Procedural law governs the process used to investigate and prosecute a criminal offender. Procedural law also governs how a person convicted of a crime may challenge their convictions. Whereas most substantive criminal law is now statutory, most procedural law is found in judicial opinions that interpret the U.S. and state laws. 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.

4.13.1 Phases of the Criminal Justice Process

The processing of a case through the criminal justice system can be broken down into five phases as seen in figure 4.1. They include:

• investigative phase,
• the pre-trial phase,
• the trial phase,
• the sentencing phase, and
• the appellate or post-conviction phase.

4.13.1.1 Overview of the criminal process (graph)

Figure 4.1. A line graph showing an overview of the criminal process from the crime being committed, entry into the system, prosecution and pretrial services, adjudication, sentencing and sanctions and corrections.

4.13.1.2 Investigative Phase

The investigative phase is governed by laws covering searches and seizures, interrogations and confessions, and identification procedures (lineups, showups, 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, judges must decide whether probable cause exists to issue a warrant. When an arrest is made without a warrant, a judge must promptly review the arrest.

4.13.1.3 Pretrial Phase

The pretrial phase is governed by laws covering the initial appearance of the defendant before a judge or magistrate. The arraignment process is when the defendant is informed of the charges filed by the state. Other activities during the pretrial include appearances, motions, bail, grand jury, and indictments. During the pretrial phase, prosecutors and defendants, through their defense attorneys, will engage in plea bargaining and will generally resolve the case and avoid a formal trial.

4.13.1.4 Trial Phase

The trial phase is governed by laws covering speedy trial guarantees, the selection, and use of petit jurors (trial jurors), the rules of evidence (rules governing the admissibility of certain types of evidence such as hearsay or character evidence); the right of the defendant compulsory process (to secure favorable testimony and evidence); the right of the defendant to cross-examine any witnesses or evidence presented by the government against him; fair trials free of prejudicial adverse pretrial or trial publicity; fair trials which are open to the public; and the continued right of the defendant to have the assistance of counsel during their trial.

4.13.1.5 Sentencing Phase

The sentencing phase is governed by rules and laws concerning the substantive criminal laws on punishment (discussed above); time period in which a defendant must be sentenced, the defendant’s right of allocution (right to make a statement to the court before the judge imposes sentence); any victims’ rights to appear and make statements at sentencing; the defendant’s rights to present mitigation evidence and witnesses; and the defendant’s continued rights to the assistance of counsel at sentencing. In capital cases in which the state is seeking the death penalty, the trial will be bifurcated (a trial split into the “guilt/innocence phase” and the “penalty phase”). The sentencing hearing will look like a mini-trial.

4.13.1.6 Post-Conviction Phase (Appeals Phase)

The post-conviction phase is governed by rules and laws concerning the time period in which direct appeals must be taken; the defendant’s right to file an appeal of right (the initial appeal which must be reviewed by an appellate court) and right to file a discretionary appeal; the defendant’s right to have the assistance of counsel in helping to file either the appeal of right or a discretionary appeal.