Criminal Law

The Criminal Justice Process

By Riccola Voigt, Attorney
The basic stages of a criminal prosecution, from the investigation and arrest, through the final verdict and sentencing.

The criminal justice process varies among the states, and the federal criminal justice system has its own procedures and rules as well. However, for the most part, the criminal justice systems in all jurisdictions are comprised of the same basic components. This article provides a general overview of the various steps, court hearings, and procedures that criminal prosecutions typically involve.


The investigation of a crime begins when police become aware of suspected criminal activity. This can occur in a variety of circumstances, including a report made by a witness or victim or an officer simply observes someone engaging in suspicious activity.

After a crime is alleged or suspected, police might need to gather more information by conducting interviews with witnesses, collecting physical evidence, and taking photographs and videos. In some situations, an officer might apply to a judge for a search warrant, which authorizes entry into a physical location such as a home or business to look for evidence. Search warrants can also be obtained for vehicles, phones, records, blood, urine, and DNA.


Generally, a police officer can arrest a suspect for a crime if:

  • there’s probable cause (a rational factual basis) to believe that the person committed a crime
  • a crime was committed in the officer’s presence, or
  • there’s a warrant for the person’s arrest.

The circumstances in which an arrest warrant is required varies by jurisdiction and often depends on the seriousness of the alleged crime.

Charging a Crime

The formal criminal justice process begins with the filing of a criminal charge through an information or grand jury indictment.

Information. After reviewing the investigative reports and evidence, a prosecutor can charge a criminal offense by filing an information (also sometimes called a “complaint”). In some states, only misdemeanor crimes can be charged by filing an information. In states that allow felony crimes to be charged by filing an information, a preliminary hearing (discussed below) is generally required.

Indictment. In some jurisdictions, felony crimes are presented to a grand jury, which is a group of private citizens who conduct proceedings in secret. A prosecutor explains the law to the jury, presents evidence, and the grand jury votes on whether there’s enough evidence to indict the person suspected of committing the crime.


After criminal charges have been filed, the first court appearance is typically the arraignment. Generally, the arraignment must be held within a certain period of time after the defendant has been arrested. This time period is typically quite short (for instance, it might be two days) if the suspect is being held in jail.

Advisement of rights. At the arraignment, the judge normally advises the defendant of the charges, the maximum and minimum penalties, and certain constitutional rights that all criminal defendants are afforded. For example, criminal defendants have the right to be represented by an attorney, and if the defendant can’t afford an attorney, the court will appoint one at no cost.

Bail and release conditions. The judge will also discuss bail and release conditions at arraignment. In some cases, a defendant who has been arrested and charged with a crime will obtain release before the arraignment by posting bail or being released without bail, which is commonly known as “own recognizance release” or “conditional release.” If the defendant isn’t released after being booked at the jail, the judge may consider release at the time of arraignment.

Defendants who are released (with or without posting bail) must agree to abide by certain release conditions. Release conditions might include the defendant agreeing to:

  • appear in court for all scheduled proceedings
  • not leave the state while the proceedings are pending, and
  • not contact a witness or an alleged victim.

When deciding whether to grant release, judges often consider the defendant’s criminal history, ties to the community, and community safety.

Entering a plea. In some jurisdictions, the defendant must enter a plea of guilty, not guilty, or no contest at the arraignment. In other jurisdictions, the defendant doesn’t enter a plea until the plea hearing (discussed below).

Preliminary Hearing

In some states, the defendant is entitled to a preliminary hearing following the arraignment. Other jurisdictions have preliminary hearings only in felony cases. At the preliminary hearing, a judge determines whether there’s probable cause (enough evidence) to support the charges against the defendant. If the judge decides that there’s probable cause, the case proceeds to trial. If, on the other hand, the judge finds there isn’t enough evidence of the defendant’s guilt for probable cause, the charges are dismissed.

Discovery and Pretrial Motions

During the discovery phase of the criminal process, the prosecutor and the defendant’s attorney exchange information about the case. Discovery generally includes police reports, photographs, videos, and any other information that the parties plan to use at trial. The prosecution has an obligation to provide any information in its possession that might be beneficial to the defendant’s case.

In addition to providing and receiving discovery, the parties might also file pretrial motions during this early stage of the criminal process. Motions made by the prosecutor might include a request for the defense to disclose discovery or to introduce certain evidence at trial. Motions made by the defense might include a request to dismiss the charges or to suppress certain evidence. If any pretrial motions are filed, the court will generally set a hearing and make a decision on such motions before trial.

Plea Hearing

The plea hearing is the next court appearance in jurisdictions that don’t require a defendant to enter a plea at the arraignment.

Entering a plea. At the plea hearing, the defendant can enter a plea of guilty, not guilty, or no contest. A no contest plea typically has the same practical effect as a guilty plea, resulting in a conviction. If the defendant pleads not guilty, a trial will be scheduled.

Plea bargaining. Generally, the prosecutor will provide a plea offer to the defendant and some negotiations take place before the plea hearing. Instead of going to trial, a defendant can accept a plea offer and plead guilty or no contest. In exchange for a defendant’s guilty plea, the prosecutor might dismiss other charges or recommend a particular sentence.


Although most cases are resolved through plea bargaining, criminal defendants have a constitutional right to a jury trial. Trial procedures vary by jurisdiction, but a jury trial typically begins by selecting six to 12 jurors from a pool of potential jurors. The jurors that are selected will decide the case. This process is known as “voir dire.”

Once a jury is selected, the prosecutor and defense give opening statements, which is a preview of the evidence that each party intends to present. After opening statements, each side presents its evidence. Trial evidence might include the testimony of witnesses (direct and cross examination), physical evidence (such as a gun used in a robbery), photographs, and videos.

After the evidence is presented, the parties give closing arguments and the case goes to the jury for deliberations as to guilt. The jury privately deliberates until a verdict is reached.

Sentencing Hearing

If the jury finds the defendant guilty or the defendant pleads guilty or no contest, the next court appearance is the sentencing hearing. When a defendant is convicted at trial or the parties don’t have a sentencing agreement, the judge decides the sentence within the allowable range under the law. For instance, state law might specify that defendants convicted of burglary can be sentenced to two to six years in prison and up to $5,000 in fines. For defendants who accepted a plea offer, the sentence will simply be what the parties agreed to, as long as the sentence is within the parameters of the jurisdiction’s sentencing laws. However, the judge generally has the final authority in the sentencing phase and can ultimately sentence a defendant to something different than what the parties agreed to.

When sentencing a defendant, the judge typically considers—in addition to the circumstances of the current offense—the defendant’s:

  • criminal history
  • employment or financial situation
  • education level, and
  • substance abuse history.

Additionally, in most jurisdictions, victims have the right to be present and give a statement at sentencing.

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