What is the difference between procedural and substantive law?


Procedural law provides the process that a case will go through (whether it goes to trial or not). The procedural law determines how a proceeding concerning the enforcement of substantive law will occur. Substantive law defines how the case’s facts will be handled and how the crime is to be charged. In essence, it deals with the substance of the matter. Even though both are affected by Supreme Court opinions and subject to constitutional interpretations, each serves a different criminal justice system function.

Some Basic Rules of Criminal Procedure

Procedural law is exactly what the name implies. It sets out the procedure for how a criminal case will proceed. Every state has its own set of procedures, usually written out in a set of rules called a code of criminal procedure. The basic rules which most jurisdictions follow include:

  1. An arrest must be based on probable cause;
  2. A state or federal prosecutor files a charging instrument setting out what you are accused of doing;
  3. You are arraigned on the charges;
  4. You advise the court whether or not you are seeking court-appointed counsel;
  5. A bond amount will be set in your case;
  6. You will be sent notice of a court appearance;
  7. If you cannot reach a plea bargain agreement, then your case is set for a pre-trial and trial;
  8. If you are convicted at trial, you have the right to appeal.

Punishment Systems Differ

How much detail is required for each phase of the criminal procedures will vary depending on the nature of your charges and what agency is prosecuting you. For example, Texas has a bifurcated trial system where first you must be found guilty, and then the jury can hear punishment evidence. A jury is given a range of punishment to assess in your case. The range of punishment for a first-degree felony is not less than five years and up to ninety-nine years of life. This is in stark contrast to the federal procedural law. Federal judges assess punishment and are required to utilize federal sentencing guidelines instead of a wide range system. A federal defendant’s criminal history will be researched and summarized in a federal probation officer report. It’s much easier to predict your sentence in the federal system because the punishment procedures are based on a point system.

Substantive Law and Elements

Substantive law, on the other hand, deals with the “substance” of your charges. Every charge is comprised of elements. Elements are the specific acts needed to complete a crime. Substantive law requires that the prosecutor prove every crime element for someone to be convicted of that crime. What elements are required will depend on the crime you are charged with and the state’s substantive laws. For example, for a felony driving while intoxicated charge, most states require prosecutors to prove that:

  1. You were driving or operating a motor vehicle;
  2. On a public roadway;
  3. While you were intoxicated;
  4. And that you have prior convictions for driving while intoxicated.

In New Mexico, the prosecutor must show that you have previously been convicted three times for driving while intoxicated. Simultaneously, the substantive law in Texas only requires the prosecutor to prove two prior convictions.

Because substantive law and procedural laws vary by state and sometimes even by county, make sure you consult with an experienced criminal law attorney in your jurisdiction if you are charged with a crime. They will be more familiar with the rules and help you invoke the protections outlined in your state’s procedural and substantive laws.

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