Being arrested for a felony is only the beginning of the criminal justice process. For most people, the legal system is confusing and intimidating. Here is a simplified explanation of what generally happens after a felony arrest.
The Initial Appearance
After an arrest, the accused is brought before a judge as soon as reasonably possible for an initial appearance. Three important issues are addressed.
First, the judge advises the accused of important constitutional rights, including the right to remain silent.
Second, the court determines whether the accused already has an attorney. If the defendant cannot afford one, the court appoints an attorney to provide legal representation.
Third, the judge determines whether the accused will be released before trial. Depending upon the circumstances, the judge may release the defendant on his or her own recognizance, set bail, impose release conditions, or order that the defendant remain in custody. Additionally, electronic monitoring may be involved.
The court then schedules the next hearing, giving the prosecutor time to decide how the case will proceed. In most jurisdictions, the prosecutor has two options. The case may be presented to a grand jury or proceed through a preliminary hearing. Local practice often determines which procedure is used.
The Grand Jury
A grand jury generally consists of 23 citizens. Its purpose is not to determine guilt or innocence. Instead, it decides whether there is probable cause to believe a crime was committed and that the accused may have committed it.
Defense attorneys are generally not permitted inside the grand jury room. The accused is ordinarily not present during the presentation of evidence. However, in many jurisdictions the target of the investigation may request permission, or may be invited, to testify before the grand jury. If the accused testifies, defense counsel generally must remain outside the grand jury room, and the accused is questioned under oath. Because those answers may later be used at trial, experienced defense attorneys almost always advise their clients not to testify.
The grand jury has broad investigative authority. It may require witnesses to testify and documents to be produced, although in practice those powers are almost always exercised at the request of the prosecutor.
The prosecutor usually presents testimony from the investigating officer. Hearsay evidence is generally permitted, allowing the officer to testify about statements made by victims and witnesses who are not present. Sometimes victims and eyewitnesses also testify directly.
After hearing the evidence, the grand jury votes.
If probable cause is found, the grand jury returns a True Bill, also known as an indictment. The defendant must then stand trial.
If the grand jury concludes there is insufficient evidence, it returns a No Bill. That does not necessarily end the matter. If additional evidence is later discovered, the prosecutor may present the case to another grand jury.
The Preliminary Hearing
The second method of moving a felony case toward trial is the preliminary hearing.
Unlike a grand jury proceeding, the defendant and defense attorney are present. The hearing resembles a miniature trial.
The prosecutor calls witnesses, usually beginning with the investigating officer. Depending upon the jurisdiction, hearsay evidence may be admitted. Unlike a grand jury proceeding,
however, the defense attorney has the right to cross examine the prosecution’s witnesses and challenge their testimony.
The judge does not determine guilt or innocence. Instead, the judge decides whether there is probable cause to believe a crime occurred and that the accused may have committed it.
If probable cause is established, the defendant is “bound over” for trial.
If probable cause is not established, the case may be dismissed. In many jurisdictions, however, the prosecutor may gather additional evidence and seek another preliminary hearing or present the case to a grand jury.
Arraignment
Following an indictment or a finding of probable cause at the preliminary hearing, the defendant is arraigned.
At the arraignment, the charges are formally read, the defendant receives a copy of the charging document, and a plea is entered. In most felony cases, the defendant pleads not guilty, allowing the case to proceed toward trial.
Discovery
Both sides then begin the discovery process.
The prosecution must disclose police reports, witness statements, body camera recordings, surveillance videos, laboratory reports, photographs, physical evidence, and other material it intends to use at trial. It must also disclose evidence favorable to the defense as required by law.
Likewise, the defense is generally required to disclose certain evidence and witnesses it intends to present at trial, subject to constitutional protections and local court rules.
If either side violates the discovery rules, the judge may impose sanctions ranging from granting a continuance to excluding evidence or, in rare cases, dismissing charges.
Most important, the defense is always in need of a competent defense investigator. His job is to learn about the backgrounds of the witnesses and look for impeachment material necessary to expose any deception. Along the way he is needed to locate helpful evidence and material that the prosecution has unlawfully withheld.
Motion Practice
The next stage is known as motion practice.
Defense attorneys file motions asking the court to suppress illegally obtained evidence, exclude improper testimony, dismiss particular charges, or even dismiss the entire case because of constitutional violations.
Most motions are denied. Occasionally, however, a successful motion substantially weakens the prosecution’s case or results in dismissal.
Plea Bargaining
Throughout the case, the prosecutor may make one or more plea offers.
A plea bargain usually involves reduced charges or a lighter sentence in exchange for a guilty plea. The defendant is never required to accept a plea offer.
The overwhelming majority of criminal cases are resolved through negotiated plea agreements rather than jury trials.
Jury Selection (Voir Dire)
If no plea agreement is reached, the case proceeds to jury selection, a process known by its French name, voir dire, meaning “to speak the truth.”
Prospective jurors are brought into the courtroom and questioned by the judge and the attorneys. The purpose is not to select people who already favor one side or the other. Instead, it is to identify individuals who can be fair, impartial, and decide the case solely on the evidence presented in court.
The attorneys ask questions about employment, education, prior jury service, experiences with law enforcement, prior crime victimization, family members in the criminal justice system, opinions about certain types of crimes, and any personal experiences that might affect the juror’s ability to remain impartial.
If a prospective juror demonstrates actual bias or cannot be fair, either attorney may ask the judge to excuse that juror for cause. There is no limit to the number of challenges for cause if legitimate grounds exist.
Each side is also given a limited number of peremptory challenges. These allow an attorney to excuse a prospective juror without stating a reason. However, peremptory challenges may not be used to intentionally discriminate on the basis of race, ethnicity, or sex.
After both sides have exercised their challenges, twelve jurors are selected, along with one or more alternate jurors who will hear the entire case in case a regular juror becomes unable to continue.
Trial
Once the jury has been selected, the trial begins.
The prosecutor delivers the opening statement, outlining the evidence the government expects to present.
The defense then presents its opening statement, usually emphasizing weaknesses in the prosecution’s case and explaining why the evidence will fail to establish guilt beyond a reasonable doubt.
The prosecution presents its witnesses first. Each witness is subject to cross examination by the defense.
When the prosecution rests, the defense may present witnesses and evidence. The defendant has an absolute constitutional right not to testify, and the jury may not hold that decision against the defendant.
After both sides have completed the presentation of evidence, each attorney delivers a closing argument.
The judge then instructs the jury on the applicable law.
The jury retires to deliberate in private.
To return a guilty verdict, the prosecution must prove every element of the charged offense beyond a reasonable doubt. In most felony cases, the verdict must be unanimous.
If the jury unanimously finds the defendant guilty, a conviction is entered.
If the jury unanimously finds the defendant not guilty, the defendant is acquitted and cannot again be prosecuted for the same offense because of the constitutional protection against double jeopardy.
If the jury cannot reach a unanimous verdict, the judge may declare a mistrial because of a hung jury. The prosecutor must then decide whether to retry the case or dismiss it.
Sentencing
If the defendant pleads guilty or is convicted at trial, the case proceeds to sentencing.
Depending upon the offense, the judge may order a presentence investigation before imposing sentence. Both the prosecutor and the defense attorney have an opportunity to recommend an appropriate sentence.
The court may impose probation, jail, prison, fines, restitution, community service, treatment programs, or any other sentence authorized by law.
Even after sentencing, the defendant generally retains the right to appeal legal errors that may have occurred during the proceedings.
From arrest to final disposition, a felony case may take many months and, in complex cases, several years. Throughout every stage of the process, the Constitution provides safeguards designed to ensure that every defendant receives due process of law and that guilt is established only when the prosecution proves its case beyond a reasonable doubt.
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