Перевод текста Criminal procedure

CRIMINAL PROCEDURE
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.
Differences between civil law and common law systems
• The majority of civil law jurisdictions follow an inquisitorial system of adjudication, in which judges undertake an active investigation of the claims by examining the evidence and preparing reports.
• In common law systems, the trial judge, the investigators, and the prosecution are separate functions. After an investigation has been completed and charges lodged, the trial judge presides over proceedings grounded in 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 have adopted adversarial procedures.
Proponents of either 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; any doubt is resolved in favor of the defendant. This provision, known as the presumption of innocence, may in practice operate somewhat differently in different countries. In the 46 countries which are members of the Council of Europe, this is required by Article 6 of the European Convention on Human Rights.
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.
United States
In the United States, there is a distinction between constitutional criminal procedure, which consists of baseline protections that the United States Constitution requires be afforded to those accused of crimes, and statutory criminal procedure, which consists of enacted rules that govern the actual conduct of a trial (such as the Federal Rules of Criminal Procedure in federal court and similar rules in state courts). Rules of statutory criminal procedure (which are regularly revised) may afford defendants more protection than constitutional criminal procedure, but may not afford less.
In a criminal case, the government generally brings charges in one of two ways: either by accusing a suspect directly in a "bill of information" or other similar document, or by bringing evidence before a grand jury to allow that body to determine whether the case should proceed. If there is, then the defendant is indicted. In the federal system, a case must be brought before a grand jury for indictment if it is to proceed; some states, however, do not require indictment. Once charges have been brought, the case is then brought before a petit jury, or is tried by a judge if the defense requests it. The jury is selected from a pool by the prosecution and defense.
The burden of proof is on the prosecution in a criminal trial, which must prove beyond a reasonable doubt that the defendant is guilty of the crime charged. The prosecution presents its case first, and may call witnesses and present other evidence against the defendant. After the prosecution rests, the defense may move to dismiss the case if there is insufficient evidence, or present its case and call witnesses. All witnesses may be cross-examined by the opposing side. Under the Fifth Amendment to the United States Constitution, the defendant is not required to testify, but must answer the prosecution's questions if he or she does testify. After both sides have presented their cases and made closing arguments, the judge gives the jury legal instructions; the jury then adjourns to deliberate in private. The jury must unanimously agree on a verdict of guilty or not guilty.
If a defendant is found guilty, sentencing follows, often at a separate hearing after the prosecution, defense, and court have developed information based on which the judge will craft a sentence. In capital cases, a separate "penalty phase" occurs, in which the jury determines whether to recommend that the death penalty should be imposed. As with the determination of guilt phase, the burden is on the prosecution to prove its case, and the defendant is entitled to take the stand in his or her own defense, and may call witnesses and present evidence.
After sentencing, the defendant may appeal the ruling to a higher court. American appellate courts do not retry the case; they only examine the record of the proceedings in the lower court to determine if errors were made that require a new trial, resentencing, or a complete discharge of the defendant, as is mandated by the circumstances. The prosecution may not appeal after an acquittal, although it may appeal under limited circumstances before verdict is rendered, and may also appeal from the sentence itself. Increasingly, there is also a recognition that collateral consequences of criminal charges may result from the sentence that are not explicitly part of the sentence itself.
Criminal Investigation
Arrest warrant
An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.
Arrest warrants in the United States
Warrants are typically issued by courts but can also be issued by one of the chambers of the United States Congress or other legislatures (via the call of the house motion) and other political entities.
In the United States, an arrest warrant must be supported by a signed and sworn affidavit showing probable cause that:
1. a specific crime has been committed, and
2. the person(s) named in the warrant committed said crime.
In most jurisdictions, an arrest warrant is required for misdemeanors that do not occur within view of a police officer. However, as long as police have the necessary probable cause, a warrant is usually not needed to arrest someone suspected of a felony.
A bench warrant, sometimes also called a "writ of capias" or "capias," is a variant of the arrest warrant. A bench warrant usually commands the arrest of someone for failing to show for a required court appearance.
Search warrant
A search warrant is a written warrant issued by judge or magistrate which authorizes the police to conduct a search of a person or location for evidence of a criminal offense and seize the evidence.
All jurisdictions with a rule of law and a right to privacy put constraints on the rights of police investigators, and typically require search warrants, or an equivalent procedure, for searches within a criminal enquiry. There typically also exist exemptions for "hot pursuit": if a criminal flees the scene of a crime and the police officer follows him, the officer has the right to enter an edifice in which the criminal has sought shelter.
Conversely, in authoritarian regimes, the police typically have the right to search property and people without having to provide justifications, or without having to secure an authorization from the judiciary.
United States
In the United States, the issue of federal warrants is determined under Title 18 of the US Code. The law has been restated and extended under Rule 41 of the Federal Rules of Criminal Procedure. Each state also promulgates its own laws governing the issuance of search warrants.
Under the Fourth Amendment to the United States Constitution, most searches by the police require a search warrant based on probable cause, although there are exceptions. Any police entry of an individual's home always requires a warrant (for either search or arrest), absent exigent circumstances (i.e. hot pursuit of a felon; imminent destruction of evidence; the need to prevent a felon's escape; or the risk of harm to the police or others).[1] To obtain a search warrant, an officer must first prove that probable cause exists before a magistrate or judge, based upon direct information (i.e. obtained by the officer's personal observation) or hearsay information. Hearsay information can even be obtained by oral testimony given over a telephone, so long as its source has a basis for its knowledge that is either reliable or has veracity, as determined by a totality of the circumstances. Both property and persons can be seized under a search warrant.
The standard for a search warrant is much lower than the lack of reasonable doubt required for a later conviction. The rationale is that the evidence that can be collected without a search warrant may not be sufficient to convict, but may be sufficient to suggest that enough evidence to convict could be found using the warrant.
Police do not need a search warrant to search a vehicle they stop on the road or in a non-residential area if they have probable cause to believe it contains contraband or evidence of a crime. In that case, police may search the passenger compartment and any open containers inside the vehicle.
Police do not need a search warrant, or even probable cause, to perform a limited search of a suspect's outer clothing for weapons, if police have a reasonable suspicion to justify the intrusion - a Terry “stop and frisk.”
Under the Fourth Amendment searches must be reasonable and specific. This means that a search warrant must be specific as to the specified object to be searched for and the place to be searched. Other items, rooms, outbuildings, persons, vehicles, etc. would require a second search warrant.