What Happens In a Criminal Case

A fellow writer asked me for an overview of what happens during a criminal prosecution. Those questions pop up from time to time, so I thought I'd include the overview here. I won't be taking follow-up questions due to my own time constraints, but this might be enough for you to come across sounding knowledgeable in your own writing. As always, this is not legal advice. You get legal advice by hiring and paying a lawyer. This is simply informational and is meant only as an overview of what generally happens in American criminal courts. So here we go:


Criminal Procedure

Two classes of crimes based on severity: felony and misdemeanor. A felony is any crime punishable by incarceration for over a year. Served in state prison. Misdemeanors are any crime punishable by up to one year in jail, usually local county jail.

How prosecution begins
Prosecution of a citizen begins with either a criminal complaint being filed, usually signed by a police officer; or with an indictment issued by a grand jury. If by complaint, then a preliminary hearing must be held in order for the judge to determine whether there’s probable cause to hold the defendant for trial or not. If by indictment, no need for preliminary hearing as probable cause is already established by the issuance of the indictment by the grand jury. Grand jury proceedings are secret and no defense lawyer is allowed inside. 

Pre-trial court appearances
After indictment or criminal complaint the defendant is arrested and brought before the judge in what’s called the initial appearance. At this time the judge does or doesn’t set bail. In most states bail is always allowed except where the defendant is a danger to others and “the proof is evident and the presumption (of guilt) is great.” If defendant can’t pay bail, he goes to jail. If he can pay bail he’s released but usually can’t leave the state. Following initial appearance there’s next an arraignment, in which the defendant attends and is apprised by the court of the charges against him and a plea is taken guilty/or not guilty. A defendant has a constitutional right to have a lawyer present during the IA and the Arraignment. If he can’t afford one, the public defender is appointed.

Trial is set. The right to a speedy trial is also guaranteed by the constitution. 

Trial begins
Jury selection happens. Each side is given what are called peremptory challenges, usually around six each. These allow me to kick you off the jury for any reason. There are also unlimited challenges for cause. “Cause” means a potential juror is biased and should be excused. Cause can also be physical frailties (hearing deficits, kids at home etc).

Next, opening statements are made, the state going first and the defense going second. Opening statements are limited in scope to what each party expects the evidence to prove. Argument is not allowed at this time.

    Introduction of Evidence:
The state goes first. The state has the burden of proving the charges in the complaint or indictment beyond a reasonable doubt. Then the defense puts on its case. The defendant is not required to testify because he has a Fifth Amendment right to remain silent. This is usually the case; the defendant does not testify. The jury takes notes. The jury is the decider of the facts, e.g., was the light green or red? Who's telling the truth and who's lying. Guilty or not guilty? (There is no such finding of “innocent.” Only not guilty). 

At the close of all the evidence, closing arguments are made. Now is the time for argument. The state goes first. 

Then the court reads instructions on the law to the jury. The jury then takes the instructions and exhibits into the jury room to deliberate. Guilt must be unanimous. 

If found guilty, the defendant has a constitutional right to appeal. 

Additional insights 

In criminal law there are two kinds of law. Procedural law and substantive law. Procedural law is such things as rules of evidence and rules of procedure. Substantive law is the law that spells out the elements of a crime. When a lawyer objects in court to testimony, the objection is based on rules of evidence and is procedural, but it may cover areas of the law that are substantive, e.g., where the prosecution is offering proof of something that isn’t one of the elements of the crime charged the defendant would object based on relevance and/or materiality.

  • October 31, 2016
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