The rocky shores of the north-east Atlantic have been long studied. Our focus is from Gibraltar to Norway plus the Azores and Iceland. Phylogeographic processes shape biogeographic patterns of biodiversity. Long-term and broadscale studies have shown the responses of biota to past climate fluctuations and more recent anthropogenic climate change. Inter- and intra-specific species interactions along sharp local environmental gradients shape distributions and community structure and hence ecosystem functioning. Shifts in domination by fucoids in shelter to barnacles/mussels in exposure are mediated by grazing by patellid limpets. Further south fucoids become increasingly rare, with species disappearing or restricted to estuarine refuges, caused by greater desiccation and grazing pressure. Mesoscale processes influence bottom-up nutrient forcing and larval supply, hence affecting species abundance and distribution, and can be proximate factors setting range edges (e.g., the English Channel, the Iberian Peninsula). Impacts of invasive non-native species are reviewed. Knowledge gaps such as the work on rockpools and host–parasite dynamics are also outlined.

During pretrial phases of a criminal matter, during trial, and on appeals, many of the principal participants—the prosecutors, defense counsel, and judges—all share a common profession: they are “lawyers” (or “attorneys,” which is the same thing). The legal profession also includes in-house counsel for corporations if they are trained as lawyers and exercise legal functions within their corporate employers. Irrespective of their position or title, all such professionals must be licensed to practice law, and have a duty to act professionally and to respect certain ethical standards. Judges, prosecutors, and corporate counsel do not receive legal education or training that is different from those of other attorneys, and in fact lawyers shift from one role to another more frequently than is the case in many other countries.

As a practical matter, this means that during an adversarial criminal proceeding, the adversaries (prosecutors and defense counsel) and judges often may know each other, either from common education at the same or similar schools, or from acquaintanceship during the current or previous employment.

Appellate courts play a major role in the administration of criminal justice in two ways: a person convicted of a crime can have his conviction reviewed for legal error by an appellate court to ensure that appropriate procedures were followed in his individual case, and appellate court decisions in criminal cases are precedent that contribute to the evolution and development of the common law of criminal procedures. This second point merits emphasis, because many very important aspects of criminal procedure can only be understood by being familiar with the recent decisions—and thus the common law—applicable to them. While US criminal procedures in general share many important characteristics, which this book attempts to summarize, they may vary among the various states, and even in the federal system the decisions in the various federal courts of appeals sometimes differ.

Studying criminal justice in the United States is particularly challenging because of the nation’s complex structure: the United States is not a unitary jurisdiction but rather a federation of fifty states joined under the terms of the Constitution of the United States, and the administration of criminal justice is shared among the federal government and the various states. As a result, one cannot speak of “American criminal law” or “American criminal procedures.” Rather, there are fifty-one sets of laws and procedures—one for each state, and one for the federal government. To be sure, the criminal procedures of the various states and of the federal government share many similarities and in general are distinctively different from procedures used in continental Europe and elsewhere, but it is important to remember that the laws, procedures, and practices on any point may differ between one jurisdiction and another.

In recent years, a virtual cottage industry has developed for law firms and other professionals to conduct internal investigations of corporations. Their conduct and use are now core elements of the criminal justice landscape for corporate (or “white collar”) crime.

Such investigations vary in size and complexity, and often require detailed logistics. The basic goal is straightforward: to inquire into factual circumstances that may pose a risk of a criminal investigation or prosecution, and to report and (usually) analyze the legal risks. Such investigations generally consist of a systematic review of available documents, emails, and other evidence, and interviews with participants, among other sources of information. There are, however, several quite different contexts in which an internal investigation may be conducted; because these differences may bear on important legal principles, it is important to be clear exactly what kind of investigation is being considered before embarking on one in order to adopt an appropriate strategy and avoid the problems addressed in section B.

Participants in criminal justice systems have a constitutional right under the Sixth Amendment to “the assistance of counsel” at trial; the right to legal representation is also protected, and applicable to the states, by the Due Process Clause of the Fifth and Fourteenth Amendments. This right is zealously protected; failure to respect it may invalidate critical criminal procedures.

As a practical matter, the right to counsel may mean three similar and linked but nonetheless somewhat different things: (1) the right to insist that an attorney be present; (2) the right to be informed that one has a right to an attorney before proceeding; and (3) the right to have an attorney—whether privately retained or appointed to represent an indigent who cannot afford one—actually present before the case can proceed. With respect to (1), other than in the grand jury itself, anyone—even if not arrested or at apparent risk of being accused, such as a witness or even a victim—may wish to be accompanied by an attorney of her choice for advice or support, and generally has a right to do so in that the police or investigator cannot ask that the attorney be excluded.

If a defendant is found guilty at trial or pleads guilty, the court will set a date for sentencing—in the federal system usually a month or two after the verdict or plea. As a technical matter, no judgment of conviction has been entered until a sentence is imposed.

Traditionally, sentencing has been considered a matter allocated principally to the discretion of the judge. Under a regime known as indeterminate sentencing, the judge could impose any sentence from zero to the maximum set by the legislature for the crime, without any meaningful appellate review. This led to a perceived problem of disparate sentencing, under which different judges might give wildly different sentences for comparable cases, a problem exacerbated by the absence of any need for a judge to explain or justify the sentence, and the absence of appellate review. In the 1980s, the federal Congress and a number of states introduced measures designed to structure sentencing to make the process more coherent and diminish—or at least channel—the discretion left to trial judges.

Most criminal investigations are initiated by police, either acting reactively in immediate response to a situation (in flagrante) or proactively in the absence of an immediate need for police intervention. At the federal level, there are several specialized police agencies, including the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency, the Secret Service (which is tasked with protecting the President but also with investigating counterfeiting), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Most investigative federal agencies report directly or indirectly to the Attorney General of the United States, who heads the Department of Justice. Each state organizes its own police functions as it sees fit. Counties, cities, or small towns within a state may have police forces that may range in scale from the New York City Police Department, composed of approximately twenty thousand officers, to a village that may have one policeman. While some state law enforcement officials are locally elected, federal officers are not. Although they investigate and enforce different bodies of laws (see Chapter 2.A.1), federal and state police authorities generally coordinate harmoniously, either informally or through so-called joint task forces.

A criminal matter becomes formally “adversarial” when a person who has been arrested and/or charged appears in court for the first time, since from that point on he will generally be represented by an attorney who will appear in court on his behalf. Such a first appearance is often caused by an arraignment on an arrest, as noted in Chapter 4. An arrest can occur either without an arrest warrant if the person responsible is caught in flagrante or if there is no time to obtain a warrant, or on the basis of a warrant issued by a judge. In the case of minor offenses, such as traffic violations, the police generally do not make an arrest; the alleged offender will instead receive an order, known as a summons, directing his appearance in court. A person who is indicted may agree to appear in court without having been arrested, often on the basis of an arrangement to do so with the prosecutor.

Venue refers to the location of a criminal trial. In most cases, venue is noncontroversial, but in some instances it may be the subject of pretrial proceedings before a judge. Venue is in the first instance selected by the prosecutor, who (in a federal case) files charges in the district where the trial will take place. (As noted in Chapter 2.A.2, a district is an administrative subdivision of the federal courts, and some bigger states may have more than one federal district within their borders.) A defendant may seek a change of venue for several reasons.

The Sixth Amendment to the Constitution provides that a federal trial must occur in the state and district where a crime was committed. Venue must be proper for each count of an indictment or information. Defendants can waive venue either expressly or by failing to make a timely objection before trial.

Double jeopardy is the principle—known in Europe as ne bis in idem—that a person (including a corporation) should not be prosecuted twice for the same crime. In the United States, the principle is enshrined in the Fifth Amendment to the Constitution, which provides that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

Notwithstanding its constitutional basis, the principle is subject to two interpretations in the United States that limit its effect.

First, the principle has long been subject to the “single sovereign” rule, and offers no protection if two different sovereigns engage in parallel or successive prosecutions. Thus under the current state of the law, if a person is convicted or acquitted in one state, that outcome does not bar further prosecution in another state, or by the federal government (and vice versa).

Corporate criminal responsibility refers to the legal principles that determine whether a corporation (or other nonpersonal entity) can be convicted of a crime. While those principles may not strictly be considered a question of “procedure,” they have a very strong impact on criminal investigations in the United States. The principles applied in federal courts in the United States differ from those in many other countries—and, in fact, from principles applied in several of the states.

No federal statute defines or sets generally applicable standards for corporate criminal responsibility; rather, the law applicable to this issue is mostly a development of the common law. The federal approach is based on the notion of respondeat superior, which is a principle found in the law of torts rather than criminal law. The adoption of the respondeat superior principle to criminal proceedings derives from a 1909 decision of the Supreme Court which held that under a specific statute so providing, a corporation could be convicted of a crime.

We now come to trials. As noted in Chapter 11 and again in the Conclusion, Chapter 19, criminal trials are becoming less and less frequent in American criminal justice, virtually replaced by guilty pleas and other negotiated outcomes. But it is nonetheless critically important to understand their dynamics, because virtually the entire architecture of American criminal procedures is designed on the assumption that a trial—and particularly a jury trial—will take place as the ultimate check on the adversarial procedures in effect, and thus those procedures cannot make sense without understanding the trials around which they were conceived and developed.

There is no provision for trial in absentia, a trial in which the defendant is not physically present and without a specific consent from him. In federal courts, Rule 43 provides that a defendant “must be present … at every trial stage, including jury impanelment and the return of a verdict.” The Rule does provide that a defendant may be “voluntarily absent after the trial has begun.”

The Sixth Amendment to the Constitution provides that an “accused shall enjoy the right to a speedy and public trial ….” In federal courts, this right has been codified in the Speedy Trial Act, 18 U.S.C. § 3161–74, which requires that a trial begin within seventy days of the date of the filing of the indictment or information or of the date the defendant first appears in court, and has special provisions for a defendant in custody. The Act allows a judge to provide for longer periods only if based on a specific finding satisfying one or more permissible bases for delay listed in the Act. For example, the court may postpone trial for a period necessary to allow the parties to prepare for a complex case or while the judge is considering how to rule on motions made by the parties, or it may approve a longer period if the parties agree to an outcome such as a deferred prosecution agreement, as discussed in Chapter 11.D. However, the parties (prosecutor and defense) cannot simply agree among themselves to extend the time limits of the Act, but must persuade a judge that grounds exist to do so under one of the exceptions specifically permitted by the Act. This requirement not only protects defendants against agreements reached by prosecutors and defense attorneys to satisfy their own personal schedules, but also reflects the public’s interest in a prompt trial.

Police investigations have two principal and overlapping functions in the administration of criminal justice: (1) to determine if a crime occurred (and if so to identify and, when appropriate, arrest the person or persons responsible); and (2) to collect evidence that would be admissible at trial and sufficient to prove the guilt of those ultimately accused of responsibility. The length and complexity of this process, and the range of investigative techniques brought to bear, vary tremendously. In a very simple “street crime,” an apparent culprit may be identified and arrested immediately on a reactive basis, and the evidence-gathering may be straightforward and limited in scope; investigations in more complicated matters may take place on a proactive basis and can take months or even years in order to review and obtain evidence before a decision can be made to prosecute. This chapter will review the principal steps or procedures that may come into play in a variety of circumstances. The discussion will be divided into four topics: (A) the distinction between reactive investigations precipitated by an on-the-spot arrest and proactive ones where the arrest follows an investigation; (B) evidence-gathering techniques that may be employed by the police without any judicial authorization; (C) those instances where prior judicial approval is necessary; and (D) the use of a grand jury during an investigation.