Criminal Process

Criminal Process in the United States

An overview of the criminal process prompts two general observations. First, while the criminal process operates within the framework of established rules and procedures, those who function in the process possess substantial discretion. Discretion allows an official to make choices among possible courses of action. As a consequence of discretion, the people who work in the criminal justice process influence the ways the procedures actually work. Second, the personnel who perform functions in the criminal courts interact in an ongoing and frequent fashion. These people—judges, prosecutors, defense counsel, and court support staff—are often referred to as the courtroom workgroup. It is important to recognize that while these officials have different roles to play, the dynamics of frequent interaction tend to produce common or shared goals, with a resulting mutual dependence rather than independence.

The formal procedures for handling federal and state criminal cases tend to be similar because federal constitutional restrictions have been extended to state proceedings. As a result, it is possible to generally represent the path a criminal case will follow. The formal steps serve as the overarching structural framework, but each is subject to informal influences flowing from the exercise of discretion.

The impact of discretion can readily be seen at the entrance to the criminal process where two pivotal decisions are made: the police decision to arrest and the prosecutorial decision to charge. While the decisions to arrest and charge are subsequently reexamined at later stages of the process, the decisions not to arrest or charge are seldom scrutinized. The police decision not to arrest may, for example, result from the perception that the public does not want full enforcement of certain laws, especially those covering “victimless” conduct. The police may also choose not to arrest someone in exchange for information from that person. Prosecutors may use their charging discretion to terminate a case that has little likelihood of yielding a conviction or that suffers from some evidence defect.

The criminal process is formally triggered by the arrest. A complaint is subsequently filed by the prosecutor if there is sufficient cause to believe a defendant committed a crime. Within hours of arrest, the defendant must appear before a judicial officer and be informed of the charges. Such constitutionally protected rights as assistance of counsel and pretrial release must also be considered at this time. Before a criminal defendant is tried, the state must establish a prima facie case before a neutral party, either a judge, magistrate, or grand jury. This step is designed to protect the individual from arbitrary and groundless charges. If the state can establish probable cause to believe the accused committed a crime, he or she then becomes a defendant and is “bound over” or moved along to the trial stage. The decision to bind over may occur at the conclusion of a preliminary hearing, may come in the form of a grand jury indictment, or may result from the information process.

An arraignment typically follows the binding over of a defendant. The arraignment is used to assess the status of a case, review legal options, and obtain a formal response for the record from the defendant. It is at this juncture that plea negotiations often occur in earnest for felony cases. Almost 90 percent of all criminal cases reaching the trial stage are concluded by the defendant pleading guilty. The remainder are tried by judge or jury. In addition to broad constitutional provisions, criminal trials are conducted under intricate procedural and detailed evidentiary rules. The criminal case concludes in one of two ways. The verdict may be to acquit. In that case, the defendant is free to go. A conviction, on the other hand, prompts commencement of the sentencing stage, a step in which the judge’s discretion is the ultimate authority. A defendant who stands convicted is entitled to pursue whatever avenues of appeal are available. The question of innocence or guilt, however, cannot be reopened, but any error in the way the case was handled from arrest to conviction can be reviewed and overturned on appeal.

Notes and References

  1. Definition of Criminal Process from the American Law Dictionary, 1991, California

Criminal Process: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Criminal Process. This part provides references, in relation to Criminal Process, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Criminal Process by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Criminal Process and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Criminal Process or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Criminal Process and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Criminal Process. Finding these decisions can be challenging. In many cases, researchers about Criminal Process should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Criminal Process when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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