Criminal procedures differ from state to state. The federal government has its own set of rules governing court proceedings in criminal cases. For the most part, however, criminal cases in every American jurisdiction follow the same steps. Here's an overview of that process.
Step 1: Charges are filed
In federal court and in some states, the decision to charge a defendant with a felony is made by a grand jury. As a practical matter, the grand jury will almost always issue the charges that are requested by a prosecutor. The formal charging document returned by a grand jury is called an indictment.
Misdemeanors, and felonies in states that do not use grand juries, are charged in a document called a criminal complaint. The complaint is prepared by a prosecutor and filed with the court. In addition to reciting the charges, the complaint will contain a brief statement of the facts upon which the charges are based.
Step 2: A bail hearing is held
A defendant who is charged with a crime must appear in court. That can happen in different ways. If a complaint has been filed, the defendant might receive a summons that specifies a court date. If the defendant does not appear voluntarily on that date, the court will issue an arrest warrant. When the charges are more serious, the court might issue an arrest warrant instead of a summons. In other cases, the defendant is arrested without a warrant and is brought to court within a day or two after the arrest occurs.
The first court appearance is typically called an initial appearance. Usually the court sets bail during that court proceeding. Sometimes the court will require the defendant to post money or property to assure that he or she will attend future court appearances. In other cases, the court will release the defendant after he or she signs an agreement to return to court on a later date. Depending on the court, that agreement is known as a recognizance bond, signature bond or appearance bond.
All releases on bond are subject to certain conditions. They always include the requirement to appear in court when required and to avoid violating the law. Other conditions might require a suspect to have no contact with an alleged victim, to obey a curfew or to refrain from consuming alcohol.
Step 3: The defendant obtains counsel
Every criminal defendant has the constitutional right to a lawyer. If the defendant cannot afford a lawyer, one must be appointed. In many states, however, the standards for deciding whether a defendant can afford a lawyer limit court-appointed lawyers to defendants who are near or below the poverty level. Most people charged with crimes therefore hire their own criminal defense attorneys.
The lawyer will meet with the defendant to review the charges and to begin planning a defense strategy. Building a defense might take several months and the strategy might change as the lawyer learns about new evidence that either helps or hurts the defendant. After interviewing the defendant, the lawyer will want to review police reports, examine physical evidence and conduct or oversee a private investigation on the defendant’s behalf.
Step 4: The defendant enters a plea
At a proceeding known as an arraignment, the defendant will enter a plea to the charge. In most cases, the defendant will plead "not guilty". While the defendant can always change that plea at a later time, entering a not guilty plea preserves all of the defendant’s options. That gives the defense lawyer an opportunity to evaluate the strength of the prosecution’s case.
In states that do not use a grand jury to charge felonies, the defendant usually has the right to a preliminary hearing before entering a plea. At that hearing, the prosecution must persuade the court that it has probable cause to believe the defendant is guilty of a felony. It does so by presenting evidence at a hearing. Establishing probable cause is not a difficult burden, but defense lawyers can often use a preliminary hearing to explore (or create) weaknesses in the prosecution’s evidence.
Step 5: The defendant receives discovery
The defendant has a constitutional right to receive evidence in the government’s possession that tends to establish the defendant’s innocence or that casts doubt upon the credibility of the defendant’s accuser. In federal and most state prosecutions, the defendant also has the right to receive copies of police reports and other evidence that will be used against the defendant at trial.
How much evidence must be disclosed and the timing of disclosure varies from state to state. The discovery policies followed by prosecutors may vary from county to county within a state. A defense lawyer familiar with the practices in the local jurisdiction will know how to enforce the defendant’s entitlement to discovery.
Step 6: Motions are filed and decided
Motions are a key weapon in the criminal defense attorney’s arsenal. If charging documents are deficient or the offense charged is unconstitutional, a motion can be filed to dismiss the case. If evidence was gathered illegally, a motion can be filed to suppress (or throw out) that evidence. Other motions might seek enforcement of discovery rights, ask for separate trials of co-defendants, or pursue other forms of relief. The court will usually consider those motions at hearings held in advance of the trial. In many cases, successful motions lead to dismissal of the charges or to favorable plea agreements.
Step 7: Resolution is attempted through plea bargaining
Most cases are resolved through negotiation. Guilty defendants who know they are likely to lose if they go to trial have an incentive to seek a resolution that reduces the number or severity of charges or that minimizes punishment. Prosecutors have an incentive to negotiate because they lack the resources to take every case to trial. The criminal defense attorney’s goal is to make the prosecutor fear that a trial might result in an acquittal or to understand that mitigating circumstances justify an outcome that the defendant will accept as reasonable.
If a plea agreement can be reached, the defendant will appear in court at a plea hearing. The defendant will plead guilty or no contest (sometimes to reduced charges) after advising the court that he or she understands the charges and is willing to give up the right to a trial. If the plea bargain requires the prosecution and defense to recommend a sentence jointly, the court will almost always impose that sentence. If the plea agreement leaves the defense free to argue for a lesser sentence than the prosecution is recommending, the court might set the case for a sentencing hearing at a later date. That is most likely to happen when the charges are serious or when the defense needs more time to prepare for sentencing.
Step 8: The case proceeds to trial if it is not resolved through negotiation
All defendants have the right to a jury trial. They cannot be convicted unless the prosecution proves guilt beyond a reasonable doubt. An innocent defendant should always exercise that right, but even guilty defendants have the right to seek an acquittal if they believe the evidence leaves reason to doubt their guilt.
At a trial, the prosecution calls witnesses to testify about the alleged crime. The defense attorney is entitled to cross-examine those witnesses. After the prosecution rests, the defense can call its own witnesses. The defendant has the right to testify but also has the right to remain silent. The judge instructs the jury about the law after the jury has heard the admissible evidence. The jury then returns a verdict of guilty or not guilty.
Step 9: Guilty defendants are sentenced
If the defendant is found guilty at trial or has entered a plea of guilty or no contest, the court will hold a sentencing hearing. If the crime is serious, the judge may instruct court officials to prepare a presentence report that tells the court about the defendant’s life. The judge will rely upon that report when fashioning an appropriate sentence.
At sentencing, the defendant’s lawyer presents mitigating information to the court in an effort to obtain a lenient sentence. The defendant has the right to make a statement that usually consists of an expression of remorse and a promise not to reoffend. The judge then pronounces a sentence. Possible penalties include a fine, probation and a sentence to jail or prison. Alternatives (such as community service) are sometimes available.
Step 10: The right to appeal
If the defendant believes legal errors were made at trial, in deciding motions or in the sentencing process, the defendant can appeal to a higher court. An appeal is not a second trial. The appellate court will review transcripts of proceedings held in the lower court and will consider argument made by the defendant’s lawyer. If the appellate court finds that the defendant’s conviction or sentence violated a constitutional right or resulted from an improper application of the law, the court can order a new trial, a new sentencing hearing or dismissal of the case.