This article is meant to provide a general overview and step-by-step procedural guide from the inception of a criminal matter to its conclusion. It is emphasized that this provides a generalized overview of the progression of a criminal matter as it, as well as the would-be defendant, travels through what is more commonly known as "the system".¹

To afford you one caveat before the journey begins, this overview does not and is not intended as a substitution for legal counsel in a criminal matter and is not a reflection of the particularities specific to any jurisdiction, be it Federal, State, County, or otherwise.

II. A CRIME IS REPORTED OR DISCOVERED.

The most common-sensical and given step in the process occurs when the crime is reported or discovered. A crime can be reported or discovered in a variety of ways, such as: victim call-ins, police observation while on patrol, and investigation or intelligence work. These crimes span from the most violent, such as murder or rape, to the lesser misdemeanor charges. The amount and type of investigation will depend greatly upon the specific crime involved.

III. PRE-ARREST INVESTIGATION.

Although, the more commonly-known arrest occurs at the "scene of the crime", when the officer has either observed the criminal activity or has received information from a witness or victim of the activity, often times the police or law enforcement agency will conduct investigations prior to making a formal arrest. These pre-arrest investigations can include procedures used to solve specific past crimes, procedures aimed at anticipated crimes, or procedures to secure witness testimony and statements or documents and things through use of a subpoena. When the investigation is concluded, if it has developed sufficient information to justify an arrest, ("probable cause"), the law enforcement agency takes the next step in criminal justice and arrests the suspect(s).

IV. THE ARREST.

An arrest is the act of taking a person into custody for the purpose of charging him with a crime. This involves detaining the suspect, transporting him to a police facility and requesting that charges be filed against him. This type of custodial arrest is what is commonly thought of when the term "being arrested" is used; however, there are alternatives to the custodial arrest that are used for minor offenses to temporarily detain the suspect, who is issued a citation or notice to appear in Court and directed to respond to the charges.

If no immediate need to arrest a suspect exists, an officer may, upon a showing of probable cause, obtain a warrant from a Magistrate prior to making an arrest and taking the person into custody. However, the more widely-known arrest occurs without a warrant and is sought based on the officer's own observation of the criminal activity and the establishment of probable cause.

V. SEARCHES, BOOKING & LOCK-UP.

Immediately after an officer makes an arrest, the officer will usually search the suspect and remove any weapons, contraband or evidence pertaining to the criminal charges. If the suspect was operating a vehicle at the time of the arrest, the officer may also search the passenger compartments of the vehicle for the same items. At this point, the suspect is transported to and held at a police facility, where the "booking" process occurs.

"Booking" is administrative in nature and begins when the arrestee’s name and time of arrival are logged in the police records on a "blotter". At this time, the arrestee will likely be photographed and fingerprinted for identification. If ever there was a time to post bail; this is it.

Once the suspect is locked up for a minor offense, the arrestee, in some circumstances, may gain release by posting a cash security deposit. However, people who are arrested for more serious offenses and those who lack the financial resources to post the required amount will remain at the holding facility until they appear before the Magistrate. If the arrestee remains, he will likely be subjected to another search, which is designed to create an inventory of his personal belongings and prevent any contraband from entering the holding cell ("lock-up") area in which he will stay.

VI. POST-ARREST INVESTIGATION & INVENTORY.

Often, after an arrest, an additional investigation including a search of the person (and possibly the vehicle, if he was driving) may be necessary, depending upon the level of crime involved. These additional investigations can include a variety of things, for example: witness interviews, line-ups, photograph directory identification, and perhaps the taking of handwriting and hair samples.

VII. DECISIONS TO CHARGE, THE COMPLAINT & MAGISTRATE REVIEW.

Charging a suspect with a crime begins with the officer’s decision to make an arrest; but, it does not end there. Once the arrest occurs, the suspect awaits his appearance before the Magistrate. During this time, usually 24-48 hours, the police scrutinize the arresting officer’s decision to charge. If the pre-filing charge evaluation leads to prosecuting, the charges are formally filed with the Magistrate Court and the initial charging instrument is referred to as a "Complaint". Once the Complaint is filed, the arrestee has officially graduated to the position of criminal defendant.

If the charges are misdemeanor in nature, the Complaint will likely be used throughout the entire proceeding. This is a significant divergence from a felony case. When felony charges are brought, the Complaint will only act as a concise statement of the allegations against the defendant and will later be replaced by an "Information" or "Indictment."

If the arrest leading to the Complaint was made without a warrant and the Complaint was filed with the Magistrate Court, the Magistrate will conduct a "Gerstein review" to determine the existence of probable cause, pursuant to the United States Supreme Court holding in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854 (1975).

Alternatively, if the arresting officer obtained a warrant, and thus made a showing of probable cause prior to the arrest, then the “Gerstein review” is not required.

VIII. PRELIMINARY ARRAIGNMENT & PRELIMINARY HEARING.

Once the case is before the Magistrate Court, the defendant must appear. This initial appearance is fairly brief. At this time, the Court verifies the Defendant's identity and makes an offering of information to him such as: the nature of the charges, the defendant’s rights, and in the case of a felony, the date scheduled for the preliminary hearing and defendant’s right to waive it.

In the case of a misdemeanor, no preliminary hearing is offered. At this stage, the defendant will enter a plea of guilty or not guilty. If a not guilty plea is entered, the Court will set a trial date. If a guilty plea is entered, the Magistrate will begin the processes of accepting the plea and imposing a sentence.

In the case of a felony, a preliminary hearing is held (if not waived by defendant), where a neutral body will determine if probable cause exists based on the evidence. This, unlike the previous proceedings, is adversarial in nature and allows both parties (the State and the defendant) to present evidence.

IX. INDICTMENTS, INFORMATION & ARRAIGNMENT.

The next phase of the procedure with regard to a felony involves either a Grand Jury Review or the filing of an Information, depending upon jurisdictional requirements. Even though most jurisdictions authorize the Grand Jury screening of felony charges, that screening is only mandatory in jurisdictions requiring felony prosecutions to be instituted by an Indictment. In other jurisdictions, the prosecution may choose to proceed by using an Information, which is a charging instrument issued on the authority of the prosecutor.

Whether an Indictment is issued or the prosecution proceeds by Information, the Indictment or Information will replace the Complaint as the accusatory instrument in the case and will be filed with the Trial Court. After the Indictment or Information is filed, the defendant is brought before the Trial Court, where he is informed of the charges against him and asked to enter a plea of guilty, not guilty, or perhaps, nolo contendere. This process is known as the “Arraignment.”

X. PRE-TRIAL MOTIONS, TRIAL, SENTENCING & POST-TRIAL RELIEF.

In many jurisdictions, a broad span of objections can be raised in pre-trial motions, which challenge the prosecution’s case and attack the sufficiency of the charges. These Motions can also request the disclosure of the prosecution's evidence and/or the suppression of evidence, as well.

Provided that the charges have not been dismissed and the defendant has not entered a guilty plea or a plea of nolo contendere, the next step in the process is the criminal trial. Most people are familiar with general trial procedures such as: opening and closing statements, direct and cross-examinations and the presentation, introduction and admission of evidence. However, the criminal trial maintains several distinguishing features that are unique and have special importance including: the presumption of the defendant’s innocence until proven guilty; the more stringent burden of proof "beyond a reasonable doubt"; the defendant’s Fifth Amendment right to not testify or incriminate himself; and the exclusion of evidence that was illegally obtained by the prosecution. The length of the trial will vary depending upon local practice, jury selection, and the type of crime involved.

If a defendant is convicted, the Court will sentence him.² Generally, there are three types of sentences that may be imposed: financial sanctions (monetary fines); release into the community (probation, house arrest); or incarceration at a security facility (jail, prison).

Once the case has been disposed of and sentencing has occurred, the defendant has the option of making an additional plea to the Court, known as an Appeal. If the Magistrate Court heard the case and is considered a Court of Record in that jurisdiction, the appeal will be presented to the General Trial Court. If the case was disposed of by the General Trial Court, the initial appeal will be to the intermediate Appellate Court, if one exists. If one does not exist, then the initial and final appeal within the state system will be to the state’s court of last resort.

Once the appellate process is exhausted, the defendant may have another avenue to pursue, which is commonly referred to as "post-conviction relief." These remedies challenge the prisoner’s convictions; but, can only be brought on limited grounds.

For more information, please contact John F. Doherty at jfd@jgcg.com.