Criminal Procedure Criminal Procedure: From Arrest to Sentencing

  1. The process of criminal procedure is similar in all states even though criminal law and penal codes may vary. This is because the purpose of criminal procedure is the same - to determine whether sufficient evidence exists to find you, a person who has been arrested, guilty of a crime. The law requires that you are to be presumed innocent of the crime. This means that the prosecutor bears the burden of finding sufficient proof to find you guilty of the criminal charges. You do not need to prove your innocence.

    Police Investigation: Arrest of a Suspect

    The criminal process begins with a crime. The police are contacted, they conduct an investigation and collect evidence. The U.S. Constitution requires that there is a "reasonable cause" to arrest you. If there aren't reasonable grounds to arrest you at the scene of the crime (e.g. being caught in the commission of a robbery), the police will generally be required to obtain a warrant issued by a judge for your arrest. During an arrest, you will usually be advised your Miranda Rights - the right to remain silent, anything you say can be used against you in a court of law and that you have a right to an attorney (court appointed if you are unable to afford one.) You may be held in a local jail until your arraignment (your first appearance in court after being arrested) or released with a summons or other information regarding your requirement to appear in court.

    Arraignment: Entering a Plea

    Your first court hearing after an arrest is called an "arraignment." The judge will inform you as to the criminal charges being brought against you and you will need to make a plea regarding each crime. You only have two choices from which to plead: "guilty" or "not guilty" for each criminal charge. You have a right to have a criminal attorney present at your arraignment. If you are unable to afford one, you may request that the judge assign to you an attorney (a "public defender") at no cost.

    If you are being held in police custody, the arraignment will also include a hearing on whether bail is required. Bail is an amount of money that a suspect can pay to the court in order to be released temporarily from police custody as the case is making its way through the criminal court system. A suspect can be released "under recognizance" which means no bail money is required. This is usually only the case with misdemeanors and lesser crimes where there is a minimal risk that the defendant will flee the state or country in order to avoid criminal prosecution. But in more serious crimes such as felonies. a high bail may be required in order to make sure that the defendant returns to court. A failure to show up for a criminal court appearance means that the bail money is forfeited by the defendant.

    The Grand Jury: Is a Criminal Trial Necessary?

    Following the arraignment, a private hearing is held that does not require the your presence to determine whether you should be charged and prosecuted for the crime you are accused of committing. Most often a preliminary hearing is held before a judge and jury (called the "grand jury") which requires the prosecutor to show that enough evidence exists that would warrant having a trial to determine your guilt or innocence.

    During a grand jury proceeding, the prosecutor can present evidence to the court and question witnesses. While you may appear and testify on your own behalf and also call witnesses, it is unusual at this early stage. If the grand jury is not convinced that enough evidence exists to support the prosecutor's charges, the case is dismissed. An "indictment" occurs when the prosecutor convinces the grand jury that enough evidence exists to warrant a criminal trial being held.

    Plea Bargains: Always Available Prior to a Verdict

    At any point both pretrial and during a trial, the defendant and prosecutor may engage in plea bargaining. A plea bargain allows the defendant to plead guilty to a lesser charge in exchange for making it unnecessary for the people to expend time and money prosecuting the defendant. Sometimes part of a plea deal will include the defendant's cooperation with solving a crime or testifying for the prosecution in another criminal case. It is highly advisable to have an experienced criminal attorney assist with plea bargaining.

    The Criminal Trial, Verdict and Sentencing

    During a criminal trial, both parties are permitted to present their version as to the facts and circumstances surrounding the crime that you are charged with committing. The prosecution is the first party to prove its case. It presents evidence to the court and calls witnesses to testify. The defense has an opportunity to object to the validity of the evidence and question ("cross examine") witnesses to determine the reliability and accuracy of their testimony.

    After making its case, the prosecution rests. The prosecution must have met its burden to provide enough evidence to justify that a reasonable jury could find the defendant guilty. If the evidence is not reasonably sufficient for a guilty verdict, a judge may dismiss the case and the defendant will be "not guilty" of the criminal charges. If the court determines that the prosecution has met its burden, the defense may choose to make a defense. This would mean your criminal attorney might introduce further evidence that would make it more likely that you would be acquitted of the crime and call witnesses to testify that support you and your version of the events.

    After both sides present their case, the defense makes a closing statement about the entire case followed by the prosecution. The closing statement is a summary of all the evidence, witness testimony and commentary by each side in an effort to convince the jury why you are guilty or not guilty of the criminal charges. The jury will deliberate on the evidence and deliver a verdict of "guilty" or "not guilty." If you are found guilty by the jury, you will have been considered "convicted" and will be sentenced by the judge. A hearing may also be held where each party can present evidence to convince the judge that a harsher or more lenient sentence is justified. Under certain circumstances where an error may have been made during the trial, an appeal may be made and granted.

    Expungement: Removing Criminal Records

    At some point after you have been found guilty and completed your sentence, you may be eligible to apply for expungement, the removal of criminal convictions from your record. Expungement is a right under the Constitution (the 4th, 5th and 14th Amendments) but the ability to expunge your records and the process will vary from state to state.
    Criminal Law & Procedure:
    Criminal Procedure

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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