The law of criminal procedure regulates the modes of apprehending, charging, and trying suspected offenders; the imposition of penalties on convicted offenders; and the methods of challenging the legality of conviction after judgment is entered. Litigation in this area frequently deals with conflicts of fundamental importance for the allocation of power between the state and its citizens.

Procedure before trial


The investigatory phase

When a criminal offense has been reported, the competent authority (the police, the public prosecutor, or the investigating magistrate) commences the criminal process by investigating the circumstances. In this phase, relevant evidence is collected and preserved for a possible trial. The suspect also has the right to collect evidence in his favour. In the civil-law countries of continental Europe, he can typically request the investigating authority to assist him in this endeavour; in common-law countries, the suspect is expected to take the initiative in preparing the case for his defense.

The role of the police

The police play a primary role in the investigation. They are responsible for interrogating suspects and witnesses, and they carry out arrests, searches, and seizures. In Anglo-American legal systems the police perform investigations on their own authority, whereas on the Continent they act under the formal supervision of public prosecutors or investigating magistrates.

The role of the magistrate

In some countries, such as France and Italy, a magistrate conducts the investigation in cases of serious criminal offense, personally hearing witnesses and directing police to perform such relevant acts as the seizure of evidence.

In many other jurisdictions, as in the United States and Germany, magistrates do not organize or conduct the investigation. Their role is limited to authorizing particular acts of investigation involving serious invasions of civil rights—most important, instances of arrest, pretrial detention, search, seizure, and surveillance of mail and telecommunication. Generally, such acts are lawful only upon prior written judicial authorization (the warrant). Under U.S. law, warrants are issued only upon probable cause—that is, when there is evidence leading to a reasonable belief that the person to be arrested has committed a crime or that an object connected with criminal activity can be found at the place to be searched. Other legal systems employ less-stringent standards of suspicion.

When it is necessary for police to act on the spot—for example, because the suspect is about to escape or because he will destroy the contraband sought—they can take the proper measures without prior judicial authorization. In most cases, such provisional measures can or must be submitted later to judicial control.

The role of the prosecutor

Public prosecutors are lawyers appointed by the government as its representatives in criminal matters. In the United States, most state or county prosecutors are elected.

In some legal systems, as in Germany, the prosecutor is formally responsible for conducting criminal investigations. In practice, however, his role is generally limited to advising and supervising police. Only in very serious or politically sensitive matters does he personally conduct the investigation.

The role of the suspect

Since the 19th century, the law has gradually recognized the suspect’s autonomous position as a subject of the criminal process. His right to remain silent in order to avoid incriminating himself has, in principle, been acknowledged universally. However, few legal systems go so far as the United States, where, under the Miranda v. Arizona ruling of 1966, the defendant’s statements will be excluded from evidence if he is not specifically warned of his right to remain silent before interrogation while in police custody. In most countries, evidence of a confession is admissible in court unless the confession is shown to have been “involuntary”—for example, acquired by torture or threats.

On the other hand, the defendant has a universally recognized right to present to the court his view of the facts. In many jurisdictions, this right can be exercised even before the court decides whether there is sufficient evidence to hold a trial.

The role of defense counsel

The defense lawyer has a double function in the investigation phase of the criminal process: to assist the suspect in gathering exonerating evidence and to protect him from violations of his rights at the hands of law-enforcement personnel. All legal systems grant the suspect the right to the assistance of an attorney, and in many countries the suspect must be informed of this right before police interrogate him. If the suspect does not have the means to hire a lawyer, often the state will pay the attorney’s fee or provide the suspect with state-employed counsel.

However, the law also restricts defense counsel’s ability to carry out his functions. In some jurisdictions, as in France, the attorney has no right to be present when the suspect or a witness is interrogated by the police; only a few countries, such as the United States, grant the defense the right to compel witnesses on its behalf to appear in court. Moreover, in most jurisdictions the defense has no or only limited access to information gathered by the prosecution before the case reaches the court.

Pretrial detention

Incarceration of the suspect before trial most seriously impairs the preparation of an effective defense. Nevertheless, all legal systems permit pretrial detention, though under differing conditions.

In Anglo-American jurisdictions the rule is that suspects arrested and not released immediately for want of cause are held in custody. However, the suspect generally has a right to be released on a financial surety, or bail, the amount of which is set by the magistrate according to the individual circumstances of the case. The purpose of bail is to ensure appearance of the suspect at the trial; hence, it will be forfeited if the suspect absconds. In appropriate cases the suspect can be released on his own recognizance (i.e., without providing bail). Only under special circumstances—for example, when it is thought that the suspect might commit further offenses if released—can bail be denied altogether.

In continental Europe the law treats pretrial detention as the exception rather than the rule. The magistrate can remand the suspect to custody before trial only if this is necessary to prevent him from escaping, tampering with evidence, or committing further serious offenses. Even on the Continent, the law authorizes the court to release a suspect from custody if sufficient surety is posted.

The decision to prosecute

formal accusation is universally regarded as an indispensable prerequisite for a criminal trial. It is typically the public prosecutor who, on the basis of the results of the investigation, determines whether to file a complaint and for which offense to bring charges.

Private prosecution

Private citizens, such as the victim of the offense, are not generally permitted to institute a criminal action, though the law on this point differs among jurisdictions. In the United States private criminal complaints are practically impossible. In England anyone can institute criminal proceedings for most offenses, but the director of public prosecutions can take over and discontinue prosecution at any time. In Germany citizens can prosecute only for certain minor offenses such as libel and assault. In France victims of crime can combine criminal prosecution with civil claims for damages.

In many countries victims can prevent prosecution for certain offenses—e.g., assault, libel, and some sexual offenses—by not filing a special request for public prosecution.

Grand jury

In the federal system of the United States, and in about half of the state systems, charges are brought not by the public prosecutor but by the grand jury, a group of 12 to 23 citizens selected by lot. The grand jury also has investigative authority, and it is to serve as a protective shield against unwarranted prosecution. In practice, however, grand juries are usually dominated by the public prosecutors, who are responsible for presenting the evidence to them.

Prosecutorial discretion

In all legal systems the prosecutor should bring an accusation only if he thinks that the available evidence, discounted by probable defense evidence, is so strong that the defendant is likely to be convicted after trial. In some countries, such as Italy, the prosecutor is required by law to bring charges whenever there is sufficient evidence for conviction. In other jurisdictions—for example, in the United States, France, and Japan—the public prosecutor has discretion as to whether to file a formal accusation; in effect, this means that he can informally grant clemency to an offender who would certainly be convicted in court. In still other countries, such as Germany, prosecutorial discretion applies only to minor offenses, whereas prosecution of serious crimes is mandatory. To the extent the prosecutor has discretion, he can make the decision not to prosecute dependent upon certain conditions—e.g., that the offender pay restitution to the victim.

Plea bargaining

In some countries, such as the United States and Spain, the prosecutor’s discretion extends to determining the crime with which the defendant is to be charged. Hence, in a case of armed robbery, the U.S. prosecutor may charge the suspect with armed robbery, simple robbery, assault, simple theft, or any combination of these offenses. All of these offenses carry quite different penalties, and normally the prosecutor charges the most serious offense that can be sustained by the evidence. However, since the cooperation of the defendant, especially in offering a plea of guilty, drastically shortens or simplifies the trial, prosecutors in some countries reduce charges on the condition that the defendant not contest the accusation in court. Especially in the United States, this creates a system of “plea bargaining,” in which defense attorneys negotiate with prosecutors the charges (and resulting penalties) most acceptable to their clients. Similar transactions, though sometimes performed discreetly because of their dubious legality, occur in many other jurisdictions.

Trial procedure


Criminal courts

In most countries, two or three types of courts have jurisdiction in criminal matters. Petty offenses are usually dealt with by one professional judge; in England, however, two or more lay justices may sit in Magistrates’ Court. Matters of greater importance are, in many countries, tried by panels of two or more judges. Often such panels consist of lawyers and lay judges, as in Germany, where two laypersons sit with one to three jurists. The French cour d’assises, which hears serious criminal matters, is composed of three professional judges and nine lay assessors. Such “mixed courts” of professionals and ordinary citizens deliberate together and decide by majority vote, with lawyers and laypersons having one vote each.

By contrast, the jury system, a distinctive feature of the Anglo-American criminal process, involves a division of functions between the presiding judge and the laypersons sitting as jurors. The judge presides over the trial, determines the admissibility of evidence, and instructs the jury on the applicable law, but he does not participate in the deliberations of the jury. The jurors usually remain silent during trial but are autonomous in finding the verdict of guilty or not guilty.

The U.S. Constitution guarantees every defendant in a nonpetty case the right to be tried before a jury; the defendant can also waive this right and have a professional judge sitting alone decide on the verdict. To ensure the impartiality of the jury, prosecution and defense can reject (in legal parlance, challenge) jurors whom they establish to be biased. Moreover, the defense (and in the United States the prosecution as well) has the right of peremptory challenge, in which it can challenge a number of jurors without having to give a reason.

Pretrial matters

In many legal systems, the court checks the accuracy of the accusation before admitting the case for trial. In France a special panel called the chambre d’accusation determines whether there is enough evidence for the case to proceed; in England the Magistrate’s Court makes the decision on “binding over” the defendant for trial; and in Germany the trial court itself (sitting without lay assessors) decides whether there is sufficient evidence. In the Anglo-American system, the court holds a hearing to determine “probable cause” for trial; under continental law, courts usually make that determination on the basis of the documents assembled in the course of the investigation.

A characteristic feature of the Anglo-American criminal process is the opportunity for defendants to plead guilty or not guilty. Only if the defendant contests the accusation by pleading not guilty is a trial held. Otherwise, the court pronounces the defendant guilty as charged and goes on to determine the penalty. With few exceptions (as in Spain), continental law does not provide for such shortcuts to sentencing. Rather, a trial must be held even if the defendant has confessed guilt from the outset.

Publicity of the trial

Trials, as opposed to pretrial investigation, must be accessible to the public. This principle, embodied in the constitutions of several countries, is meant to protect the defendant; in the United States it is also based on the freedom of the press. Publicity does not mean that broadcasting of trials must be permitted; in most countries, it is not allowed.

In spectacular cases, great publicity can influence the court and work to the detriment of defendants. Most legal systems, therefore, permit the court to exclude the public from the trial (or from parts thereof) or to change the location in which the trial is to be held if either measure is necessary to protect the trial process from undue interference.

Presentation of evidence

In Anglo-American law the presentation of evidence is left to the parties. Witnesses are examined and cross-examined by counsel, not by the court. The function of the trial judge is to enforce the rules governing evidence and to ask supplementary questions if he feels that the parties have failed to clarify the facts. The defendant may testify as a witness if he chooses to, but he is not examined by the judge. Under continental law, by contrast, the presiding judge typically dominates the process of taking evidence. He is responsible for establishing the relevant facts by calling and questioning witnesses and for introducing real evidence. The judge also interrogates the defendant unless the latter chooses to remain silent. Attorneys for the prosecution and the defense ask additional questions of witnesses and summarize the evidence at the end of the trial.

Finding the verdict

A basic principle of both Anglo-American and continental procedures is that the defendant is presumed innocent unless and until his guilt has been established beyond a reasonable doubt. The burden of proof, therefore, rests upon the prosecution. On the Continent, this is true even in cases involving insanity, drunkenness, self-defense, or necessity. Anglo-American law regards these as “affirmative defenses” and requires the defendant to provide at least some evidence that they were a factor.

Courts in continental legal systems are not bound by any legal rules concerning the evaluation of evidence presented; rather, they are to follow their consciencein establishing guilt or innocence. The same is generally true for juries in the Anglo-American system; however, since juries are thought to be easily distracted from the real issues of the case, there is a complicated set of legal rules determining what evidence can be presented to juries.

In the United States, jury verdicts must be unanimous; if the jury is unable to agree, a new trial before another jury can be held. In England, majority votes by margins of 10 to 2 or 9 to 1 are acceptable after the jury has deliberated for at least two hours. As a corollary of the presumption of innocence, many continental systems require a specified majority of the judges to vote for a finding of guilty.


In continental systems, the court decides, on the basis of a single comprehensive trial, both on the guilt or innocence of the defendant and on the penalty if he is found guilty. Sentences are conclusively determined by the court, with prison terms being subject to conditional release.

Anglo-American law provides for separate sentencing hearings, which typically take place a few weeks after the defendant has been found guilty of the charges. In the interim, social workers gather information on the offender’s psychological and social background, which they present to the court. Usually, a single professional judge determines the sentence after hearing the defense (and, in the United States, the prosecution). In the United States, juries in several states make a recommendation with respect to capital punishment in cases where the death penalty is available as a sentence.

Postconviction procedure


Common law

In Anglo-American legal systems, a convicted defendant may move in the trial court to arrest judgment, or he may file a motion for a new trial. The legality of the conviction may also be challenged by appeal to a higher court. Criminal appeals were unknown in the traditional common law, but today they are universally granted by statute. In the United Kingdom, the Criminal Appeal Act of 1907 established an elaborate system of appellate procedure, proceeding from Magistrate’s Courts all the way to the House of Lords, the highest court of England until 2009, when it was replaced in that capacity by the Supreme Court. Extraordinary remedies available in English procedure include the writ of habeas corpus (determining the legality of holding the prisoner in custody) and the orders of mandamus (compelling an official to perform an act required by law), certiorari (requiring a lower court to present the trial record to a higher court), and prohibition (by which a higher court prohibits a lower court from exceeding its jurisdiction).

In the United States, a defendant convicted in a state or federal court can appeal to that state’s (or the appropriate federal) appellate court. Subject to certain restrictions, the defendant can turn to the federal court system when his rights under the U.S. Constitution have been violated in state court. Review by the U.S. Supreme Court is discretionary; the court grants it only in cases of general significance by issuing a writ of certiorari to the court whose judgment is to be reviewed. Even after the regular avenues of appeal are exhausted, defendants in custody can at any time apply for a writ of habeas corpus, challenging the prison warden’s right to keep the petitioner in custody and demanding his release. Since the warden’s right usually depends on the validity of the criminal judgment, habeas corpus constitutes an indirect method of review. Legislation in the 1970s curtailed access to federal courts on the basis of habeas corpus.

While defendants enjoy a liberal right to appellate review in criminal matters, the prosecution generally cannot appeal an acquittal. This is due to a strict interpretation of the concept of double jeopardy, which forbids that a defendant be tried twice for the same act.

Appellate courts do not take evidence but only decide points of law on the basis of the record. Since juries do not give reasons for their verdicts, appeals are usually based on allegations of faulty procedure (in particular, the admission and exclusion of evidence) and on erroneous statements on the applicable law in the judge’s instruction to the jury. The sentence is also subject to review in Britain and Canada but not in most of the United States.

Civil law

Appellate procedure on the Continent follows quite different rules. Most important, the prosecution as well as the defense can appeal a judgment, including the sentence. In some countries (e.g., Germany) it is possible to demand a new trial in a higher court if the original trial was held by a single judge. In other cases, appellate courts review only matters of substantive or procedural law, including the question of whether the lower court did everything necessary to find the relevant facts. Continental trial courts usually write elaborate reasons for their judgments, and it is these reasons that form the objects of the appellate courts’ scrutiny.

When appellate review is waived or exhausted, judgments are deemed final and can be executed. Final judgments can be overturned only if significant new evidence is found indicating that the decision was wrong.

Hans-Heinrich JescheckThomas Weigend