The criminal justice process varies from state to state, and the federal criminal justice system has its own rules, procedures, and terms to describe the stages of the proceedings.
Generally speaking, however, the criminal justice process involves the following stages.
A law enforcement investigation of a crime may begin in many different ways such as:
- An officer may observe a speeder on the highway or an erratic driver who may be intoxicated and pull them over.
- A "911" call of shots fired in a neighborhood may cause police to be dispatched to determine the cause.
- A person who has been defrauded by a con artist may call law enforcement officers to report the crime and an investigation is launched based on the victim's complaint.
If investigating officers believe there's evidence of a crime at a particular location, they may try to get a search warrant allowing them to search the premises. A judge reviews the information submitted by the police and decides whether there is "probable cause" to support it. Probable cause means that an officer has presented enough facts to support a belief that there is evidence of a crime at the location described in the warrant.
A warrant may not be required where there are "exigent circumstances" or an emergency situation (when evidence may be destroyed or a crime is in the process of being committed).
Law enforcement officers can interrogate witnesses, and even question potential suspects, as long as their constitutional rights are protected.
Police can make an arrest under the following conditions:
- If law enforcement officers have probable cause to believe that a crime has been committed and that a specific person has committed the crime, they may arrest the person under suspicion, taking them into custody. Officers may need to obtain a warrant before taking a suspect into custody.
- If a person commits a felony or misdemeanor crime in the presence of a law enforcement officer, the officer may arrest the person without a warrant.
- If an officer has probable cause to believe that a person has committed a felony crime, even if the crime was not committed in the officer's presence, the officer may arrest the person.
An arrest may be made in a public place, with or without a warrant. But if law enforcement officers wish to arrest a person in a private place, they must first obtain an arrest warrant, unless there are "exigent circumstances," such as the possibility that the suspect will flee.
Law enforcement officials have a relatively short period of time following an arrest (24 or 48 hours, depending on the state) during which they must either charge the person with a crime or release them.
Complaint, Information or Indictment
Law enforcement officers may decide to file criminal charges, either before or after arresting a suspect.
- Filing written charges, or a "complaint," starts the criminal justice process in motion.
- A prosecutor may also put the criminal justice process in motion by filing written charges called an "information."
In the case of a complaint or an information, filing charges allows law enforcement officers to keep the accused person in custody pending additional proceedings, such as arraignment and the setting of bail.
- In the federal criminal justice system and in about half of the states, defendants have the right to indictment by a grand jury. This means that a jury composed of citizens must hear the evidence presented by a prosecutor and decide if there is probable cause to believe that a crime has been committed, and that the person accused committed the crime.
- Other states use a procedure called a "preliminary hearing," where a judge considers evidence the prosecutor presents to decide whether there is probable cause to support the charges against the accused person.
Often, the criminal justice process will start by the filing of a complaint or information, later followed by a grand jury proceeding resulting in an indictment, or a preliminary hearing in states using the preliminary hearing process.
In all of these cases - complaint, information or indictment - the resulting document is merely an accusation against a person. It is not proof that the person committed the crime or crimes charged.
An arraignment is the formal presentation of charges in open court. This proceeding may be called a preliminary hearing or something else depending on the state. During an arraignment, the charges are read to the accused person (defendant) by a judge, and the defendant is asked to plead guilty or not guilty to the charges.
The defendant's lawyer may be present, or an attorney appointed by the court may represent the defendant.
Bail is money or property that an accused person puts forth as security, to make sure they'll show up for further criminal proceedings, including the trial and sentencing.
Bail can be paid:
- In cash
- In the form of a bail bond
- A pledge of property if the court permits this form of security.
A bail bond is an agreement with a bail bondsman under which the bondsman puts up bail money in return for a fee.
There is no guaranteed right to a release on bail. If a judge believes that a defendant may flee from the court's jurisdiction or otherwise fail to appear, or if the crime charged is extremely serious, then bail may be denied or set at such a high figure that a defendant may not realistically be able to post bail.
In much less serious offenses, an individual who is well established in the community with a job, a home, and family to support may be released on relatively low bail. Or, a defendant may be released without bail. This is sometimes referred to as being released in one's own recognizance, or "R.O.R."