Penal Court Procedures, Doctrinal Issues In

There always has been a multiplicity of penal court procedures. The differences in how criminal wrongdoings are unraveled and settled often depend on the mode of their commission, the relationship between victim and perpetrator, and the seriousness of the offense. Three models for the resolution of conflicts arising from criminal wrongdoings have their roots in ancient procedures, roots that have perhaps been common to all cultures. All resolution models are attempts to avoid the primordial response to criminal wrongdoing: self-help and, in the case of homicide, blood revenge. All are relevant in understanding modern criminal procedure. The three procedural models are: (1) consensual semiprivate resolution of the conflict through negotiations between victim or prosecutor and the accused; (2) adversarial resolution of the dispute in a public oral trial often before a panel of lay judges (or jury); and (3) inquisitorial investigation and decision of criminal cases, conducted in its heyday by state officials who were tasked with ascertaining the truth.

All of these procedural modes are found in varying mixtures in most modern penal procedures, albeit in different combinations, usually with one procedural mode dominating due to cultural and historical reasons. They, and the principles that are derivative therefrom, provide the substance for the great contemporary discussions about criminal procedure reform in Asia, Latin America, the former Soviet Union, and elsewhere.

Criminal procedure consists of a sequence of acts or procedures conducted by officials aimed at determining whether or not crimes were committed, who committed them, and what the perpetrator's punishment, if any, should be. Criminal procedure reformers must assess the applicability of the three procedural models to six decisions or assessments. These are, whether or not, to (1) arrest and commence a preliminary investigation; (2) detain the suspect prior to trial; (3) charge a suspect with the commission of a crime; (4) assess pretrial the sufficiency of evidence to allow the case to proceed to trial (preliminary hearing); (5) determine guilt or innocence (the trial); and (6) determine posttrial whether there was sufficient evidence to convict, whether errors were made that require a new trial, or whether a person who has been acquitted may be retried.