Criminal Procedure

Investigation Leading to Arrest

The criminal justice process typically begins when a police officer places a person under arrest. An “arrest” occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is “under arrest”, and the suspect submits without the officer’s use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person’s voluntary or involuntary submission.

A police officer may usually arrest a person in the following circumstances:

  • The Police Officer Personally Observes a Crime
  • If a police officer personally sees someone commit a crime, the officer may arrest that individual.

For example:
While on street patrol, a police officer sees a purse snatching take place. The officer can apprehend and arrest the purse-snatcher, based on the officer’s personal observation of a theft/larceny or robbery.

A police officer pulls over a vehicle that is being driven erratically, and after administering a Breathalyzer test, sees that the driver’s alcohol intoxication level is more than twice the state’s legal limit for safe operation of a vehicle. The police officer can arrest the driver for DUI/DWI.

The Police Officer Has “Probable Cause” to Arrest

When a police officer has a reasonable belief, based on facts and circumstances, that a person has committed or is about to commit a crime, the officer may arrest that person. This belief, known as “probable cause,” may arise from any number of different facts and circumstances.

For example:
A police officer receives a report of an armed robbery that has just occurred at a liquor store, then sees a man who matches the suspect’s exact description running down the street near the store. The officer detains and searches the man, finding a gun and a large amount of cash in his pockets. The officer can arrest the man, based on a probable cause belief that he committed a robbery.

An Arrest Warrant Has Been Issued

When a police officer has obtained a valid warrant to arrest a person, the arrest is lawful. An arrest warrant is a legal document issued by a judge or magistrate, usually after a police officer has submitted a sworn statement that sets out the basis for the arrest. When issued, an arrest warrant typically:

  • Identifies the crime(s) committed;
  • Identifies the individual suspected of committing the crime;
  • Specifies the location(s) where the individual may be found; and
  • Gives a police officer permission to arrest the person(s) identified in the warrant.

Custody & Booking

After arrest, a criminal suspect is usually taken into police custody and “booked,” or “processed.” During booking, a police officer typically:

  • Takes the criminal suspect’s personal information (i.e., name, date of birth, physical characteristics);
  • Records information about the suspect’s alleged crime;
  • Performs a record search of the suspect’s criminal background;
  • Fingerprints, photographs, and searches the suspect;
  • Confiscates any personal property carried by the suspect (i.e., keys, purse), to be returned upon the suspect’s release; and
  • Places the suspect in a police station holding cell or local jail.

(Note: persons arrested for minor offenses may merely be given a written citation and released, after signing the citation and promising to appear in court at a later date.)

For criminal suspects who are placed in jail, the first priority is usually getting out. Except when very serious crimes are charged, a suspect usually can obtain pre-trial release through bail or “own recognizance” release.

Arraignment & Right to Counsel

After the arrest, booking, and initial bail phases of the criminal process, the first stage of courtroom-based proceedings takes place — arraignment. During a typical arraignment, a person charged with a crime is called before a criminal court judge, who:

  • Reads the criminal charge(s) against the person (now called the “defendant”);
    Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney;
  • Asks the defendant how he or she answers, or “pleads to”, the criminal charges — “guilty,” “not guilty,” or “no contest”;
  • Decides whether to alter the bail amount or to release the defendant on his or her own recognizance (Note: These matters are usually revisited even if addressed in prior proceedings); and
  • Announces dates of future proceedings in the case, such as the preliminary hearing, pre-trial motions, and trial.

Also at the preliminary hearing, the prosecutor will give the defendant and his or her attorney copies of police reports and any other documents relevant to the case. For example, in a DUI/DWI or drug possession case, the prosecutor may provide the defense with lab reports of any blood or chemical tests that were performed, and may be used in the case.

The Right to Counsel

If a criminal defendant faces the possibility of jail time if convicted for the crime(s) charged, the defendant has a constitutional right to the assistance of an attorney, or “counsel.” If the defendant wishes to be represented by an attorney but cannot afford to hire one, a government-appointed attorney will be assigned at no cost to the defendant. Usually employed as “public defenders”, these government-appointed defense attorneys are responsible for zealously protecting a criminal defendant’s rights at all stages of the criminal process.

Criminal Trial

In a criminal trial, a jury examines the evidence to decide whether, “beyond a reasonable doubt,” the defendant committed the crime in question. A trial is the government’s opportunity to argue its case, in the hope of obtaining a “guilty” verdict and a conviction of the defendant. A trial also represents the defense’s chance to refute the government’s evidence, and to offer its own in some cases. After both sides have presented their arguments, the jury considers as a group whether to find the defendant guilty or not guilty of the crime(s) charged.

(Note: Although a trial is the most high-profile phase of the criminal justice process, the vast majority of criminal cases are resolved well before trial — through guilty or no contest pleas, plea bargains, or dismissal of charges.)

A complete criminal trial typically consists of six main phases, each of which is described in more detail below:

  • Choosing a Jury
  • Opening Statements
  • Witness Testimony and Cross-Examination
  • Closing Arguments
  • Jury Instruction
  • Jury Deliberation and Verdict


After a person is convicted of a crime, whether through a guilty plea, plea bargain, or jury verdict, the appropriate legal punishment is determined at the sentencing phase. A number of different kinds of punishment may be imposed on a convicted criminal defendant, including:

  • Fines;
  • Incarceration in jail (shorter-term);
  • Incarceration in prison (longer-term);
  • Probation;
  • A suspended sentence, which takes effect if conditions such as probation are violated;
    Payment of restitution to the crime victim;
  • Community service; and
  • Drug and alcohol rehabilitation.

Sentencing usually takes place almost immediately after convictions for infractions and minor misdemeanors, or when a defendant has pled guilty. In more complex criminal cases, such as those involving serious felonies, the sentencing judge usually receives input from the prosecutor, the defense, and the probation department (which prepares recommendations in a “pre-sentence report”).

The sentencing judge will also consider punishments and sentencing ranges identified in applicable criminal statutes, as well as a number of case-specific factors, including:

  • The defendant’s criminal history, or lack thereof;
  • The nature of the crime, the manner in which it was committed, and the impact on victims, i.e. whether injuries resulted;
  • The defendant’s personal, economic, and social circumstances; and
  • Regret or remorse expressed by the defendant.

There are many different types of sentences:

  • A concurrent sentence is served at the same time as another sentence imposed earlier or at the same proceeding.
  • A consecutive (or cumulative) sentence occurs when a defendant has been convicted of several counts, each one constituting a distinct offense or crime, or when a defendant has been convicted of several crimes at the same time. The sentences for each crime are then “tacked” on to each other, so that each sentence begins immediately upon the expiration of the previous one.
  • A deferred sentence occurs when its execution is postponed until some later time.
  • A determinate sentence is the same as a fixed sentence: It is for a fixed period of time.
  • A final sentence puts an end to a criminal case. It is distinguished from an interlocutory or interim sentence.
  • An indeterminate sentence, rather than stating a fixed period of time for imprisonment, instead declares that the period shall be “not more than” or “not less than” a certain prescribed duration of time. The authority to render indeterminate sentences is usually granted by statute in several states.
  • A life sentence represents the disposition of a serious criminal case, in which the convicted person spends the remainder of his or her life in prison.
  • A mandatory sentence is created by state statute and represents the rendering of a punishment for which a judge has/had no room for discretion. Generally it means that the sentence may not be suspended and that no probation may be imposed, leaving the judge with no alternative but the “mandated” sentence.
  • A maximum sentence represents the outer limit of a punishment, beyond which a convicted person may not be held in custody.
  • A minimum sentence represents the minimum punishment or the minimum time a convicted person must spend in prison before becoming eligible for parole or release.
  • A presumptive sentence exists in many states by statute. It specifies an appropriate or “normal” sentence for each offense to be used as a baseline for a judge when meting out a punishment. The statutory presumptive sentence is considered along with other relevant factors (aggravating or mitigating circumstances) in determining the actual sentence. Most states have statutory “presumptive guidelines” for major or common offenses.
  • A straight or flat sentence is a fixed sentence without a maximum or minimum.
  • A suspended sentence actually has two different meanings. It may refer to a withholding or postponing of pronouncing a sentence following a conviction or it may refer to the postponing of the execution of a sentence after it has been pronounced.

Three-Strikes Sentencing Laws

Under the Violent Crime Control and Law Enforcement Act of 1994, the “Three Strikes” statute (18 U.S.C. ยง 3559(c)) provides for mandatory life imprisonment if a convicted felon:

  • been convicted in federal court of a “serious violent felony” and
  • has two or more previous convictions in federal or state courts, at least one of which is a “serious violent felony.”

The other offense may be a serious drug offense.

The statute goes on to define a serious violent felony as including murder, manslaughter, sex offenses, kidnapping, robbery, and any offense punishable by 10 years or more which includes an element of the use of force or involves a significant risk of force.

The State of Washington was the first to enact a “Three Strikes” law in 1993. Since then, more than half of the states, in addition to the federal government, have enacted three strikes laws. The primary focus of these laws is the containment of recidivism (repeat offenses by a small number of criminals). California’s law is considered the most far-reaching and most often used among the states.

Three strikes laws have been the subject of extensive debate over whether they are effective. Defendants sentenced to long prison terms under these laws have also sought to challenge these laws as unconstitutional. For instance, one defendant was found guilty of stealing $150 worth of video tapes from two California department stores. The defendant had prior convictions, and pursuant to California’s three-strikes laws, the judge sentenced the defendant to 50 years in prison for the theft of the video tapes. The defendant challenged his conviction before the U.S. Supreme Court in Lockyer v. Andrade (2003), but the Court upheld the constitutionality of the law.

Alternatives to Incarceration

Forced to face prison overcrowding and failed attempts at deterrence or rehabilitation, many professionals in the criminal justice system have encouraged “alternative sentencing,” which refers to any punishment other than incarceration. Most alternative sentences are really variations of probation, e.g., a fine and community service, along with a set period of probation. Some judges have gotten more creative in their sentencing. In many jurisdictions, convicted persons have been required to do the following:

  • install breathalyzer devices in their vehicles (“ignition interlocks”) to prevent their operation of the vehicle without blowing into the device to determine whether their breath is free of alcohol
  • carry signs which inform the community of their offense
  • stay at home under “house arrest”
  • complete alcohol or other drug treatment programs
  • attend lectures given by crime victims


An individual who has been convicted of a crime may “appeal” his or her case, asking a higher court to review certain aspects of the case for legal error, as to either the conviction itself or the sentence imposed.

The Appeal Process: “Briefs” and the “Record”

In an appeal, the defendant (now called the “appellant”) argues that, based on key legal mistakes which affected the jury’s decision and/or the sentence imposed, the case should be dismissed or the appellant should be re-tried or re-sentenced.

In considering an appeal, the court reviewing the case looks only at the “record” of the proceedings in the lower court, and does not consider any new evidence. The record is made up of the court reporter’s transcripts of everything said in court, whether by the judge, the attorneys, or witnesses. Anything else admitted into evidence, such as documents or objects, also becomes part of the record.

In reaching a decision on the appeal, the higher court (“appellate court”) looks to this record and to the written “briefs” filed by both sides of the appeal. For example, an appellant challenging a conviction or sentence files an opening brief, arguing how and why the conviction or sentence was legally “erroneous,” or wrong. In turn, the government files its own brief to illustrate why the conviction or sentence should be upheld. The appellant typically has an opportunity to file a second brief in response to the government’s position, and the appellate court may hear oral arguments from each side before reaching a decision on the appeal.

The Appeal Process: How and When?

At both the state and federal court levels, there are many options for obtaining relief after a criminal conviction or sentence. It is important to note that, although it may take a number of months for an appeal to be heard and decided, most states require an appellant to notify the courts and the government of the intent to appeal very soon after a conviction or sentence.

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