The Stages of a Criminal Case

If you have been arrested for a crime, you are at the beginning of what could become a
long journey through the criminal justice system. Although the process may somewhat
vary, these are the steps that most criminal cases follow until the case is resolved.
Some cases end quickly with a guilty plea and paying a fine, while others can go on for
decades through the appeals process.
Arrest
A criminal case begins when you are arrested for a crime. Under what circumstances
can you be arrested? What constitutes being "under arrest?"
A criminal arrest takes place when you have been taken into police custody and are no
longer free to leave. Being arrested is the first step in your journey through the criminal
justice system.
An arrest can take place simply when a police officer tells you that you are under arrest.
You do not have to be physically restrained in order for you to legally be under arrest.
You are legally under arrest at the moment that you are no longer free to walk away.
Reasons You Can Be Arrested
Generally, there are three legal circumstances under which a police officer can place you
under arrest:
First, when a police officer actually sees you committing a crime. For example, if a
policeman sees you drive away from a gas station without paying, he can place you
under arrest.
Secondly, a police officer can arrest you if he has probable cause that you have committed a
crime or are about to commit a crime. To have probable cause, the police officer must have
specific facts or circumstances that lead him to believe you have committed a crime. You
cannot be arrested because you "look suspicious."
For example, if a police officer receives a report that a convenience store has been
robbed and then sees you running away from the store with a gun in your hand, he has
probably cause to suspect that you robbed the store and he can arrest you.
Thirdly, you can be arrested if a judge issues an arrest warrant. Usually, an arrest
warrant is issued after a police officer provides the judge probable cause for your arrest,
based on his own observations or information obtained from a confidential informant.

If an informant tells a police officer that he went to your house and purchased drugs
from you, the policeman can go to a judge and request an arrest warrant by describing

the crimes being committed, the person suspected of the crimes and the location of the
suspect.
Search Warrants Can Prompt Arrest
Arrest warrants can also be issued if you fail to show up for a court date, miss appointments
with your probation or parole officer, fail to pay a fine or restitution or otherwise violate your
probation or parole.
Search warrants are issued by judges in the same manner as arrest warrants, based on
probable cause provided by law enforcement officers. If a search warrant is served on
your home or place of business and contraband is found, you can then be placed under
arrest because the police have personally witnessed you being in possession of the
contraband.
Booking Process
After you are arrested you are then processed into police custody. Your fingerprints and
photo are taken during the booking process and you are placed in a cell.
Booking is the term used to describe the processing of an arrested person into police
custody. If you have been arrested you will be transported to a secure facility - usually
the police station or a jail - to be processed into police custody.
The Booking Procedure
During the processing procedure, the police:
Takes a set of your fingerprints, even if they are already on file from a previous arrest.
Takes a booking photograph of you, also known as a mug shot.
Records your personal information such as your name, age, address and your physical
characteristics - height, weight, hair and eye color and any distinguishing features such as
tattoos, scars or birthmarks.
Conducts a background check to determine if you have a previous criminal record.
Confiscates your personal property - such as your wallet, car keys, etc. - which is held until you
are released.

Places you in a holding cell or in a jail cell.

Bail or Bond
The first thing you want to know after being placed in jail is how much it is going to cost
to get out. How is your bail amount set? What if you do not have the money?
Posting bail is usually required before someone who has been arrested can be released
from jail to await trial. But that is not always the case.
Right to an Attorney
If you do not already have an attorney present, the judge will ask you if you plan to hire
an attorney or do you need the court to appoint on for you. Defendants who cannot

afford legal counsel are appointed attorneys at no cost. The court-appoint attorneys are
either employed public defenders or private defense attorneys paid by the state.court, if
you go ahead a pay the fine.
Determining the Amount of Bail
If you are arrested and booked into jail , then the first thing you probably want to find out is how
much bail money will be required to get you out. For lesser crimes, such as misdemeanors, the
bail amount is usually a standard amount that you can post just as soon as you can get the
money or someone else can come to the jail and post the amount for you. Many times, people
arrested and placed in jail can post bail and be released within a matter of hours.
For more serious crimes however - such as violent crimes, felonies or multiple offenses - a
judge may have to set the bail amount. If this is the case, you may have to remain in jail until
the next available court date.
If you are arrested over the weekend, for example, you may have to wait until Monday
to find out the amount of your bail. In some states you can be held up to five days
before seeing a judge.
Bail is generally set in an amount necessary to guarantee that you will return to court at
the appointed time. The greater your crime, the more likely you may be attempted to not
return to court, so the greater the amount of bail.
Purchasing a Bail Bond
If you do not have the money to post bail, you may be able to purchase a bail bond instead.
Usually handled through a bail bondsman who will post your bail for you in exchange for a fee
(usually around 10 percent of your bail). For example, if your bail is set at $2000, a bail bond
agent will probably charge you $200.
You may have to put up some collateral or some other guarantee to convince the
bondsman that you will show up for court.
The difference between bail and a bond is, if you post bail yourself, you will get your
money back when you appear on time for court. If you pay a bail bondsman, you will not
get that money back, because it is a fee for his services.
Released on Own Recognizance
The best option that you can get, if you have been arrested, is being released on your own
recognizance. In this case, you don't pay bail at all, you just sign a statement promising to
return to court on a certain date.
Being released OR, as it is sometimes called, is not available to everyone. To be
released on your own recognizance, you must have strong ties to the community either through family or business - or be a lifelong or long-time member of the
community.

If you have no previous criminal history or if you have had only minor infractions and
have a history of showing up in court when you are supposed to, you might also be
released on your own recognizance.
Failure to Appear
In either case, if you fail to show up for court at the appointed time, there will be
consequences. Usually, a bench warrant is immediately issued for your arrest. If it is believed
that you left the state, a federal warrant can be issued for your arrest for fleeing to avoid
prosecution.
If you, a family member or friend posted your bail, that money will be confiscated and
never returned. If you paid a bails bondsman, the bonding agent can send a bounty
hunter across jurisdictional lines to capture you.
If you were released on your own recognizance and failed to show up for court, when
you are caught you may be held without bond until your trial. At the very least, you will
probably never be released on your own recognizance again.
Arraignment
Usually, your first appearance in court after you have been arrested is a hearing called
the arraignment. Depending on your crime, you may have to wait until the arraignment
to have your bail set.
After you are arrested for a crime, the first time that you make an appearance in court is
usually at a hearing called an arraignment. It is at this time that you go from being a
suspect to a defendant in the criminal case. During the arraignment, a criminal court
judge will read in detail the criminal charges against you and ask you if you understand
the charges.
Right to an Attorney
If you do not already have an attorney present, the judge will ask you if you plan to hire
an attorney or do you need the court to appoint on for you. Defendants who cannot
afford legal counsel are appointed attorneys at no cost. The court-appoint attorneys are
either employed public defenders or private defense attorneys paid by the state.

The judge will ask you how you intend to plead to the charges, guilty or not guilty. If you
plead not guilty, the judge will usually set a date for a trial or a preliminary hearing.
Pleading Not Guilty For You
In most jurisdictions, if you refuse to plea to the charges, the judge will enter a not guilty plea
on your behalf, because you do have the right to remain silent.

Even if you plead guilty at the arraignment, the judge will hold a hearing to hear the
evidence against you to determine if you are in fact guilty of the crime with which you
are charged. The judge will also have a background check done and determine any
aggravating or mitigating circumstances surrounding the crime before pronouncing
sentence.
Bail Amount Revisited
Also at the arraignment, the judge will determine the amount of bail necessary for you to
be free until your trial or sentencing hearing. Even if the amount of the bail has
previously been set, the judge can revisit the issue at the arraignment and alter the
amount of bail required.

For serious crimes, such as violent crimes and other felonies, bail is not set until you go
before a judge at the arraignment.

Plea Bargaining
With the criminal court system overwhelmed with cases, only 10 percent of cases go to
trial. Most of them are resolved during a process known as plea bargaining. But you
have to have something with which to bargain.
Due to the overburdened criminal justice system, the vast majority of criminal cases are
settled through a process known as plea bargaining. In a plea bargain agreement the
defendant agrees to plead guilty rather than proceeding to a trial.
Both Sides Must Be Willing
In a plea bargain deal, both sides gain something from the arrangement. The
prosecution gains a conviction without the time and expense of a trial, while the
defendant might get a reduced sentence or have some of the charges against him
dropped.

In some cases, the prosecution will offer a plea deal so that the victim does not have to
go through the drama and stress of testifying at a trial.
Factors Influencing a Plea Deal
Whether or not the prosecution and defense agree to enter into plea bargain negotiations
depend on several factors:
The seriousness of the crime itself.

The strength of the evidence against the defendant.

The likelihood of a guilty verdict at trial.

Reduced Charges, Reduced Sentence

For a guilty defendant, the advantages to a plea bargain are obvious - either reduced charges
or a reduced sentence. Sometimes a plea deal can reduce a felony charge to a misdemeanor,
a significant difference for the defendant. Many plea deals have resulted in a reduction of
sentence for the defendant.
One hitch in the plea bargain system is the fact that the judge in the case does not have
to accept it. The prosecution can only recommend the agreement to the judge, but he
cannot guarantee that the judge will follow it.
Bargaining Prohibited in Some Cases
Also, some states have passed laws prohibiting plea bargaining in certain cases. Some states
will not allow a drunken driving charge to be bargained down to reckless driving, for example.
Other states prohibit plea bargains for sex offenders or repeat offenders who otherwise might
place the public in danger.
The plea bargain itself usually takes place between the prosecutor's office and the
defense attorney. Rarely do prosecutors bargain directly with defendants.
Preliminary Hearing
At the preliminary hearing, the prosecutor tries to convince the judge there is enough
evidence to show that a crime was committed and you probably committed it. Some
states use a grand jury system instead of preliminary hearings.
When a not guilty plea is entered in a criminal case, a preliminary hearing may be held
to determine if the case should proceed to trial. Its purpose is to determine if there is
probable cause that a crime has been committed.
During the preliminary hearing, a judge hears the evidence that the prosecution has
against the defendant, not to determine guilt or innocence, but to determine if there is
enough evidence to proceed to a trial.
Evidence at a Preliminary Hearing
Both the prosecution and defense can present witnesses during a preliminary hearing and can
cross-examine each other's witnesses, just as in a trial, in most jurisdictions.
During the hearing, it is the job of the prosecution to convince the judge that there is
enough evidence to believe that a crime has been committed and the defendant
committed that crime. It is the job of the defense to convince the judge that the evidence
is not convincing enough and the charges should be dismissed.
Pre-Trial Motions
Your attorney has the opportunity to exclude some of the evidence against you and try
to establish some of the ground rules for your trial by making pre-trial motions. Ruling
made during this stage of the case can also be issues for appealing the case later.

After it is decided that a criminal case will proceed to trial, pre-trial motions can be
presented to the court that can influence how the trial is conducted. Those motions can
address many different topics and issues.
Pre-trial motions can address the evidence to be presented at the trial, the witnesses
who will testify and even the type of defense the defendant can present.
For example, if a defendant plans to plead not guilty by reason of insanity, a pre-trial
motion must be made to the court and a hearing conducted to determine if that defense
will be allowed. The same is true if the defendant pleads guilty but mentally ill.
But pre-trial motions can address a wide range of issues. Some common ones include:

To request a change of venue of the trial due to pre-trial publicity.

To challenge the search warrant issued in the case.

To exclude some evidence gathered during the search.

To exclude statements made by the defendant to investigators.

To determine if expert witnesses can testify.

To challenge expert testimony.

To request a gag order in the case.

To dismiss the charges altogether.

Each pre-trial motion can prompt a mini-trial before the judge in which witnesses can be presented.
Most pre-trial motion hearings consist of the prosecution and defense making oral arguments to
support their case, along with written arguments citing case law precedents.
In pre-trial motions, the judge makes the final decision. For each side, depending on how the judge
rules, that ruling can be the basis of an future appeal. The defense can argue that the judge made an
error in the ruling, affecting the outcome of the eventual trial.
Criminal Trial
If you are truly innocent or if you are not satisfied with any plea deals offered to you, you
have the option to allow a jury to decide your fate. The trial itself usually has six
important stages before a verdict is reached.
A criminal trial is scheduled if a defendant continues to plead not guilty after the
preliminary hearing and plea bargain negotiations have ended. If pre-trial motions have
failed to get evidence thrown out or the charges dismissed, and all efforts at plea
bargaining have failed, the case proceeds to trial.
The vast majority of criminal cases never get to the trial stage. Most are resolved prior
to trial in the pre-trial motion stage or the plea bargain stage.

There are several distinct phases of a criminal trial proceeding:

Opening Statements
Consequently, the prosecution's opening statement is first and goes into great detail
outlining the evidence against the defendant. The prosecution gives a preview of how it
plans to prove what the defendant did, how he did it and sometimes what his motive
was.
Alternate Explanation
The defense does not have to make an opening statement at all, or even call witnesses to
testify, because the burden of proof is on the prosecutors. Sometimes the defense will wait
until after the entire prosecution's case is presented before making an opening statement.
If the defense does make an opening statement, it is usually designed to poke holes in
the prosecution's theory of the case and offer an alternate explanation for the facts or
evidence presented by the prosecution.
Testimony and Evidence
The main phase of any criminal trial is when both sides can present witness testimony and
evidence for consideration. Witnesses are used to lay a foundation for the admitting of
evidence.
Cross-Examination of Witnesses
After a witness testifies under direct examination, the opposing side has the opportunity to
cross-examine the same witness in an effort to discredit their testimony or challenge their
credibility or otherwise shake their story.
In most jurisdictions, after the cross-examination, the side who originally called the
witness can ask question on re-direct examination in an effort to rehabilitate any
damage that might have been done on cross-examination.
Closing Arguments
Many times, after the prosecution rests its case, the defense will make a motion to dismiss the
case because the evidence presented did not prove the defendant guilty beyond a reasonable
doubt. Rarely does the judge grant this motion, but it does happen . After both sides rest their
case, each side is allowed to make a closing argument. The prosecution attempts to
strengthen the evidence they presented while the defense attempts to convince the judge that
the evidence falls short and leaves room for reasonable doubt.

Sentencing
If you plead guilty or you were found guilty by a jury, you will be sentenced for your
crime. But there are many factors that can affect whether you get a minimum sentence
or the maximum.
A defendant who pleads guilty or is found guilty by a jury in a criminal trial faces
sentencing for the crime by the judge. If you are guilty of a crime, you will face
punishment for your actions, but that punishment can vary widely from crime to crime.

Possible Punishments
The judge has several punishment options that he can impose during sentencing. Those
options can be imposed singularly or in combination with others. If you have been convicted, a
judge can order you to:
Pay a fine.

Pay restitution to the victim.

Go to jail or prison.

Serve a period of time on probation.

Do community service.

Complete educational, counseling or treatment programs.

Discretion in Sentencing
Many states have passed laws that provide for mandatory sentencing for certain crimes, such
as child molestation or drunken driving. If you are convicted of one of those crimes, the judge
has little discretion in sentencing and must follow the guidelines provided in the law.
Otherwise, judges have wide discretion in how they form their sentences. For example,
a judge can order you to pay a $500 and serve 30 days in jail, or he can just fine you
with no jail time. Also, a judge can sentence you to jail time, but suspend the sentence
as long as you complete the terms of your probation.
Special Probation Terms
In the case of alcohol or drug-related convictions, the judge can order you to complete a
substance abuse treatment program or in the case of a drunk driving conviction, order you to
attend driving school.
The judge is also free to add specific restrictions to the terms of your probation, such as
staying away from the victim, submitting to a search at any time, not traveling out of
state or submitting to random drug testing.
Aggravating and Mitigating Factors
Several factors can influence the final sentence the judge decides to hand down. These are
called aggravating and mitigating circumstances. Some of them may include:
Whether or not you are a repeat offender.

Whether or not someone was injured during the crime.

Your background and character.

If you express remorse or regret.

The nature of the crime itself.

Impact statements from the victims.

The background report the judge receives from the probation department can also have an
influence on the strength of the sentence. If the report indicates that you are a productive
member of society who made a mistake, the sentence might be much lighter than if it indicates
you are a career criminal with no real work history.

Consecutive and Current Sentences

If you were convicted or entered a guilty plea to more than one crime, the judge can impose a
separate sentence for each of those convictions. The judge has the discretion to make those
sentences either consecutive or concurrent.
If the sentences are consecutive, you will serve one sentence and then begin serving
the next. In other words, the sentences are added to each other. If the sentences are
concurrent, that means they are all being served at the same time.
The Death Penalty
Most states have special laws regarding the imposing of sentence in a death penalty case. In
some cases a judge can impose the death penalty.

Appeals Process
If you think a legal error caused you to be convicted and sentence unfairly, you have the
ability to appeal to a higher court. Successful appeals are very rare, however, and
usually make headline when they happen. Anyone convicted of a crime has the right to
appeal that conviction if they believe a legal error has occurred. If you have been
convicted of a crime and plan to appeal, you are no longer known as the defendant, you
are now the appellant in the case. In criminal cases, an appeal asks a higher court to
look at the record of the trial proceedings to determine if a legal error occurred that may
have affected the outcome of the trial or the sentence imposed by the judge.

Appealing Legal Errors

An appeal rarely challenges the decision of the jury, but rather challenges any legal errors that
the judge or the prosecution may have made during the trial. Any ruling that the judge made
during the preliminary hearing , during pre-trial motions and during the trial itself can be
appealed if the appellant believes the ruling was in error.
Notice of Appeal
Your attorney will have plenty of time to prepare your formal appeal, but in most states you
have a limited time to announce your intention to appeal your conviction or sentence. In some
states, you have only 10 days to decide if there are issues that can be appealed.
Your notice of appeal will need to include the exact issue or issues upon which you are
basing your appeal. Many appeals have been rejected by higher courts simply because
the appellant waited too long to raise the issue.
Records and Writs
When you appeal your case, the appellate court will receive the record of the criminal trial and
all rulings leading up to the trial. Your attorney will file a written brief outlining why you believe
your conviction was affected by legal error.

The prosecution likewise will file a written brief telling the appellate court why it believes
the ruling was legal and appropriate. Usually, after the prosecution files its brief, the
appellant can file a follow-up brief in rebuttal.
The Next Highest Court
Although it does happen, the attorney who handled your criminal trial will probably not handle
your appeal. Appeals are usually handled by lawyers who have experience with the appeals
process and working with higher courts.
Although the appeals process varies from state to state, the process generally starts
with the next highest court in the system - state or federal - in which the trial was held.
In most cases, this is the state appellate.
The party that loses at the appeals court, can apply to the next highest court, usually the
state supreme court. If the issues involved in the appeal are constitutional, the case can
then be appealed to the federal district appeals court and eventually to the U.S.
Supreme Court.
Appeals Rarely Successful
Very few criminal trial appeals are successful. That's why when a criminal appeal is granted, it
makes headlines in the media because it is rare. In order for a conviction or a sentence to be
overturned, the appeals court not only must find that an error occurred, but also that the error
was clear and serious enough to affect the outcome of the trial.
A criminal conviction can be appealed on the basis that the strength of the evidence
presented a trial did not support the verdict. This type of appeal is significantly more
expensive and much more lengthy than a legal error appeal and even more rarely
successful.