3.9 Procedural Law
Lore Rutz-Burri and Kate McLean
As noted previously, procedural law governs the process used to investigate and prosecute an individual who commits a crime. Procedural law also governs the ways a person convicted of a crime may challenge their convictions. The sources of procedural law include the same sources that govern substantive criminal law: the Constitution, case law or judicial opinions, statutes, and common law. Whereas most substantive criminal law is now statutory, most procedural law is found in judicial opinions that interpret the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution, the U.S. Code, and the state constitutional and legislative counterparts. Generally, the federal and state constitutions set forth broad guarantees (for example, the right to a speedy trial), then statutes are enacted to provide more definite guidelines (for example, the Federal Speedy Trial Act), and then judges flesh out the meaning of those guarantees and statutes in their court opinions. The next sections will review the major due process protections set further in the Bill of Rights, as well as several landmark cases that elaborated on their practical meanings.
Phases of the Criminal Justice Process
Procedural law applies to every point in the criminal justice process, which can be broken down into five phases: the investigative phase, the pretrial phase, the trial phase, the sentencing phase, and the appellate or post-conviction phase.
Investigative Phase
The investigative phase is governed by laws covering searches and seizures (searches of persons and places, arrests and stops of individuals, seizures of belongings), interrogations and confessions, and identification procedures (for example, line-ups and photo arrays). This phase mostly involves what the police are doing to investigate a crime. However, when police apply for a search, seizure, or arrest warrant, “neutral and detached” magistrates (i.e., judges) must decide whether probable cause exists to issue search warrants, arrest warrants, and warrants for the seizure of property. They must also decide whether the scope of the proposed warrant is supported by the officer’s affidavit (sworn statement). When an individual is arrested without a warrant, judges will need to promptly review whether there is probable cause to hold them in custody before trial.
Pretrial Phase
The pretrial phase is governed by laws covering the initial appearance of the defendant before a judge or magistrate; the securing of defense counsel; the arraignment process (in which the defendant is informed of the charges that have been filed by the state); the process in which the court determines whether to release the defendant pretrial; the selection and use of a grand jury or preliminary hearing processes (in which either a grand jury or a judge determines whether there is sufficient evidence that a felony has been committed); and any pretrial motions (such as motions to