Ingles Legal RULES OF CRIMINAL PROCEDURE The established methods and practices used to resolve criminal cases are embodied in a set of rules referred to as "criminal procedure." The rules of criminal procedure are designed to ensure that an accused is given due process of law.   The rules of criminal procedure are set down to guarantee constitutional due process to those individuals charged with a crime. Because a person charged with a crime can be subjected to a loss of liberty, subjected to a fine and the loss of civil certain civil rights (to carry a weapon or right to vote) the rules of criminal procedure should be strictly followed.   The failure to follow these rules that guarantee certain constitutional rights can result in a conviction being reversed and the charges dismissed. The trend in law today is to retreat from that position as the rights of the state and victims are being given more weight in the balancing of the two positions   In criminal matters, action is taken by the "state" (a federal, state or local government agency) against an individual or an organization (including, but not limited to, a group of individuals, "business" or other entity) for violation of law. Someone convicted of a crime can be ordered to pay a fine, can be put on probation or to serve time in jail. The sentence imposed upon a defendant who pleads or is found guilty is meant to deter that person from acting in the same manner in the future, to deter others from acting in a similar manner, and to punish the criminal.   In a civil matter, the controversy is between two or more "people" (including individuals, businesses or government agencies). The typical result is an award of a money judgment to be paid by one party to the other. The judgment is imposed to make the aggrieved person "whole" for the harm that has been caused by the other. The judgment in a civil matter does not include imposition of a criminal sentence.   The rules of civil procedure are different from that of criminal procedure because the results and objectives of the litigation differ. Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. In essence, it deals with the "substance" of the matter.   Procedural law provides the "process" that the case will go through (whether it goes to trial or not). The procedural law determines how a proceeding concerning the enforcement of substantive law will occur.   A crime is any act that violates the law. The definition of the prohibited act (or the failure to act in a manner that has been mandated) is set forth in writing by local, state and federal governments (in the form of a published statute). However, vestiges of common law crimes exist (common law crimes are defined by the customs of the unwritten law of England and the American colonies prior to the American revolution). Some states, such as California, have a statute stating that common law crimes do not exist; all crimes must be in writing set forth by statute.   Not all violations of law forbidding or commanding an act are crimes. To be a crime there must be a defined punishment. If the law does not set forth the particulars of the punishment for the described act or omission, then it is not a crime (unless the state has enacted a "savings clause" which sets forth punishment for violation of law in the absence of a specific defined punishment for the particular act or omission).   Crimes are categorized into classes that are defined by their punishments. Petty Offenses - A petty offense is a sub-group of misdemeanor. Petty offenses typically may be tried before a magistrate in a summary proceeding as the matter typically is handled all on the date of the first appearance by the defendant in court. The defendant may be denied the right to a jury trial without violation of constitutional rights. Offenses such as minor traffic tickets, parking violations, and minor infractions of local ordinances are treated as petty offenses. The typical punishment for violation of a petty offense is the imposition of a fine. Misdemeanors - Violation of a misdemeanor law can result in imposition of punishment greater than that of a petty offense but not as severe as that of a felony (examples might be a heavier fine, or short jail sentence). Felony - A felony crime can result in the imposition of the greatest punishment for violation of law, such as a jail sentence greater than one year and fines exceeding $1,000.   The class of a crime is important to consider since the governing substantive law and procedural law are different between the classes. Petty offenses are provided the least amount of protections while felonies have numerous protections built into their treatment by the court system.   The punishment for a petty offense is much smaller than the punishment for a felony - which can result in loss of life (death penalty) or liberty (jail). A civil offense is an infraction of a law that is not a crime. This may be something like a routine traffic offense such as speeding. The only penalty for a civil offense is a fine.   A crime is a violation of the law that is punishable by a fine or a jail sentence.   A Class Three or Class Four misdemeanor in Virginia is only punishable by a fine. These may be violations of noise ordinances or other offenses not involving injuries to other persons or their property. A Class One misdemeanor is punishable by up to 12 months in jail and a $2,500 fine. A Class Two misdemeanors are punishable by 6 months in jail and a $1,000 fine. Felonies are punishable by one or more years in prison and fines of up to $100,000.   FEDERAL AND STATE CONSTITUTIONS The United States Constitution provides fundamental rights which cannot be denied. All law must comply with the basic fundamental rights and guarantees provided by the United States Constitution. The protections afforded under the Constitution of the United States, as well the constitutions of the various states, are provided to all persons. Any law which violates constitutional law may be overturned through the court system and thus prosecution based upon such law would be prohibited. Courts are routinely asked to determine whether the prosecution of a person would violate Constitutional law.   THE US CONSTITUTION PROVISIONS IN CRIMINAL MATTERS: The Fourth Amendment prohibits unreasonable search and seizure. It states that a warrant shall be issued based upon probable cause, supported by oath or affirmation which describes the place to be searched and the person or things to be seized. There are many exceptions to the warrant requirement, such as exigent circumstances (an emergency which requires immediate action), consent, and search and seizure incident to an arrest. Some detentions ("seizures of persons") may proceed upon less than probable cause.   FIFTH AMENDMENT: Provides several critical protections: prohibition against double jeopardy (you may not be tried more than once for the same offense) prohibition against self-incrimination (you may not be forced to testify against yourself) prohibition against deprivation of life, liberty or property without due process of law   SIXTH AMENDMENT: Provides you with: the right to a speedy and public trial by an impartial jury the right to be informed of the law and potential punishment faced for violation of the law the right to confront (examine at trial) witnesses against you the right to compel witnesses in your favor to appear and testify at trial the right to have an attorney for your defense   EIGHTH AMENDMENT: Prohibits excessive bail, excessive fines and cruel and unusual punishments.   FOURTEENTH AMENDMENT: Prohibits all States from enacting or enforcing any law which violates the privileges and immunities of the citizens of the United States Prohibits all States from depriving a person of life, liberty or property without due process of law Mandates that all persons are entitled to equal protection of the laws.   EX POST FACTO LAW States are also prohibited, under Article 1, Section 10 of the United States Constitution, from making any "ex post facto law." An ex post facto law is a law that applies to crimes which were committed before the enactment of the law. Thus, a person can not be prosecuted for violation of a law which was made after the person committed the crime.   In addition to the United States Constitution, each State has enacted its own State Constitution. These state constitutions may provide additional fundamental rights and guarantees.   CRIMINAL PROCEDURE   1. PETTY CRIMES Guilt or innocence of a petty crime, for minor offenses, is usually resolved in a summary proceeding. Your signature on the ticket charging a petty offense acknowledges receipt of it and it contains your promise to pay the fine or appear in court. On the face of the ticket will be your name (as the defendant), the date and time of the offense, the name of the law enforcement officer who issued the ticket, the location and telephone number of the court, and the date for you to appear in court. With many petty crimes, you may simply call the court to find out how much the fine is and then you can plead guilty and send in payment for the fine. If you wish to plead not guilty and have a hearing on the matter, you must show up at the assigned hearing. You may have an attorney present with you at the hearing or defend yourself (appear "in propria persona" [in pro per] and represent yourself). Usually the "trial" of the matter is heard at this first hearing and the sentence rendered after the submission of the evidence.   2. CRIMES Misdemeanors and felony criminal proceedings are more complex. As with a petty crime proceeding, you may have an attorney appear with you throughout the proceeding, or waive your right to counsel and represent yourself. For most felony proceedings, the following steps typically occur (note: these steps do not apply to juvenile proceedings):   A crime is committed, it is reported, an investigation conducted and an arrest made (these may all occur in rapid sequence if the offense is committed in the presence of a law enforcement officer)   Booking - an administrative procedure which records the defendant's name, the crime charged, and other relevant information about the defendant (telephone number and address, photograph, fingerprints, etc.)   Arraignment - when the defendant appears in court and enters a plea (guilty or not guilty, or sometimes "nolo contendere" [no contest]). The defendant is presented with a written accusation dealing the facts of the crime and his/her involvement in the crime. The written accusation may be presented by a grand jury, a prosecutor or a police officer. If the defendant enters a not guilty plea, a date for trial is set.   Bail or Detention - bail is either set or the defendant is required to be "detained" (kept in jail until the trial). Bail could range from being "released on your own recognizance" (in other words, you are on your honor to appear at the next hearing), to many thousands of dollars. When a higher amount of bail is set, a bail bondsman is often called to provide the bail payment in exchange for a fee and a lien against property (as collateral) of the defendant. If bail is posted, the defendant is released but must show up at the next hearing (or bail will be forfeited).   Preliminary Hearing - A hearing in which a judge determines whether the defendant should be held for trial. At the "prelim," the prosecution has the burden of providing sufficient evidence to the judge that a crime has occurred and that the defendant committed the crime.   Trial - opening statements, examination of witnesses and presentation of evidence, closing statements, charging the jury (giving the jury its instructions), verdict rendered by the jury after due deliberation, and entering of the verdict (either guilty, guilty of a lesser included or related offense, or not guilty). After a verdict is issued, the defendant may try a post trial motion, such as a motion for a new trial.   Sentencing - when a defendant has been found guilty by trial or has plead guilty, a hearing is set to determine the imposition of the sentence. Sentencing reports, which set forth mitigating and compounding factors (prior payment of restitution may be a mitigating factor, other convictions of crimes may be a compounding factor) are often submitted to the judge and then the judge pronounces judgment at a sentencing hearing (in some jurisdictions juries or sentencing councils render the sentence).   Fine, Probation, Jail - the defendant may be ordered to pay a fine, be released but subject to specific terms of probation, or sent directly to jail. If a person violates the terms of his/her probation, s/he may have his/her probation revoked, and be sent to jail.   Appeal - after conviction of a crime, the defendant has appellate proceeding which may be available to determine whether all substantive and procedural law issues were properly conducted at the trial.

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