Before exploring the details of criminal procedure, let ‘s look
at a quick overview of the steps of the process. The process works differently
In different states and the federal system, and not every case proceeds through
the system In the same way. but this description Is a good approximation of the
path of a typical case.
The criminal process begins, of course, with a crime, or. more
accurately, the suspicion of a crime by the authorities. A 7-11 convenience
store Is robbed, and either a police officer witnesses the crime or. more
commonly, the victim (here the owner) reports the crime to the police. The
first step Is for the police to Investigate the crime: Interview potential
witnesses, look at the security camera videotape, collect other evidence from
the crime scene, and compare this crime to similar Incidents. The Investigation
may focus suspicion on an Individual—call him Buggsy—and the police might
question him. They might stop him on the street, or go to his home, and
temporarily detain him to conduct the questioning. If the 7-11 was held up by
an armed robber, or If they have other reasons to suspect Buggsy might have a
gun. the police might frisk him—pat down his clothing to make sure he Is not
concealing a weapon that could Immediately endanger them. These kinds of
encounters with the police can be annoying. Intrusive, or even harassing, but
they are permitted as steps short of arrest or taking someone Into custody.
In other types of cases the Investigation may be more complex.
In a homicide, for example, the scientific Investigation of the crime scene may
be more extensive, and an autopsy will be performed on the victim. Informants,
wiretaps, and even sting operations may be used In Investigating more complex
criminal enterprises.
From this point on. several screens are applied to determine
whether Buggsy will be formally brought Into the criminal process and. once he
Is In It. whether he will be able to get out. (As long as Buggsy remains In the
system, the Investigation of the crime may be ongoing: the police and
prosecutors may gather further evidence to be used against him at trial.) Once
the investigating officer is satisfied that there Is probable cause to believe
that Buggsy held up the 7-П. he will arrest him. Buggsy will be taken Into
custody (except In the case of very minor offenses) and booked by having his
name and other Information recorded, being fingerprinted and photographed,
searched, and locked up (again, except for certain minor offenses, for which he
will be released and told to appear before a judge at a certain time).
The next step is to determine whether to formally charge Buggsy
with a crime, and. if so. which crime. Charging is normally done through the filing
of a complaint, a document that sets forth what offense Buggsy has been charged
with and the facts underlying the charge. The charging decision is typically
made by a higher ranking police officer, a prosecutor, or both. The person
making the charging decision might decide not to charge or to charge Buggsy
with a different crime for a number of reasons. He might decide that the matter
can be better handled In another way; if Buggsy Is a kid who has stolen a
candy bar from the 7-1 i. for example, the police may release him to his
parents with only a stern lecture. Or he might decide that the arresting
officer’s determination of the charges was incorrect: depending on what kind of
weapon Buggsy had and how much he stole, the charges might be increased or
reduced accordingly.
After Buggsy is charged, his status changes from arrestee to
defendant, and the focus shifts from the police station to the court system.
Shortly after the charge Is filed, the defendant Is brought before a judge
(often a lower-level magistrate) for an Initial appearance. Most jurisdictions
Impose a time limit on how long a defendant can be held (often 24 hours) before
being brought before a judge. At the first appearance, the Judge will Inform
Buggsy of the charges against him and will advise him of his basic rights, such
as the right to remain silent and the right to counsel. If Buggsy Is Indigent,
the Judge will take steps to have a free attorney provided for him. The Judge
will also set ball. The amount set will depend on the seriousness of the crime.
Buggsys background, and the perceived risk that he will fall to appear for
trial. If the defendant cannot make ball, he remains In Jail awaiting trial. In
many cases the Judges will release the defendant on his own recognizance, not requiring
any ball at all.
Following the Initial appearance, a defendant In a felony case
may be entitled to a preliminary hearing. In misdemeanors (minor crimes) the
preliminary hearing and some other Intermediate steps usually are not
necessary. The preliminary hearing Is the first Independent review of the
charges by a Judge, who must determine whether probable cause exists that the
defendant committed the crime charged. The prosecutor presents witnesses to
establish the basic elements of Its case, and Buggsy s defense attorney can
cross-examine those witnesses and even present defense witnesses, although for
tactical reasons that opportunity Is seldom taken. If the Judge determines that
there Is sufficient cause to hold the defendant, the case proceeds: If not. the
case may be dismissed, unless the prosecutor Is able to file reduced charges
that are supported by the evidence.
The traditional means of giving further review to felony charges
Is by the grandJury, which decides whether there Is sufficient evidence to
Indict the defendant. The prosecutor can also use the grand Jury as an
Investigator body before bringing charges. The grand Jury, like the trial (or
petit) Jury, brings laypeople Into the criminal process as decision makers. The
grand Jury proceeding Is secret, and only the prosecutor presents evidence.
Witnesses brought before the grand Jury are not allowed to be assisted by
counsel during their testimony. Accordingly, the grand Jury ‘s historic
function of reviewing the prosecutor’s case and screening out unsupported cases
has significantly declined. As the saying goes, a competent prosecutor can
persuade a grand Jury to Indict a ham sandwich. In many Jurisdictions, there Is
no longer a requirement that the grand Jury review the charges.
If the grand Jury has Indicted, the Indictment Is filed with the
court. Where grand Jury review has not occurred, the prosecutor files a
comparable document known as an Information. Like the complaint, the Indictment
or Information lays out the charges against the defendant and the factual basis
for them. Buggsy Is brought back to court and arraigned on the Indictment or
Information. At the arraignment, he Is again Informed of the charges and asked
to plead either guilty or not guilty. Here (or sometimes earlier, sometimes
later) plea bargaining enters the picture: Buggsy may decide to plead guilty In
exchange for reduced charges or favorable sentencing.
A defendant who pleads not guilty looks ahead to the trial.
Before the trial, however, the defense attorney may make a series of procedural
or substantive motions to the court. Typical procedural motions will challenge
some defect In the charging process. The most Important substantive motions
concern discovery of the prosecution’s case and suppression of evidence. Buggsy
has a right to know what evidence, favorable and unfavorable, the prosecutor
has against him prior to trial, so that a defense can be better prepared. If
there were defects In the process of collecting evidence, such as an
Interrogation of Buggsy without adequate warning of his constitutional rights,
the defense can make a motion to have the evidence excluded from the trial.
The formal centerpiece of the criminal process Is the trial. The
defendant has a right to a Jury trial In felonies and In serious misdemeanors,
although the right can be waived so the case will be tried to a Judge (called a
bench trial). If the defendant Is acquitted, the case Is over. If he Is
convicted, the Judge or Jury, as directed by statute, will determine the
sentence—the punishment that Is to be applied.
The trial Is hardly the end of the story. The defendant has a
right to appeal, to ask a higher court to review the trial for errors. (If the
defendant Is acquitted, the prosecution cannot appeal, because of the
constitutional prohibition on double Jeopardy.) If errors are found, the
defendant may be entitled to a new trial. Even after the normal appeals are
concluded, the convicted defendant can pursue collateral postconvlctlon
remedies. Often the defendant will petition a federal court, alleging some
constitutional error In the trial, even If the trial Initially was In state
court.
Advokat
Vidar Borgersen
Ideally, you have to consult a qualified legal professional if
you’ve got any question regarding how a certain law applies to your situation.
We have a very complex law and there are many ways to interpret it. An attorney
can give you legal information through careful research. The lawyer can
help you research past cases that may be applicable to your situation. This
expertise is essential when it comes to the interpretation of the law. It can
provide you with an insight that is favorable to you.
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