The procedure for criminal prosecutions is complex and will vary from state to state. Criminal procedure is also concerned with protecting all of the accused's constitutional rights by providing specific processes for this purpose.
A criminal case typically begins with an arrest if the defendant is caught in the act or fleeing from the scene; if the defendant is not caught, a warrant for the defendant’s arrest will be issued.
The warrant is issued by a judge or a magistrate upon receiving a criminal complaint detailing the charge of a specific crime against the accused.
EXAMPLEIt is not enough for a police officer to go before a judge and say, “I’d like you to arrest Bonnie because I think she’s just murdered Clyde.” The officer must supply enough information to satisfy the magistrate that there is probable cause (reasonable grounds) to believe that the accused committed the crime.
The warrant will be issued to any officer or agency that has power to arrest the accused with warrant in hand. The accused will then be brought before the magistrate for a preliminary hearing. The purpose of the hearing is to determine whether there is sufficient reason to hold the accused for trial.
If so, the accused can be sent to jail or be permitted to make bail. Bail is a sum of money paid to the court to secure the defendant’s attendance at trial. If he fails to appear, he forfeits the money. Constitutionally, bail can be withheld only if there is reason to believe that the accused will flee the jurisdiction.
Once the arrest is made, the case is in the hands of the prosecutor. In the 50 states, prosecution is a function of the district attorney’s office. These offices are usually organized on a county-by-county basis.
In the federal system, criminal prosecution is handled by the office of the U.S. attorney, one of whom is appointed for every one of the 94 federal districts that cover the 50 states, the District of Columbia, and the U.S. territories.
Following the preliminary hearing, the prosecutor must either file an information (a document stating the crime of which the person being held is accused) or ask the grand jury for an indictment.
The grand jury consists of twenty-three people who sit to determine whether there is sufficient evidence to warrant a prosecution. It does not sit to determine guilt or innocence. The indictment is the grand jury’s formal declaration of charges on which the accused will be tried.
If indicted, the accused formally becomes a defendant.
The defendant will then be arraigned— that is, brought before a judge to answer the accusation in the indictment. The defendant may plead guilty or not guilty.
If he pleads not guilty, the case will be tried before a jury (sometimes referred to as a petit jury). The jury cannot convict unless it finds the defendant guilty beyond a reasonable doubt.
Alternately, the defendant may plead guilty to the offense or to a lesser charge, often referred to as a lesser included offense.
EXAMPLESimple larceny is a lesser included offense of robbery because the defendant may not have used violence, but nevertheless stole from the victim.
Such a plea is usually arranged through plea bargaining with the prosecution. In return for the plea, the prosecutor promises to recommend to the judge that the sentence be limited. The judge most often, but not always, goes along with the prosecutor’s recommendation.
Plea bargaining benefits the prosecution because it reduces any risk of losing the case and also saves resources by avoiding the time and expense of a trial. It benefits an accused by providing certainty over the uncertainty of going to trial, and often reducing the charges to a lower level than originally brought.
The defendant is also permitted to file a plea of nolo contendere (no contest) in prosecutions for certain crimes. In so doing, he neither affirms nor denies his guilt. He may be sentenced as though he had pleaded guilty, although usually a nolo plea is the result of a plea bargain.
Why plead nolo? In some offenses, such as violations of antitrust laws, the statutes provide that private plaintiffs in a civil action may use a conviction or a guilty plea in a criminal action as proof that the defendant violated the law. This enables a plaintiff to prove liability without putting on witnesses or evidence and reduces the civil trial to a hearing about the damages to the plaintiff.
The nolo plea permits the defendant to avoid this, so that any plaintiff will have to prove not only damages but also establish liability.
Following a guilty plea or a verdict of guilt, the judge will impose a sentence after presentencing reports are written by various court officials (often probation officers and sometimes psychologists).
Permissible sentences are spelled out in statutes, though these frequently give the judge a range within which to work (e.g., twenty years to life). The judge may sentence the defendant to imprisonment, a fine, or both, or may decide to suspend the sentence (i.e., the defendant will not have to serve the sentence as long as he stays out of trouble).
Sentencing usually comes before appeal. As in civil cases, the defendant, now convicted, has the right to take at least one appeal to higher courts, where issues of procedure and constitutional rights may be argued.
Source: This content has been adapted from Lumen Learning's "Procedure" tutorial.