Criminal procedure are the legal rules and procedural issues dealing with investigating, prosecuting, adjudicating, and punishing individuals for violating criminal laws. Criminal procedure laws apply on both the state and federal levels.

What Is Included in the Umbrella of Criminal Procedure?

Criminal procedure is best explained as the "how to" manual to handle a situation beginning with the apprehension of a suspect and ending with the final verdict or appeal of the verdict. Procedure guidelines also include after-measures, such as probation or parole. Criminal procedure thus includes a myriad of issues including:

  • Stop, Detention, and Arrest
  • Search, Seizure, and Evidence
  • Booking and Filing Charges
  • Suspect/Eyewitness Lineup Identification
  • Interrogation
  • Appointment of Counsel (assignment of court-appointed attorney)
  • Plea bargaining
  • Trial
  • Sentencing
  • Appeal
  • Probation and Parole

Stop, Detention, and Arrest In Automobile Searches

When it comes to automobile searches, police officers typically need reasonable suspicion that an individual in the vehicle has violated the law to justify pulling a vehicle over. However, reasonable suspicion alone is not sufficient to give officers the power to search a vehicle. If an individual is stopped for a moving violation, the police officer may not search the vehicle unless he has probably cause or the driver consents to a search. 

 Probable cause is what gives an officer the power to conduct a search. It may be supported by an officer’s reasonable suspicion of criminal activity, but that alone is not sufficient to constitute probable cause. This reasonable suspicion may be heightened by something the police officer observes, another officer’s observations, an informant’s tip, or information that the driver or passenger volunteers to the police officer. 

 If probable cause exists, the search of the vehicle is limited to that specific area. For example, if a police officer has probable cause to believe that evidence of a crime or crime paraphernalia may exist in the trunk of a car, the probable cause only extends to a search of the trunk. The police officer may not then search other parts of the vehicle without consent or additional probable cause. 

 When it comes to individuals inside the vehicle, the same rules apply. If an officer has probable cause to believe that a passenger may be involved in criminal activity, the passenger can likely be searched.

Search and Seizure

 The laws surrounding search and seizure are governed by the 4th Amendment which guarantees that U.S. Citizens shall be free from “unreasonable search and seizure” of property in places where an individual has a “reasonable expectation of privacy.” These places typically include an individual’s home or places where they may stay as an overnight guest.
 In order to conduct a search and seizure of a home or residence, the police need a warrant. A warrantless search is a criminal search conducted by police without first obtaining or valid search warrant from a judge. Warrantless searches are typically illegal. However, in situations where a suspect is fleeing from police, there is a danger that evidence may be destroyed, the evidence is in plain view, or the search is done in conjunction with a valid arrest, stop, or automobile search, a warrantless search may legally be conducted.

 An illegal search is one conducted without a valid search warrant or without any of the above exceptions. Evidence obtained from an illegal search is not admissible as evidence in a court. The “exclusionary rule” prevents the admission of this evidence and seeks to protect citizens from the admission of illegally obtained evidence in a criminal trial.

Booking and Filing Charges

 When an individual is arrested for a crime, they are booked in jail. Booking records provide information about these individuals and the crime they were brought in for committing. Arrested suspects who are able to post bail immediately often cannot be released until after the booking process is complete.
 When booked, the arrested individual’s name and the crime they were arrested for is recorded into an official booking record. Mug shots are typically then taken. Mug shots are used for possible identification by any witnesses and also can establish a suspect’s physical condition at the time they were arrested. Some booking officers may also take personal items on the suspect’s person at the time they are booked into jail. Fingerprints are also a typical stage in the booking process. These fingerprints are then maintained by the FBI and are accessible by most, if not all, local, state, and federal police agencies. If the police have not already done so, booking officers will also check if the arrestee has other charges pending. Those with warrants pending or outstanding are usually not released on bail.

 An arrestee is then permitted to then make one phone call and then placed into a holding cell to await presentation in court. Additionally, in criminal procedure cases, an individual’s first appearance in court must be held without unnecessary delay – typically within 24 hours.

Suspect/Eyewitness Identification

 When an individual is arrested and suspected of committing a crime, there may be a witness that can corroborate and identify the person, thus verifying that they did in fact commit the crime. The police often engage in criminal procedures which seek to identify the perpetrators of crimes by these witnesses. When police use lineups or showups and other identification processes at which the defendant is not present, the admissibility of this identification in court must adhere to criminal procedure rules. 
There are numerous factors which will determine whether an identification or lineup is admissible in court. These include the following:

  • opportunity of the witness to view the suspect at the time of the crime
  • the witness degree of attention
  • the accuracy of the witness’ prior description of the suspect
  • the level of certainty demonstrated by the witness at the confrontation
  • length of time between the crime and confrontation

 Additionally, it will be considered whether the witness identifying the suspect was suggested to pick the suspect in question. Suggestive confrontations are disapproved because they increase the likelihood of misidentification. Courts consider the above factors on a case by case basis.


 When interrogated, police are typically seeking for information, and preferably a confession by a suspect of a crime. A confession is basically an admission of guilt that is made by the accused party. A voluntary confession is one that is given out of a suspect’s free will and has not been obtained by force, coercion or intimidation by the police. The 14th Amendment of the U.S. Constitution requires that all confessions obtained by police be voluntary. This element is an integral part of the criminal procedure process. Violations of this due process right make the confession statement inadmissible as evidence in court.

 A custodial interrogation is an interrogation of a person in custody who is suspected of committing or being involved with a crime. While in custody, a person is not free to leave police custody. Once in police custody, a suspect must be read their Miranda rights if the police want to question him and be able to use any answers or interrogating comments as evidence at trial.

 A noncustodial interrogation is the gathering of information by police from a person that is not yet officially considered a suspect for the offense being investigated. A noncustodial interview does not require the police to read the suspect his Miranda rights in order to use any statements subsequently acquired in trial.

 Involuntary confessions are inadmissible as evidence in court. If a confession was obtained through intimidation, threats, or use of force against a witness it is excluded.

 Additionally, during an interrogation, if a suspect is not given their Miranda warnings, any subsequent statements made by the individual, incriminating or not, are not admissible. Miranda warnings are those warnings which notify the individual of their rights. These rights must be read to the person immediately upon an arrest or once in custody. Miranda warnings essentially entail the following:

  • A person’s right to remain silent
  • Anything said can be used against them in a court of law
  • The individual has a right to an attorney and have a right to have that attorney present during questioning
  • If the individual cannot afford an attorney then one will be appointed to them. 
  • Miranda rights only protect against incriminating statements made during custodial interrogations.

Appointment of Counsel

In any criminal case, the rights of criminal defendants include the right to have a lawyer represent them during trial. This right is afforded to individuals and assures that the person has a fair trial. An individual is entitled to counsel even if they cannot afford to pay them.

This 6th Amendment right to counsel is available at any adversarial state of the criminal prosecution process, including:

  • Interrogation
  • Questioning
  • Line-Up
  • Physical Examination
  • Arraignment
  • Hearing 
  • Trial

Plea Bargaining

A plea bargain is an agreement between the prosecution and the defense wherein the prosecution offers to drop or reduce charges in exchange for a plea of guilty or no contest from the defendant.
 A prosecutor offers the defendant the plea bargain and it is up to the defendant whether or not to accept the plea. It is required that a defendant accept the plea bargain knowingly and voluntarily. Therefore, defendants are afforded the right to counsel at this stage of the criminal procedure process so they are aware of what they have or have not accepted. Defense counsel has a duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. The defendant has the right to accept or refuse the plea bargain offered, but has an absolute right to  be informed.

 There are typically three types of plea bargains including Charge Bargaining, Sentence Bargaining, and Fact Bargaining. Charge bargaining is the most common form of plea bargaining where a defendant agrees to plead to a lesser charge provided that the greater charges against them will be dismissed. Sentence bargaining is when a defendant agrees to plead guilty to the stated charge against them in return for a lighter sentence. This must be reviewed by a judge in most cases and many jurisdictions do not permit it. Fact bargaining is the least common form of plea bargaining and occurs when a defendant agrees to certain facts in order to prevent other facts from being introduced as evidence in their trial.

There are many elements during a trial wherein criminal procedure plays an integral part of the process. These include the following: 

  • Judge or Jury Trial. The defense has the right to decide whether a criminal trial will be tried by a judge or jury. This is the Right to Trial by Jury right. Juries also must consist of twelve people, however, some states permit juries as small as six.
  • Jury Selection. As stated above, the U.S. Constitution guarantees a defendant the right to a trial by a jury of its peers. Jury selection happens in two parts (1) Random selection and (2) Voir Dire.

Random Selection is when individuals names are randomly pulled off of lists that the state keeps in the normal course of business – just as people are called to jury duty via mail.

Voir Dire refers to the second stage of jury selection where the court and attorneys narrow down the pool of jurors to twelve people that will decide the case at hand. Each attorney has an opportunity to object to jurors, called “peremptory challenges” and “challenges for cause.” Challenges for cause are raised when an attorney believes that some issue in the jurors background gives rise for concern that the defendant will be prejudiced in their trial. Peremptory challenges are when either attorney rejects a juror for no reason at all – and none needs to be given.

Evidence Issues

The evidence issues related to the trial will likely stem from the original search and seizure of the evidence prior to the defendant being charged. These issues will be determined by a judge to establish whether the evidence was seized in violation of the defendant’s 4th Amendment rights and subsequently should be excluded via the exclusionary rule. 

Do I Need a Criminal Defense Lawyer?

Violation of criminal procedure rules could result in a mistrial or even in the charges being dropped. The breadth of criminal procedure is vast and changes often with new cases arising, bringing forth new issues. Therefore, it is important for any person charged with a crime to work with a criminal defense lawyer to ensure that your rights are protected and the procedures undertaken did not violate any of your constitutionally guaranteed rights.