Criminal Procedure


In this section, the criminal process from the time of arrest through sentencing will be reviewed.  The constitutional and other rights of the accused will be examined at such stage of the procedure as they become relevant.


Right to CounselThe police or other relevant law enforcement agencies are charged with the duty of investigating crimes.  This includes examination of a crime scene, preparing reports, gathering evidence and requesting laboratory analysis.  Ultimately, at some point in an investigation, a defendant may be arrested.  Being arrested means that a defendant who is suspected of having committed a crime has been taken into custody or his freedom to move about has been restricted beyond mere temporary detention. A defendant may be arrested in several ways.  If a crime is committed in front of a law enforcement officer, the law enforcement officer may immediately perform an arrest.  In other cases, defendants be arrested, a judge must issue a warrant.


A warrant is an order signed by a magistrate or a judge charging the commission of the crime.  The warrant must list the charges against the defendant and direct the law enforcement officer to effectuate an arrest and bring the defendant before the judge.  The officer must show the warrant to the defendant upon demand.

Probable Cause

Defendants can be arrested without a warrant if police have sufficient “probable cause”, that is evidence that leads them to reasonably believe that a crime has been committed and that the defendant is the perpetrator.  In cases of an arrest without a warrant, the defendant is entitled to a prompt hearing to determine whether there is sufficient probable cause to charge him/her with the crime.

Indictments/Grand Jury

Some states use Grand Juries, that is, a jury convened for the purpose of determining whether a specific defendant has committed a crime. A defendant can be arrested if the Grand Jury issues an indictment.  An indictment is a formal accusation of the commission of a crime based on a review of evidence.


After a suspect is arrested and taken into custody, he/she will ordinarily be “booked”.  The booking process consists of recording the name and address of the suspect, taking a picture (mug-shot) and fingerprinting.  The suspect will also receive a receipt for any personal property taken at the time of the booking.



Police offers cannot arbitrarily stop individuals for questioning.  The police can only stop and question a person if the officer has a reasonable suspicion that criminal activity is or has taken place.  This determination is based upon an overall assessment of the situation, the officer’s experience and surrounding circumstances.  As long as the officer has a good faith belief of a connection between an individual and criminal activity, the officer is allowed to detain a suspect.  In conjunction with detention, a police officer is permitted to briefly frisk or pat down a detained suspect to determine whether the suspect has a weapon if the officer reasonably fears for his/her safety.  The police are not entitled to seize any item felt during a search that is not obviously a weapon.

Generally, an individual detained by the police does not have to answer any questions.  This is part of the protection against self-incrimination guaranteed through the 5th Amendment to the United States Constitution.  The police may, however, require individuals to account for their presence if there is a reasonable suspicion of loitering.

Search Incidental to Arrest

Once the suspect has been arrested, the police can search the suspect and the area immediately around the suspect (arms length) and use whatever evidence is seized in a subsequent criminal proceeding.  If an individual is not under arrest, the police may need a warrant to conduct a body search.

Traffic Stops

When making a traffic stop, the police can glance into the car and conduct a visual inspection for contraband or evidence that is in plain view.  They may also search any closed container in plain view within the vehicle.

Searches and Seizures

The 4th Amendment of the United States Constitution prohibits unreasonable searches and seizures by state or federal law officers.  Searches are permitted if the police can demonstrate to a judge that there is ‘probable cause’ or a reasonable belief that a crime has been committed.  If the court determines that there is probable cause, the judge will issue a search warrant specifying what the police are looking for and where they can search.  Warrantless searches are only prohibited under circumstances where an individual would have a reasonable expectation of privacy, such as a home or business.  The front seat of a car or a garbage can placed in the public right-of-way, are not considered to be locations where privacy is reasonably expected.  There are several instances in which warrantless searches can be conducted:


If an individual agrees to allow the police to search property, the search is considered consensual and no warrant is necessary.

Plain View

When an object is in plain view, a warrant is not necessary, e.g., if a packet of cocaine is lying uncovered on the front seat of a vehicle parked in a public street.

Searches Accompanying An Arrest

The police can search a suspect for weapons and to prevent destruction of evidence at the time of an arrest.  The right to search extends to the immediate area around the suspect.  A strip search can be conducted at the police station or in jail.

Hot Pursuit’ Searches

Police may enter private property to search for criminals who are fleeing from the scene of a crime.

Searches Necessary To Protect Public Safety

If a law enforcement officer has a reasonable suspicion that the public safety is threatened, a warrantless search may be conducted.

Searches Necessary to Prevent Destruction of Evidence

In limited and exigent circumstances, a warrantless search may be conducted if there is a reasonable and well-founded belief that any delay would result in the destruction of evidence.

Search Of A House

Law enforcement will almost always need a warrant to search a house or mobile home.  A person in charge, such as a roommate, can however, authorize a warrantless search of the premises, but not of a private bedroom.  Likewise, a landlord cannot give permission to search a private dwelling unit.  When the police obtain a warrant to search a home, they must ordinarily knock first and announce their presence and intensions, except when doing so would put the police in danger or would be likely to cause the destruction of evidence.


Wiretaps are electronic or other devices used to listen in on a private conversation; they are considered a search and cannot be conducted without a warrant.

Bodily Samples

The United States Supreme Court has held that defendants can be forced to give bodily samples such as blood, hair, and urine and that such items are not constitutionally protected.

Driving While Intoxicated

If the police stop a suspect on suspicion of drunk driving (DUI; DWI) they can request the suspect to submit to field sobriety tests (walking a straight line, touching finger to the tip of the nose, etc.) and request blood or urine samples or a breathalyzer test. A suspect can refuse to perform such tests or give bodily samples, however, most states have statutes that call for mandatory license suspension or revocation under such circumstances.

Exclusionary Rule

Evidence found during an illegal search cannot be used in court and will be excluded.  This type of illegal evidence is known as “Fruit of the Poisoned Tree”.  The defendant will be entitled to file a motion to suppress or exclude any such evidence.


Miranda Warnings

After an arrest has taking place, the police must advise a suspect of their ‘Miranda rights’ before an interrogation takes place.  The Miranda warnings include advising the defendant of his/her right to remain silent, the right to an attorney, and that anything said can be used in a subsequent criminal proceeding.  If a suspect is not in police custody or no interrogation takes place, the Miranda warnings need not be given.  If there is an immediate threat to public safety, brief questioning can take place without advising a suspect of his/her rights.  If the police fail to give a suspect the Miranda warnings, any information obtained during questioning or interrogation is inadmissible in trial.  Likewise, if the police find evidence as a result of an interrogation which violates the Miranda rule, the evidence will be excluded.  Information voluntarily given to police officers after the Miranda warnings have been given is admissible at a subsequent criminal trial.


Ordinarily, the police can force a suspect to give handwriting and voice samples and require the suspect to appear in a lineup.  In a line-up, several people who look somewhat similar will be shown to victims or witnesses who will be asked whether they can identify anyone in the lineup.  The police are not permitted to suggest to victims or witnesses who the main suspect is or to create a lineup that is unfairly suggestive.  Participants in a line-up may be required to speak to victims or witnesses to give them an opportunity to identify a defendant’s voice.


Extradition is the surrender by one state or nation to another of an individual accused of a crime.  As between nations, extradition must be based on a treaty between the United States and a foreign government.  As between states, Article 4 Section 2 the United States Constitution permits extradition of a fugitive from justice who has been charged with a crime in one state and has been found in another state.  Procedurally, the governor of the prosecuting state requests the governor of the resident’s state to deliver the fugitive.



A person taken to jail must generally be brought before the court within 48 hours after booking.  At the initial appearance, the defendant will be advised by the judge of the nature of the charges and of his/her rights. If the defendant is charged with a misdemeanor, a plea will usually be entered at this time.  The plea may be guilty, not guilty or nolo contendere (no contest).  After a plea of guilty or nolo contendere, the court may impose penalties immediately.  If the defendant pleads not guilty, a trial date will be scheduled.  At the first appearance, the defendant can be represented by a private attorney or one appointed by the court if he/she is indigent.


Where a defendant has been accused of a minor crime, he/she is generally given the opportunity to post bail. Bail is money or property that an arrested person deposits with the court to ensure that he/she will appear at the arraignment and subsequent proceedings.  The amount of bail must be reasonable in light of the criminal charge; the 8th Amendment to the United States Constitution requires that bail not be excessive. In determining the amount of bail, the court will consider such factors as prior criminal acts, roots in the area, a job and other reasonable criteria.  If the amount of bail is excessive, the court can be petitioned to reduce it. Bail may be posted by a defendant personally, or the services of a bail bondsman can be obtained. A bail bondsman will charge a fee for posting bail and may require collateral (property of sufficient value) to secure the amount of the bond. Alternatively, the police may release the defendant on his/her own recognizance and the promise to appear in court on a date and time certain for an arraignment.  While there is no constitutional right for a defendant to make a phone call from jail, generally a collect phone call is permitted.

Preliminary Hearing/Grand Jury

If the defendant is charged with a felony, evidence will either be sent to a grand jury or will be considered at a preliminary hearing.  If a defendant is charged with a federal crime, the grand jury must be involved.  The grand jury is a group of citizens convened by the court to determine if there is sufficient evidence to charge a person with a crime.  Grand Jury proceedings are conducted in secret and the Grand jury has broad investigative powers.

If a preliminary hearing is subsequently held, the prosecution will present its case to a judge who will determine whether there is probable cause to bind the defendant for trial.  If the judge believes that there is insufficient evidence, charges may be dismissed.  If the judge believes the evidence is sufficient, bail may be set or denied depending on the seriousness of the crime.

Representation by an Attorney

One has the right to have an attorney present at all stages of a criminal proceeding, including pre-arrest interrogations. In many instances, a defendant will retain private counsel; if the defendant cannot afford to hire an attorney, the court may appoint one. Normally, if a defendant desires to have the court appoint an attorney, he/she will be asked details about his/her financial situation.  Each state has its own rules as to who qualifies for a free lawyer.  Many states have public defenders who provide free legal services to indigent defendants.  Defendants can choose to represent themselves if they so desire.


During the period after arraignment and before trial, motions to suppress or exclude evidence, change the location of the trial, learn the names of witnesses and identify evidence may be filed.  Attorneys may conduct discovery; that is, they will take statements from witnesses to prepare for trial and request the prosecutor to produce evidence for inspection.  The possibility of a plea bargain will be explored.

Plea Bargains

‘Plea Bargains’ are negotiations through which a defendant may agree to plead guilty to the pending or a lesser charge in exchange for some form of leniency.  Plea bargains are extremely commonplace.  They are entered into to save the time and expense involved in a full trial and in order to eliminate exposure to extended jail time or the death penalty.  Prosecuting attorneys have heavy caseloads and are amenable to plea bargains as a way to lighten their load. Since the cost of a legal defense through trial can be very high, defendants may want to minimize their legal costs and enter into plea negotiations.  Even though a plea agreement has been reached between a prosecuting attorney and the defendant, the judge is under no obligation to accept any or all of the terms of the plea bargain.  Most often, however, the judge will approve the agreements reached.

Speedy Trial

The 6th Amendment to the United States Constitution guarantees a defendant the right to a speedy trial, that is, a trial that is not unreasonably delayed.  Many states have enacted specific time periods within which trials must take place, however, the defendant can waive his/her right to a speedy trial. If the defendant is not brought to trial within the statutory time, he/she may be released.


Jury Trial

Defendants charged with felonies and misdemeanors are entitled to a trial by jury.  Defendants can also elect to be tried by a judge (bench trial).  Statistically, more defendants are found ‘not guilty’ by juries than by judges.

Jury Selection

Potential jurors are chosen from a list called ‘venire,’ which is comprised of names culled from voter’s lists or tax rolls.  Attorneys may ask potential jurors questions during a process called ‘voir dire’. Jurors can be excluded ‘for cause’ if they are prejudiced or have strong feelings about a case. Attorneys may also exercise ‘peremptory challenges’. Peremptory challenges are limited in number and are used to exclude jurors for no cause whatever, but simply because the attorney or defendant have a ‘bad feeling’ about them.

Trial of a Criminal Case

After a jury is impaneled and sworn in, the prosecuting attorney will make an opening statement setting forth the nature of the case and what the state expects to prove. The defense attorney can make an opening statement if he/she so chooses or can reserve the opening statement until the prosecution has rested its case.

The prosecution will then present its case-in-chief. The state’s case will generally include live testimony from witnesses, investigating officers and crime scene investigators.  Physical evidence such as guns and blood samples may also be introduced.  Defense attorneys may cross-examine prosecution witnesses.  The defense is not required to offer any witnesses nor is the defendant required to testify.

The defendant under our legal system is presumed to be innocent until proven guilty (presumption of innocence). The prosecution has the burden of proving guilt to the exclusion of a reasonable doubt.  After the prosecution is rested, the defense may move to dismiss charges by alleging that the state has failed to prove guilt beyond a reasonable doubt.  If the court denies this motion, the defense, if it chooses, can present its case in chief.

After the defense has presented its case, the prosecution has an opportunity to present rebuttal testimony and evidence. Rebuttal testimony and evidence is such that will impeach or disprove the defense’s evidence.

When both sides have rested (concluded their presentation of evidence), the prosecutor will deliver a closing statement (closing argument) summarizing the evidence presented during the course of the trial.  The defense attorneys then have an opportunity to make their closing argument.  Since the state has the burden of proof, the prosecutor will be given a final opportunity to make a rebuttal argument.

After closing argument, the judge will ‘charge’ the jury, that is, advise the jury what the law is applicable and direct the jury to apply the law to the facts of the case.  After they have been charged, the jury will retire to a jury room to consider guilt or innocence and will select a foreperson to act as their spokesperson. The jury can accept or reject any evidence and believe or disbelieve the testimony of any witness. The jury alone determines what evidence is credible. The judge cannot overrule the jury and determine that a defendant the jury has acquitted is guilty.

The Verdict

Typically, the jury in criminal case must reach a unanimous decision (verdict) although in some states unanimity is not required.  If the jury is unable to reach a decision, the court will declare a mistrial and will order a new trial.

After the jury comes to a decision, it informs the bailiff who notifies the judge.  The verdict is then published in open court. If the defendant is acquitted, he/she is released from custody.

Double Jeopardy

Once a defendant has been acquitted, the state cannot again prosecute the defendant on the same charges due to the constitutional prohibition against double jeopardy. The federal government can, however, bring criminal charges based on the same facts for a different crime.

After the Verdict

If a defendant feels that the conviction is wrongful, he/she can ask the court to disregard or set aside the verdict.  The defendant can also appeal the conviction to a higher court based upon a prejudicial error that took place during the course of trial.  Examples of such prejudicial errors include, the admission of evidence obtained in violation of the defendants constitutional rights, jury instructions given in error, or an allegation that the prosecution did not prove its case beyond a reasonable doubt as a matter of law- that is, that the evidence clearly is insufficient to support a conviction.

Newly Discovered Evidence

Newly discovered evidence that was unavailable at the time of the trial can also be a basis for setting aside a verdict. Evidence that the prosecution improperly withheld that would tend to establish the defendant’s innocence may also support a motion to set aside a conviction.

The Sentence

Generally, a judge determines the defendant’s sentence, but in some states, jurors play a role.  The court will receive evidence of mitigating factors that may lessen the sentence.  Victims may also have input in the sentencing process.

Minimum Mandatory Sentences

Nearly all states have enacted mandatory minimum sentences for certain crimes, which limit the judge’s decision-making powers.


A criminal may be granted “parole”, that is, a conditional discharge before serving a full sentence.  As a condition of parole, a convicted criminal will generally have to show rehabilitation, will be required to report to a parole officer and demonstrate good conduct.  A state Governor or the President of the United States can grant clemency, a reprieve or pardon.  A pardon declares a person innocent and ends his/her punishment.  A commutation of sentence reduces the punishment and a reprieve is a suspension of punishment.  Reprieves may be granted to a criminal on death row in order to allow a court to reconsider some aspect of the conviction.  After reconsideration, the sentence may be re-instituted or quashed (cancelled).


An individual may file an informal complaint with a law enforcement officer, after which a judge signs a warrant, which is written authority for a law-enforcement officer to make an arrest. The officer may also make an arrest without a warrant if there is probable cause to do so. In some cases a grand jury must be convened to determine whether there is cause to indict an alleged criminal perpetrator. An accused taken into custody must be informed of his or her rights of representation and against self-incrimination.


Bail is a deposit of money that helps to guarantee that an accused person will appear for trial at the time and date specified. After the accused has been taken into custody, the court may set bail and temporarily release the accused person. If he or she does not appear, bail is forfeited, and the accused is considered a fugitive. If the accused can reasonably be expected to appear when ordered, the court may release the accused on his or her own recognizance (that is, without bail), depending on local rules and the seriousness of the crime.

Preliminary hearing

A preliminary hearing is held to determine whether there is probable cause for holding the accused for trial. A preliminary hearing may also be held to fix bail. In the case of certain less serious crimes the preliminary hearing may follow the arraignment (see below).


The next step in a criminal procedure is an arraignment. Arraigning an accused person has three purposes: (1) to establish the identity of the accused; (2) to inform the accused of the charges; and (3) to allow the court to hear the plea of the accused — that is, the answer to the charge, or a declaration of guilt or innocence.

After being formally charged, and usually before the start of a trial, a defendant may arrange with the prosecution to enter a guilty plea to a lesser charge, if the prosecution is willing to charge the defendant with a lesser crime.


The U.S. Constitution guarantees a right to a jury trial in a criminal trial; this right, however, may be waived by the defendant. If the trial is to be held before a jury, it is selected and sworn in. A trial jury typically consists of 12 citizens who listen to the facts and present their decision, the verdict. In criminal actions a unanimous vote of the jurors is usually necessary. In a jury trial, the judge rules on points of law and the jury decides questions of fact.

After the jury has been sworn in, the trial usually follows this sequence: (1) opening statement by the prosecutor; (2) opening statement by the defendant’s lawyer (this may be delayed, however, until the beginning of step 4); (3) presentation of evidence by the prosecutor; (4) presentation of evidence by the defendant’s lawyer; (5) closing argument by the prosecutor; (6) closing argument by the defendant’s lawyer; and (7) the judge’s charge or instructions to the jury.

The judge charges the jury, instructing them regarding the law that relates to the case, and provides guidance in reaching a verdict. The judge prepares the instructions, but prior to the trial each attorney prepares and submits to the judge a set of requested jury instructions. In this way, each attorney can make sure that the judge does not overlook any point that the attorney considers important.


The jury retires to a private room and considers the case. A vote of the jury is taken to arrive at a decision. The defendant may be acquitted, found guilty, or a mistrial may be declared by the judge if the jury cannot reach a decision. If the defendant is found guilty, the judge has the authority to impose sentence, although in some jurisdictions the jury will determine the sentence. In serious cases, another hearing might be held to determine the sentence. The sentence is based on specific findings of fact, as the presence of aggravating or mitigating circumstances, and conclusions of law. The verdict is signed by the judge and recorded so that it may be included in the transcript of the case. If the accused is found guilty, the case may be appealed. After acquittal, a criminal defendant cannot be tried again for the same crime. If a mistrial is declared, there must be a new trial with a new jury.

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