Examine the PDF chart attachment (D2-Level of proof - DEFINITIONS AND SCALE).
See also pages 72 – 74 in Ferdico – 11th Edition.
Substantive law defines what constitutes a crime (murder, rape, robbery). Whether or not a crime has been committed is defined by substantive law. (See page 4 – Ferdico 11th)
Below is a link to Chapter 19 of the Texas Penal Code covering the types of criminal homicides in Texas. This provides an example of substantive law.
Select the Penal Code, and then Chapter 19 in the drop down menu.
Procedural law is the standard operating procedure for criminal justice professionals (police, prosecutors, and even jurors). Whether or not a police officer has probable cause to arrest a person for murder is a matter of procedural law.
Below is a link to chapter 14 of the Texas Code of Criminal Procedure. This provides an example of procedural rules for Texas police officers regarding when arrests may be made.
Select the Penal Code, and then Chapter 14 in the drop down menu.
It is easy to explain the penal code definition of murder (a substantive law) to a jury so that they may determine if the defendant is guilty of the offense. It is much more difficult for a jury to determine the meaning of proof beyond a reasonable doubt (a procedural concept) – the level of proof necessary to convict a person of a criminal offense.
- If you are a police officer and someone pulls out a gun and shoots another person in front of you. The person then gives up without a fight. What level of proof do you have that a crime has occurred?
- If you witnessed the shooting occur right in front of you do you have proof beyond a reasonable doubt that the crime occurred? Why or why not?
BONUS (5 POINTS): Based on the attached chart (note the curved line measuring difficulty to articulate) it is easier to articulate probable cause than reasonable suspicion. Explain why - under those two levels of proof - it can require more articulation to detain someone for a short period of time than to arrest them and take them jail.