5.4: Procedure

LEARNING OBJECTIVES

1. Describe the basic steps in pretrial criminal procedure that follow a government's determination to arrest someone for an alleged criminal act.
2. Describe the basic elements of trial and posttrial criminal procedure.

Criminal Procedure

The procedure for criminal prosecutions in the United States is complex and varies somewhat from state to state, though the overall structure is fairly uniform across the country. Unlike civil cases, where the plaintiff seeks compensation, criminal cases involve the state (or federal government) pursuing punishment for acts defined as crimes. The following outlines the main stages of a criminal prosecution.

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Arrest and Warrants

A criminal case typically begins with an arrest. If the defendant is caught in the act of committing a crime or while fleeing from the scene, the police may arrest without a warrant. Otherwise, police must obtain a warrant for arrest issued by a judge or magistrate.

• To obtain the warrant, law enforcement must present a complaint (a sworn statement) providing facts that establish probable cause—reasonable grounds to believe the accused committed the crime.
• Example: An officer cannot simply say, “I think Bonnie murdered Clyde.” She must present supporting evidence, such as witness statements, forensic evidence, or surveillance video.

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Preliminary Hearing and Bail

Once arrested, the accused must be brought promptly before a magistrate for a preliminary hearing. The judge decides whether there is enough evidence to hold the accused for trial.

• If sufficient evidence exists, the accused may be jailed or released on bail.
• Bail is money or property posted as security to ensure the accused returns for trial. If the defendant fails to appear, the bail is forfeited.
• Example: A judge might deny bail if the accused has a history of fleeing the jurisdiction, but bail cannot be unreasonably high under the Eighth Amendment.

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Filing of Charges – Information or Indictment

After the preliminary hearing, the prosecutor must formally bring charges:

• Information: A written statement by the prosecutor listing the charges.
• Indictment: A formal declaration by a grand jury (typically 23 citizens) that enough evidence exists to prosecute.
  • Grand juries do not decide guilt or innocence; they decide only whether the case should proceed to trial.
  • Example: In high-profile federal cases, such as those involving organized crime or political corruption, grand juries are often used.

Once indicted, the accused formally becomes a defendant.

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Arraignment and Pleas

At the arraignment, the defendant appears in court to respond to the charges. The defendant may enter one of several pleas:

• Not guilty – leads to trial before a judge or jury (petit jury).
• Guilty – accepts responsibility and proceeds to sentencing.
• Nolo contendere (no contest) – the defendant neither admits nor denies guilt but accepts punishment.
  • Example: In antitrust or fraud cases, a nolo plea may help defendants avoid automatic liability in related civil lawsuits.

Plea bargaining is common. The defendant agrees to plead guilty to a lesser charge (e.g., larceny instead of robbery) in exchange for a lighter sentence recommendation by the prosecutor. Judges often, though not always, follow the prosecutor’s recommendation.

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Trial

If no plea agreement is reached, the case proceeds to trial. The defendant is presumed innocent until proven guilty, and conviction requires proof beyond a reasonable doubt.

• Jury trial: Most felony cases are tried before a jury.
• Bench trial: In some cases, the defendant may waive the right to a jury, and the judge alone decides the case.

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Sentencing

If convicted, the defendant is sentenced by the judge. Sentencing typically follows the review of presentencing reports prepared by probation officers.

• Sentences may include imprisonment, fines, probation, community service, or combinations of these.
• Statutes often set ranges (e.g., “5–15 years”), and judges consider factors such as prior record, severity of the crime, and mitigating or aggravating circumstances.
• Example: A repeat offender convicted of armed robbery might face a long prison sentence, while a first-time offender convicted of embezzlement might receive probation and restitution.

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Appeal

A convicted defendant has the right to at least one appeal to a higher court. Appeals do not retry the facts but focus on legal errors or violations of constitutional rights during the trial.

• Example: An appeal may argue that illegally obtained evidence (in violation of the Fourth Amendment) was admitted at trial or that the jury was improperly instructed.
• Until appeals are resolved, sentences may be delayed, though in many cases defendants begin serving their sentence immediately.

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KEY TAKEAWAY

Criminal procedure in US courts is designed to provide a fair process to both criminal defendants and to society. The grand jury system, prosecutorial discretion, plea bargains, and appeals for lack of a fair trial are all part of US criminal procedure.

EXERCISES

1. Harold is charged with the crime of assault with a deadly weapon with intent to kill or inflict serious bodily injury. It is a more serious crime than simple assault. Harold’s attorney wants the prosecutor to give Harold a break, but Harold is guilty of at least simple assault and may also have had the intent to kill. What is Harold’s attorney likely to do?
2. Kumar was driving his car, smoking marijuana, and had an accident with another vehicle. The other driver was slightly injured. When the officer arrived, she detected a strong odor of marijuana in Kumar’s car and a small amount of marijuana in the glove compartment. The other driver expects to bring a civil action against Kumar for her injuries after Kumar’s criminal case. What should Kumar plead in the criminal case—careless driving or driving under the influence?