Defendants who have been arrested, booked and formally charged with a crime generally pass through the three main phases of the criminal justice system:
A police officer or similar government officer usually doesn’t know a crime has occurred until a member of the public reports it. Before a person can be formally apprehended, an arrest warrant based on probable cause is sometimes necessary. A neutral magistrate must approve the warrant because it provides the legal foundation for arresting the person.
After a person is arrested, he or she is booked, which usually includes being photographed, fingerprinted and required to produce personal information.
If charges are filed, the accused person may qualify for an appropriate diversionary program, such as one for alcohol rehabilitation. However, if the person enters a diversionary program and fails to abide by its rules, he or she will return to the next phase of the criminal justice system for further processing. If charges are not filed, the accused is released.
At this point, the accused person moves through both the police phase and the initial court phase of the criminal justice system. To learn more about the pre-indictment stage, view Video 2 above.
Within hours of being arrested, the accused person is taken for an initial appearance before a judge or magistrate. This is when the person is informed, if eligible, of the right to be released, before trial, on his or her own recognizance or after posting bail. Courts decide if and how much bail is required based on the severity of the crime committed, the risk of flight from prosecution and the criminal background. Many accused people, especially wealthy and high-profile ones, are required to surrender their passport to the court. If the defendant doesn’t have an attorney, the court will appointed one.
The defendant’s next appearance is at a preliminary hearing or examination, when a judge decides if a crime was committed and if the defendant could have committed it. Depending on the state where charges are filed, the prosecutor will either file an information as a result of the preliminary hearing or seek to have a grand jury seated so an indictment against the accused can be formally sought. An indictment is a formal accusation of having committed a criminal offense.
After the prosecutor has successfully obtained either an information or indictment, a bail or detention hearing takes place. Bail usually is granted for lesser crimes but not always for those involving considerable violence or premeditated intent.
A defendant then faces an arraignment hearing, during which he or she hears the charges brought under the information or indictment. The defendant must enter a plea of guilty, not guilty or no contest. If the judge doesn’t believe the defendant submitted a sincere guilty plea, a not-guilty plea usually will be entered instead.
Most people accused of a crime accept a plea bargain from the prosecutor and do not take their case to trial. However, the Sixth Amendment guarantees an accused person the right to a jury trial if he or she is accused of an act that is more than a petty crime.
If the defendant chooses to go to trial, the Rules of Criminal Procedure govern the manner in which the trial is handled.
During trial, defendants have the right to confront witnesses testifying against them and to compel witnesses to appear and testify on their behalf. The Fifth Amendment prevents defendants from having to testify against themselves. If the accused person cannot afford to hire an attorney, the court will appoint one.
Only relevant, non-prejudicial evidence (e.g., witnesses, pictures, letters) may be introduced in the trial by either side. Documentary evidence must be authenticated and witness testimony must be deemed credible.
The prosecution has the burden of proof to find the defendant guilty beyond a reasonable doubt. If the defendant is found not guilty, he or she exits the criminal justice system. However, if the accused is convicted of one or more of the charged crimes, he or she either will remain in jail until the sentencing trial or be released on bond.
Some judges request pre-sentence reports from probation officers. These documents help acquaint judges with the convicted party’s social history, any legitimate explanations for the defendant’s behavior and information about previous criminal activity.
Although some crimes require mandatory sentences, judges retain some discretion in sentencing. Convicted individuals have the right to present their testimony during a trial’s sentencing stage.
Once a judge has decided on one or more sentences, he or she then decides whether to impose them concurrently or consecutively. Some first-time offenders and those who commit lesser crimes may be eligible for probation, which is the suspension of a jail sentence that then allows the defendant to return to the community either with or without supervision.
For additional information, see our page on sentencing.
A defendant who does not plead guilty during the trial always may appeal the sentence. The prosecution, on the other hand, does not always have the right to appeal. On an appeal, if a judge issued the verdict during the trial, the standard of review will be “abuse of discretion.” This means the judge’s decision will be overturned only if the judge clearly abused his or her discretion.
If a jury issued the verdict in a trial, the appellate court will review all pre- and post-trial motions to determine if a new trial is warranted.
Even though many defendants appeal their convictions, almost everyone is incarcerated throughout the time they are appealing.
Convicted criminals generally are assigned to facilities according to the nature of their crimes and overall criminal background. Whenever possible, they are kept near family.
When a prisoner is serving a sentence in an agreeable manner, he or she may become eligible for parole. Parole is when a prisoner is conditionally released from jail but not from legal custody.
The Legal Information Institute at Cornell University Law School offers a list of state criminal codes.