Criminal procedure is the
adjudication
Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the p ...
process of the
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...
. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal
criminal charge
A criminal charge is a formal accusation made by a governmental authority (usually a public prosecutor or the police) asserting that somebody has committed a crime. A charging document, which contains one or more criminal charges or counts, can ...
with the person on trial either being free on
bail
Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.
In some countrie ...
or
incarcerated
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, correct ...
, and results in the
conviction
In law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of " not proven", which is cons ...
or
acquittal
In common law jurisdictions, an acquittal certifies that the accused is free from the charge of an offense, as far as criminal law is concerned. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as the ...
of the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisd ...
. Criminal procedure can be either in form of inquisitorial or adversarial criminal procedure.
Basic rights
Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the
burden of proof on the
prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
– that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that they are innocent, and any doubt is resolved in favor of the defendant. This provision, known as the
presumption of innocence
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must presen ...
, is required, for example, in the 46 countries that are members of the
Council of Europe
The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a p ...
, under Article 6 of the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
, and it is included in other human rights documents. However, in practice it operates somewhat differently in different countries. Such basic rights also include the right for the defendant to know what offence he or she has been arrested for or is being charged with, and the right to appear before a judicial official within a certain time of being arrested. Many jurisdictions also allow the defendant the right to legal
counsel
A counsel or a counsellor at law is a person who gives advice and deals with various issues, particularly in legal matters. It is a title often used interchangeably with the title of ''lawyer''.
The word ''counsel'' can also mean advice given ...
and provide any defendant who cannot afford their own
lawyer
A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solicit ...
with a lawyer paid for at the public expense.
Difference in criminal and civil procedures
Most countries make a rather clear distinction between civil and criminal procedures. For example, an
English
English usually refers to:
* English language
* English people
English may also refer to:
Peoples, culture, and language
* ''English'', an adjective for something of, from, or related to England
** English national ...
criminal court may force a defendant to pay a fine as punishment for his crime, and he may sometimes have to pay the
legal costs
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vari ...
of the
prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
. But the victim of the
crime
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in C ...
pursues his claim for
compensation in a civil, not a criminal, action.
In
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
,
Italy
Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical ...
, and many countries besides, the victim of a crime (known as the "injured party") may be awarded
damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
by a
criminal court judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
.
The standards of proof are higher in a
criminal action
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in C ...
than in a civil one since the loser risks not only financial penalties but also being sent to
prison
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, corre ...
(or, in some countries, execution). In
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, b ...
the prosecution must prove the guilt of a criminal “beyond reasonable doubt”; but the
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of t ...
in a
civil action
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
is required to prove his case “on the balance of probabilities”.
"Beyond reasonable doubt" is not defined for the jury which decides the verdict, but it has been said by appeal courts that proving guilt beyond reasonable doubt requires the prosecution to exclude any reasonable hypothesis consistent with innocence: ''Plomp v. R''. In a
civil case
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil acti ...
, however, the court simply weighs the evidence and decides what is most probable.
Criminal and
civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what kin ...
are different. Although some systems, including the
English
English usually refers to:
* English language
* English people
English may also refer to:
Peoples, culture, and language
* ''English'', an adjective for something of, from, or related to England
** English national ...
, allow a private citizen to bring a
criminal prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...
against another
citizen
Citizenship is a "relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its protection".
Each state determines the conditions under which it will recognize persons as its citizens, and ...
, criminal actions are nearly always started by the
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
.
Civil action
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
s, on the other hand, are usually started by
individual
An individual is that which exists as a distinct entity. Individuality (or self-hood) is the state or quality of being an individual; particularly (in the case of humans) of being a person unique from other people and possessing one's own need ...
s.
In Anglo-American law, the party bringing a criminal action (that is, in most cases, the state) is called the prosecution, but the party bringing a civil action is the plaintiff. In both kinds of action the other party is known as the defendant. A criminal case in the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
against a person named Ms. Sanchez would be entitled ''United States v.'' (short for ''versus'', or against) ''Sanchez'' if initiated by the federal government; if brought by a state, the case would typically be called ''State v. Sanchez'' or ''People v. Sanchez.'' In the United Kingdom, the criminal case would be styled ''R.'' (short for Rex or Regina, that is, the
King
King is the title given to a male monarch in a variety of contexts. The female equivalent is queen regnant, queen, which title is also given to the queen consort, consort of a king.
*In the context of prehistory, antiquity and contempora ...
or
Queen
Queen or QUEEN may refer to:
Monarchy
* Queen regnant, a female monarch of a Kingdom
** List of queens regnant
* Queen consort, the wife of a reigning king
* Queen dowager, the widow of a king
* Queen mother, a queen dowager who is the mother ...
) ''v. Sanchez.'' In both the United States and the United Kingdom, a civil action between Ms. Sanchez and a Mr. Smith would be ''Sanchez v. Smith'' if started by Sanchez and ''Smith v. Sanchez'' if begun by Smith.
Evidence given at a criminal trial is not necessarily admissible in a
civil action
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
about the same matter, just as evidence given in a civil cause is not necessarily admissible on a criminal trial. For example, the victim of a road accident does not directly benefit if the driver who injured him is found guilty of the
crime
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in C ...
of careless driving. He still has to prove his case in a civil action.
In fact he may be able to prove his civil case even when the driver is found not guilty in the criminal trial. If the accused has given evidence on his trial he may be cross-examined on those statements in a subsequent civil action regardless of the criminal verdict.
Once the plaintiff has shown that the defendant is liable, the main argument in a civil court is about the amount of
money
Money is any item or verifiable record that is generally accepted as payment for goods and services and repayment of debts, such as taxes, in a particular country or socio-economic context. The primary functions which distinguish money are as ...
, or
damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
, which the defendant should pay to the plaintiff.
Differences between civil law and common law systems
* The majority of
civil law jurisdictions ('civil law' as a type of law system, not as opposed to criminal law) follow an
inquisitorial system
An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of a ...
of adjudication, in which judges undertake an active investigation of the claims by examining the evidence at the trial (while other judges contribute likewise by preparing reports).
* In
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
systems, the trial judge presides over proceedings grounded in the
adversarial system
The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a judge or jury, who attempt to det ...
of
dispute resolution, where both the prosecution and the defence prepare arguments to be presented before the court. Some civil law systems have adopted adversarial procedures.
Proponents of either system tend to consider that their system defends best the rights of the innocent. There is a tendency in common law countries to believe that civil law /
inquisitorial system
An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of a ...
s do not have the so-called "
presumption of innocence
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must presen ...
", and do not provide the defence with adequate rights. Conversely, there is a tendency in countries with an inquisitorial system to believe that accusatorial proceedings unduly favour rich defendants who can afford large legal teams, and are very harsh on poorer defendants.
See also
*
Offence (law)
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
*
Trial (law)
In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, w ...
*
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...
*
Code of Criminal Procedure, 1973
In communications and information processing, code is a system of rules to convert information—such as a letter, word, sound, image, or gesture—into another form, sometimes shortened or secret, for communication through a communication ...
of India
*
Court Appointed Special Advocates
Court Appointed Special Advocates (CASA) is a national association in the United States that supports and promotes court-appointed advocates for abused or neglected children. CASA are volunteers from the community who complete training that has ...
*
Criminal Procedure Act
Criminal Procedure Act (with its variations) is a stock short title used for legislation relating to criminal procedure in Hong Kong, Malaysia, New Zealand, the Republic of Ireland, South Africa and the United Kingdom.
The Bill for an Act with th ...
*
Criminal procedure in the United States
United States criminal procedure derives from several sources of law: the baseline protections of the United States Constitution, federal and state statutes; federal and state rules of criminal procedure (such as the Federal Rules of Criminal P ...
*
Italian Criminal Procedure
*
Code of Criminal Procedure (Japan)
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or i ...
*
Criminal Procedure Code (Malaysia)
*
Criminal Procedure Code (Ukraine)
References
Further reading
*
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