Criminal Law and Procedure FAQs

The basics of a criminal prosecution, including presumption of innocence, trial by jury, felonies, misdemeanors, conviction and innocence.



What is the process of a criminal case?

INVESTIGATION: A criminal case begins when a person tells the authorities, usually the police, that a crime has been committed. The police then investigate this report by interviewing witnesses and collecting physical evidence. A crucial part of this investigation often includes interrogating the suspect. During this interrogation, the suspect should have an attorney present. If the police determine probable cause exists to believe a crime has been committed, they may arrest the suspect at this stage.

AREST: When the police arrest a suspect, they transport him/her to jail. The suspect is then fingerprinted, photographed and incarcerated in a holding cell. Three things can happen: (1) the suspect is issued a citation and released on his/her signed promise to appear in court on a future date; (2) the suspect posts bail/bond and is released to appear in court on a future date; or (3) the suspect remains in custody and appears in court within 2 business days. An attorney should be retained as soon as possible after arrest.

PRE-FILING: Once the police investigation is complete, the case is submitted to the District Attorney’s Office to decide whether charges will be filed. The prosecution must decide what, if any, specific charges to file and whether those charges will be filed as misdemeanors or felonies. The District Attorney considers the police investigation and any additional information provided by counsel for the suspect in making these decisions. Simply because the police arrest a suspect does not mean that charges will be filed. A suspect should retain an attorney at this stage to present evidence and arguments favorable to their defense to the District Attorney. The best way to defend against criminal charges is to prevent them from ever being filed. If the prosecution decides to file charges, they prepare and file with the court a document called a Complaint.

ARRAIGNMENT: The arraignment is the defendant's first appearance in court. At this hearing, the defendant is informed of the charges filed against him/her, advised of his/her constitutional rights, and given an opportunity to enter a plea of guilty or not guilty. The judge will then release the defendant on his/her promise to appear at the next court ("Own Recognizance"; "O.R."), continue the posted bail/bond, or set bail and remand the defendant to the custody of the Sheriff. A defendant without legal counsel should request a postponement or continuance of the arraignment to retain an attorney to represent his/her interests.

FELONY SETTLEMENT CONFERENCE ("F.S.C") & PRELIMINARY HEARING: In a FELONY case, a Preliminary Hearing is held to determine if the case will be allowed to proceed to trial. At this hearing, the prosecution must present sufficient evidence to convince the judge that there is probable cause to believe that the defendant committed the crime and should therefore be "held over" for trial. The prosecution witnesses are called to testify and are subject to cross-examination by defense counsel. After arraignment and prior to the Preliminary Hearing, the court will schedule a Felony Settlement Conference. At the F.S.C., the prosecution and defense engage in plea bargain negotiations. In serious felony cases, this may be the only time to consider plea bargain settlement with the prosecution. If the Preliminary Hearing is held and the judge determines sufficient evidence exists, the defendant is "held to answer" and the prosecutor files a document called the Information. The defendant will subsequently be arraigned on the Information, at which time he or she will enter a plea and proceed to trial.

PRE-TRIAL HEARING: After arraignment and prior to trial, the court will schedule a TRIAL READINESS CIONFERENCE ("T.R.C"). During this pretrial hearing, there is an exchange of information between the prosecution and the defense known as discovery. Pretrial motions may also be filed before the start of the trial. Motions may be made to set aside the complaint, to dismiss the case, to suppress evidence, etc. In many cases, plea bargain negotiations are ongoing during this period as the prosecution and defense analyze the strengths and weaknesses of their respective cases.

TRIAL: A defendant in a criminal case has the right to a trial by a jury of 12 citizens who must decide whether the defendant is guilty or not guilty. The defendant is presumed innocent and the prosecution must convince all 12 jurors beyond a reasonable doubt that the defendant is guilty. During the trial, witnesses will testify and evidence is presented. The defendant has the right to cross-examine the prosecution witnesses and to present witnesses in his/her defense. The defendant has the right to remain silent and cannot be forced to testify as a witness. In a typical trial, the attorneys select 12 jurors during a process called "voir dire". The attorneys give opening statements, present evidence, then deliver their closing arguments. The judge instructs the jurors on the law that applies to the case. The jurors deliberate the case and render a verdict if they all can agree. If the jurors are unable to reach a unanimous verdict, the judge declares a mistrial due to a "hung jury". If the jury finds the defendant not guilty, he or she is released and cannot be tried again for the same crime.

SENTENCING: If the defendant is found guilty or enters a guilty plea, the judge must decide the appropriate sentence or punishment. Several factors will be considered by the judge in making this decision, including the nature of the crime and the defendant’s background and prospects for the future.

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Who decides how the criminal justice system works?

Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections-such as the right to refuse to testify against oneself, the right to confront one's accusers and the right to a trial by jury-for people charged with crimes. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass laws governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.

The interplay between constitutional provisions and legislative enactments is regulated by our courts. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result. For example, a police officer is frisking a suspect on the street and feels a hard object in the suspect's pocket. Suspecting that the object is a possible weapon, the officer reaches into the pocket and finds both a cardboard cigarette box and a packet of heroin. This action by the police officer -- reaching into the pocket -- would be deemed a permissible search under the rulings of most courts (to protect the officer's safety), and the heroin could be admitted into court as evidence. However, if the object felt by the officer was soft and obviously not a weapon, then reaching into the suspect's pocket might be deemed an illegal search, in which case the heroin couldn't be used as evidence.

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What's the difference between a felony and a misdemeanor?

Most states break their crimes into two major groups-felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor. In some states, certain crimes, called "wobblers," may be considered either a misdemeanor or a felony, because under some conditions the punishment may be imprisonment for less than a year, and in other situations, the criminal may go to prison for a year or more.

Behaviors punishable only by fine are usually not considered crimes at all, but infractions-for example, traffic tickets. But a legislature may on occasion punish behavior only by fine and still provide that it is a misdemeanor -- such as possession of less than an ounce of marijuana for personal use in California.

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How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?

All criminal statutes define crimes in terms of required acts and a required state of mind, usually described as the actor's "intent." These requirements are known as the "elements" of the offense. A prosecutor must convince a judge or jury that the person charged with the crime (the defendant) did the acts and had the intent described in the statute. For example, commercial burglary is commonly defined as entering a structure (such as a store) belonging to another person, with the intent to commit petty or grand theft (that is, to steal) or any felony.

To convict a person of this offense, the prosecutor would have to prove three elements:

  1. The defendant entered the structure.
  2. The structure belonged to another person.
  3. At the time the defendant entered the structure, he intended to commit petty or grand theft or any felony.

You will have to do the same when you read the law. Parse the crime into its required elements to see if each applies in your situation.

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What is the "presumption of innocence?"

All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.

The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt (see below), makes it difficult for the government to put people behind bars.

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What does it mean to prove guilt "beyond a reasonable doubt?"

The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- just over 50%.) As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is reasonable doubt-that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.

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If I'm accused of a crime, am I guaranteed a trial by a jury?

Yes. The U.S. Constitution gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (In most states, a lack of unanimity is called a "hung jury" and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit on a vote of ten to two.) The potential jurors must be selected randomly from the community, and the actual jury must be selected by a process which allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side-but these decisions may not be based on the juror's personal characteristics, such as race, sex, religion or national origin.

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Can a jury acquit me even if I broke the law?

The jury has the ultimate power to decide whether a person is guilty of a crime. As the "conscience of the community," jurors can free a defendant even if they think the defendant actually committed the crime charged. The name for this power is "jury nullification." It has always been a part of our judicial system.

When jurors nullify a law by acquitting a defendant who has obviously broken that law, judges and prosecutors can do nothing about it. A jury's not guilty verdict is final. Jury nullification rarely occurs, but when it does, it most often involves cases that have a political component (such as the refusal to convict draft dodgers during the Vietnam War) or that have harsh punishments the jury does not want to impose on that particular defendant.

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If I do not have any witnesses who will testify on my behalf, can I still win at trial?

Yes. Defendants often go to trial without having anyone testify for them. This strategy allows the defendant's lawyer to focus on cross-examining the prosecution witnesses in order to poke holes in the prosecutor's case -- thereby creating reasonable doubt. Defense attorneys rely on a variety of arguments to discredit the prosecutor's witnesses. Some common arguments include:

  • Prosecution witnesses are biased against the defendant and therefore are lying or grossly exaggerating.
  • Prosecution witnesses are mistaken in their observations because the lighting was bad, they were under the influence of drugs or alcohol or they were too far away.
  • Evidence from police laboratories is unreliable because the machines were not properly maintained or the technicians were not properly trained.
  • Prosecution witnesses are lying to get a good deal on the criminal charges they themselves are facing (witnesses are often criminals who have been offered a deal if they testify against the defendant).

What these arguments have in common is that they do not depend on defense evidence. Rather, they rely on the presumption of innocence and prosecutor's failure to overcome it by proving guilt beyond a reasonable doubt.

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I am confused about why a defendant would choose to not testify. If I were innocent, why wouldn't I want to take the stand and tell my story?

A criminal defendant has a right not to testify, and jurors will be told that they cannot assume anything negative if the defendant decides to keep quiet. Of course, some jurors do make assumptions-and they cast their votes accordingly. On the other hand, there are some excellent reasons why a defendant might remain silent in court:

  • If the defendant has previously been convicted of a crime, the prosecutor may be able to bring this fact out-but only if the defendant testifies. Evidence of a previous crime may cause some jurors to think that the defendant is guilty of the current crime, too.
  • If the defendant testifies, the prosecutor may be able to bring out other information that tarnishes the defendant's reputation and discredits his testimony.
  • Some defendants have a poor demeanor when speaking in public. A judge or jury may not believe a defendant who, though telling the truth, is a nervous witness and makes a bad impression.
  • The defendant may have a perfectly good story which would nevertheless sound fishy to the average jury in that particular locale.
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What is self-defense -- and how can a defendant prove it?

Self-defense is a common defense asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are:

  • Who was the aggressor?
  • Was the defendant's belief that self-defense was necessary a reasonable one?
  • If so, was the force used by the defendant also reasonable?

Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until she is actually struck to act in self-defense. If a reasonable person would think that she is about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable-if she does, she may be guilty of a crime.

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When can a defendant win an acquittal on grounds of insanity?

The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.

Despite its ancient origins (England, 1505), the insanity defense remains controversial. Victim-oriented critics point out that a person killed by an insane person is just as dead as a person killed by someone who is sane, and argue that people should be punished for the harm they cause regardless of their mental state. Critics also question the ability of psychiatrists, judges and jurors to determine whether a person suffers from a mental disorder, and to link mental disorders to the commission of crimes.

The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:

  • Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty by reason of insanity." On the few occasions that the defendant does raise it, judges and jurors rarely support it.
  • Because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context, various definitions are employed. The most popular definition is the "McNaghten rule," which defines insanity as "the inability to distinguish right from wrong." Another common test is known as "irresistible impulse": A person who acts out of an irresistible impulse knows that an act is wrong, but because of mental illness, cannot control his actions.
  • Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution, and not released until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.
  • An insanity defense normally rests on the testimony of a psychiatrist, who testifies for the defendant after examining him and his past history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.
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What happens if a defendant is judged "incompetent to stand trial?"

Aside from insanity as a defense to criminal charges, the question may arise as to whether a defendant is mentally capable of facing a trial. Defendants cannot be prosecuted if they suffer from a mental disorder that prevents them from understanding the proceedings and assisting in the preparation of their defense. Based on a defendant's unusual behavior, a judge, prosecutor or defense attorney may ask that trial be delayed until the defendant has been examined and her ability to understand the proceedings has been determined in a court hearing. If a judge finds that a defendant doesn't understand what's going on, the defendant will probably be placed in a mental institution until her competence is re-established. At that time, the trial will be held.

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Can a defendant go free because he was drunk or high on drugs when he committed a crime?

Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. People know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.

Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires what's known as "specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent-for example, assault with a deadly weapon instead of assault with the intent to commit murder.

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