suggest. For example, a fingerprint expert may have to testify early in the case, if other obligations make it impossible for the expert to appear later in the trial. But it may only be later in the trial that the gun which the fingerprint expert examined is connected to the defendant. An opening statement can help the jury understand how all the evidence fits together.

An opening statement is also important in a case that is based on a number of pieces of circumstantial evidence. In such a case, there may be no one witness who can tie the whole case together. A jury may grow bored or even frustrated as the prosecutor questions a witness at length about some apparently minor detail whose importance will be apparent only later in the trial. An opening statement helps the jury understand the significance of such pieces of evidence. It is easier for the jury to be patient while the prosecutor elicits testimony about a particular piece of evidence if the jury understands how that evidence fits into the mosaic.

Finally, opening statements are also exercises in persuasion. The opening and closing statements are the only opportunities the lawyers have to speak directly to the jury, and trial lawyers recognize the lasting impression that a clear, forceful, and logical opening statement can make on the jury.

Although the prosecutor always delivers his opening statement at the start of the trial, in many jurisdictions the defense attorney has a choice. The defense can present its opening after that of the prosecutor, or can reserve it until the prosecution has finished presenting its case and the defense is about to begin its own case.

Calling witnesses. The U.S. system of criminal trials is a part of the Anglo-American adversary system, under which trials are controlled to a large extent by the opposing sides. Each side presents its case and vigorously argues the merits of its evidence while attacking, as energetically as is proper, the evidence supporting the opposing side. The selection and questioning of witnesses is thus primarily the obligation of the opposing lawyers. Although a judge in a criminal case may occasionally call a witness and is permitted to ask questions of witnesses, by tradition the role of the judge is that of a neutral referee between the prosecution and the defense.

Both the prosecutor and the defendant have the power to subpoena witnesses who have relevant testimony to offer at trial. In fact, the Sixth Amendment specifically guarantees that a defendant have "compulsory process for obtaining witnesses in his favor." This subpoena power is necessary because many witnesses would prefer not to testify at trial, especially if there is likely to be a rigorous cross-examination.

Although subpoena power in criminal cases is broad, there are privileges that restrict the ability to call to the stand certain witnesses. For example, the Fifth Amendment privilege against self-incrimination bars the prosecution from calling the defendant as a witness as part of its case. Some states also have enacted laws providing for a marital privilege, which bars the prosecution from calling as a witness the spouse of the defendant if the defendant objects to having the spouse testify.

Even if there is no bar to calling certain witnesses to the stand, privileges may still protect certain matters from being revealed at trial. Thus, a witness for either the prosecution or the defense may refuse to answer certain questions out of fear that his answers will incriminate him. (Sometimes the prosecution will avoid this problem by granting the witness immunity.) Or a witness may invoke a number of other privileges, for example, the doctor-patient privilege or the priest-penitent privilege. Such privileges are designed to protect confidential communications arising out of these relationships from subsequent disclosure, even at a trial.

Exclusion of witnesses from the courtroom. The prosecution has the burden of proving the defendant guilty beyond a reasonable doubt and always presents its case first. But before any witnesses are called to the stand, it is frequently moved by either the prosecution or the defense that all witnesses be sequestered. This means that all witnesses who will be called at the trial are ordered to remain outside the courtroom until it is time for a particular witness to take the stand. Thus, a witness who is called late in the trial will not have heard the testimony of earlier witnesses. It is believed that sequestration helps discourage fabrication or collusion and also helps expose any inaccuracies in testimony.

Motions for sequestration of witnesses are usually routinely granted, and in most jurisdictions there is a right to sequestration by either side. There are, however, some exceptions. Usually a person whose presence in the courtroom is essential to the presentation of the case, such as the police officer who investigated the case, will be permitted to remain in the courtroom. The defendant, of course, has a constitutional right to be present and thus must also be permitted to remain in the courtroom even if he or she intends to testify. Finally, some states have exempted crime victims from sequestration rules and permit the victim to remain in the courtroom throughout the trial.

Examination of witnesses. The general sequence of the witnesses at a trial is as follows. First, the prosecution presents its direct case, aimed at proving that the defendant committed the crime in question. When the prosecution has finished with the presentation of its case against the defendant, the defendant has an opportunity to call witnesses and put on a defense. If the defendant chooses to put on a defense, the prosecution is then permitted to call additional witnesses to rebut the defense witnesses.

For example, the prosecution may present a series of witnesses in an effort to show that the defendant robbed a certain bank on a certain date. The defense may then call witnesses with the aim of establishing that at the time of the robbery the defendant was bowling at a certain bowling alley and thus could not have robbed the bank. Finally, the prosecution may call employees of the bowling alley in question to try to prove that the defendant was not at that bowling alley at the time of the robbery.

Each witness called to testify is questioned first by the side that called the witness. This is known as the direct examination of the witness. When the direct examination is over, the lawyer for the opposing side is permitted to question the witness in what is called cross-examination. After cross-examination is completed, the side that originally called the witness may question him in what is called redirect examination. This is usually limited to explaining or developing matters that were raised during the cross-examination. In some instances, if new matter has come out in redirect examination, a judge has permission to permit recross-examination.

The main difference between direct examination and cross-examination is the manner of questioning. In cross-examination an attorney is permitted to ask leading questions, which suggest the desired answer and usually call for a yes or no response. But in direct examination the questions should not be leading. Thus, in direct examination of a witness to a robbery, it would be improper for the prosecutor to ask a series of questions such as "And the man you saw robbing the bank was six feet tall, wasn't he?" or "And he was dressed in jeans and a green sweater, wasn't he?" On the other hand, questions of the same form would be permitted in cross-examination, for example, "It's true, isn't it, that you only saw the robber for fifteen seconds?" and "Isn't it a fact that you were very frightened at that time?"

The distinction between the form of questions permitted in direct examination and the form permitted in cross-examination reflects the fact that the witness's testimony usually is favorable to the side calling the witness, and unfavorable to the other side. In examining a witness called by the other side whose testimony is damaging, leading questions are needed in order to make an effective challenge to the witness's perception, memory, or credibility.

In addition, since each side usually calls witnesses who are generally cooperative and whose testimony is helpful to it, leading questions are not needed in direct examination. The attorney for that side has generally gone over the questions with the witness outside the courtroom, and sometimes there have been several rehearsals of the trial testimony in the days before trial. Given the reality of extensive witness preparation that takes place prior to important trials, there is less need for leading questions in direct examination and more need for leeway in attacking testimony that is not as spontaneous as it may appear to a jury.

Of course, witnesses do not always cooperate with the side that called them, and the leeway permitted in both the scope of examination and the manner of questioning the witness is always a matter for the discretion of the trial judge.

Admissible evidence

The judge's screening function. To understand criminal trials, it is necessary to understand the role of the trial judge in the admission of evidence. In the Anglo-American trial system the judge performs a screening function for the jury, making sure that the evidence brought before it is relevant and that it is not prejudicial to the defendant or to the state. Many items of evidence that are relevant in a broad sense are kept from the jury because the trial judge has decided that the danger of prejudice to the defendant outweighs the probative value of the piece of evidence in showing that the defendant committed the crime in question. Thus in a murder case, evidence offered by the prosecution showing past arrests of the defendant for assault will not be admitted, nor will evidence of the defendant's reputation as a violent person be admitted as part of the prosecution's direct case. Even gruesome pictures of the body of a murder victim that show the wounds may not be admitted for the jury's inspection if a trial judge feels that the pictures may inflame the jury and distract it from its job of carefully evaluating the evidence in the case. Of course, most evidentiary rulings can only be understood in context, taking into account the other evidence in the case and the legal and factual issues being contested. But it should be apparent that many major battles at a trial may take place outside the hearing of the jury because of the judge's obligation to rule on the admissibility of evidence. Thus one who observes a trial frequently sees the lawyers and the judge conferring at the side of the judge's bench in whispers discussing the admissibility of a piece of evidence or the propriety of a line of questions. Normally, judges try to resolve these questions quickly so they do not have to remove the jury from the courtroom and the trial can continue without a long interruption. Hence the convenience of arguing some evidentiary issues at the side of the judge's bench (so-called sidebar conferences ). But sometimes the issue is too complicated or too important to be argued in that abbreviated way and the judge will order the jury to return to the jury assembly room so that a full discussion of the issue can take place in the courtroom. Often a substantial part of a trial is consumed by arguments on evidentiary and other legal issues outside of the hearing of the jury.

Hearsay evidence. Besides the general screening function performed by the trial judge in making sure that the probative value of an item of physical evidence or a line of questioning outweighs any prejudice to the defendant, there are many specific rules of evidence designed to enhance the reliability of trial verdicts. One rule that is central to the Anglo-American system of trials—both civil and criminal—is the rule that bars hearsay testimony.

A hearsay statement is defined as an out-of-court statement offered for the truth of the matter asserted. This rule is perhaps best understood by considering an example. Imagine a bank robbery trial in a case investigated by Federal Bureau of Investigation agent Mary Smith. At the trial of John Doe, the government calls Smith, who proceeds to tell the whole story of the robbery as she learned it from the witnesses. She explains that a bank teller, Johnson, described the robber and picked out Doe in a lineup; she testifies that a bank customer, King, said that the robber wore a green plaid suit and a red bow tie with white polka dots. Finally, Agent Smith testifies that she interviewed Doe's ex-girlfriend and that the girlfriend said Doe owned a green plaid suit and a red bow tie with white polka dots.

All of this evidence as testified to by Agent Smith would be hearsay evidence—it is a series of statements that were made out of court to Agent Smith, and they are being offered for their truth. The problem with such hearsay is that the jury hears only Agent Smith, when the crucial witnesses who should be examined in the jury's presence are the bank teller, the bank customer, and the ex-girlfriend. Because hearsay testimony is inadmissible unless it fits within a recognized exception, the government in this example cannot present its case through secondhand reports of what others said. Instead the prosecution must call the actual witnesses to testify to exactly what they observed and what they each know personally. The jury will then be in a better position to assess the credibility of the witnesses, especially when it is considered that the defense will have an opportunity to cross-examine each of the witnesses and to expose any weaknesses in their testimony.

The ban on the use of hearsay testimony is not absolute. There are many exceptions that would allow it, and, like rules of evidence in general, these exceptions vary from jurisdiction to jurisdiction. One common exception is the rule that permits the admission of a witness's prior testimony if he or she is unavailable. Thus, where a witness testified at the first trial of defendant Doe and there was a hung jury necessitating a second trial, the testimony of this witness could be introduced at the second trial under the hearsay exception if the witness had died before the second trial.

The trial ends

Closing arguments. At the conclusion of the presentation of all the evidence there remain two very important steps: closing arguments and the judge's instructions to the jury. In a majority of jurisdictions the closing arguments, or summations, precede the judge's instructions to the jury but in some jurisdictions the judge first instructs the jury and then closing arguments are made.

Closing arguments are vital because a good one can have a strong impact on the jury's deliberations, which begin shortly after the closings take place. For both prosecutor and defense counsel, the closing argument affords an important chance to review the testimony and exhibits that have been admitted during the trial, as well as to argue for any inferences that they may wish the jury to draw from the evidence. Closing arguments are supposed to be argumentative, and appeals to common sense, attacks on the motives and credibility of unfavorable witnesses, and rather emotional pleas for a certain result are common. Closings also provide the opportunity to remind the jury of how the evidence inter-twines with the law, and a good closing argument will weave together favorable evidence and the jury instructions that the lawyer giving the closing believes will support a favorable verdict.

There are some important limitations on the scope of closing arguments. Although a lawyer may argue vigorously for a certain conclusion, it is unethical for a lawyer to assert the lawyer's personal opinion as to the guilt or innocence of an accused (American Bar Association, p. 325). Thus, a defense lawyer may not state in closing that he or she has a reasonable doubt of the client's guilt, but an argument that the evidence at trial clearly raises a reasonable doubt would be proper.

Another, perhaps obvious, restriction on final arguments is that the arguments in closing must be tied to the evidence developed at trial. Inferences and conclusions from the evidence at trial can be argued quite freely, but to mention evidence that was never presented (and perhaps even ruled inadmissible by the trial judge) would be improper.

Still another limitation on closings is related to the defendant's decision whether or not to testify. This decision is often a very important tactical one. For example, if a testifying defendant has been convicted of other serious crimes, the prosecution will often be permitted to attack the defendant's credibility by asking about these convictions and showing that the defendant has indeed been previously convicted. In such a situation a defendant thus must balance the importance of his or her testimony against the fact that the jury will learn of other convictions if he or she testifies.

If the defendant decides not to testify, a prosecutor may not comment in the closing argument on the fact that the defendant did not choose to testify. In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court indicated that comment by the prosecution on the defendant's failure to testify would violate the Fifth Amendment privilege against compelled self-incrimination. Thus in the closing argument the prosecutor may not argue that an adverse inference should be drawn from the defendant's silence at the trial. To back up this prohibition, if requested by the defendant, the trial judge will specifically instruct the jury that no adverse inference should be drawn from the defendant's decision not to testify.

Instructions to the jury. In speaking of instructions to the jury, it is natural to think first of the instructions at the end of the trial. But although these instructions are of crucial importance, there are often other occasions during the trial when the jury is instructed by the judge. Some judges choose to give a brief instruction on the law controlling the case at the beginning of the trial. Even during the trial, a judge may stop the taking of testimony to instruct the jury about the law surrounding an item of evidence. Thus, to continue the example above, when a defendant is impeached with a prior conviction, a judge should immediately instruct the jury that the conviction can be considered only as it bears on the defendant's credibility and not as evidence of his guilt.

However, it is at the end of trial that the judge gives the complete body of instructions to the jury. The instructions, of course, go into careful detail on the meaning of each of the elements of the crime, but they also cover many other general matters. A jury is usually instructed on such varied matters as the prosecution's burden of proof and the presumption of innocence, the meaning of reasonable doubt, the use of circumstantial evidence, the credibility of witnesses, the jury's role as fact finder, any defenses that have been raised, and the procedures to be followed in the jury room.

Before the judge instructs the jury, the prosecution and the defense will have an opportunity to submit instructions they wish the judge to give the jury. There will also usually be a conference between the judge and the lawyers outside of the hearing of the jury at which the judge hears argument from the lawyers about the instructions to be given.

If, during its deliberations, the jury feels that it needs more guidance, it so informs the judge, and the judge may repeat or further clarify any of the earlier instructions. In addition, if the jury is having difficulty in reaching a verdict, the judge often gives a supplemental instruction asking members of the jury to listen carefully to the arguments of other jurors and encouraging them not to hesitate to reexamine their own views (Lowenfeld v. Phelps, 484 U.S. 231, 235 (1988)).

The verdict. In civil trials a jury may be instructed to return either a general verdict (in which the jury simply indicates that it has determined the case for one of the sides) or a special verdict (which can be a rather lengthy list of specific questions on which the jury must reach agreement). As a practical matter in criminal cases, however, juries are always asked to return a general verdict of guilty or not guilty. Indeed, it has even been suggested that a special verdict may be an unconstitutional interference with the right to a jury trial (United States v. Spock, 416 F.2d 165 (1st Cir. 1969)).

In federal courts and in the courts of most states, the verdict of the jury must be unanimous. This is not a constitutional requirement because the Supreme Court in Apodaca v. Oregon, 406 U.S. 404 (1972), upheld an Oregon constitutional provision that permitted ten members of a twelve-person jury to render a guilty verdict in a noncapital case. But only Oregon and Louisiana permit nonunanimous jury verdicts in criminal cases.

Of course, not all juries are able to reach a verdict. When a jury indicates that it is deadlocked, the judge usually asks it to continue deliberations until the judge is convinced that further deliberations would be futile. If no verdict can be reached despite continued deliberations, the judge will order the jury discharged. In the event that the first trial ended in a deadlocked ("hung") jury, there is no double jeopardy bar to trying the defendant again.

William T. Pizzi

See also Adversary System; Burden of Proof; Civil and Criminal Divide; Confessions; Counsel: Role of Counsel; Criminal Justice Process; Criminal Procedure: Constitutional Aspects; Criminal Procedure: Comparative Aspects; Cross-Examination; Discovery; Exclusionary Rule; Jury: Behavioral Aspects; Jury: Legal Aspects; Publicity in Criminal Cases; Venue.

BIBLIOGRAPHY

American Bar Association, Center for Professional Responsibility. Annotated Model Rules of Professional Responsibility. 3d ed. Chicago: ABA, 1996.

Devitt, Edward J.; Blackmar, Charles B.; and Wolff, Michael A. Federal Jury Practice and Instructions, vol. 1. 4th ed. St. Paul, Minn.: West, 1987.

Frank, Jerome. Courts on Trial: Myth and Reality in American Justice. Princeton, N.J.: Princeton University Press, 1949.

Frankel, Marvin E. Partisan Justice. New York: Hill & Wang, 1980.

Mauet, Thomas A. Fundamentals of Trial Techniques. 4th ed. Boston: Little, Brown, 1996.

Pizzi, William T. Trials without Truth: Why Our Criminal Justice System Has Become an Expensive Failure and What We Need to Do to Rebuild It. New York: NYU Press, 1999.

Strier, Franklin. Reconstructing Justice: An Agenda for Trial Reform. Chicago: University of Chicago Press, 1994.

Strong, John William, ed. McCormick on Evidence. 4th ed. St. Paul, Minn.: West, 1992. With periodic supplements.

CASES

Apodaca v. Oregon, 406 U.S. 404 (1972).

Griffin v. California, 380 U.S. 609 (1965).

In re Winship, 397 U.S. 358 (1970).

Lowenfeld v. Phelps, 484 U.S. 231, 235 (1988).

Rideau v. Louisiana, 373 U.S. (1963).

Sheppard v. Maxwell, 384 U.S. 333 (1966).

United States v. Spock, 416 F.2d 165 (1st Cir. 1969).

Criminal Procedure

Sections within this essay:

Background

Criminal procedure is the body of state and federal constitutional provisions, statutes, court rules, and other laws governing the administration of justice in criminal cases. The term encompasses procedures that the government must follow during the entire course of a criminal case, ranging from the initial investigation of an individual suspected of criminal activity, through arrest, arraignment, plea negotiations, pre-trial hearings, trial, post-trial motions, pre-sentence interviews, sentencing, appeals, and probation and parole proceedings. The rules of criminal procedure may also apply after a defendant has been unconditionally released following an acquittal. For example, the Double Jeopardy Clause of the Fifth Amendment to the U. S. Constitution may be invoked by individuals who are facing prosecution on charges for which they have already been found not guilty.

Criminal procedures are designed to safeguard both the innocent and the guilty from indiscriminate application of substantive criminal laws (i.e., laws prohibiting rape, murder, arson, and theft, etc.) and from arbitrary or abusive treatment at the hands of law enforcement, the courts, or other members of the justice system. At the federal level these safeguards are primarily set forth in three places: the Federal Rules of Criminal Procedure, Title 18 of the United States Code sections 3001 et seq., and Amendments IV, V, VI, and VIII to the U. S. Constitution. The rules and statutes reference each other, and both are designed to enforce and delineate in greater detail the rights established by the federal Constitution.

The Fourth Amendment prohibits the government from conducting unreasonable searches and seizures while investigating criminal activity and building a case against a particular suspect. The Fifth Amendment prohibits the government from compelling individuals to incriminate themselves, from denying individuals due process of law, from subjecting individuals to multiple punishments or prosecutions for a single offense, and from being prosecuted in federal court without first being indicted by a grand jury. The Sixth Amendment guarantees defendants the right to a speedy and public trial by an impartial jury, the right to be informed of all charges against them, the right to confront adverse witnesses, the right to subpoena favorable witnesses, and the right to an attorney. The Eighth Amendment prohibits the government from requiring excessive bail to be posted for pre-trial release, from imposing excessive fines, and from inflicting cruel and unusual punishments.

The freedoms safeguarded by the Fourth, Fifth, Sixth, and Eighth Amendments have two lives, one static and the other organic. Their static life exists in the original language of the amendments as they were ratified by the states in 1791, while their organic life exists in the growing body of state and federal case law interpreting their text, applying it, and defining its scope as different factual situations come before the courts. All of the rights protected by these four amendments, except the right to indictment by a grand jury, have been made applicable to state criminal proceedings via the doctrine of incorporation. Under this doctrine U. S. Supreme Court has said that no state may deny any citizen a fundamental liberty without violating the Fourteenth Amendment's Equal Protection and Due Process Clauses. The fundamental liberties guaranteed to criminal defendants by the Fourth, Fifth, Sixth, and Eighth Amendments are best understood in the context of the criminal proceeding during which they are normally triggered.

The Fourth Amendment and Criminal Procedures Governing Investigation, Arrest, and Search and Seizure

The Text of the Fourth Amendment

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.

Case law interpreting the Fourth Amendment

Law enforcement officers are entrusted with the power to conduct investigations, make arrests, perform searches and seizures of persons and their belongings, and occasionally use lethal force in the line of duty. But this power must be exercised within the boundaries of the law, and when police officers exceed those boundaries they jeopardize the admissibility of any evidence collected for prosecution. By and large, the Fourth Amendment and the case law interpreting it establish these boundaries.

The safeguards enumerated by the Fourth Amendment only apply against governmental action, namely action taken by a governmental official or at the direction of a governmental official. Thus, actions taken by state or federal law enforcement officials or private persons working with law enforcement officials will be subject to the strictures of the Fourth Amendment. Bugging, wiretapping, and other related surveillance activity performed by purely private citizens, such as private investigators, will not receive Fourth Amendment protection.

Nor will individuals receive Fourth Amendment protection unless they can demonstrate that they have a reasonable expectation of privacy in the place to be searched or the thing to be seized. The U. S. Supreme Court explained that what "a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection…. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected" (see Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 576 [1976]). In general the Court has said that individuals enjoy a reasonable expectation of privacy in their own bodies, personal property, homes, and business offices. Individuals also enjoy a qualified expectation of privacy in their automobiles.

Once it has been established that an individual possesses a reasonable expectation of privacy in a place to be searched or a thing to be seized, the Fourth Amendment's protections take hold, and the question then becomes what are the nature of those protections. Searches and seizures performed without a warrant (a court order approving a search, a seizure, or an arrest) based on probable cause are presumptively invalid. However, in certain situations the Supreme Court has ruled that warrantless searches may be reasonable under the circumstances and thus pass constitutional muster.

Police officers need no justification to stop some-one on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business. However, the Fourth Amendment prohibits police officers from detaining pedestrians and conducting any kind of search of their clothing without first possessing a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity (see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889 [1968]). Police may not even request that a pedestrian produce identification without first meeting this standard. Similarly, police may not stop motorists without first having a reasonable and articulable suspicion that the driver has violated a traffic law. If a police officer has satisfied this standard in stopping a motorist, the officer may conduct a search of the vehicle's interior, including the glove compartment, but not the trunk unless the officer has probable cause to believe that it contains contraband or the instrumentalities of criminal activity.

The Fourth Amendment also expresses a preference for arrests to be based on a warrant. But warrantless arrests can be made when the circumstances make it reasonable to do so. For example, no warrant is required for a felony arrest in a public place, even if the arresting officer had ample time to procure a warrant, so long as the officer possessed probable cause that the suspect committed the crime. Felony arrests in places not open to the public generally do require a warrant, unless the officer is in "hot pursuit" of a fleeing felon (see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 [1967]). The Fourth Amendment also allows warrantless arrests for misdemeanors committed in an officer's presence.

The exceptions to the Fourth Amendment's warrant requirement are based on the court's reluctance to unduly impede the job of law enforcement officials. Courts attempt to strike a balance between the practical realities of daily police work and the privacy and freedom interests of the public. Requiring police officers to take the time to obtain an arrest or search warrant could result in the destruction of evidence, the disappearance of suspects, or both.

When an officer does seek a search or arrest warrant, the officer must present evidence to a neutral judge or magistrate sufficient to establish probable cause that a crime has been committed. The Supreme Court has said that probable cause exists when the facts within an officer's knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that an offense has been committed or is about to be committed. Courts will deny requests when the warrant fails to describe in particularized detail the person to be arrested or the place to be searched. The evidence upon which a warrant is based need not be ultimately admissible at trial, but it cannot be based on knowingly or intentionally false statements or statements made in reckless disregard of the truth. Courts will usually invalidate searches, seizures, and arrests made pursuant to a defective warrant. Inaccuracies found in a warrant due to ordinary negligence will not typically jeopardize a warrant's validity.

The Fifth Amendment and Criminal Procedures Governing Post-Arrest and Pre-Arraignment Proceedings

The Text of the Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; 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; nor shall private property be taken for public use, without just compensation.

Case Law Interpreting the Fifth Amendment

Once a suspect has been arrested or taken into custody, the rights guaranteed by the Fifth Amendment are triggered. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966), the Supreme Court held that under the Fifth Amendment's Self-Incrimination Clause, statements made to the police during custodial interrogation will later be deemed inadmissible at trial unless the suspect is first told that he or she has: (1) the right to remain silent; (2) the right to consult an attorney before being questioned by the police; (3) the right to have an attorney present during police questioning; (4) the right to a court appointed attorney if the defendant cannot afford to hire a private attorney; and (5) the right to be informed that any statements they do make can and will be used against them at trial.

If a suspect makes a request to consult with an attorney, the interrogation must immediately cease or any subsequent statements made without the attorney present will be ruled inadmissible. However, a suspect's request for an attorney will not prevent law enforcement from compelling the suspect to participate in a lineup of persons for the victim to review or from having the suspect's picture taken and shown to the victim in a photo array. Nor may a suspect raise the Self-Incrimination Clause as an objection to giving a writing sample, providing a voice exemplar, or taking a blood test. Applying a Fourth Amendment analysis, the Supreme Court has said that the Self-Incrimination Clause does not apply to these situations because individuals have no privacy interest in their physical characteristics.

The purpose of the right against self-incrimination is to deter the government from compelling a confession through force, coercion, or deception. Confessions produced by these methods are not only considered uncivilized by modern standards, but they are also considered unreliable, since they are often involuntary or unwitting or the result of the accused's desire to avoid further browbeating, instead of being the product of candor or a desire to confess.

The Fifth Amendment guarantees three other rights that relate to criminal procedure. First, every defendant has the right to be indicted by a grand jury before standing trial in federal court. As noted above, the Grand Jury Clause has not been made applicable to the states, and many states allow prosecutions based on information or complaint, which are written instruments prepared by the prosecutor. In federal criminal proceedings and in states that use the grand jury system, grand juries are normally comprised of between 16 and 23 persons from the district in which the crime occurred, and they can return an indictment against the defendant by majority vote.

Second, the Fifth Amendment prohibits the government from subjecting individuals to multiple prosecutions or multiple punishments for a single offense. This prohibition is called the right against double jeopardy. Defendants may bring motions pursuant to the Double Jeopardy Clause either before a trial to prevent a subsequent prosecution or punishment or after trial to overturn a subsequent prosecution or punishment.

Third, the Fifth Amendment guarantees every defendant the right to due process. The Due Process Clause requires that all criminal proceedings be conducted in a fair manner by an impartial judge who will allow accused individuals to fully present their defense, and proceedings that produce arbitrary or capricious results will be overturned as unconstitutional. The right to due process applies to every phase of criminal proceedings from pre-trial questioning to post-trial hearings and appeals, and its application to some of these proceedings will be discussed below.

The Sixth Amendment and Criminal Procedures Governing Post-Arraignment and Pre-Sentencing Proceedings

The Text of the Sixth Amendment

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 defense.

Case Law Interpreting the Sixth Amendment

Once a suspect has been arrested, the rights created by the Sixth Amendment take hold. The Sixth Amendment right to a speedy trial arises after a defendant has been arrested, indicted, or otherwise formally accused. Title 18 USCA sections 3161 et seq explain the nature of this right. Prior to the point of formal accusation, the government is under no constitutional or statutory obligation to discover or investigate criminal activity or accuse or prosecute suspected criminals within a particular amount of time. Nor is the Speedy Trial Clause implicated after the government has dropped criminal charges, even if the government refiles those charges at a much later date.

The Supreme Court has declined to draw a bright line separating permissible pre-trial delays from delays that are impermissibly excessive. Instead, the Court has developed a balancing test that weighs the reasons for delay against the prejudice suffered by the defendant in having to endure the delay. A delay of at least one year in bringing a defendant to trial following arrest will create a presumption that the Speedy Trial Clause has been violated. However, defendants whose own actions lengthen the pretrial phase or who fail to assert this right early in a criminal proceeding hurt their chances of prevailing on a speedy trial claim.

The point at which defendants are formally charged also triggers the Sixth Amendment right to be informed of the nature and cause of every accusation against them. Courts have interpreted this provision to have two elements. First, defendants must receive notice of any criminal accusations that the government has formally lodged against them through an indictment, information, or complaint. Second, defendants may not be tried, convicted, or sentenced for a crime that materially varies from the crime set forth in the formal charge. If either element is not satisfied and the defendant is convicted, the court will set aside the verdict and sentence.

Once a defendant has been formally charged by the prosecution in writing, the defendant will be arraigned before a court. At the arraignment the court generally reads the written charges to the defendant and attempts to determine if the defendant understands the charges or needs further explanation. Defendants are also provided with the opportunity to enter a plea of guilty or not guilty at the arraignment.

The arraignment is important for Sixth Amendment purposes because it gives rise to defendants' right to counsel, after which defendants are entitled to have counsel present at every "critical stage" of the proceedings. A critical stage is every stage of a criminal proceeding at which the advice of counsel is necessary to ensure defendants' right to a fair trial or every stage at which the absence of counsel might impair the preparation or presentation of a defense. Critical stages include important pre-trial hearings, such as a hearing upon a motion to suppress evidence, jury selection, trial, and sentencing. Non-critical stages include pre-trial procurement of defendants' fingerprints, blood, DNA, clothing, hair, and handwriting or voice samples. Denial of counsel to a defendant during a critical stage is considered tantamount to an unfair trial warranting the reversal of a conviction.

Defendants are not required to be represented by counsel but may instead choose to represent themselves throughout the course of a criminal prosecution, which is called appearing pro se. However, the waiver of the right to counsel must be done in a knowing and intelligent fashion by a defendant who is aware of the advantages to being represented by counsel. Before accepting a defendant's waiver of counsel, courts will normally explain many of these advantages to the defendant. For example, attorneys can advise their clients whether it is in their self-interest to make any statements to the police. Attorneys can also determine the propriety of bringing any pre-trial motions, including motions to dismiss the case, compel the production of exculpatory evidence, limit testimony of adverse witnesses, and suppress evidence seized in violation of the Constitution. Under case law interpreting the Fourth Amendment, not only is unconstitutionally obtained evidence rendered inadmissible at trial under the exclusionary rule, but any evidence derived from the constitutional violation is also subject to suppression via the "fruit of the poisonous tree" doctrine. Pro se defendants are not likely to understand these nuances of criminal procedure.

Attorneys can also influence the amount of bail that is set by a court following arrest. The Eighth Amendment prohibits courts from setting bail in an excessive amount. Criminal defense attorneys are accustomed to making arguments in favor of setting bail at a level proportionate to the severity of the crime so that gainfully employed defendants accused of less serious offenses can continue earning a living while awaiting trial. In certain instances when defendants have strong ties to a community, attorneys can convince courts to waive bail and release the defendants on their own recognizance, which means that defendants will not be incarcerated prior to trial but are obligated to appear for scheduled court appointments in a timely fashion or risk losing this privilege.

Once the trial begins, the Sixth Amendment guarantees that the defendant be tried in a court open to the public before an impartial jury. The right to a jury trial only applies to charges for which the defendant will be incarcerated upon conviction. If a defendant is tried by the court without a jury, the Sixth Amendment precludes imprisonment as a punishment. The right to a public trial is personal to the defendant and may not be asserted by either the media or the public in general. However, both the media and members of the public have a qualified First Amendment right to attend criminal proceedings.

The right to an impartial jury entitles the defendant to a jury pool that represents a fair cross section of the community. From the pool a panel of jurors is chosen to hear the case through a process called voir dire. During voir dire the presiding judge, the prosecution, and attorneys for the defense are allowed to ask members of the jury pool a variety of questions intended to reveal biases, prejudices, or other influences that might affect their impartiality.

Jurors may be excluded from service for a specific reason, called a challenge for cause, or for strategic purposes, called a peremptory strike. Attorneys for both sides may exercise an infinite number of challenges for cause, while all jurisdictions limit the number of peremptory strikes. For example, in New York state courts both the prosecution and defense receive three peremptory strikes plus one extra for each alternate juror (see NY CPLR ¤4109). The Equal Protection Clause of the Fourteenth Amendment also limits attorneys' use of peremptory strikes, making it unlawful to exclude jurors on account of their race (see Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712 [1986]). The jurors who are ultimately impaneled for trial need not represent a cross section of the community as long as they maintain their impartiality throughout the proceedings. The presence of even one biased juror impaneled to hear the case is not permitted under the Sixth Amendment.

The constitutional parameters governing the size of a jury in criminal cases are not established by the Sixth Amendment but by the Due Process Clauses of the Fifth and Fourteenth Amendments. The Supreme Court has ruled that in capital cases (i.e., cases in which the death penalty may be imposed) a defendant's right to a fair trial requires that the jury be comprised of twelve members who must unanimously agree on the issue of guilt before the defendant may be convicted and sentenced to death. For non-capital cases, the Supreme Court has ruled that the Constitution permits a verdict to be rendered by a majority vote of as few as nine jurors when the panel consists of twelve. The Court has also said that the Constitution permits trial by as few as six jurors in non-capital cases but that if a six-person jury is impaneled to decide a criminal case, all six must agree on the defendant's guilt before a conviction can be returned.

After the jury has been selected, the prosecution presents its case in chief. The Sixth Amendment guarantees defendants the right to confront witnesses who testify against them. In all but exceptional circumstances, the type of confrontation contemplated by the Sixth Amendment is face-to-face confrontation, allowing defendants to hear evidence against them, consult with their attorneys, and participate in cross-examination to test the credibility and reliability of the victim or other prosecution witnesses.

Once the prosecution finishes presenting its case in chief, the defendant must be allowed the opportunity to put on a defense. The Sixth Amendment gives defendants the right to subpoena witnesses and compel the production of evidence favorable to their case. The Sixth Amendment guarantees this right even if an indigent defendant cannot afford to pay the expenses that accompany the use of judicial resources to subpoena evidence. Defendants are under no obligation to testify themselves, as the Fifth Amendment right to remain silent applies during trial just as fully as it does during pre-trial questioning by the police. In fact, the defense need not call any witnesses or offer any evidence at all. The prosecutor has the burden of proving the defendant's guilt beyond a reasonable doubt, and the defendant may decide that the prosecution's case is sufficiently weak that the jury will vote to acquit without hearing from the defense.

If the court hears from the defense, each side is then allowed to present rebuttal testimony after which both sides will normally rest. The Sixth Amendment right to an impartial jury prohibits jury members from deliberating before all of the evidence has been submitted, the attorneys have made their closing arguments, and the judge has read the instructions. Once deliberations begin, jurors may ask the court for clarification of the instructions and for portions of the testimony transcribed for their review. If the jurors cannot reach a verdict after discussing the evidence amongst themselves, the judge will try to determine if they are hopelessly deadlocked. However, the judge cannot force a jury to reach a verdict, but the judge may encourage the jurors to make every reasonable effort to resolve their differences. If the jurors remain deadlocked for a reasonable period of time after meeting with the judge, the court will declare a mistrial and dismiss the panel from further service.

If the jurors return a verdict of not guilty, the court will enter a judgment of acquittal, and the defendant is free to leave the courthouse without limitation or condition. If the jurors return a verdict of guilty, the case will proceed to sentencing. For lesser offenses, such as simple or petty misdemeanors, sentencing may immediately follow the verdict. For all other offenses, sentencing is usually conducted by the court in a separate hearing held several days or weeks after the verdict. Both the prosecution and defense are permitted to make arguments as to the appropriate sentence, and courts are generally given wide latitude in crafting individualized punishments within the statutory guidelines. Sometimes this discretion is curtailed by guidelines that require mandatory minimum sentences. Punishments may include any combination of community service, forfeiture of property, fines, probation, or incarceration. In 38 states and in federal court, defendants may be sentenced to death for first-degree murder, felony murder, and other similarly serious crimes.

The Eighth Amendment Limitations on Sentencing

The Text of the Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Case Law Interpreting the Eighth Amendment

A court's discretion in sentencing a defendant is also limited by the Eighth Amendment, which prohibits the imposition of excessive fines and the infliction of cruel and unusual punishment. The Excessive Fines Clause has proven to have little effect over the course of the last two centuries. Trial judges are afforded extremely wide discretion in assessing fines on criminal defendants, and they are rarely overturned on appeal. For a fine to be overturned there must be proof that it was arbitrary, capricious, or so grossly excessive as to amount to a deprivation of property without due process of law. As a practical matter, the cost of appealing a fine often exceeds the amount of the fine itself, thereby reducing the incentive to appeal.

On the other hand, the Cruel and Unusual Punishment Clause has been the subject of much litigation. This clause requires every punishment imposed by the government to be commensurate with the offense committed by the defendant. Punishments that are disproportionately harsh will be overturned on appeal. Examples of punishments that have been overturned on Eighth Amendment grounds include two Georgia statutes that prescribed the death penalty for rape and kidnapping (see Coker v. Georgia, 433 U. S. 584, 97 S. Ct. 2861, 53 L. Ed.2d 982 (1977); Eberheart v. Georgia, 433 U.S. 917, 97 L. Ed.2d 2994, 53 L. Ed. 2d 1104 [1977]). The Supreme Court has also ruled that criminal sentences that are inhumane, outrageous, barbarous, or shock the social consciousness also violate the Eighth Amendment.

In 1972 the U. S. Supreme Court placed a moratorium on capital punishment throughout the United States, declaring that the statutes authorizing the death penalty were too broad and allowed for arbitrary and discriminatory application by judges and juries (see Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 [1972]). But four years later the Supreme Court upheld three new state statutes that were enacted to cure those flaws (see Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 [1976]). Thirty-five states and the federal government soon followed suit by revising their death penalty statutes to comply with the Eighth Amendment, and the nation's high court has since shown reluctance to closely scrutinize these statutes.

However, in 2001 the Georgia Supreme Court surprised many legal observers when it banned use of the electric chair in executing death row inmates (see Dawson v. State, ― S.E.2d ―, 2001 WL 1180615 [GA.2001]). The court said that death by electrocution violated the state constitution's prohibition against cruel and unusual punishment because it inflicted purposeless violence and needless mutilation on the prisoner, and as such made no measurable contribution to the accepted goals of punishment (see GA Const. Art. 1, ¤ 1, par. 17). At the same time, the court stressed that it was not calling into question Georgia's entire system of capital punishment. On the contrary, the court said that death by lethal injection raised no constitutional questions because it was minimally intrusive and involved no mutilation.

Appeal and other Post-Conviction Proceedings

The federal Constitution does not guarantee the right to appeal a criminal conviction. However, every state affords defendants the right to have at least one appellate court review the record for trial court errors. Many of these states restrict the subject matter of what may be appealed, curtail the time in which an appeal may be taken, or permit appellate courts to issue decisions upon the record and briefs submitted by the parties without holding a hearing or entertaining oral arguments. 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 the U. S. Court of Appeals. Review of state and federal convictions by the U. S. Supreme Court is discretionary.

After incarcerated defendants have exhausted all appeals without success, they may file a writ of habeas corpus. This is a civil suit against the warden of the prison, challenging the constitutionality of the incarceration. A habeas corpus petition is not anoth-er appeal. The only basis for granting relief to a habeas corpus petitioner is the deprivation of a constitutional right. For example, an inmate might claim that he or she was denied the assistance of counsel guaranteed by the Sixth Amendment on grounds that their attorney was incompetent. Violations of the Fourth Amendment's prohibition against unreasonable searches and seizures are not grounds for granting a writ of habeas corpus.

If a defendant loses on appeal and is denied a writ of habeas corpus, most jurisdictions offer a few last-ditch remedies. If the sentence includes parole, an inmate may petition the parole board to move up the date for parole. Inmates of state prisons may ask the governor of the state in which they are imprisoned for clemency. If granted, clemency normally includes the restoration of a released inmate's civil rights, such as the right to vote and own a gun. A commutation of sentence is a lesser form of clemency, since it does not restore the legal rights of the inmate but only releases him or her from incarceration. Federal inmates may ask the president of the United States for a pardon, which, like clemency, releases the inmate from custody and restores his or her legal rights and privileges.

Additional Resources

American Jurisprudence. Lawyers Co-operative Publishing Company, 2001.

Criminal Procedure. Wayne R. LaFave, Jerold H. Israel, and Nancy J.King, West Group, 2001.

http://sol.lp.findlaw.com Criminal Law and Procedure Decisions of the October 2000–2001 Supreme Court Term

Oxford Companion to the Supreme Court. Kermit Hall, ed., Oxford University Press, 1992.

West's Encyclopedia of American Law. West Group, 1998.

Organizations

American Civil Liberties Union (ACLU)

1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive Director

Association of Federal Defense Attorneys

8530 Wilshire Blvd, Suite 404
Beverly Hills, CA 90211 USA
Phone: (714) 836-6031
Fax: (310) 397-1001
E-Mail: AFDA2@AOL.com
URL: http://www.afda.org
Primary Contact: Gregory Nicolaysen, Dir.

Center for Human Rights and Constitutional Law

256 S. Occidental Blvd.
Los Angeles, CA 90057 USA
Phone: (213) 388-8693
Fax: (213) 386-9484
E-Mail: mail@centerforhumanrights.org
URL: http://www.centerforhumanrights.org
Primary Contact: Peter A. Schey, Executive Director

National District Attorneys Association (NDAA)

99 Canal Center Plaza
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://www.ndaa.org
Primary Contact: Thomas J. Charron, Dir.

CRIMINAL PROCEDURE

"It was a great day for the human race," Charles E. Merriam wrote in Systematic Politics (1945), "when the idea dawned that every man is a human being, an end in himself, with a claim for the development of his own personality, and that human beings had a dignity and a worth, respect for which is the firm basis of human association." This idea is the predicate for that branch of American constitutional law which is concerned with criminal procedure, for this body of law is deliberately weighted in favor of persons accused of crime. This pronounced tilt of the law is based on the assumption that it is vitally necessary to protect the dignity inherent in all human beings, regardless of their station in society.

The commitment of the Constitution to protect in some emphatic way the rights of criminal defendants is reflected in the fact that such protection is a principal theme of the federal bill of rights. Similar protections appear in the bills of rights that form parts of all state constitutions. Even before the ratification of the Bill of Rights in 1791, however, the Constitution in its original form did not ignore the subject altogether. Thus, the privilege of the writ of habeas corpus was guaranteed, and both bills of attainder (legislative convictions for crime) and ex post facto laws (laws making criminal acts that were innocent when done) were forbidden (Article I, sections 9 and 10). trial by jury "for all crimes" was also guaranteed (Article III, section 2), and the offense of treason was defined with meticulous care to prevent abuse of a charge often made on flimsy grounds in moments of great political excitement (Article III, section 3).

The Bill of Rights filled in many more details by spelling out a long list of guarantees designed to protect criminal defendants: freedom from "unreasonable searches and seizures " (fourth amendment), indictment, by grand jury, freedom from double jeopardy, the right against self-incrimination, the right to due process of law (Fifth Amendment), the right to a speedy and public trial by an impartial local jury, the right to notice of charges, the right to confront adverse witnesses (i.e., cross-examination), the right to have the assistance of counsel (sixth amendment), and freedom from excessive bail and from the infliction of cruel and unusual punishment (Eighth Amendment). In addition, section 1 of the fourteenth amendment, with its provision that no state shall "deprive any person of life, liberty, or property, without due process of law," eventually opened the door to considerable supervision of criminal justice in the states by the federal courts.

This commitment to the safeguarding of the rights of defendants in criminal cases was deeply rooted in the common law system which the earliest settlers brought with them from England. In ancient Anglo-Saxon and Norman times, questions of guilt or innocence were determined by such ritualistic devices as trial by battle or ordeal, or by compurgation (oath-taking), which were largely appeals to God to work a miracle establishing the defendant's innocence. Actually, private vengeance, taking the form of private war or blood feuds, was the principal check on criminal conduct. But by the time the first colonies were established in America, the basic procedures characteristic of modern jurisprudence had taken form. The essence of modern adjudication is the discovery of innocence or guilt through the presentation of proofs and reasoned argument.

Furthermore, it is important that under common law a person accused of crime carries with him the presumption of innocence, which means that the defendant is not obliged to prove his innocence, but rather that the burden of proof is on the prosecution to prove guilt. In addition, jurors must be instructed by the presiding judge that they may convict only if they find that guilt has been established "beyond a reasonable doubt, " which is the greatest quantum of proof known to the law. In most civil litigation a preponderance of evidence suffices to support a verdict. Thus, in a landmark English case, Woolmington v. D.P.P. (1935), the House of Lords ruled clearly wrong an instruction of the trial judge to the effect that since the accused had shot his wife, the law presumed him to be guilty of murder unless he could satisfy the jury that death was due to an accident. "No matter what the charge or where the trial," Lord Sankey declared, "the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

The common law rules relating to the presumption of innocence and the burden of proof are part of the law prevailing in every American state. For example, following the completion of a modern, revised criminal code in Wisconsin, the legislature adopted a statute that declared: "No provision of the criminal code shall be construed as changing the existing law with respect to presumption of innocence or burden of proof." These principles are also firmly rooted in federal jurisprudence. As Justice felix frank-furter, dissenting in Leland v. Oregon (1952), wrote, "From the time that the law which we have inherited has emerged from dark and barbaric times, the conception of justice which has dominated our criminal law has refused to put an accused at the hazard of punishment if he fails to remove every reasonable doubt of his innocence in the minds of jurors. It is the duty of the Government to establish his guilt beyond a reasonable doubt." Similarly, the Supreme Court has ruled that the standard of proof beyond a reasonable doubt in criminal cases is a due process requirement binding upon the state courts. It is, Justice william j. brennan asserted in in re winship (1970), "a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence.…" According to the Supreme Court, the states are required to prove beyond a reasonable doubt all elements of the crime with which the defendant was charged, and the jury must be so instructed. An instruction is improper if it has the effect of reducing substantially the prosecution's burden of proof or of requiring the defendant to establish his innocence beyond a reasonable doubt.

The solicitude of American constitutional law for the rights of the accused is so great that the American system has been described as a defendant's law, in contrast with inquisitorial systems of other countries which give the prosecution many advantages not available in the United States. American public law on this important subject rests upon the recognition of several important considerations that are not the product of abstract theorizing or mere sentimentalism but rather the result of historical experience over centuries of time. For one thing, it is an unquestionably legitimate, indeed essential, function of government to apprehend, try, and punish convicted criminals. But it is also the duty of those public officials who operate the criminal justice system to avoid violating the law themselves in their zeal to combat crime. Of course, our society has a serious crime problem which government cannot and should not ignore, but it has long been recognized that at some point the price of law enforcement may be exorbitant. As Justice Frankfurter observed in Feldman v. United States Oil Refining Co. (1944), "The effective enforcement of a well designed penal code is of course indispensable for social security," but he went on to say: "The Bill of Rights was added to the original constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed."

Surely, one of the indispensable objectives of a free society is to avoid the disorganizing consequences of lawlessness by public officials. Thus Justice oliver wendell holmes observed in his celebrated dissenting opinion in the Supreme Court's first wiretapping case, olmstead v. united states (1928), that "we must consider two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected and to that end that all available evidence should be used. It is also desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained.… We have to choose, and for my part I think is a less evil that some criminals should escape than that the Government should play an ignoble part." In a separate dissenting opinion in the same case, Justice louis d. brandeis warned that government forcefully teaches by example, that crime is contagious, and that "if the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." To permit the government to commit crimes, he asserted, in order to convict criminals, "would bring terrible retribution."

Without question, if unrestrained by law, the police could apprehend and prosecutors could secure the conviction of far more lawbreakers than they now manage to catch and convict. For example, if the police had a free hand to break into any dwelling or other building and to rummage around as they please, looking for stolen goods or other contraband, such as controlled substances, unquestionably they would solve more crimes and put more thieves, burglars, drug peddlers, and other criminal characters in jail. But the price would be prohibitively high, since it would entail the destruction of a cherished aspect of privacy. Similarly, if the police were completely free to torture suspects, more confessions would be secured, and the conviction rate would rise significantly, but again, other values must be weighed in the balance. These values include avoiding the risk of convicting innocent people who cannot endure the pain and avoiding the danger of encouraging unprofessional, brutal police conduct which employs uncivilized methods shocking to the conscience. Obviously, choices must be made between the desire to catch and punish lawbreakers and our concern for maintaining the legal amenities of a civilized society. The search for a tolerable balance between these competing objectives is what much of our constitutional law is all about. As Justice william o. douglas remarked, in An Almanac of Liberty (1954), "a degree of inefficiency is a price we necessarily pay for a civilized, decent society. The free state offers what a police state denies—the privacy of the home, the dignity and peace of mind of the individual." Aside from the fact that one hundred percent law enforcement would make the building of additional jails the highest priority of the country, it simply cannot be achieved without devoting resources far beyond what we can afford, considering all the other important functions for which government is responsible, and without resorting to methods that are almost universally deplored in civilized countries.

The various rights secured for the accused by our constitutional law are not technicalities; due process of law is at the center of our concept of justice. The overall purpose of our legal system is not so much to secure convictions as to render justice. Our rules of constitutional law are not only designed to protect people who are in trouble with the law but also to assure us that those who are engaged in the often exciting business of law enforcement will observe those time-tested rules which in large measure constitute the essence of fair procedure. "Let it not be overlooked," Justice robert h. jackson, dissenting in shaughnessy v. united states (1953), wrote, "that due process of law is not for the sole benefit of the accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice.…"

There are additional compelling reasons that explain and support our legal system's concern for protecting the rights of persons accused of crime. For one thing, a criminal case is essentially a contest between an individual and a government, that is to say, between parties of vastly unequal strength. This disparity in the strength of the parties is especially visible in the modern age of powerful governments. The teaching of experience the world over is that inequality tends to beget injustice, and where the parties are so unequal, a determined effort must be made to redress the imbalance of power. Thus, the accused is entitled to seek a reversal of a conviction in an appellate court, but the prosecution may not get an acquittal reversed, for the double jeopardy principle forbids it. In this respect, the scales of justice are tipped in favor of the weaker party.

In addition, our concern for the defendant's rights rests upon an understanding that for most people it is a very serious matter indeed to be accused by the government of having committed a crime. The possible consequences range from loss of employment to disruption of family life, injury to reputation, and, ultimately, loss of personal liberty. It follows that one accused of crime is likely to be in such deep trouble that he or she must have every opportunity to combat the charges, as fully, as quickly, and as decisively, as possible. Many rights—bail, a public and speedy trial, confrontation, of accusers, and assistance of counsel—facilitate an early and effective defense, or at the very least, make one possible.

Furthermore, one of the major purposes of assuring a full measure of due process of law is to promote the sense of community by giving all of us the feeling that even guilty persons have been treated fairly. As Justice Douglas observed in Brady v. Maryland (1963), "Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of criminal justice suffers when any accused is treated unfairly." As Justice Brennan said in furman v. georgia (1972), "Even the vilest criminal remains a human being possessed of common human dignity."

In a larger sense, our body of procedural law in the criminal field seeks to combat abuse of the police power of the state. Police brutality is the hallmark of totalitarian and dictatorial systems of government. The twentieth century has been well schooled in the fearful menace of the midnight knock on the door, the ransacking of private dwellings by the police without legal warrant, the use of torture to break the will, and the ultimate indignity of incarceration in brutal concentration camps. For these compelling reasons our constitutional law was deliberately formulated to prevent the unrestrained exercise of police power.

Indeed, if one looks closely at the elements of the constitutional right to a fair trial it becomes clear that for every rule there is a persuasive reason. The basic rights of the accused are responses to our concrete historical experience. Why, for example, does American constitutional law assure defendants representation by counsel? The answer was explained with convincing clarity by Justice george sutherland in powell v. alabama (1932):

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.

In gideon v. wainwright (1963), the case that extended the right to counsel in state courts to all persons charged with felonies, Justice hugo l. black argued that it was an obvious truth that a person too poor to hire a lawyer cannot be assured a fair trial. He pointed out that government spends vast sums of money to engage the services of lawyers to prosecute, and that few defendants who can afford them fail to hire the best lawyers they can find to present their defenses, from which it follows that "lawyers in criminal courts are necessities, not luxuries."

To cite another example, in all American jurisdictions, state and federal, double jeopardy—which means essentially putting a person on trial twice for the same offense—is forbidden. Once a defendant has been tried and acquitted, he may not be put on trial a second time, even though the prosecution has found fresh relevant evidence not previously available to it or has discovered that serious legal errors were made at the trial. As explained by Justice Black in Green v. United States (1957): "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

There are equally persuasive reasons for the guarantee of trial by jury. Justice byron r. white noted, in the landmark case of duncan v. louisiana (1968), that the right of trial by jury is "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." The jury, one of the distinctive features of Anglo-American jurisprudence, is the result of several centuries of concrete experience; it has changed in the past, in many different ways, and it is still a dynamic institution. The authors of the Constitution were thoroughly familiar with the jury system and made careful provision for it in the original document, before the Bill of Rights filled in additional details. Thus, our criminal law procedure has always reflected a reluctance to entrust prosecutors and judges with unchecked powers over life and liberty.

Similarly, there are compelling reasons why American constitutional law protects the individual against unreasonable searches and seizures, the main reason being the desire to protect the right of privacy. This "right to be left alone," as Justice Brandeis asserted in his notable dissenting opinion in Olmstead, is "the most comprehensive of rights and the right most valued by civilized man." Fresh from his Nuremberg experience, Justice Robert Jackson wrote, in a spirited dissent in brinegar v. united states (1949), that the Fourth Amendment rights "are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government." Justice Jackson also pointed out that because police officers are themselves the chief invaders of this right, the responsibility for protection against unreasonable searches and seizures has fallen on the courts.

An ancient teaching of English and American law is that to compel a person to convict himself or herself of a crime by being coerced into giving unwilling testimony is inadmissible. Our criminal jurisprudence makes the assumption that everyone is innocent until proved guilty beyond a reasonable doubt on the basis of competent evidence; the prosecution has the duty to prove guilt. Because the accused is not required to establish his innocence, it follows that he cannot be required to supply testimony that would lead to a conviction. The Fifth Amendment's guarantee against compulsory self-incrimination is thus neither an alien nor a novel doctrine but rather, as Justice Douglas wrote in An Almanac of Liberty, "one of the great landmarks in man's struggle to be free of tyranny, to be decent and civilized. It is our way of escape from the use of torture. It is part of our respect for the dignity of man."

The rights of the accused in American criminal procedure are not static but respond to changing social values and moral concepts. This dynamism is reflected in the judicial interpretation of the Eighth Amendment's prohibition of cruel and unusual punishment. Thus Chief Justice earl warren wrote in trop v. dulles (1958): "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Similarly, in furman v. georgia, the Supreme Court for the first time held that the death penalty is unconstitutional under certain circumstances, Justice thurgood marshall observing that "a penalty that was permissible at one time in our Nation's history is not necessarily permissible today." The court similarly made new law when it ruled in Estelle v. Gamble (1976) that deliberate indifference of a jailer to the medical needs of prisoners constituted an "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment. Similarly, the right to be free from unreasonable searches or seizures had to be given a progressively broadened scope as we moved into the age of electronic gadgetry. Given the dynamic character of American life, flexibility of interpretation was inevitable if a living Constitution was to retain its vitality, and the broad and generous character of constitutional language contributed to that flexibility.

Many policy questions relating to criminal procedure must be understood in the context of the federal character of the American system of government. Certain important powers are delegated by the Constitution to the national government, and except as the states are limited by that Constitution—which is the supreme law of the land—the tenth amendment confirms that the states retain power over all other matters. One of the most important residual powers of the states is the power to define and punish crimes. Although Congress was not expressly empowered to enact a general code of criminal statutes, it was assumed from the beginning that the national government could enforce its laws by imposing criminal sanctions. The doctrine of implied powers provided the necessary doctrinal underpinning. For example, the delegated power to tax includes by implication the power to punish persons who commit tax frauds. The federal criminal code has expanded steadily since 1789 and is today a lengthy document. Even so, most criminal laws are state laws, and a very large majority of persons in jail are incarcerated in state institutions. That the criminal law in all its facets is mainly state law is a well-understood fact of American life. In a special message to Congress in 1968, President lyndon b. johnson pointed out that crime "is essentially a local matter. Police operations—if they are to be effective and responsible—must likewise remain basically local. This is the fundamental premise of our constitutional structure and of our heritage of liberty." It follows, said the President, that "the Federal Government must never assume the role of the Nation's policeman."

Decisions of state courts are not reviewable by the Supreme Court if they involve only issues of state law, as to which the highest state court speaks the last word. For example, a 1967 case involved an appeal from the Texas courts regarding the state's habitual-criminal statute. Under this statute, the trial jury is fully informed of previous criminal convictions and the state is not obliged to have a two-stage trial, one devoted to the pending charge and a second to a consideration of the previous convictions. On appeal, the Supreme Court ruled in Spencer v. Texas that as a matter of national constitutional law the state is not required to provide a two-stage trial. Declining to interfere, the Court held that this matter is controlled by state procedural law; the Court is not "a rule-making organ for the promulgation of state rules of procedure."

There are, in fact, two avenues available to seek federal judicial review of the decisions of state courts in criminal cases. First of all, if a convicted defendant has taken whatever appeals are available to him under state law in the state courts and if he has sought review of a substantial federal (as distinguished from state law) question, then the Supreme Court has jurisdiction to review the judgment on direct review if it chooses to do so. Second, one who is in custody following conviction in a state court and has exhausted his available postconviction state remedies may, in a proper case, assert his federal legal claim by applying to a federal district court for a writ of habeas corpus. Accordingly, whether through direct review by the Supreme Court or through habeas corpus proceedings, federal courts often correct state courts where federal rights have been denied. But federal courts do not sit merely to correct errors alleged to have occurred in state courts. As the Supreme Court said in Herb v. Pitcairn (1945), "Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights."

The key question, then, is: what is a federal right? A short answer is: any right arising under the Constitution of the United States, statutes of Congress, or treaties. But the provisions of the Constitution relating to basic rights are stated in vague and general language that does not in terms apply to the states. Indeed the Court held in a landmark case, barron v. baltimore (1833), that the Bill of Rights did not apply to the states. This holding was based on the proposition that the Bill of Rights was intended only to supply additional protection from violations by the new, untested national government, and that wherever the states were limited by the constitution, the language to this effect was always explicit. Prior to the Civil War, federal court review of state criminal convictions under the Bill of Rights was not possible.

A major change in our whole system of government began in 1868 with the adoption of the Fourteenth Amendment, which provides that no state shall "deprive any person of life, liberty, or property, without due process of law." Not until 1923, however, did the Supreme Court undertake to employ this clause as a limit on state criminal procedure. In the leading case of moore v. dempsey, the Court held that a conviction in a trial dominated by a mob was a violation of due process and could be remedied by a federal court through issuance of a writ of habeas corpus. In such a proceeding the federal court must make an independent evaluation of the facts, even though the state's highest appellate court has upheld the correctness of the conviction. The Supreme Court, too, on direct review, began to reverse state convictions as violations of due process. In 1932 the Court ruled that the Sixth Amendment right to representation by counsel, at least in capital cases, is an indispensable element of a fair trial which is guaranteed by the Fourteenth Amendment's due process clause. Later decisions extended the constitutional right to counsel in state courts to include any offense punishable by imprisonment for any period of time. Other decisions, most of which were made after World War II by the warren court, applied to the states, as due process requirements, most of the other provisions of the Bill of Rights which are designed to protect persons accused of crime. For example, in mapp v. ohio (1961) the Court extended to the states the exclusionary rule, long applicable in federal prosecutions by reason of the Fourth Amendment. Henceforth state courts, too, would be required to exclude from criminal trials all evidence secured as a result of unreasonable searches and seizures. Similarly, a state violates due process if it subjects a person to compulsory self-incrimination (malloy v. hogan, 1964), if it denies trial by jury at least where nonpetty offenses are involved (duncan v. louisiana, 1968), or if it subjects a defendant to the hazards of double jeopardy (benton v. maryland, 1969). In fact, by 1970 all of the criminal procedure provisions of the Bill of Rights were made applicable to the states by way of Fourteenth Amendment due process, except the Fifth Amendment guarantee of indictment by grand jury and the Eighth Amendment prohibition of excessive bail. The bail guarantee very likely will be incorporated into the Fourteenth Amendment when the issue comes to the Supreme Court in the proper form. All the other rights of the accused guaranteed by the Bill of Rights are now regarded as elements of Fourteenth Amendment due process, enforceable against the states through federal judicial process. In the words of the Court, they are "fundamental principles of liberty and justice," or are "basic in our system of jurisprudence," or are " fundamental rights essential to a fair trial," or are "the very essence of a scheme of ordered liberty." (See incorporation doctrine.)

Not only does Fourteenth Amendment due process now incorporate most of the Bill of Rights, it also has an independent force wholly outside of the Bill of Rights. For example, in the famous case of Mooney v. Holohan (1935), the Court ruled that a state has denied the accused due process of law if the prosecution has deceived the court and jury by presenting testimony known to be perjured. Similarly, in Jackson v. Virginia (1979), the Court ruled that a state court conviction can pass the test of Fourteenth Amendment due process only if a rational trier of fact could find that each essential element of the crime had been established "beyond a reasonable doubt."

The expansion of the list of federally enforceable constitutional rights available to defendants in state courts has come a long way in enlarging both the review powers of the Supreme Court and the habeas corpus jurisdiction of the federal district courts. The federal courts are establishing more and more standards in the area of criminal justice which the states are obliged to observe.

In operating the criminal justice system, government must make some hard choices, since basic objectives undergirding that system often conflict. On the one hand, there is the due process model, preferred by the courts, which stresses our concern for maintaining the legal amenities of a civilized community. This process, adversarial and judicial in character, seeks to protect the dignity and autonomy of the individual. On the other hand, there is the crime control model, preferred by most law enforcement officials, which emphasizes the need to apprehend, try, and punish lawbreakers. The principal procedural objective is the quick, efficient, and reliable handling of persons accused of crime. The method is essentially administrative and managerial in character, operating, especially in respect to misdemeanors, on assembly-line principles. Accordingly, many law enforcement officials are critical of what they see as the Supreme Court's tenderness on the subject of defendants' rights, arguing that change has been too rapid and too far-reaching. Impatience has even been expressed by a few Justices of the Court itself. An experienced California trial judge, Macklin Fleming, has gone so far as to accuse the Court of pursuing the unattainable objective of "perfect justice." It is difficult, perhaps impossible, to locate the exactly right balance between the due process model and the crime control model. But in seeking to achieve a tolerable balance the Supreme Court has moved with considerable caution, deciding one case at a time, and always within the mainstream of American culture and its dominant legal traditions.

David Fellman
(1986)

Bibliography

Casper, Jonathon D. 1972 American Criminal Justice: The Defendant's Perspective. Englewood Cliffs, N.J.: Prentice-Hall.

Cortner, Richard C. 1980 The Supreme Court and the Second Bill of Rights. Madison: University of Wisconsin Press.

Fellman, David 1976 The Defendant's Rights Today. Madison: University of Wisconsin Press.

Fleming, Macklin 1974 The Price of Perfect Justice. New York: Basic Books.

Friendly, Henry J. 1967 The Bill of Rights as a Code of Criminal Procedure, in Benchmarks. Chicago: University of Chicago Press.

Goldstein, Abraham S. 1960 The State and the Accused: Balance of Advantage in Criminal Procedure. Yale Law Journal 69:1149–1199.

Packer, Herbert L. 1964 Two Models of the Criminal Process. University of Pennsylvania Law Review 113:1–68.

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 virture of acquittal (a judgment of not guilty) or by the imposition of a term of punishment pursuant to a conviction for the crime.

Release of Department of Justice Interrogation Tactics Memos

What was previously considered legal during U.S. interrogations of foreign detainees held outside the United States was a fairly static understanding, at least until the terrorist attacks on the United States on September 11, 2001. In prior wars and battles, the United States had faced a palpable enemy, usually in the form of another country. Treatment of prisoners of war and detainees from countries at war with the United States was outlined in various international treaties and agreements, notably, the Geneva Convention mandates.

But after September 11, 2001, the United States was forced to face the reality of rogue nations or persons claiming to represent legitimate nations, and/or groups of international enemies united only by a common goal to destroy the United States. With such virtually faceless and nameless enemies, U.S. military and security officials sought new ways to identify and locate them before they could strike again.

Against this backdrop, a series of domestic “battles” among members of the Bush Administration, Congress, military officials, the U.S. Department of Justice (DOJ), the Central Intelligence Agency (CIA), and the American public tugged and pulled at competing interests in attempting to establish the boundaries of what was considered acceptable conduct by those who interrogated suspect or enemy detainees held outside the United States.

In April 2008, yet another major and controversial memorandum on the subject, written in 2003, was finally declassified and made available to the public. This was pursuant to an ongoing lawsuit filed by the American Civil Liberties Union (ACLU) against the U.S. Department of Defense (DOD) for release of documents under the Freedom of Information Act (FOIA), 5 USC 552. In the March 2003 memorandum, made public for the first time in 2008, the DOJ advised the DOD that military interrogators were free to employ a wide array of interrogation methods when questioning foreign detainees held outside the United States, without fear of criminal liability or constitutional violation.

The 81-page document, later rescinded by the chief at DOJ's Office of Legal Counsel (OLC), was authored by former deputy assistant attorney general and then-deputy at the OLC, John Yoo. The memo was in response to a request for guidance from William J. Haynes II, at that time serving as the Pentagon's general counsel. Haynes had asked the DOJ “to examine the legal standards governing military interrogation of alien unlawful combatants held outside the United States.” Specifically, it was intended to give legal guidance toDODlawyers wrestling with a list of interrogation methods for prisoners at the military prison at Guantanamo Bay in Cuba.

In substance, the memo paralleled earlier guidance provided to the CIA in 2002. It stated, in relevant part,

[W]e conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad … [S]everal canons of instruction apply here. Those canons of construction indicated that federal criminal laws of general applicability do not apply to properly-authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President….

[W]e examine the international law applicable to the conduct of interrogations … [and] conclude that … the United States' obligation extends only to conduct that is “cruel and unusual” within the meaning of the Eighth Amendment or otherwise “shocks the conscience” under the Due Process Clauses of the Fifth and Fourteenth Amendments….

[W]e discuss defenses to an allegation that an interrogation method might violate any of the various criminal prohibitions … We believe that necessity or self-defense could provide defenses to a prosecution.

In simpler terms, the memorandum gave the military broad latitude and discretion to use relatively harsh interrogation methods without fear of prosecution or violation of constitutional restraints. The legal logic contained within conveyed that federal laws prohibiting assault were not applicable to military interrogators dealing with members of Al Qaeda because of Presidential powers during wartime. The memo also opined that many American and international laws would not apply to interrogations overseas.

Despite the wide latitude provided to interrogators under the memo's guidance, Pentagon officials never authorized some of the more harsh interrogation methods used by the CIA, such as waterboarding, a simulated drowning technique. Moreover, no Pentagon officials had since found any senior Bush Administration officials as having been complicit in any of the abuse at Abu Ghraib. However, their investigations did find that for several years following the September 11, 2001 attacks, the Pentagon admittedly failed to set uniform standards for military interrogations worldwide.

Following this and other internal guidance and the debate it caused at the time, Congress passed the Detainee Treatment Act in 2005, that required the DOD to restrict interrogation methods to those set out in the Army Field Manual, which banned coercive interrogations. In 2007, President Bush issued an executive order narrowing the list of approved techniques for the CIA. Although that list of authorized techniques remained classified, intelligence officials did state that waterboarding was not on the list of approved techniques, but that President Bush could authorize it during an emergency.

That having been said, in late 2007, leading Democrats in Congress demanded that the DOJ release two 2005 memos, circulated internally shortly after Alberto Gonzales became U.S. Attorney General, that purportedly reversed the DOJ's earlier rejection of severe interrogation techniques, and reinstated the option to use them where warranted. Senate Judiciary Committee Chairman Patrick Leahy (D-VT) told The New York Times that the Judiciary Committee had been trying to obtain the memos' contents for two years (since they were written). Frustrated members of Congress questioned attorney general nominee Michael Mukasey on his views of interrogation tactics during Senate confirmation hearings. While stating that he personally found them abhorrent, Mukasey offered no opinion on their legality without first reviewing them, he responded. Other officials, speaking to The Times on conditions of anonymity, said those 2005 opinions remained in effect.

Amid a new flurry of concern, White House Press Secretary Dana Perino responded to The Times report on October 4, 2007. Perino advised, “I am not going to comment on any specific alleged techniques. It is not appropriate for me to do so. And to do so would provide the enemy with more information on how to train against these techniques … but I will reiterate to you once again that we do not torture….”

Danforth v. Minnesota

When the U.S. SUPREME COURT announces a new rule of criminal procedure or law, it soon finds itself with additional cases from inmates who were convicted under the old rule asking that the new rule be applied retroactively. The Court has established standards for determining whether those previously convicted, and whose direct appeals had been exhausted before the date of the ruling, may seek to reverse their convictions. If it is not a “watershed rule” that implicated the fairness and accuracy of criminal proceedings, those persons convicted under the old rule cannot collaterally attack their convictions using the new rule. However, there has been uncertainty over whether state supreme courts have the authority to give broader effect to new rules of criminal procedure. The Supreme Court, in Danforth v. Minnesota,—U.S.—, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2007), held that states may give broader effect to new rules, opening up a new avenue for state court appeals from inmates.

In 1996 a Minnesota jury convicted Stephen Danforth of first-degree criminal sexual conduct with a minor. At his trial the 6-year-old victim appeared on videotape for the jury but she did not testify in court. Danforth appealed his conviction, arguing that the Sixth Amendment's Confrontation Clause prohibited the videotape from being introduced into evidence. The Minnesota Court of Appeals held under U.S. Supreme Court precedent the tape was admissible because it was sufficiently reliable. The Minnesota Supreme Court denied review and the case was closed. However, in 2004 the U.S. Supreme Court announced a new rule for evaluating the reliability of testimonial statements in criminal cases. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court held that “statements of witnesses absent from trial” were admissible “only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness].”

Danforth filed a post-conviction petition soon after this decision was announced. He argued to the trial court and to the Minnesota Court of Appeals that if Crawford had been applied to his case the victim's out-of-court statements would not have been admitted and the jury would not have convicted him. The trial judge dismissed Danforth's petition and the Minnesota Court of Appeals ruled that Crawford could not be applied retroactively to cases on collateral review. They both noted that the U.S. Supreme Court had ruled in a subsequent case that Crawford had not announced a “watershed” rule and therefore could not be invoked on collateral review. The Minnesota Supreme Court granted review this time and held that it did not have the authority to apply a broader retroactivity standard than that announced by the U.S. Supreme Court and it would not apply the Crawford even if federal law did not require it to do so.

The U.S. Supreme Court, in a 7–2 decision, reversed the Minnesota Supreme Court ruling, holding that states are not required nor are they prohibited from giving broader application to a new rule of U.S. Supreme Court criminal procedure. Justice John Paul Stevens, writing for the majority, reviewed a long line of cases dealing with retroactivity from 1965 onward. He concluded that in the Court's last major review of this doctrine there had been no discussion concerning the authority of any state agency or state court to extend the benefit of a new rule to a broader class. Second, the Court's precedent had been based on federal habeas corpus statute . Third, the principle of federalism gives states the right to oversee their justice systems. States should be free to “evaluate and weigh the importance of” finality in their court decisions. Justice Stevens also pointed to Court decisions giving states the authority to craft their own civil retroactivity remedies. The absence of any precedent limiting the authority of state collateral review courts “to provide remedies for federal constitutional violations is sufficient reason for concluding that there is no such rule of federal law.” Though this decision will lead to different rules in the fifty states, Justice Stevens noted that this non-uniformity “is a necessary consequence of a federalist system of government.”

Chief Justice John Roberts, in a dissenting opinion joined by Justice Anthony Kennedy, contended that the Court is the final arbiter of federal law and state courts “are therefore bound by our rulings on whether our cases construing federal law are retroactive.” He believed the decision contravened the Supremacy Clause and undermined the authority of the Court. Most troubling, under this precedent two criminal defendants, each convicted of the same crime, could face disparate treatment if the two states in which they were held applied different retroactivity standards. One may be executed while the other is set free.