Overview of the Criminal Justice Process

Overview of the Criminal Justice Process

Chapter 2: Overview of the Criminal Justice Process




After study of this chapter, students will understand the following.

LO1:The procedures used when processing suspects and defendants can be divided into three stages: before trial, during trial, and after trial.

LO2:Before trial, the procedure follows this sequence: filing of the complaint, arrest, booking, appearance before a magistrate, setting of bail, preliminary examination, decision by the prosecutor to charge, grand jury indictment or the filing of an information by the prosecutor, arraignment, and plea by the defendant.

LO3:The procedure during trial starts with the selection of jurors, followed by opening statements, the presentation of the cases for the prosecution and the defense, rebuttal evidence, closing arguments, defense motions prior to the verdict, the judge’s instructions to the jury, jury deliberation, and a verdict of guilty or not guilty.

LO4:The two main procedures after trial are sentencing and appeal.

LO5:Even while a defendant is serving time in jail or in prison, access to the court is always available by way of a habeas corpus petition.

LO6:Although criminal procedure is governed by the Bill of Rights, procedures differ from one jurisdiction to another.


  1. Introduction
  2. The Procedure before Trial
  3. Filing of Complaint
  4. The Arrest
  5. Booking at the Police Station
  6. Initial Appearance before a Magistrate
  7. Setting Bail
  8. The Preliminary Hearing
  9. The Decision to Charge
  10. Indictment vs. an Information
  11. The Arraignment
  12. The Plea by the Defendant
  13. Plea Bargains
  14. The Procedure during Trial
  15. The Selection of Jurors
  16. Opening Statements by the Prosecution
  17. Opening Statements by the Defense
  18. Presentation for the Prosecution
  19. Presentation for the Defense
  20. Rebuttal Evidence
  21. Closing Arguments
  22. Defense Motions before the Verdict
  23. Instructions to the Jury
  24. Jury Deliberation
  25. The Verdict
  26. The Procedure after Trial
  27. Imposition of Sentence
  28. Appeal
  29. Habeas Corpus
  30. Procedural Differences in Jurisdictions
  31. Application to Felony Cases
  32. Variation among States
  33. Variation within a State
  34. Theory versus Reality


  • The Procedure before trial is the first of the three stages of criminal procedure.
  • Filing of complaint. By offended party or a police officer.
  • Arrest. With or without a warrant; sometimes a citation or summons is used instead of an arrest.
  • Booking. Recording the suspect’s name, time of arrest, and offense; inventorying belongings; photographing and fingerprinting.
  • Appearance before a magistrate without unnecessary delay. Accused is made aware of his or her rights.
  • Bail. Set by the magistrate, or the defendant is released on his or her own recognizance.
  • Preliminary examination. Usually held for determination of probable cause, discovery purposes, or determination to bind over.
  • Decision to charge. Prosecutor has the discretion to charge or not to charge.
  • Indictment or information. Indictment—a charge made by the grand jury; information—a charge filed by the prosecutor; an indictment is required in most states for serious offenses.
  • Arraignment. Accused appears before a judge, is informed of the charges, and is asked for a plea.
  • Plea. Nolo contendere, not guilty, or guilty.
  • The Procedure during trial is the second of the three criminal procedure stages.
  • Selection of jurors. Use of voir dire; types of challenges are for cause and peremptory.
  • Opening statements. By prosecution and defense, both summarizing the evidence they will present and their version of the case.
  • Presentation by prosecution. Offers evidence supporting the charge.
  • Presentation by defense. Offers evidence for the accused.
  • Rebuttal evidence. Evidence presented by either side to destroy the credibility of witnesses or evidence presented by the other side.
  • Closing arguments. By the prosecution and then by the defense.
  • Judge’s instructions to jury. Includes the elements of the offense charged and the caution that each element must be proved beyond a reasonable doubt.
  • Jury deliberation. Jurors may be sequestered at the option of the judge
  • Verdict. Pronouncement of guilt or innocence.
  • The Procedure after trial is the last of the three criminal procedure stages.
  • Sentencing. Punishment handed down by judge or jury.
  • Appeal. Allowed within a certain period of time.
  • Habeas corpus. May be filed any time during incarceration; the petitioner seeks release from incarceration, alleging that the incarceration is illegal or unconstitutional.


  • Alfordplea—defendant pleads guilty but still maintains innocence.
  • Arraignment—proceeding where defendant is officially notified of charges, rights, etc.
  • Arrest—taking a person into custody for an alleged offense.
  • Bail—security given by accused to secure release from jail with promise to return for trial.
  • Benchwarrant—order issued by a judge from the bench to take a person into custody.
  • Bifurcated procedure— a trial in which the guilt-innocence stage and the sentencing stage are separate.
  • Capias—an order to take a person into custody issued by a judge, or in some circumstances a court clerk.
  • Challengeforcause—attempt to eliminate a potential juror by alleging the juror is unfit in some respect to serve.
  • Citation—an order by a judge or police officer to appear and answer charges at some future time.
  • Complaint—a document by a police officer or citizen alleging that a person has committed a crime and seeking an arrest warrant.
  • Grandjury—group of citizens summoned to hear evidence against suspects and decide if an indictment will be issued.
  • Habeascorpus—writ to challenge the legality of any type of custody of a person.
  • Harmlesserror—doctrine that new trial does not have to be granted for errors because result would not change.
  • Hung jury—jury that cannot reach a verdict.
  • Indictment—formal charging document issued by a grand jury.
  • Information—formal charging document issued by a prosecutor.
  • Jury nullification—jury decides a case contrary to the evidence and/or law.
  • Nolo contendere—literally means no contest. The defendant accepts the penalty without admitting guilt.
  • Peremptory challenge—challenge to a prospective juror that does not require a reason.
  • Pleabargain—the process in which a defendant agrees to plead guilty to an offense in exchange for a lower charge, a lower sentence, or other considerations.
  • Preliminaryexamination—a hearing held for the purpose of determining whether there is probable cause to believe that the defendant committed the felony with which he or she is charged.
  • Primafaciecase—a case that has sufficient evidence to establish guilt, a defense, etc.
  • Verdict—a judge or jury’s decision on guilt or innocence.
  • Voirdire—a process by which potential jurors or witnesses are questioned.

HOLDINGS OF LEADING CASES(URL provided when available)

Apodaca v. Oregon, 406 U.S. 404 (1972) State laws providing for a less-than-unanimous vote for conviction are constitutional, at least in the case of a required 10-to-2 vote.

Ballew v. Georgia, 435 U.S. 223 (1978) Five-person juries are unconstitutional because they would not provide effective group discussion; would diminish the chances of drawing from a fair, representative cross-section of the community; and might impair the accuracy of fact-finding.

Boykin v. Alabama, 395 U.S. 238 (1969) When a defendant pleads guilty, the record must show affirmatively that the plea was voluntary and that the accused had a full understanding of its consequences. Otherwise, the plea is invalid.

Brady v. United States, 397 U.S. 742 (1970) A plea of guilty that represents an intelligent choice among alternatives available to the defendant—especially when represented by competent counsel—is not involuntary simply because it is entered in the hope of avoiding the death penalty. If otherwise voluntary and informed, the plea is valid.

Burch v. Louisiana, 441 U.S. 130 (1979) Unlike those of twelve-member juries, the verdicts of six-member juries must be unanimous.

County of Riverside v. McLaughlin, 500 U.S. 44 (1991) Detention of a suspect for forty-eight hours without any probable cause hearing is presumptively reasonable. If the time to the hearing is longer than that, the burden of proof shifts to the police to prove reasonableness. But if the time to the hearing is shorter, the burden of proof to establish unreasonable delay rests on the person detained.

Duncan v. Louisiana, 391 U.S. 145 (1968) The function of a jury is to “guard against the exercise of arbitrary power.”

Hurtado v. California, 110 U.S. 516 (1884) Indictment by a grand jury is not a constitutional right.

Iowa v. Tovar, 541 U.S.77(2004) For a waiver by the accused of the right to counsel at the plea stage to be valid, it suffices that the trial court inform the accused of the nature of the charges, the right to have counsel regarding the plea, and the possible punishment that comes with such a plea.

Johnson v. Louisiana, 406 U.S. 356 (1972) A law providing for a 9-to-3 jury vote for conviction is constitutional.

Lockhart v. McCree, 476 U.S. 162 (1986)Removal for cause of jurors whose attitudes toward the death penalty would “prevent or substantially impair the performance of their duties at the punishment phase” is constitutional and does not violate the Sixth Amendment right of the accused to an impartial jury.

North Carolina v. Alford, 400 U.S. 25 (1979) A guilty plea is not invalid simply because the defendant does not admit guilt or even continues to assert innocence, provided that there is some basis in the record for the plea. All that is required for a valid guilty plea is a knowing waiver of the rights involved, not an admission of guilt.

Powell v. Nevada, 511 U.S. 79 (1992) The decision in County of Riverside v. McLaughlin, 55 U.S. 4413 (1991), which said that the detention of a suspect for forty-eight hours is presumed to be reasonable, is not retroactive.

Santobello V. New York,404 U.S. 257 (1971) Once the trial court accepts a guilty plea entered in accordance with a plea bargain, the defendant has a right to have the bargain enforced. Therefore, the judge must decide either to enforce the agreement or to allow the defendant to withdraw the guilty plea.

United States v. Powell, 469 U.S. 57 (1984) Juries have the power to engage in jury nullification.

United States v. Ruiz, 536 U.S. 622 (2002)The Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.

United States v. Salerno, 481 U.S. 739 (1987)Permits federal judges to deny pretrial release to persons charged with certain serious felonies, based on a finding that no combination of release conditions can reasonably ensure the community of safety from such individuals.

United States v. Williams, 504 U.S. 36 (1992)A district court may not dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury "substantial exculpatory evidence" in its possession.

Williams v. Florida, 399 U.S. 78 (1970)Most statesprovide for twelve-member juries in felony trials.

Witherspoon v. Illinois, 391 U.S. 510 (1968) Jurors cannot be removed, even if by state law, merely because of general scruples against capital punishment. A juror may be excluded “for cause” if it is “unmistakably clear” that he or she would automatically vote against the death penalty if sought by the prosecutor or if the juror could not be impartial in the determination of the defendant’s guilt.


1. Federal Criminal Resource Manual—Procedure 11: Pleas, U.S. Department of Justice,

U.S. D.O.J. website, Oct. 1997.


2. “Great Closing Arguments,” Jacob A. Stein, article on FindLaw website, June 2000.

3. “Steps in a Criminal Case,” Michigan Prosecuting Attorneys Coordinating Council, MPACC website, Nov. 2005.

4.TheProsecutor v. Stanislav Galic—Decision on Rebuttal Evidence, Apr. 2003, on United

Nations’ website.

5. Grand Jury Manual, U.S. Department of Justice, U.S. D.O.J. website.


6. American Jury Institute website

7. “More on What's Wrong with the Modern Jury: How Juror Selection Can Be Improved,” Vikram David Amar, column on FindLaw website, Feb. 2004.

8. “Federal Habeas Corpus Review: A Brief Overview,” Todd Maybrown, article on FindLaw website, Sept. 1999.

9. “Defendants' Incentives for Accepting Plea Bargains,” Nolo website.

10. “Persuasion at Trial: Opening Statements,” Jeffrey T. Frederick, originally published in

Defense Practice Notebook pp. 76-78 (1996), reprinted at National Legal Research Group website.


1.In Apodaca v. Oregon, 406 U.S. 404 (1972) (),the U.S. Supreme Court held that, under the Sixth and Fourteenth Amendments, states are not required to have unanimous verdicts in criminal cases. The Court seems to hint that both the government and defendant benefit equally from non-unanimous verdicts. Is this really true? Who benefits most from a hung jury? Given that the prosecutor has already screened out weak cases, isn’t a hung jury a victory for the defendant? Isn’t this “reform” of jury trials one that disproportionately benefits the government? Are state legislatures and governors going to approve reforms that will make it more difficult for prosecutors to get convictions? [LO3]

  1. After a conviction, a defendant may appeal a conviction. A number of results can occur when a defendant appeals a conviction. These include affirmation, reversal or reverse and remand. Explain each of the possible results and what they may mean to the defendant. Is the appellate process the best way to ensure justice? Why? Why not? What other options might work better? [LO4]


1.In Witherspoon v. Illinois, 391 U.S. 510 (1968), the U.S. Supreme Court held that jurors cannot be removedmerely because of general scruples against capital punishment, adding that a juror may be excluded “for cause” if it is “unmistakably clear” that he or she would automatically vote against the death penalty if sought by the prosecutor or if the juror could not be impartial in the determination of the defendant’s guilt. This holding was affirmed in Lockhart v. McCree, 476 U.S. 162 (1986). Discuss the effects of these rulings. How are the two cases similar? How are they different? Do you agree with the decision of the Court? Why or why not? [LO3]

2.Arguments can be made both for and against the grand jury system. Discuss the merits of such a system as well as the shortcomings of the grand jury system. [LO2]


Divide the class into two groups. Assign one group to be prosecutors and the other group to be defense attorneys. Further divide each side into smaller groups of 3-4 students each. Give each 3-4 person group of prosecutors a case description and provide matching case descriptions to each 3-4 person group of defense attorneys. Include enough details in the case descriptions to allow them to argue the case. Give the group some time to plan a strategy. Each group must present and argue a plea for the defendant in the case. You be the judge. [LO3]


MULTIPLE CHOICE (Correct answer is followed by *)

1.A citation is a/an:

a. order commanding a person to appear in court at a specific date and answer certain charges * [LO2, p. 36]

b. writ directed to a peace officer requiring them to notify the person about pending charges

c. process issued by the judge from the bench ordering that a person be taken into custody

d.document similar to an arrest warrant

2.Defendants are entitled to a lawyer at plea bargaining under the ______Amendment.

a. Fourth

b. Fifth

c. Sixth * [LO2, p. 47]


3.The person who decides and imposes sentences in most states is”

a. the judge or jury at the prosecutor’s option

d. a sentencing commission

c. the judge * [LO3, p. 31]

d. the jury

4.Which of the following is not a form of plea bargaining?

a.a defendant pleads guilty to the original charge in exchange for a reduced sentence

b.a defendant pleads guilty to a charge less serious than the original charge brought against him

c.a defendant pleads guilty while maintaining his innocence * [LO2, p. 45]

d.a defendant pleads guilty to one charge in exchange for other charges being dropped

5.The document that leads to the issuance of an arrest warrant is a:




d.complaint * [LO2, p. 32]

6.Criminal procedure is the process followed by the police and the courts in:

a.the punishment of criminals

b.the apprehension of criminals

c.the apprehension and punishment of criminals * [LO3, p. 32]

d. none of the above

7.In the great majority of cases, the criminal justice process is triggered against a suspect by:


b. information

c. capias

d. arrest without a warrant *[LO2, p. 36]

8.The law of criminal procedure is similar in all jurisdictions because of:

a. common law rules

b.U.S. Supreme Court decisions * [LO3, p. 32]

c.state constitutions

d. administrative regulations

9.The process by which personal and identifying information is gathered by police from a person who has been arrested is called:


b.booking * [LO2, p. 36]


d.preliminary hearing

10.An arrest triggers criminal justice procedures against the:

a. prosecutor



d.accused * [LO2, p. 32]

11.The two most frequent sources of potential juror names are lists of voters and:

a. lists of people with drivers’ licenses * [LO3, p. 49]

b.telephone directories

c.city directories

d.census results

12.Most arrests in the U.S. are made ______.

a. without a warrant * [LO2, p. 36]

b. without a capias

c. with a warrant

d. with a capias

13.Generally there are how many kinds of pleas in modern criminal justice practice?



c. 3 * [LO2, p. 45]


14.Typically, the first thing that will happen after arrest is:

a. preliminary hearing

b. booking * [LO2, p. 33]

c. arraignment

d. indictment

15.Shortly after arrest, the person will be brought before a magistrate or judge to be given warnings and have bail set. This proceeding is called the:

a. indictment, complaint, or information

b. initial appearance, presentment, or arraignment on the warrant *

[LO2, p. 36]

c. preventive detention, preliminary hearing, or examining trial

d.binding over, commitment or discharge hearing

16.A preliminary hearingis usually held for what three main purposes?

a. determination of probable cause, discovery, decision on “binding over.” * [LO2, p. 39]

b. determination of probable cause, discovery, presentation of evidence.”

c. determination of guilt, discovery, decision on “binding over.”

d. determination of mental capacity, discovery, decision on “binding over.”

17.A grand jury hearing:

a. is required in all states by the U.S. Constitution

b. is required in all federal misdemeanor cases

c. may result in an indictment if probable cause is shown * [LO2, p. 41]

d. may result in an information if probable cause as to a felony is shown

18.The formal court proceeding in felony cases where the defendant is officially notified of the charges and asked to enter a plea is called a/an: