Law of Criminal Procedure

Once a crime has been committed, criminal law defines every phase of procedure from the investigation, through the trial, to the type and length of punishment if there is a conviction. In the investigatory phase the police play aprimary role in the pretrial stage. They are responsible for the arrest of suspects, searching and investigating suspects’ and victims’ homes for evidence, the questioning of witnesses, and the carrying out of searches and seizures. A warrant empowers police to arrest a suspect or to search premises and seize property to obtain evidence.

Once a suspect is in custody, charges are brought against him by a prosecuting attorney or by a grand jury. The suspect is normally granted a pretrial hearing before a judge, at which time the charges against him are read. At this hearing the judge determines whether there is sufficient evidence to justify further action.

All defendants have a right to legal representation from the time of their arrest. The defense lawyer takes part in all procedures from the pretrial hearing to post-conviction stage.

Private citizens have the right to bring charges against a person they think has committed a crime. This is most often done by contacting the police. There are some offenses for which there is no prosecution unless the victim decides in favor of prosecution.

Defendants in criminal trials have the right to a jury, but they can choose to be tried before a judge only. Some nations do not have the jury system; it has been almost entirely abandoned in Europe, surviving only in Austria, Belgium, Norway, and parts of Switzerland. If a defendant admits before the court to being guilty there is no need to call a jury.

In Anglo-American law evidence is presented by both the prosecution and the defense. The function of the judge is to enforce the rules regarding evidence and to ask questions to clarify the facts. In European procedures one of the main tasks of the judge is to get evidence by questioning witnesses and experts. Defendants do not have the right to take the stand to testify in their behalf as they do in British and American trials. Instead they are questioned by the presiding judge but they may choose to keep silent.

A basic rule of criminal law is that guilt must be established beyond a reasonable doubt. The burden of proof rests upon the prosecution. This is the basis of the often-heard “A person is innocent until proven guilty”. American law generally requires that every person on a jury must agree on a person's innocence or guilt before they reach a verdict, but in European law a two-third majority of the judges is sufficient for averdict. Once a defendant has been found guilty, the sentencing takes place at a special hearing before a judge. In crimes that can be punished by death, a jury may be asked to pass sentence or at least express an advisoryopinion.

After aconviction, or verdict of guilty, the defense lawyer may ask for a new trial on the grounds that the evidence was insufficient to support the verdict, that the court was mistaken in its ruling on admission of evidence, or that new evidence has come to light. The legality of the conviction may also be challenged by an appeal to a higher court.

In the United States a case may be appealed all the way to the Supreme Court after it has been heard by lower courts of appeal. Great Britain, too, has an appeals system, proceeding from magistrates’ courts all the way to the House of Lords, the supreme court of the United Kingdom. Upon appeal the original verdict may be upheld, the verdict may be set aside and a new trial ordered, or the verdict may be reversed and the defendant released.

Give Russian equivalents for the following words and word combinations:

1. the investigatory phase, 2. the pretrial stage, 3. carrying out of searches and seizures, 4. a suspect is in custody, 5. charges are brought against a suspect, 6. there is sufficient evidence to justify further action, 7. post-conviction stage, 8. evidence is presented by both the prosecution and the defense, 9. to get evidence by questioning witnesses, 10. the right to take the stand, 11. the sentencing takes place at a special hearing before a judge, 12. evidence insufficient to support the verdict, 13. the legality of the conviction may be challenged, 14. “A person is innocent until proven guilty”, 15. upon appeal the original verdict may be upheld, 16. the verdict may be reversed and the defendant released.

Put the following stages of criminal procedure into the correct sequence to fill in the gaps in the table below:

Crime reported
1.__________
Investigation of suspect
2.__________
3.__________
Remand in custody	4.__________
Interrogation of accused and 5.__________
6._________
Decision of jury
Judgement of judge
7.__________	8.__________
9.__________	———
10.__________	———

1. acquittal of accused	6. conviction of accused
2. appeal against judgement	7. interrogation of witnesses
3. appearance in court	8. investigation by police
4. apprehension of suspect	9. release on bail
5. charge of suspect	10. sentence by judge

Here is more detailed information concerning different stages of criminal procedure.

TEXT 4

Criminal procedure begins with the violation of a criminal statute. At that time according to the laws, an offense has been committed against the governmental body that drafted the statute. This is because almost all criminal offences involve an actual or constructivebreach of the peace. Such a breach is a violation or disturbance of the public tranquility and order. Realize that the offense is not considered to be against the victim of the crime and that it therefore becomes the duty of the citizen to report such incidents to the proper authorities as the first step in criminal procedure. Realize also that those authorities, as representatives of the government that made the behavior criminal in the first place, have the power to decide whether to prosecute the person who allegedly committed the crime. It is not up to the victim, although whether the victim will aid in the investigation and prosecution is a significant factor in the decision to go forward with such efforts.

Upon the reporting of a crime by a private citizen or the observation or discovery of a crime by the police, an investigation is conducted. This investigation may result in an immediate arrest, which is the taking into custody of a suspect to answer a criminal charge. It may also result in the development of facts indicating that a certain person was responsible for the crime. If the facts are conclusive enough, the responsible public officer (the state attorney general or the local prosecutor) will swear out an accusation based on his or her oath of office. This accusation is known as an information.

If the facts gathered by the investigating officers are not conclusive, either the state prosecutors or federal district attorneys may refer the case to a “jury of inquiry”, which can compel witnesses to testify under oath and can demand the production of evidence. This jury is referred to as a grand jury in most states because it has a larger number of members (20 or more in many jurisdictions) than the petit jury (6 to 12 members) that appears in a jury trial. If the grand jury develops enough evidence to indicate that a certain individual should be tried for the crime, it will vote out an indictment based on its oath. The indictment, like the information, is an accusation of criminal conduct against an individual.

The indictment, or information is forwarded to a judge or similar public official with the power to issue an arrest warrant (an order that a person be arrested by competent authority).

Once arrested, a person must be informed of the charge or charges against her or him and be allowed to plead guilty or not guilty. This is done at a court proceeding called an arraignment. After hearing the accused’s plea, the court will hold a hearing to set bail, if such is to be allowed the defendant. Bail is the posting of property or bond with the court to ensure the accused’s later appearance. If the accused fails to appear, the amount posted is forfeited to the court. If the accused pleads guilty at the arraignment, the appropriate court will pass sentence at a later time. If the accused pleads not guilty, he or she is scheduled to be tried as soon as possible in accordance with the constitutional guarantee of a speedy trial.

If the defendant has been charged by an information and should he or she request it, the court is required to hold a preliminary hearing before trial. During this preliminary hearing, the evidence against the accused will be presented by the prosecution. The court will then determine whether there is reasonable basis or probable cause to proceed with the trial. If the court decides that there is not, the accused will be freed and the charge(s) dropped. Usually, however, the court will find that there is probable cause to proceed with preparations for the trial. At times, as a result of the presentation of the evidentiary case against the defendant at the preliminary hearing, the prosecution or the defense, or both, will seek a plea bargain. A plea bargain is an agreement in which the defendant agrees to plead guilty to a reduced charge in exchange for the prosecutor's recommendation of a lighter sentence. Plea bargains are also used to lighten the workload of the prosecutors and the overcrowding of the courts by eliminating the trying of relatively minor cases.

If the court deems it proper and no plea bargain interrupts, the trial must take place without unreasonable delay. The trial jury is a group of persons selected according to law to impartially determine the factual questions of the case from the evidence allowed before them in court. Potential jurors are chosen from voter rolls in most jurisdictions. They are then carefully screened to eliminate any potentially biased persons.

During the trial, the prosecutor will present evidence to prove the guilt of the accused “beyond a reasonable doubt”, and the defense attorney will present evidence disputing that conclusion. Exactly what evidence is proper to place before the trier of fact (usually a jury, but the judge if no jury is requested) is determined by the judge. If the material or testimony that either the prosecution or the defense desires to put into evidence might improperly bias the jury, it will not be allowed.

If the prosecution objected to it, the testimony would probably be thrown out by the court because it is hearsay evidence stemming not from the personal knowledge of the witness but from what the witness heard another say. The jury would be ordered to disregard his testimony in reaching its conclusion.

At the conclusion of the presentation of evidence by both sides, the judge will instruct the jury as to what it is to determine. The jury will then retire and try to reach a verdict. A verdict is a statement of whatever conclusions the jury has reached on the questions of fact (for example, “Is the defendant guilty of committing the crime?”) submitted to it. If, after extensive deliberations, the jury cannot reach agreement on a verdict, it is labeled a hung jury and the case may be retired or perhaps even dropped.

If the jury returns a guilty verdict, the court will generally delay sentencing for a time so as to examine the criminal’s past history and other circumstances. Some crimes require a mandatory sentence.

On the other hand, a court may suspend the sentencing procedure and only place restrictions on the defendant’s behavior for a certain period of time. If the defendant complies, there will he no official record of the conviction as sentence was never passed down. A court may also pass sentence but suspend its execution, allowing the convicted party to go free on probation. The sentence will not be carried out if the person on probation leads an orderly life and complies with the terms set by the court.

Even if sentence is imposed and carried out by placing the convicted criminal in the county jail orthe state penitentiary, the criminal may be given parole, a conditional release, when there is still a great deal of time left to be served. If the terms of the parole are violated, the criminal is returned to jail or the penitentiary to serve the rest of his or her term.

Should the convicted party feel that errors of law were made in the conduct of the trial or in the disallowing of certain defenses, an appeal may be taken to a higher court. Bail may be allowed pending the result of that appeal. If errors are found, the conviction may be thrown out. The prosecutor may then elect to retry the case or to let it drop.

Find in the text legal terms matching the definitions:

1. a violation or disturbance of the public tranquillity and order ____________

2. the taking into custody of a suspect to answer a criminal charge ____________

3. an accusation based on the prosecutor’s oath of office ____________

4. jury with a larger number of members (20 or more in many jurisdictions) ____________

5. an accusation of criminal conduct against an individual ____________

6. an order that a person be arrested by competent authority ____________

7. a court proceeding when a person must be informed of the charge or charges against her or him and be allowed to plead guilty or not guilty ____________

8. the posting of property or bond with the court to ensure the accused’s later appearance ____________

9. the stage of the criminal procedure when the evidence against the accused is presented by the prosecution ____________

10. an agreement in which the defendant agrees to plead guilty to a reduced charge in exchange for the prosecutor's recommendation of a lighter sentence ____________

11. a group of persons selected according to law to impartially determine the factual questions of the case from the evidence allowed before them in court ____________

12. evidence stemming not from the personal knowledge of the witness but from what the witness heard another say ____________

13. a statement of whatever conclusions the jury has reached on the questions of fact submitted to it ____________

14. the jury unable to reach agreement on a verdict after extensive deliberations ____________

15. a verdict when a court passes a sentence but suspends its execution ____________

16. a conditional release, when there is still a great deal of time left to be served ____________

Define whether the following statements are true or false. Explain your choice by giving extended commentaries.

1. It is good will of the citizen to report criminal incidents to the proper authorities.

2. It is the victim that has the power to decide whether to prosecute the person who allegedly committed the crime.

3. If the facts gathered by the investigating officers are not conclusive, a grand jury can compel witnesses to testify under oath.

4. An arrested person must be informed of the charge or charges against her or him and be forced to plead guilty.

5. If the accused fails to appear in time for the trial after he is bailed out, the amount posted is forfeited to the court.

6. If the accused pleads not guilty at the arraignment, the appropriate court will pass sentence at a later time.

7. Plea bargains are used to lighten the workload of the prosecutors and the overcrowding of the courts.

8. If the material or testimony that either the prosecution or the defense desires to put into evidence might improperly bias the jury, it will not be allowed.

9. Hearsay evidence is irrelevant in reaching the jury’s conclusion.

10. All crimes require a mandatory sentence.

11. A court may pass sentence but suspend its execution, allowing the convicted party to go free on parole.

12. If the terms of the parole are violated, the criminal is returned to jail or the penitentiary to serve the rest of his or her term.

13. An appeal may be taken to a higher court if the convicted party feel that errors of law were made in the conduct of the trial.

The act of admonition of rights to the detained person is called “ Miranda Warning ” in the USA. You will need the information for the discussion.

TEXT 5

Any person taken into custody in a criminal case is protected by a number of rights. The “Miranda warning ” stemming from the 1966 Supreme Court case of Miranda v. Arizona. is commonly read to all suspects of federal and state crimes. (Note that it does not apply to violators of municipal ordinances.) The warning details many of the protective rights. Any confession or other evidence developed by the authorities before a suspect has been properly informed of those rights cannot be used to convict the suspect. The warning has four parts:

1.That the person in custody has a right to remain silent.

2.That any statement the person makes may be used as evidence against her or him.

3.That the person in custody has a right to an attorney’s presence.

4.That if he or she cannot afford an attorney, one will be appointed for him or her prior to questioning if so desired.

DISCUSSION

1. Express your attitude to the idea: “A person is innocent until proven guilty”.

2. Find out whether the legislation of the Republic of Belarus refers the following offences to criminal or civil ones:

1. smuggling, 2. blackmail, 3. forgery, 4. bigamy, 5. conversion, 6. libel, 7. perjury, 8. trespass, 9. sedition, 10. mayhem, 11. embezzlement, 12. arson, 13. mugging, 14. drug-trafficking, 15. drunken driving, 16. money laundering, 17. gambling, 18. vagrancy, 19. speeding, 20. shoplifting.

3. Find out whether the stages of criminal procedure described above are in compliance with the legislation of the Republic of Belarus.

4. Consult the legislation of the Republic of Belarus on CP. Does your standpoint comply with the legislation on the issue? Ground it.

5. Find out whether the legislation of the Republic of Belarus grants rights similar to the “Miranda warning” to the citizens of RB (fully, partially, no similar rights).

Дата добавления: 2015-11-14