Criminal Law: Procedural Law v. Substantive Law
What is the difference and does it matter?
Undoubtedly, you have heard the statement "it was a travesty of justice!" These are stories of people, who were clearly guilty of a crime, but who got off scot-free. These stories are not urban myths. These are true stories which illustrate the impact of criminal procedural and the importance of having a criminal defense attorney who knows criminal procedure. Everyone charged with committing a crime would love to get off on a technicality and it is because of procedural law that this is even a possibility.
The substantive law tells you what acts constitute a crime and what the punishment for that particular crime is. For example, you would find driving under the influence or DUI in the Idaho Code. Here it would tell you that if you have a blood alcohol level of .08 or greater and you operate a motor vehicle or are in actual physical control of a vehicle you will be charged with a DUI and it will go on to tell you what the punishment is for a first time DUI, a second time DUI, a third time DUI, an excessive DUI and so on.
Procedural law, however, tells you what is a violation of your constitutional rights. It tells the police when they can pull you over, when they can search you, what evidence they can take, which witnesses can be investigated and the like. Procedural law includes your Miranda rights; "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you".
When procedural law is violated, you can exclude the evidence obtained by the violation and by excluding it you may, in effect, remove that evidence leaving the prosecuting attorney with no evidence to convict you. That's what it means to get off on a technicality.
Does it ever happen? You bet it does. It happens everyday. If the police pull you over because you are driving a 1970's Duster and they think that you look like a criminal and they later discover evidence of drugs in your car, that evidence can be excluded on the basis that there was no probable cause to pull you over in the first place. If the police have pulled you over because they suspect you have been drinking and they search your car without your permission or a warrant and they find counterfeit money in you glove box, that evidence can be excluded on the basis of an illegal search.
There are many scenarios like these. Whether they are a travesty of justice, however, is a matter of opinion. What kind of country would it be if someone was convicted of a crime and evidence was secured, but in the process their constitutional rights are violated?
If you have been charged with a crime and need to speak to a Boise Criminal Lawyer, give us a call at (208) 472-2383 and see what we can do for you.
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