Being arrested and entering our criminal justice system can be scary and confusing. The criminal process starts when someone allegedly breaks a law, and it continues through the arrest, booking, arraignment, trial and appeal. The federal government has its own court process, and each state has its own rules for moving someone through the criminal justice system, with no two states having identical procedures. But there are similarities between the different systems. Here is an overview of what typically happens in the criminal process.
Being arrested is what sets a person on his or her way into the criminal justice system. There are two basic types of arrests -- those with a warrant and those without a warrant.
Warrants are issued by a judge or other court officer who finds probable cause for an arrest. The warrant directs the police to arrest the person named in the warrant. An arrest without a warrant occurs when a police officer has probable cause to believe a person has committed or is about to commit a crime. Over 90% of all arrests are made without a warrant.
If you are arrested, you must be read your Miranda rights before a law enforcement officer can question you. Miranda rights require law enforcement officers to advise you that you have the right to remain silent, that anything you say can be used against you, that you have the right to an attorney, and that if you cannot afford an attorney, one will be appointed for you. Once you tell law enforcement officers that you're exercising your right to remain silent -- which you should do if you are ever arrested -- law enforcement officers are not allowed to question you.
After a person is arrested, he or she is taken to a local detention center for processing and booking. This typically includes fingerprinting, background check, checking for outstanding warrants and entering the person into the computer system. Generally, the accused can then either:
• be released with no charges being filed;
• post bail or bond and be released on his or her own recognizance and scheduled for an arraignment; or
• be placed in jail until the arraignment.
When a person is released “on recognizance,” he or she is agreeing to voluntarily appear in court when told to do so, and does not have to post bail.
Classification of Crimes
Crimes are generally classified as misdemeanors or felonies, with misdemeanors being less serious crimes. In most states, the distinction between misdemeanors is based on the possible punishment, with misdemeanors being punishable by a jail term of less than one year, and felonies being punishable by a jail term of over one year. Some states also differentiate between felonies and misdemeanors based on the place of incarceration, with misdemeanors being punishable by incarceration in a county jail and felonies being punishable by incarceration in a state prison.
Grand Jury or Preliminary Hearing
For more serious crimes, there is often a method to determine if there is probable cause for a formal trial. Some states accomplish this with a grand jury proceeding. A grand jury is composed of a certain number of citizens from the community, who hear evidence presented by the prosecutor (the accused and his or her lawyer are usually not present at these proceedings). If the grand jury believes probable cause exists, an indictment is issued. Grand juries are used in about half the states.
States that do not use grand juries usually have a preliminary hearing (though some states use both). This is a court proceeding in which the prosecutor and the defendant exchange information. If the judge finds there is probable cause for a trial (or the defendant waives his or her right to a preliminary hearing, which occurs in many cases), then the prosecutor files a bill of information with the court where the trial will be held.
The arraignment is where the defendant responds to the grand jury indictment or the prosecutor's bill of information. Several things typically happen at the arraignment, including:
• the defendant is informed of the charges against him or her;
• the defendant is advised of constitutional rights and guarantees;
• the defendant enters an plea. The defendant can admit to committing the crime and plead "guilty," or state that he or she did not commit the crime and plead "not guilty." There is also a "no contest" plea (also known as nolo contendre). With a "no contest" plea, the defendant is not admitting guilt, but is not contesting the charge. A "no contest" plea is often better than a guilty plea, since it usually cannot be used against the defendant as evidence of liability in a civil lawsuit.
At the arraignment the defendant also learns if he or she will have to remain in jail until the trial. The defendant will either be released "on recognizance," the court resets bail, or the court does not set bail.
Bail (sometimes called a bond) is money or other property deposited with the court as a promise the defendant will appear in court when required. Judges use several factors in setting the bail amount, including the seriousness of the crime, the defendant's ties to the area, and the defendant's wealth. If the defendant fails to appear in court when required, the money or property posted as bail may be lost.
Some people go to a bail bondsman to post bail. In these cases, a fee is paid to a bail bondsman, and in return the bail bondsman posts the bail, guaranteeing to the court full payment of the bond if the accused does not appear in court. The fee charged by a bail bondsman is set by law in all states. In most states, the fee is 10% of the bail amount.
Over 90% of all federal and state criminal cases do not go to trial. This is because prosecutors and the defendant's lawyer strike a deal over what the defendant will agree to plead guilty to and the sentence the prosecutor will recommend. Once a plea bargain is made, the judge's role is mainly to ensure all laws and constitutional guarantees have been followed.
There are various types of plea bargains. One is reducing the charge to a lesser offense than the evidence supports. Another is dropping some charges against the defendant while keeping others. A third type of plea bargain is if the charge stays the same, but the defendant agrees to plead guilty in return for a lesser sentence.
If the defendant does not agree to a plea bargain, the case will proceed to trial. The U.S. Constitution guarantees people charged with a crime the right to a speedy trial. How fast a trial must begin is usually set by state law. This often ranges between one and two months from the time the defendant is arraigned. The defendant can also waive his or her right to a speedy trial in order to gain more time preparing a defense.
The U.S. Constitution also guarantees the right to trial by jury (though smaller offenses are not covered by this right). If the defendant chooses not to be tried by a judge, then a jury will be selected. At the trial, the prosecutor and defendant will present evidence and call witnesses to testify. Once both sides are done presenting their case, the jury will decide if the defendant is guilty or not guilty. If the defendant is found not guilty, he or she will be released. If the defendant is found guilty, he or she can be sentenced immediately or the sentencing can be postponed to a later date.
In most states, sentences are imposed by the judge only. In some states, the defendant can choose to be sentenced by the judge or jury. In capital cases (where the defendant can be put to death), states usually require that a death sentence can be imposed only by the unanimous decision of 12 jurors.
For all federal and state trials, everyone has a right to appeal a felony conviction. An appeal is typically based on a mistake of law made during the trial (for example, evidence was admitted that should have been excluded). The mistake must have been a "reversible error," meaning it is serious enough that it would have affected the verdict of the judge or jury. If the appeal succeeds, it is likely (but not always) that a new trial will be held.
This is a general summary of what happens from the time a person allegedly breaks a law and is arrested. There are many steps in the criminal justice system, and it is vital to have a lawyer on your side from the earliest moment, as any misstep along the way -- such as saying the wrong thing -- can have extremely serious consequences. If you are arrested, our law firm can advise you of your rights and defend and protect your interests, which can help you win your case or get the penalties reduced.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.