Criminal procedure (investigation)
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Criminal procedure is the adjudication 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 i ...
. 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
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, correcti ...
, and results in the conviction 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 jurisdic ...
. 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 – 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, 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 European Convention on Human Rights, human rights, democracy and the Law in Europe, rule of law in Europe. ...
, under Article 6 of the European Convention on Human Rights, 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, solic ...
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 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 of the prosecution. But the victim of the crime pursues his claim for compensation in a civil, not a criminal, action. In France, Italy, and many countries besides, the victim of a crime (known as the "injured party") may be awarded damages 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 than in a civil one since the loser risks not only financial penalties but also being sent to prison (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, be ...
the prosecution must prove the guilt of a criminal “beyond reasonable doubt”; but the plaintiff in a civil action 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, however, the court simply weighs the evidence and decides what is most probable. Criminal and civil procedure are different. Although some systems, including the English, allow a private citizen to bring a criminal prosecution 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. Civil actions, 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 Maslow ...
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 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 or Queen) ''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 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 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, or damages, 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 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 systems, the trial judge presides over proceedings grounded in the adversarial system 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 systems do not have the so-called " presumption of innocence", 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) * Trial (law) * Civil procedure * Code of Criminal Procedure, 1973 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 ...
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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 ...
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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 ...
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Italian Criminal Procedure The Italian Code of Criminal Procedure contains the rules governing criminal procedure in every court in Italy. The Italian legal order adopted four codes since the Italian Unification. After the first two codes, in 1865 and 1913, the Fascist Gove ...
* Code of Criminal Procedure (Japan) *
Criminal Procedure Code (Malaysia) The Criminal Procedure Code ( ms, Kanun Tatacara Jenayah), are Malaysian laws which enacted relating to criminal procedure Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by j ...
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Criminal Procedure Code (Ukraine) The legal system of Ukraine is based on the framework of civil law, and belongs to the Romano-Germanic legal tradition. The main source of legal information is codified law. Customary law and case law are not as common, though case law is oft ...


References


Further reading

* {{Authority control