After a suspect is arrested and charged, most jurisdictions process criminal cases in a similar way. First, a judge will examine whether or not a defendant must be kept in custody, released on bail or let go on his “own recognizance.” Shortly thereafter, there is a hearing — called an arraignment — where the judge makes sure the defendant understands the charges against him or her and has an attorney. The defendant will then enter a plea of guilty, not guilty or no contest, and the court will set dates for future proceedings.
All jurisdictions provide for procedural differences depending on the severity of the charges — most often the dividing line is between a felony and a misdemeanor. Some states require preliminary hearings to determine whether there is sufficient probable cause to proceed with a trial, but such hearings are often not a constitutional requirement at the state level. At the federal level, however, a prosecutor cannot charge someone with a felony offense before convening a grand jury to determine whether there is sufficient evidence to proceed with a trial. If the grand jury determines there is probable cause, then the defendant is indicted.
Before the accused goes to trial a plea bargain is often reached. This generally involves a defendant agreeing to plead guilty in exchange for a lesser charge (and therefore a less stringent punishment) or pleading guilty to one count in exchange for the dismissal of another. For better or worse, the court system encourages plea bargains; without them, the system would grind to a halt.
Before a trial begins, both sides will come together before the judge to bring pre-trial motions. These hearings address what evidence will be admissible at trial, who should be allowed to testify and any final logistical issues that need to be resolved.
The Sixth Amendment guarantees the right to a jury trial (for felony offenses), and although most jurisdictions provide for a 12-person jury, that number of jurors is not a requirement. To ensure the jury is impartial, the prosecution and defense pick the jury through voir dire, a process in which each side can ask questions of the potential jurors and request that certain jurors be taken out of the running for the panel.
During the trial, the prosecution bears the burden of proof. This means the defendant need not prove his innocence to the jury, rather the prosecution must provide the jury with enough evidence to dispel any reasonable doubt that they may have of the defendant’s guilt. The trial itself is structured around opening and closing statements, the examination and cross-examination of witnesses, and instructing the jury as to the law governing the case.
In most states, a jury must reach a unanimous verdict to convict. If they fail to do so, a judge will declare a mistrial, at which point there will either be a new trial with a new jury or the case will be dismissed. If a defendant is found guilty, the court will determine an appropriate sentence based on the sentencing guidelines of the jurisdiction. A judge can deviate upwards or downwards from the recommendation depending on the severity of the crime, the defendant’s criminal history and personal circumstances, and whether the defendant was remorseful.
The Fifth Amendment guarantees that no person can be tried twice for the same crime. This “double jeopardy” rule applies only after jeopardy “attaches,” commonly when the jury in a criminal case is sworn in. Double jeopardy law is complicated, and in reality there are many instances where someone can be tried twice for the same offense.
All states provide the opportunity to appeal a criminal conviction, although the general rule is that the grounds for the appeal must have negatively affected the defendant’s “substantial rights.”
Preparing to Meet With a Criminal Defense Attorney
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