Steps in a Criminal Case

  • Jail and Bail
  • Early Stages of a Criminal Case
  • Plea Bargains
  • Criminal Trials
  • Sentencing
  • Appeals
  • Writs in Criminal Cases
  • Clemency and Related Issues
  • Prisoners' Rights

Jailhouse booking is the process of creating an arrest record. Even individuals that have the ability to post bail immediately cannot skip the booking process. The process begins by recording the suspect's name and the alleged crime that led to arrest. Then the process continues with taking a mug shot, placing personal property and clothing into police custody (unless any of this property is contraband, it is returned after being released from jail), fingerprinting, conducting a full body search, checking for warrants, health screening to check for diseases, providing information that pertains to incarceration conditions (i.e. gang affiliations that may require an individual to be placed in one section of a jail as opposed to another), and sometimes suspects may be required to provide a DNA sample. Because the booking process can be stressful and drawn out many people being booked have a tendency to start talking to the police about the events under question. The booking process is a routine procedure and is not an interrogation, however statements that are made voluntarily can be used as evidence in court. Therefore, it is highly recommended that suspects going through the booking process say nothing in regards to their case.

Bailing out of jail allows for a person suspected of committing a crime to remain free until they are convicted. Bail ensures that the suspected person will return to court when they are required to do so. Bail can be in paid in the form of cash, check, bond, or property. Bail paid in the full amount (cash, check or property) is refunded when the case is over and all court appearance have been made. On the other hand, a bail bond only costs a small percentage of the full bail amount, but it will not be refunded because it is the fee of the bond seller. Moreover, a bail bond often requires some form of collateral that the bond seller may seize in the event that the suspect fails to appear in court. Judges are responsible for determining the amount of bail, however most jails have standard bail schedules that are predetermined bail amounts for common crimes. This allows a person to get out of jail without waiting to appear in front of a judge at a bail hearing or arraignment.

If a defendant cannot afford the amount specified, they may also be released on their own recognizance, known as "O.R.", or lowered bail. Release on O.R. requires that the defendant sign a promise to show up in court and waives the requirement to post bail. This request is made at the defendant's first court appearance and the judge will decide whether or not to grant the request. Certain factors may influence the judge's decision to grant release on O.R. such as, having family members in the community, having an established residency in the community, being employed, having little or no past criminal history, or if the defendant has faced charges in the past and always appeared in court as necessary. In certain circumstances, the judge may legally deny bail altogether depending on the seriousness of the crime and the likeliness of the defendant to flee the jurisdiction.

After a police arrest report is created, the prosecutor is responsible for deciding what criminal charges to file. The prosecutor may file a "complaint" and determine that the case should be charged as a felony or a misdemeanor, they may decide that the case would be a felony and should go to a grand jury to ultimately decide what charges should be filed, or they may decide not to pursue the case.

Grand juries are sometimes used by prosecutors in order to decide what charges should be filed when the case is a felony. Grand juries are similar to trial juries in that they are made up of randomly selected individuals. They listen to evidence presented only by the prosecution and decide whether charges should be brought against the individual. The prosecutor meets with the grand jury in secret without the suspect or the suspect's lawyer present. The grand jury then decides whether or not to indict. If the grand jury does indict, the defendant can acquire a copy of the transcript of the grand jury proceedings. It is for this reason that the prosecution normally tries to limit the amount of evidence they present to the grand jury to a minimum. If the grand jury decides not to indict, then the prosecutor may present the same evidence to a second grand jury, present additional evidence to the original grand jury, or file a criminal complaint.

Arraignment is the initial appearance of the defendant in court. It is at arraignment that court advises the defendant of the charges being faced. They may also inquire whether the defendant plans to hire an attorney or use a public defender, take the defendant's plea, determine whether to set bail and set the amount of bail. They may also determine whether to release the defendant on OR. If the defendant is released on bail or OR they may also determine travel restrictions and ban contact with the alleged victim. Lastly, they set dates for further proceedings such as when the prosecution and defense need to report back on plea negotiations or set a preliminary hearing.

Preliminary Hearings are only held in cases where the defendant pleads not guilty at the arraignment. They are normally held within 30 days of the time the defendant is arrested, however often times defendants will waive their right to a speedy trial and allow for the preliminary hearing to be delayed. Extra time usually benefits the defense so it is often advantageous for the preliminary trial to be delayed. At the preliminary hearing, the prosecution presents their case to a judge and may offer witness testimony and other evidence. The defense can cross-examine witnesses to determine more about their observations and see how they might act if the case goes to trial. The defense has the option to present their case following the prosecution's presentation, however they are not required and often don't. Following the preliminary hearing the case may go to trial, the charges may be reduced, or the case may be dismissed altogether.

Less than 10% of criminal cases go to trial, as a result more than 90% of convictions are a result of a plea bargain. A plea bargain is an agreement between a defendant and a prosecutor where the defendant agrees to plead guilty or no contest in exchange for reduced charges or lighter sentencing.

Withdrawing a guilty plea is possible the judge has not yet accepted the plea, or the defendant has not yet been sentenced. There are several reasons that a guilty plea may be withdrawn when presented to an appellate court.

The judge has the ultimate authority when it comes to accepting or rejecting plea deals. They evaluate all of the terms of the agreement and decide whether the punishment is appropriate by also considering the severity of the charges, the defendant's criminal history, and the defendant's character.

Before the trail begins the defendant has the right to decide whether their case be tried by judge (court trial) or by jury (jury trial). Most often defendants choose to have a jury trial because their peers are presented the evidence and decide their guilt. Under certain circumstances it may be advantageous for the defendant to choose a court trial and this will normally be grounded on the recommendation of the defense attorney. If the defendant ultimately chooses a jury trial, then both the prosecution and defense must go through a process of jury selection. The process consists of questioning potential jurors in order to select individuals that are deemed fair and impartial. Before the trial begins the prosecution and the defense may also request that the court admit or exclude certain evidence and they will try to reconcile any evidence issues they may have. Once the trial begins, the prosecution and the defense will both have the opportunity to give an opening statement to the judge or jury. These statements will outline what they expect to prove throughout the course of the trial. The prosecution will present their case first through witness testimony, and the defense will have a chance to cross examine the witnesses. The defense will present their case after the prosecution through the same processes of witness testimony, then the prosecution will have the chance to cross examine. At the end both sides will give their closing arguments and the jury or judge will decide whether the defendant is guilty or not guilty. The jury must find the defendant guilty beyond a reasonable doubt.

It is important that criminal defendants understand their rights throughout the case. Some important rights the defendant ought to be aware of are:

  • In a criminal trial the defendant has the right to remain silent. This holds true throughout the entire case beginning with the arrest. The defendant cannot be forced to speak at trail and serve as a witness or testify in their own case.
  • The defendant has a right to confront witnesses. This means that any witness offering incriminating testimony must appear in person in court and is subject to cross-examination by the defense. The prosecution cannot introduce written or oral hearsay statements from non-testifying witnesses. One exception to this rule involves child sexual assault cases where the child may be too scared to testify in front of the defendant. In this situation children are allowed to testify via closed-circuit television where the defendant can see the child on a screen but the child cannot see the defendant.
  • The defendant has a right to a trial by jury unless the case is a petty offense with less than six months of possible jail time. In California, a unanimous verdict is required in order to convict or acquit a defendant. If the jury cannot come to a unanimous agreement it is called a "hung jury" and the defendant will go free unless the prosecution decides to retry the case.
  • The defendant has the right to a speedy trial. In California, the trial for misdemeanor cases must begin within 45 days of arraignment or plea (whichever is later) and felony cases must begin within 60 days of arraignment or plea (whichever is later). In both misdemeanor and felony cases, the defendant may waive the right to a speedy trial but they should consult attorney before they do so.
  • The defendant has the right to be represented by an attorney. If the defendant cannot afford an attorney, a judge must appoint an attorney at government expense.
  • The defendant has a right to adequate representation, meaning whether the defense attorney was hired or appointed, the defendant is entitled to have a lawyer who does a reasonably good job at defending the defendant. If the defendant does not feel they were adequately represented they may present their case to an appellate court to throw out their guilty verdict. The appellate courts rule depending on particular facts of the case and certain claims may be approved in one situation and rejected in another.
  • The defendant has a right not to be placed in double jeopardy. This means that a defendant cannot be put on trial more than once for the same offense. However, it is lawful for a defendant to be tried for the same conduct by different sovereigns if the offenses varied between state and federal laws. Moreover, a defendant may be tried once in criminal court, but also once in civil court for the same offense.
  • The defendant has a right to a public trial. Sometimes the defendant can waive their right to a public trial but they can't force their trial to be private. Public trials are beneficial for ensuring the trial is fair, holding the criminal justice system accountable, encouraging witnesses to come forward, and discouraging perjury. Exceptions to public trials might be made if there is an issue of safety, privacy, decency, or sensitive information.

The sentence for a crime depends on whether the crime committed was an infraction, misdemeanor, or felony. Infractions are the least serious offenses and are punishable by fines or possible probation but they cannot result in jail time. It is for this reason that defendants charged with an infraction do not have the right to a trial by jury and do not have the right to an appointed attorney, although they may hire an attorney on their own accord. Misdemeanors are criminal offenses that can result in up to a year in jail as well as a possible fine, probation, community service, and restitution. Felonies are the most serious offenses and they can result in time served from one year to life in prison without parole or even the death penalty depending on the severity of the felony offense.

In minor misdemeanor cases where the defendant pleads guilty (or no contest) or is found guilty in trial the judge may give the sentence immediately. The sentence will also be quickly determined in misdemeanor or felony cases where a plea bargain was agreed upon beforehand. If there is the possibility for significant incarceration (whether it's a misdemeanor or a felony case), the judge will likely not impose a sentence until after a separate sentence hearing. The sentencing hearing may not take place until some days or even weeks later. A probation officer will prepare a sentencing report based on statements from the victim and an interview with the defendant. The report will then be approved by the judge. To try and achieve the least offensive sentence defense lawyers may research possible alternatives to prison (such as a treatment center or home detention). They may meet with the probation officer before the defendant to provide them with helpful information, or seek a private presentence report which are often written by retired probation officers. They may also prepare a written statement in mitigation of the crime presenting reasons the defendant should receive a lighter sentence as opposed to a harsher one.

First-time offenders committing low-level offenses may be able to evade the normal criminal-case process in favor of counseling or some variety of a diversionary program. The programs will typically focus on counseling, treatment, and behavior modification.

Probation is a program that the criminal justice system uses to keep tabs on defendants rather than implement harsher punishments. If the defendant is sentenced to serve time, it is possible their sentence could be suspended in favor of probation. Sometimes the defendant may be able to bypass any time served in favor of probation alone. Probation conditions upon obeying all laws, abiding by any court orders (e.g. paying a fine or restitution), reporting regularly to a probation officer, reporting any change of employment or change of address, abstaining from excessive use of alcohol or use of illegal drugs, refraining from travel outside of the jurisdiction, and sometimes avoiding certain people or places.

If a defendant is sentenced to serve time in prison, they may eventually become eligible for parole. Parole is a conditional release from prison before the entire sentence has been served. Decisions to grant or revoke parole are made by a parole board. When the parole board is deciding whether or not to grant parole to a prisoner, they take into consideration the severity of the original offense, sentencing recommendations that affect parole, the prisoner's behavior while incarcerated, statements submitted by victims, and a prisoner's chance for successful reintegration into the community. If a prisoner is not granted parole, they may appeal to a court or to a board of appeals within the parole agency.

Three strikes laws are also known as habitual offender laws. These laws increase prison sentences for repeat offenders that have been convicted of serious or violent felonies. In California, a misdemeanor that is elevated to a felony because of the defendant's criminal record can actually count as the third strike. Crimes that are considered violent or serious and count toward the three strikes laws are murder, voluntary manslaughter, rape, any felony in which the defendant personally causes great bodily injury, kidnapping, robbery, carjacking, selling drugs such as heroin and cocaine to a minor, or any felony punishable by death or life imprisonment. Any attempt to commit the previously listed crimes also count as a strike to the three strikes laws.

Appealing a conviction is possible for defendants who think they've been wrongfully convicted. Following a conviction, a defendant can appeal or seek writ, which means asking a higher court to reverse a conviction. The defendant can only appeal on the argument that there was not enough evidence to justify the verdict, or that there were mistakes of law during or before the trial that were substantial enough to harm the case. The defendant must file a brief explaining that certain errors in trial warrant a reversal of a conviction. However, not every error at trial warrants a reversal of a conviction. The errors must be substantial enough that the trial was no longer considered fair. It is the appellate courts responsibility to determine whether the errors committed at trial were detrimental enough to harm the fairness of the trial overall.

If the defendant argues that there was not enough evidence to justify the verdict, the appellate court will review the record and determine whether or not the evidence was significant enough to support the verdict. If the defendant appeals because of there were mistakes of law during their trial, the appellate court may hold a hearing to hear arguments from both sides. An appellate lawyer will file an opening brief on behalf of their client (the defendant). This brief will include specific parts of the trial transcript and exhibits. The appellate lawyer may also include statutes and previous court opinions regarding similar legal issues. The appellate lawyer will apply the same reasoning used in earlier court decisions to the circumstances of their present case to make their argument.

An appeal may be filed following the final verdict of the judge or jury. A notice of appeal announces the defendant's intent to appeal and must be filed very soon after the final judgment. In California, a notice of appeal must be filed within 30 days if the case is a misdemeanor or within 60 days if the case is a felony.

A writ is an order from a higher court to a lower court and is only allowed when there is no option for an appeal. For example, if there is newly discovered evidence then the issue goes beyond the trial record and a defendant may obtain a writ of habeas corpus.

The Writ of Habeas Corpus is also known as "The Great Writ," and it essentially calls upon a higher court for help. It can be used to reduce or set bail, speed up an arraignment, contest denial of a jury trial, challenge a conviction, contest prison overcrowding, exonerate a convicted defendant, etc.

A grant of clemency is also known as a pardon. A state's governor has the authority to pardon individuals convicted of a state offense and the President of the United States has the authority to pardon individuals convicted of federal crimes.

Compassionate release allows for the release of prisoners for whom death is inevitable and forthcoming, so that they may die surrounded by family and friends, rather than in prison.

Temporary release allows for prisoners to leave prison for a short time in order to deal with personal matters. Prisoners granted temporary release are normally considered nonviolent, have had good behavior while in prison, have a minimal record of criminal behavior, and are certain to return to prison following the terms of their leave.

Prison inmates lose many of their civil rights. However, they do retain basic freedoms such as freedom of speech, religion and equal protection of law. They also have the right to basic, minimum living standards.

Courts determine whether prison conditions are considered cruel and unusual based on the nature of the conditions themselves. The conditions must be considered hazardous or oppressive. Some examples include: overcrowding, lack of personal hygiene supplies (e.g. soap and water), unsanitary food preparation, nutritionally inadequate food, lack of access to medical treatment and poor medical care, failure to protect prisoner's physical safety, substandard shelter, unsafe building conditions, inadequate facilities for prisoners in solitary confinement, lack of opportunities for physical exercise, inadequate opportunities for access to the courts.