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 facts in the case will be handled, as well as 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 function in the criminal justice system.
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 which are 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 bi-
furcated 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 or 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 report by a federal probation officer. It’s
much easier to predict what your sentence will be 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 element of a crime in order for someone to be
convicted of that crime. What elements are required will depend on the crime with which you are
charged 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, while 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 can help you invoke the
protections outlined in the procedural and substantive laws of your state.