Criminal Justice, the Process

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Every day people are arrested for many different offenses but what happens from there? In this essay we will examine the series of events that take place from arrest to appeal in a felony case. Some of the steps involve prosecution and pretrial services, adjudication as well as sentencing and sanctions. In order for police to make an arrest, one or more of the following conditions must be met. The officer must have probable cause, which is a reasonable ground for suspicion which is supported by visual evidence or circumstances. In this situation an officer may also need a warrant for arrest. An officer may also arrest someone if they commit the felony in the presence of law enforcement. No warrant would be required in this circumstance. At the time of the arrest, the officer is required to inform the person of their "Miranda Rights" before any questioning can take place. Miranda rights are part of the Fifth Amendment privilege against self-incrimination. At this point a person can waive their rights and agree to be questioned without an attorney present. From the time of arrest officers have a very short period of time to decide whether to charge an individual or release them. This period is typically 24 to 48 hours from the time of arrest. Following the arrest a person is either released without prosecution or have criminal charges filed against them. Law enforcement officers and/or a prosecutor can set in motion the criminal justice process either before, or, after an arrest by filing written charges. For officers this is known as the "complaint" and for the prosecutor it is termed "information". At this stage the individual will, either be released without prosecution, or make an initial appearance in court. At the initial appearance, the accused is taken before a judge or magistrate who informs the accused of the charges and decides whether there is enough probable cause to detain the person. This is also known as pre-trial release decision. Defense counsel is also assigned at the initial appearance. Suspects who have been accused of serious crimes have the constitutional right to be represented by an attorney. If the court determines that the individual cannot afford such representation, the court will assign a public defender. The outcome of this initial appearance can either be that the charges are dropped or that a preliminary hearing is set. The main purpose of this preliminary hearing is to determine whether there is probable cause to believe that the person committed a crime within the jurisdiction of the court. If the judge does not find that there is probable cause, the case is dismissed and the individual is released. Following the preliminary hearing is a bail or detention hearing. Depending on the severity of the crime, a person can be released to await trial. Bail can be in the form of cash, a bail bond or sometimes by a pledge of property. A person could also be released with no bail which is known as being released on one's own recognizance. In severe cases, a defendant will be held without bond if they are deemed dangerous


The next step of the criminal justice process varies depending on the state. Approximately half of the states require a grand jury indictment. The other half relies on an information from a prosecutor. The grand jury consists of 23 people who review the cases presented by the prosecutor. The grand jury can refuse to indict, but usually agrees with the prosecutor. The grand jury procedure is done in secret without the defense present. The state presents the evidence to the jury and a determination is made that there is enough probable cause to believe that there was a crime and that a certain person was responsible for committing the crime. In a non-grand jury proceeding is held before a judge and the defense is able to cross examine and present witnesses. In either circumstance the outcome can either free the defendant or the case will proceed. This hearing is also used to determine if the defendant is competent to stand trial. A person is considered competent to stand trial if it can be determined that the individual has a rational and factual understanding of the proceedings against him or her. If this probable cause is met, the defendant will be brought in front of a judge for an arraignment. At the time of arraignment the accused is informed of the charges against them, advised of his or her rights as a criminal defendant and then asked to enter a plea to the charges. At this point charges can be dismissed or reduced to a misdemeanor, a trial date is set, or the defendant pleads guilty. If the defendant pleads guilty or no-contest, which is accepting the charges without admitting any guilt; the judge may accept or reject the plea. One advantage of the no-contest plea for defendants is that since it is not an admission of guilt; it cannot be used as a basis for future civil proceedings. If the plea is accepted, the defendant will be sentenced at a later date. The judge would reject the plea if the judge believes the plea was somehow coerced. In a case where the charges are reduced to a misdemeanor, there may still be a trial and sentencing, but it would be to a lighter charge. If the defendant pleads not guilty, a trial date is set and preparations are set in motion. Often times when a plea of not guilty is submitted before going to trial plea negotiations take place. The defendant's lawyer will negotiate with the prosecutor to determine whether the plea bargain is possible. Usually this plea bargain will involve the defendant pleading guilty to one or more charges. This is beneficial if the defendant may face a much harsher sentence if a case goes to trial. The prosecutor would usually recommend a sentence at this point so that both the charges and the sentence will be known when the defendant submits the negotiated plea. A defendant's lawyer examines the strength of the prosecutor's case as well as the consequences the defendant would face if they went to trial and lost. Plea bargaining is encouraged because such pleas reduce the court's workload as well as save taxpayer's money. Studies have shown that 90% of criminal cases are eventually resolved with a plea agreement. Some advocates have argued that plea agreements result in too light of a sentence for many criminals. While this may be true in some cases, the judge will use the best discretion to avoid unusually light sentences.

Brady Doctrine

If a plea agreement cannot be reached the case will proceed to trial. Prior to the trial date there is usually a discovery period. During this time pretrial motions and hearings can take place. The Supreme Court's 'Brady Doctrine' requires that the prosecution share with the defense all exculpatory evidence that they possess. Exculpatory evidence is the evidence favorable to the defendant in a criminal trial, which clears or may clear the defendant of guilt. It is also referred to as Brady material. Court rules also require both sides to disclose the names and addresses of the witnesses they intend to call so that the opposing side can interview the witnesses before trial. This type of structure is referred to as an adversarial system. The theory behind it is that justice will most likely prevail when both sides are able to adequately prepare their cases. It is a "no surprises" approach. Unfortunately the caseloads of many public defense offices don't allow resources for thorough investigating of every case. Pretrial motions also can occur before a criminal trial begins. Pretrial motions can be made for a wide variety of reasons, including but not limited to: suppression of evidence because the evidence was improperly obtained; a change of venue; admission or exclusion of evidence; a compelling discovery withheld by either side; a determination of a defendant's competence to stand trial; and court appointment of expert witnesses for an indigent defendant. Pretrial motions are decided by the court without a jury. According to the Sixth Amendment, the accused has the right to a speedy and public trial. In 1974 congress passed the 'Speedy Trial Act'. Unless the defendant waives the right to a speedy trial, this act set a specific number of days; 30 from the date of arrest for indictment or information and 70 days from the date of indictment for a trial to begin for a defendant who has pleaded "not guilty". There are some exceptions to the rule. When a grand jury is not in session, a 30-day extension can be granted to seek an indictment. With the exception to the 70-day rule, if a defendant is not available for trial or if witnesses cannot be called, the period can be extended up to 180 days.

Fifth Amendment

If a defendant is charged with a crime punishable by six or more months in prison, he has the right to a trial by jury. The defendant waives this right by either pleading guilty or electing a "bench trial" where a judge performs the function that a jury normally would. Some reasons that a defendant may request a bench trial are: if there are technical aspects that a jury may not understand or if the defendant believes the circumstances of the case may upset the jury and make them unable to look at the case objectively. Usually a defendant will select a jury trial. At this point the jury selection process begins. The defense and the prosecution participate in the jury selection process in order to obtain a fair trial. Either side can challenge a potential juror "for cause" which means that the juror is unable to be objective in hearing or deciding on a case. Some factors that a juror may be challenged on are: if they have prior knowledge of the case, if they have some kind of relationship with the prosecutor or defense, and if they are somehow incapable of hearing or understanding the testimony. Challenges to the array of jury are generally brought about by the defense attorney if the belief is that the pool of potential jurors does not represent the population of the community or if they are somehow biased in an obvious way. The prosecution or the defense is also entitled to peremptory challenges which are when either side can remove a juror without giving a reason. Once the jury is selected, the prosecution and defense can make their opening statements. The prosecution then begins to call witnesses. The defense is given the opportunity to cross-examine witnesses. This is a right protected by the Sixth Amendment where the accused is entitled to be confronted with the witnesses against them. After hearing from the prosecution's witnesses, the defense has the opportunity to prevent its case. The defense can call witnesses to testify who may also then be cross-examined by the prosecution. The defendant does not have to testify in their own defense. During trial the defendant is also protected by the "hearsay rule" which prohibits use of any secondhand evidence. The witnesses may not testify about anything they do not have direct knowledge of. After all testimony is heard, and each side has rested the judge gives instructions to the jury with regards to the legal issues of the case and then both sides are able to present closing arguments. After the closing arguments, the judge sends the jury to deliberate on the evidence until it has reached a verdict. Since the burden of proof rests on the prosecution jurors are often reminded that the prosecution needed to have proved guilt beyond a reasonable doubt. The jury then retires to deliberate and arrive at a verdict. If a jury arrives at a not-guilty verdict, the defendant is freed and can never again be tried for the same crime because the double jeopardy clause in the Fifth Amendment prohibits a second trial for the same offense. If the jury arrives at a guilty verdict often times the case will be appealed. A defendant who is found guilty of some or all charges is entitled to an appeal to at least one level of appellate court. In cases where the death penalty is involved there is an automatic appeal.


An appeal is very different from a trial. There is no evidence presented or witnesses questioned; it is merely an opportunity to correct a legal error that was prejudicial. The first step is to file a notice of appeal in the trial court within a timely manner. In my state of California, whether an appeal will be heard in a state or federal court is dependent on where the case has been litigated thus far. In most circumstances a defendant will obtain an appellate attorney who will prepare a brief based on the court transcripts. The brief is then sent to the court of appeal where it is reviewed by the respondent who reviews the court transcripts and the appellant's brief. The respondent then files their own brief. The appellant can then file a "reply brief". In the reply brief the appellant can respond to the points raised by the opposing side. After the briefs are submitted, the two appellate attorneys participate in an oral argument. This is where the two parties have the opportunity to discuss the issues of the appeal with the Court of Appeal panel of justices. The Court of Appeal then reviews the transcripts, the briefs and conducts their own independent research. The court then releases a written opinion as to whether or not the trial court's decision should be corrected. If a favorable outcome for the defendant is not found by the Court of Appeal, they may seek review by the California Supreme Court by a "Petition for Review". The California Supreme Court is selective about which cases it will hear, so the case must be very compelling to make it to this level of appeal. If the appeal is to make its way to the United States Supreme Court there must be a "federal question". The appeal must deal with the U.S. Constitution or a U.S. statute. The criminal justice process is not a perfect one. Many highly publicized cases find it hard to select members of the jury who are not already familiar with the case. This can make it difficult for some Americans to receive a fair trial in any venue. While it is important to protect the innocent from conviction, the criminal justice process is both costly and lengthy. In my opinion, improving the criminal justice process goes all the way back to improving the morale of the general public thus reducing crime as a whole. With the courts having fewer criminals to put on trial, there would be a lesser burden on the public criminal defense offices and they would be able to take more time for each case's investigation and preparation.