Criminal Procedure

Criminal Procedure

Criminal cases are tried by the prosecuting attorney for the area where the crime is committed. To win a case a prosecutor must establish that a crime has been committed and that the defendant was guilty “beyond a shadow of a doubt” for the crime in which he is accused. A criminal trial differs from a civil trial which can be won by proving guilt with a “preponderance of evidence”.

Steps of the Criminal Process

Criminal procedures are standardized and include:

The Arrest

Criminals convicted of a crime have rights under the United State’s criminal justice system. The first step in the criminal process is the arrest of the defendant. A police office may arrest an individual if they observe the person committing a crime such as a shooting someone or if there is probable cause to make the arrest. Probable cause is the belief that a defendant is going to commit a crime or is suspected of committing a crime based on facts or circumstantial evidence. For instance a police office may detain a man who meets the description of a suspect fleeing from a crime scene.

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An arresting officer will frisk and handcuff the suspect and place them into a police car. The suspect is then taken to the police station for booking. All suspects must be read their rights before they can be questioned. The Miranda Warning was developed from the 1966 Supreme Court case of Miranda VS. Arizona and outlines the suspects constitutional right to remain silent, talk to an attorney, and have the criminal defense attorney present during questioning. If the suspect can not afford a criminal defense attorney he has the right to have one assigned to represent him prior to questioning. If a suspect hears the Miranda Warning and continues to answer questions during the interrogation it is assumed he has waived his right to a criminal defense attorney.


After the arrest the police department will enter the charges against the suspect and record all of their personal information including the suspect’s description, mug shot, and fingerprints. All personal items will be confiscated by the police officers and recorded and secured until the suspect’s release. The suspect’s previous record will be checked and their mental and physical health evaluated. Information about the alleged crime will be gathered and the suspect will be placed into a holding cell or a police facility. Unless a serious crime has been committed, a suspect may be able to obtain bail and be released until their criminal hearing.


Bail may be allowed for certain defendants if they agree to appear in court at the scheduled dates for the arraignment, hearings, all pre-trial proceedings and finally the trial. Bail is paid in the form of money, personal check or personal property.

The accused can also acquire bond which is a written contract that states that the full amount of the bail will have to be paid if the defendant does not appear in court. The bond is provided by a bail bond company who will pay the bail fee plus charge an additional fee or percentage which will not be refunded after the conclusion of the defendant’s case. If the defendant appears before the court at the appointed time and meets all other court conditions the bail monies will be returned less court expenses.


An arraignment should occur with in 72 hours of the arrest. At the arraignment the defendant will hear all criminal charges in which they have been accused, have the opportunity to have a defense attorney assigned to them and enter a plea to the criminal charges. The presiding judge has the authority to deny, change or grant the bail request.

Plea Bargain

Many criminal cases never reach the trial stage. Defendants are offered either a charge bargain which is the ability to plead guilty to a lesser crime or a sentence bargain which is the ability to plead guilty in exchange for a lighter sentence. Plea bargains have become very common in the current judicial system due to lack of jail space and crowded criminal courts. Pleas bargains may be made for a variety for reasons including the type of crime committed, the chances of a successful trial and the type of evidence that the prosecutor has against the defendant.

Preliminary Hearing

A prosecutor will present their evidence in the preliminary hearing or probable cause hearing which is usually held soon after the arraignment. The prosecuting attorney will have the chance to present evidence and witness testimony and the defense attorney can cross examine witnesses and question evidence. The goal of the preliminary hearing is only to decide if there is enough evidence to go to trial, not whether or not the defendant is guilty or innocent. If there is not enough evidence presented at the preliminary hearing then the defendant’s case will be dismissed.

A preliminary hearing will not be held if a plea agreement is reached and some states will use other types of processes to determine if there is sufficient evidence to go to trial.

Pre-Trial Motions

Prior to the trial date all pre-trial motions can be presented to the court. There are a variety of pre-trial motions but the most common are:

  • Motion to dismiss the case all together due to insufficient evidence, evidence gathered illegally or because a defendant was arrested with out probable cause.
  • Motion to suppress certain types of evidence- including statements made by the defendant if he was not properly read his rights or evidence which was obtained improperly.
  • Motion to exclude testimony from certain witnesses.


  • Jury selection- The defense or defense and prosecution, depending on the jurisdiction will decide if they want a trial by judge or jury. If a jury trial is selected then a process will be used to allow a “jury of peers” to be selected through a series of questions.
  • Opening statements- the defense and prosecution attorneys will outline their cases and establish credibility. The prosecution presents their opening statement first.
  • Case in Chief- All evidence for the trial is presented, including calling witnesses for direct questioning. The prosecution will call each witness and present their evidence for the case. The defense will have a chance to cross-examine each witness. The defense’s goal is to address and weaken the credibility of the witnesses. The prosecutor may re-direct after the defense attorney is done.
  • Defense argument- After the prosecution rests the defense attorney may move to dismiss the case due to lack of evidence. If the motion to dismiss is accepted by the judge the defendant is determined not guilty and released. If the motion is denied the defense attorney must call his witnesses and present his evidence. After the defense rests its case the prosecution will have a chance to comment on the evidence presented by the defense.
  • Closing Statements- After all evidence is presented and the prosecution and defense attorneys rest their case then the case will be given to the jury to decide the verdict.
  • The Verdict- The jury will need to decide on a unanimous verdict. If they find the defendant guilty he will be set free and will have no other obligations to the court. If he is found guilty he will face sentencing determined by the presiding judge (certain types of crimes have different methods of sentencing). The United States Constitution will protect the defendant against “cruel or excessive” punishment.


Defendants found guilty of a crime are usually entitled to appeal the decision with in the federal court of appeals. In order to win an appeal there must be a legal error with in the trial court proceedings. Briefs are presented to a panel of three judges who will determine if the court made an error and their ruling should be overturned. If the litigant losses their appeal they may file a document with the United States Supreme Court who may or may not choose to review the case.

The Supreme Court chooses a small group of cases to review each year that address an important legal principal or cases in which the lower courts have offered differing interpretations of the law. After the defendant has completed the appeal process, if their conviction is not overturned, they will have to either pay a fine, serve their sentence or both.

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