The criminal process carries a natural imbalance because at the earlier stage of
the proceedings, one of the two sides (the prosecution) is given a wider array of
powers to pursue its goals than the opposing party (the accused). In most, if not all,
countries, there are some coercive/intrusive investigative means that are available
only to state authorities and not to private individuals. This is more or less inevita-
ble because state authorities need to discover crimes. Furthermore, the criminal
investigations often start against unknown individuals, simply on the suspicion of a
crime, and this requires that state authorities be given the power to acquire
knowledge of the alleged crime before the accused is identified. The structure of
the criminal process is of course intended to remedy this natural imbalance between
parties as much as possible, trying to ensure that the defense is not put at a
disadvantage. Hence, it comes as no surprise that another difference between
civil and criminal processes is in their basic structure.
7.10 The Basic Structure of the Criminal Process
Although criminal procedure differs significantly from country to country, it is
possible to observe a general common skeleton of the criminal process. The
criminal process displays two main stages: the investigation (or pretrial) phase
and the trial phase. There can be intermediate steps between the investigations and
the trial (e.g., preliminary hearings or committal hearings); the trial phase can be
followed by one or more instances of appeal. But everywhere the core of criminal
proceedings is about the division between investigations and trial, a bipartition that
has no equivalent in civil proceedings.
7.10.1 Investigations
The investigations aim at discovering crimes. Once the suspicion of a crime comes
to the attention of the law enforcement authorities, they conduct investigations in
order to find out if an offense has been committed and unveil all relevant
circumstances (the author, theactus reus, themens rea, mitigating or aggravating
factors). The police has everywhere the primary role in the investigations, but in
several systems it acts autonomously while in others under the direction and
supervision of the public prosecutor. Some continental countries still provide, in
some cases, for an investigating judge, who is in charge of leading the
investigations (e.g., France, Belgium, and the Netherlands). State authorities can
take different investigative measures in order to shed light on the original suspicion:
questioning of suspects and witnesses, searches, interceptions of communications
(wiretappings), scientific examinations, etc. If the state authorities deem the origi-
nal suspicion to be unfounded, the case is dismissed. If they instead come to the
reasoned belief that a crime has been perpetrated, a formal allegation is drafted
(indictment) and the case is taken to trial, where the hypothesis of guilt built by the
investigators is tested.
146 J. Keiler et al.