Criminal procedures and legal processes

Criminal Procedures

Chapter 1 provides an excellent background of constitutional principles that are necessary when dealing with criminal procedure. The first, very basic ten amendments to the Constitution (referred to as the Bill of Rights) introduce the chapter, providing information on the amendments that limit Congress's power over criminal procedure (notably amendments four, five and six.

These amendments cover issues such as the prohibition of unreasonable searches and seizures or the right to assistance of counsel and speedy trials). The first part of this chapter also explains to what degree these amendments are held to be applicable in the states as well.

The second part of this chapter discusses issues pertaining to the principles, rules and regulation governing the exclusion of evidence. The chapter describes, first, the general scope of the exclusionary rule, with ways to enforce the exclusionary rule and the different exceptions to this rule, notably the impeachment exception, as well as the grand jury, state law/agency or civil proceedings exceptions.

Chapter 2 discusses in more detail the fourth amendment, which prevents government from conducting any type of unreasonable searches or seizures. A large part of this chapter deals with unreasonable arrests, a particular case of seizure when a person is taken into custody against her will. Other than extensive details on bureaucratic procedures and requirements, including how arrests can be done in public places or on third-party premises, the chapter talks about the use of force to arrest a fleeing felon, as well as particular cases when detention/arrest is not necessary and can be replaced with limited detentions or automobile stops.

The second part of this chapter refers to evidentiary search and seizure. According to the Fourth Amendment, in order to ensure that the search or seizure is reasonable, all searches need to be conducted pursuant to a warrant. The police will look for specific things during the search and there is a strict conduct for this type of action. A defendant can use the Fourth Amendment in his defense during the trial if he can claim and prove a standing and reasonable expectation of privacy when challenging the legitimacy of a search.

There are two components to the privacy claim. First, the defendant has to prove that there is a standing legitimate expectation of privacy. Second, the items cannot be held out to the public: all those items cannot make part of this type of claim.

Subchapters 4 and 5 of this chapter discuss the requirements in terms of providing a warrant for a search, as well as the exceptions to warrant requirement. These include searches when the police are undergoing a protective sweep, as well as searches of an automobile whose occupant has been arrested. Subchapter 4 provides more details on legal requirements pertaining to the use of the warrant for searches.

Electronic surveillance is also discussed in this chapter, with the respective subchapter providing the necessary details on the warrant requirements in the case of wiretapping and other forms of electronic surveillance, with all other additional circumstances in which searches can be conducted (including at the airport or at a government employee's desk) being described in the remaining subchapters.

Chapter 3 deals with the Fifth Amendment and this is defined, from the beginning of the chapter, as the amendment that guarantees that no individual person is required to act as a witness against himself. The first part of this chapter deals with the most important elements of the privilege against self-incrimination, detailing the constitutional basis on which it is constructed, the actors who can assert the respective privilege, as well as the scope and the way that the privilege can be eliminated from the judicial process.

A significant part of this introductory part to the Fifth Amendment discusses the requirements that are compulsory for the amendment to be used and the conditions in which it cannot be applied, including, for example, cases when the defendant is mentally ill (testimony is not compelled in this case anyhow).

The part discussing the Fifth Amendment privilege is naturally completed by the second part of this chapter that discusses the status and applicability of a confession. Naturally, in order for a confession to be used in the judicial process, this needs to be made on a volunteer basis. Several other important elements related to this process, such as questioning and interrogation rules, as well as the applicability of Miranda warnings, are also covered in this part of chapter 3.

The subsequent chapters present essential procedures in terms of the pretrial proceedings, the actual trial and elements subsequent to the trial, such as punishment issues. Chapter 4 covers most of the essential pretrial proceedings and starts with a reference to the identification procedures before the trial. During pretrial proceedings, the defendant is entitled, according to the Sixth Amendment, to an attorney being present during questioning and during preliminary hearings. The latter describes proceedings that occur between the moment of arrest and the moment of trial and includes all proceedings relating to setting and paying bail.

Bail proceedings are further detailed in the subchapter referring exactly to this subject. The subchapter on bail includes a discussion on the cases in which bail could be refused and the general constitutional and functional foundation for the notion of bail in judicial proceedings.

The indictment itself is the last important moment of the pretrial proceedings, the indictment being the written accusation that the defendant receives before standing trial. The rest of the chapter simply expands on some of the complimentary notions, such as on the right to a speedy trial and the government's obligation to disclose information and notice of defenses, as well as the competency to stand trial.

Chapter 5 contains elements pertaining to the trial itself and starts of with some of the essential constitutional elements in this case (right to a fair and impartial trial, the right to a jury trial). Each of these constitutional rights is then subsequently described in minute details, such as the size of the jury, for example, or the different standards that are applied to judge different processes (the standard of reasonableness is mentioned in the case of ineffective assistance). Chapter 5 also initiates a discussion on the various defenses that are available, among the most interesting being the insanity defense (a total defense to all crimes) and the entrapment defense (an affirmative type of defense).

Chapter 6 is about punishment, referring, first of all, to the different types of pleas that a defendant can have (not guilty, guilty and nolo contendere). Quite often, before the trial, the defendant and the prosecution enter a plea bargain by which the defendant pleads guilty to a certain type of offense and is offered a reduced sentence in exchange or the dismissal of other charges.

The second part of the chapter discusses the sentencing process, including how the sentence is imposed. A special, separate subchapter is dedicate to the capital punishment, discussing both the applicability and limitations of this type of punishment.

Chapter 7 is a shorter chapter that deals with the ex post facto issues, namely with applicability to situations when the law is retrospective and there are disadvantages in this case for the offender. There are three particular situations listed in this chapter: punishing as a crime an act that was innocent when committed; a more burdensome crime and depriving the defendant of any defense under the law when the act was committed.

Chapter 8 comprises elements necessary for a discussion around issues that appear following conviction. There is no constitutional right for appeal, but state statutes generally do provide for such situations. An interesting and essential part of this chapter is the subchapter referring to collateral attack on convictions -- habeas corpus, referring to restrictions on the confinement of offenders.

Chapter 9 relates to juvenile offenders, who require a special section because their treatment is different from that of adults, with the focus here being on the rehabilitation of the offender rather than on the actual punishment. With that in mind, there are certain procedural protections that are introduced for minors, including the notice of charges, the right to proof beyond a reasonable doubt and protection against double jeopardy. At the same time, juvenile offenders may lack some of the rights that adult offenders have, such as the right to a jury trial.

Chapter 10 contains relevant information on prisoners' rights. Notably, the first subchapter here provides an ample background of parole and probation issues, including the right to parole and the conditions in which parole or probation can be revoked. At the same time, the chapter includes a specific reference to the rights of prisoners in disciplinary situations, such as in those cases when the prisoner is placed in solitary confinement. Other rights of the prisoners include access to courts, first amendment rights or social security benefits.

Chapter 11 discusses the notion of double jeopardy and refers, first of all, to double jeopardy elements, but it also mentions relevant exceptions to the double jeopardy prohibition rule. These may include dismissals and mistrials, as well as appeals. The chapter details some of the notional elements around double jeopardy, including the situations in which same offense can be defined as such.

Essay

Gilbert Law Summaries on Criminal Procedure is another excellent book from the Gilbert Law Summaries series. The first thing that needs to be mentioned is that this book comes as close as possible to being an overly comprehensive and exhaustive review of criminal procedure. Although more reduced in size if compared to some of the other books in the series, this manages to encompass notions ranging from competency to stand trial to the right to confront witnesses and from preliminary hearings to the applicable elements in case of a juvenile offender. Nothing seems to be left out, including some of the more thorny issues, such as the government's obligation to disclose information, which is also keenly analyzed.

As always, the book is cleanly organized into chapters pertaining to larger categories of subjects for discussion. At the same time, the book logically starts with the Bill of Rights, the first ten amendments, as the fundamental basis for the rest of the book. The Bill of Rights contains most of the limitations placed on the potential actions of the Federal Government. In terms of criminal procedure, they include essential issues, such as the right to a speedy, public trial and an impartial jury. This is what motivates this to be part of the first chapter on for the Summary on Criminal Procedure.

At the same time, some of the amendments in the Bill of Rights are essential towards defining the notion and practice of Criminal Procedure and, as a consequence, these are further detailed in the second and third chapters (both the Fourth and Fifth Amendment). This is very important and useful in the book, with essential things such as arrests and detention procedures and how confessions can be made and used in the course of the entire investigative procedure.

As the other summaries, the Summary on Criminal Procedure benefits from several instruments designed to make the reader more accustomed with navigating the different parts of the book in a manner that is both efficient and logical. The most important of these is perhaps the text correlation chart, which allows the reader (either a law student or not) to immediately recognize a subject or specific reading assignment in the book and go directly to that page of the Summary.

The fact that the Summary on Criminal Procedure was clearly written having in mind the end-user (either the reader that goes through the book in order to consolidate his knowledge on criminal procedure or the student who studies the book for an exam or for general knowledge) is clear with the numerous instruments and learning tools that the book has. The previous paragraph has been discussing the text correlation chart, available at the beginning of the book.

However, one should point out that charts are part of each chapter and, usually, a very helpful way of going through the information. The reader can actually start with these learning instruments and move from these towards the more complicated parts of the chapter, through which a keen reading and analysis is necessary.