3.12. Procedural Law 
LORE RUTZ-BURRI 
As noted above, procedural law governs the process used to investigate and prosecute an individual who 
commits a crime. Procedural law also governs the ways a person convicted of a crime may challenge their 
convictions. The source of procedural law includes the same sources of law you have just read about which 
govern substantive criminal law: the constitution, cases law or judicial opinions, statutes, and common law. 
Whereas most substantive criminal law is now statutory, most procedural law is found in judicial opinions 
that interpret the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment to the U.S. Constitution, the U.S. 
Code, and the state constitutional and legislative counterparts. Generally, the federal and state constitutions 
set forth broad guarantees (for example, the right to a speedy trial), then statutes are enacted to provide more 
definite guidelines (for example, the Federal Speedy Trial Act) and then judges flesh out the meaning of 
those guarantees and statutes in their court opinions. 
Phases of the Criminal Justice Process 
The processing of a case through the criminal justice system can be broken down into five phases: 
investigative phase, the pre-trial phase, the trial phase, the sentencing phase, and the appellate or post-
conviction phase. 
  Investigative Phase       
The investigative phase is governed by laws covering searches and seizures (searches of persons and 
places, arrests and stops of individuals, seizures of belongings), interrogations and confessions, identification 
procedures (for example, line ups, showups, and photo arrays). This phase mostly involves what the police 
are doing to investigate a crime.  However, when police apply for a search, seizure or arrest warrant, “neutral 
and detached” magistrates (i.e., judges) must decide whether  probable cause exists to issue search warrants, 
arrest warrants, and warrants for the seizure of property and whether the scope of the proposed warrant is 
supported by the officer’s affidavit (sworn statement). When an individual is arrested without a warrant, 
judges will need to promptly review whether there is probable cause exists to hold them in custody before 
trial. 
Pretrial Phase 
The pretrial phase is governed by laws covering the initial appearance of the defendant before a judge or 
magistrate; the securing of defense counsel, the arraignment process (in which the defendant is informed of 
the charges which have been filed by the state); the process in which the court determines whether to release 
the defendant pre-trial either with some financial surety (posting bail) or on his or her own recognizance 
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