Criminal procedure

Criminal procedure is the process used in dealing with violations of criminal law. Because of the need to protect the interests of the suspects, as well as those of society and the victims, criminal procedure tends to be heavily constrained in most jurisdictions with a rule of law.

Differences between systems

Criminal procedure works differently in jurisdictions that follow the civil law and common law:

• The majority of civil law jurisdictions use procedure that has developed based upon an inquisitorial system of fact finding in which judges who are trained as investigative judges undertake an active investigation of the facts through interviewing the various witnesses and examining the evidence to prepare reports.
• In common law based legal systems most of the procedure is based upon the adversarial system of dispute resolution, where both the prosecution and the defense prepare arguments to be presented before the court. Some civil law systems use the adversarial system.

The choice of a system against the other is somewhat controversial. Proponents of each 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 defense with adequate rights. Conversely, there is a tendency in countries with an inquisitorial system to believe that accusatorial proceedings unduly favor rich defendants who can afford large legal teams, and are very harsh on poorer defendants.

Basic rights

Currently, in all 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, as opposed to having the defendant prove that he is innocent; doubt is supposed to benefit the defendant. This provision, known as the presumption of innocence, may however be put in practice in different manners.

Similarly, all such jurisdictions allow the defendant the right of a counsel and provide defendants that cannot afford to have their own lawyer some lawyer at the public expense (which is in some countries called a "court-appointed lawyer"). Again, the efficiency of this system depends greatly on the jurisdictions. In some jurisdictions, the lawyers provided to indigent defendants are often overworked or incompetent, or may not take much interest in the cases they have to defend.

See also

Indictment, Inquest, Laches, Notitia criminis , Statute of limitations, Trial by jury, Trial de novo, With prejudice