Criminal Justice Process

Generally speaking, the investigative stage is an inquisitorial process run by the police and the adjudicatory stage is an adversary process run by judges and lawyers. Sometimes prosecutors play a leading role in the investigation, and sometimes the police investigation continues even after the adversary process of adjudication has begun. Despite the occasions when this broad-brush description is not entirely accurate, in general the distinction between police investigations conducted before any defendant is formally accused of an offense in court, and the adjudication in court of those charges that are filed, provides a sound overview of the criminal justice process.

Although the term inquisitorial carries some negative connotations in Anglo-American legal culture, all the term refers to here is the absence of named defendants. Obviously, without a defendant there can be no adversary proceedings. Equally obviously no criminal justice process can assume an adversarial form during the initial stages of an investigation, when the authorities may not know for sure whether an offense has taken place or the identity of the offender. It may not be so obvious but it is equally true that many long-standing criminal justice controversies, including those about police interrogation and eyewitness identification proceedings, involve disagreements about when the investigation should cease and the adjudicatory process should commence.

One vital point about the investigatory/adjudicatory distinction should be made at the outset. It is, of course, possible to authorize the police themselves to adjudicate by simply conflating the investigation and the trial. In such a system the police, whether officially or secretly, have the power not just to use violence such as arrest or search for the purpose of bringing about a trial according to due process. They have also the power to punish supposed offenders without judicial authorization. Such systems, to which the epithet "police state" properly applies, have operated in many places and many times. Even in societies with a deep political commitment to due process, the police occasionally disregard the judicial process and punish suspects without trial. Thus the distinction between investigation, which must for practical reasons be assigned to an executive agency with paramilitary qualities, and adjudication, which is made more rather than less necessary by the existence of a paramilitary police force, is not an accident. It is instead the best institutional arrangement people have yet discovered for protecting themselves from private crime without subjecting themselves to arbitrary official power.

The criminal justice process is not the only form of official coercive social control. Individuals who are mentally ill and a danger to themselves or others may be committed to institutions indefinitely after a civil, as distinct from a criminal, hearing. Contraband and the fruits or instrumentalities of crime, such as an airplane used to smuggle drugs, may be seized by the state in civil as well as criminal forfeiture proceedings. The government like private individuals may bring a civil action for punitive damages when authorized by statute or court decision. The criminal justice process is the most extensive and most prominent, but by no means the exclusive, system of coercive social control.

The criminal justice process in the United States varies widely. Federal practice differs from that in the states and the practice in one state varies from that in another. Different police departments pursue different investigative strategies, and different court systems follow different procedures. What follows will be liberally sprinkled with words such as "typically," "commonly," and "generally." It would be difficult to put forward a descriptive assertion about the American criminal justice process to which no exception could be found. Nonetheless, the following description may prove useful, given the recognition that real people go to jail only in particular cases governed by the laws of a single jurisdiction that may depart from the norm in any number of important ways.