The criminal justice process varies among the states, and the federal criminal justice system has its own procedures and rules as well. However, for the most part, the criminal justice systems in all jurisdictions are comprised of the same basic components. This article provides a general overview of the various steps, court hearings, and procedures that criminal prosecutions typically involve before the appeals stage.
Understanding the Steps in the Criminal Justice Process
The criminal justice system can move at a dizzying pace, and the regular players throw out legalese constantly. If you don't understand something, make sure to ask your lawyer to explain what's happening in plain English. For those who don't have a lawyer yet, standing in front of a judge can be intimidating, but you can ask the judge for clarification as well. It's best to ask permission to speak and refer to the judge as "Your Honor."
Below, we'll cover the basic steps from criminal investigation and arrest to sentencing.
1. Criminal Investigation
The investigation begins when police become aware of suspected criminal activity, which can occur in a variety of circumstances, including a witness or victim making a report or an officer simply observing someone engaging in suspicious activity.
After suspecting a crime, police might need to gather more information by conducting interviews with witnesses, collecting physical evidence, and taking photographs and videos. In some situations, an officer might apply to a judge for a search warrant, which authorizes entry into a physical location such as a home or business to look for evidence. Officers can also obtain search warrants for vehicles, phones, records, blood, urine, and DNA.
2. Arrest
Generally, a police officer can arrest a suspect for a crime if:
- there’s probable cause (a rational factual basis) to believe that the person committed a crime
- a crime was committed in the officer’s presence, or
- there’s a warrant for the person’s arrest.
The circumstances in which an arrest warrant is required vary by jurisdiction.
3. Charging a Crime
The formal criminal justice process begins with the filing of criminal charges through an "information"—called a complaint—or grand jury indictment.
Information or Complaint
After reviewing the investigative reports and evidence, a prosecutor can charge a criminal offense by filing an information or complaint. In some states, prosecutors can charge only misdemeanor crimes by information or complaint, and felonies charges must be presented to a grand jury. In states that allow felony crimes to be charged by the prosecutor filing an information, a preliminary hearing (discussed below) is generally required.
Indictment and Grand Jury
In some jurisdictions, felony crimes may or must be presented to a grand jury, which is a group of citizens who conduct proceedings in secret. A prosecutor explains the law to the grand jury and presents evidence, and the grand jury votes on whether there’s enough evidence to indict the person suspected of committing the crime. An indictment is not a guilty verdict; rather, the grand jurors are voting on whether or not the criminal charges are warranted.
4. Arraignment or First Appearance
After criminal charges have been filed, the first court appearance is typically the arraignment. Generally, the arraignment must be held within a certain period of time after the defendant has been arrested. This time period is typically quite short (for instance, it might be two days) if the suspect is being held in jail.
Advisement of the Criminal Charges and Constitutional Rights
At the arraignment, the judge normally advises the defendant of the charges (what crime the defendant is suspected of committing), the maximum and minimum penalties, and certain constitutional rights that all criminal defendants are afforded. For instance, the defendant has a right to a speedy and public trial before a jury.
Right to a Lawyer
Criminal defendants have the right to be represented by an attorney, and if the defendant can’t afford an attorney, the court will appoint one. In some cases, the court may schedule another hearing so the defendant will have time to meet with appointed counsel or find private counsel.
Entering a Plea
In some jurisdictions, the defendant must enter a plea of guilty, not guilty, or no contest at the arraignment. The first plea in a case is often not guilty and can be changed. To plead no contest at any point, a defendant might need the judge’s permission, the prosecution’s agreement, or both. Other jurisdictions don't require a defendant to enter a plea until the plea hearing (discussed below).
5. Bail and Pretrial Release Conditions
At the arraignment, the judge may also discuss bail or bond and release conditions. In some cases, a defendant who has been arrested and charged with a crime will get out of custody before the arraignment by posting bail or being released without bail, which is commonly known as “own recognizance (OR) release.” If the defendant isn’t released after being booked at the jail, the judge may consider release at the time of arraignment.
Defendants who are released (with or without posting bail) must agree to abide by certain release conditions. Release conditions might include the defendant agreeing to:
- appear in court for all scheduled proceedings
- remain law-abiding
- not leave the state while the proceedings are pending, and
- not contact a witness or an alleged victim.
When deciding whether to grant release, judges often consider the defendant’s criminal history, ties to the community, and public safety.
6. Preliminary Hearing
In some states, the law entitles a defendant facing felony charges to a preliminary hearing, at which a judge determines whether there’s probable cause (enough evidence) to support the charges. Here, the judge is basically taking the place of a grand jury (see Step 3).
Typically, the prosecution presents witnesses at this kind of hearing and the defense gets the chance to cross examine them. If the judge decides probable cause exists, the case proceeds. If, on the other hand, the judge finds there isn’t enough evidence of the defendant’s guilt for probable cause, the charges are dismissed.
7. Criminal Discovery and Pretrial Motions
During the discovery phase of the criminal process, the prosecutor and the defendant’s attorney exchange information and evidence about the case. Discovery generally includes police reports, photographs, videos, and any other information that the parties plan to use at trial. The prosecution has an obligation to provide any information in its possession that might be beneficial to the defendant’s case.
In addition to providing and receiving discovery, the parties might file pretrial motions during this early stage of the criminal process. Motions made by the prosecutor might include a request for the defense to disclose discovery or for the judge to admit certain evidence at trial. Motions made by the defense might include a request to dismiss the charges or to exclude certain evidence. If the lawyers file any pretrial motions, the judge will generally set a hearing or hearings before trial to decide these requests.
8. Plea Hearing
The plea hearing is often the next court appearance in jurisdictions that don’t require a defendant to enter a plea at the arraignment.
Plea Bargaining
Generally, the prosecutor will provide a plea offer to the defendant and some negotiations take place before the plea hearing. Instead of going to trial, a defendant can accept a plea offer and plead guilty or no contest. In exchange for a defendant’s guilty or no-contest plea, the prosecutor might dismiss other charges, recommend a particular sentence to the judge, or do both.
Entering a Plea
At the plea hearing, a defendant might plead guilty or no contest after reaching a deal with the prosecution. If the defendant pleads not guilty, the judge might set a date for the potential trial.
9. Criminal Trial
Although most cases (90% or more) are resolved through plea bargaining, criminal defendants have a constitutional right to a jury trial for most charges. A defendant may waive the right to a jury trial and have the case decided by the judge—called a bench trial. Most defendants, though, choose a jury trial.
Voir dire. A jury trial typically begins with the sides selecting 6 to 12 jurors from a pool of potential jurors. The process of questioning possible jurors is known as “voir dire” (vwar deer).
Opening statements. Once a jury is selected, the prosecutor and defense give opening statements, which are previews of the evidence that each party intends to present.
Trial evidence. After opening statements, each side presents its evidence. Trial evidence might include the testimony of witnesses (direct and cross examination), physical evidence (such as a gun used in a robbery), photographs, and videos.
Closing arguments. After the lawyers for the sides present evidence, they give closing arguments, and the case goes to the jury for deliberations.
Jury deliberations and verdict. The jurors will deliberate in private and decide whether the prosecutor has proven beyond a reasonable doubt that the defendant is guilty. If not, the defendant must be acquitted.
10. Sentencing Hearing
If a defendant pleads guilty or no contest or is found guilty, the next court appearance is the sentencing hearing. Sentencing can also happen at the same hearing where the defendant pleads guilty or no contest.
Sentencing Options
When a defendant is convicted at trial or the parties don’t have a sentencing agreement, the judge decides the sentence within the allowable range under the law. Juries don't typically decide the sentence. For instance, state law might specify that defendants convicted of burglary can be sentenced to two to six years in prison and up to $5,000 in fines. The judge might also have leeway to sentence the defendant to probation.
For defendants who accepted a plea offer, the sentence will normally simply be what the parties agreed to, as long as the sentence is within the parameters of the jurisdiction’s sentencing laws. However, the judge generally has the final authority in the sentencing phase and can ultimately sentence a defendant to something different than what the parties agreed to.
Sentencing Considerations
When sentencing a defendant, the judge typically considers—in addition to the circumstances of the current offense—factors such as a defendant’s:
- criminal history
- employment or financial situation
- education level, and
- substance abuse history.
Additionally, in most jurisdictions, victims have the right to be present and give a statement at sentencing.
Getting Legal Help
If you face criminal charges, make sure to consult an experienced criminal defense attorney. A knowledgeable criminal defense lawyer will be able to explain the specific court procedures in your jurisdiction and advise you as to your options.