Criminal Procedure Overview

Criminal Procedure is the substantive power of the United States Constitution to guide the government in prosecuting the suspect without violating civil rights. Criminal Procedure is not codified. Criminal procedure is common law created by the United States Supreme Court. In creating its decisions, the Supreme Court interprets the United States Constitution and decides if the Constitution prohibits such action or allows for such action to run freely. Some of the most recent decisions are the right to be free from search and seizure, right to counsel, right to be free from self incrimination, etc. Criminal Procedure is normally more complicated than Criminal Law. Depending on the facts, constitutional protection might attach or it might not attach. For example, for Fourth Amendment Protection to occur, there needs to be a showing of “privacy.” The test is whether there is a reasonable expectation of privacy and is it one that society is willing to accept? If the search and seizure occurred at a residential home without a warrant, the fourth amendment will normally apply. If it occurred in an open area, the fourth amendment will probably not apply.