The following information is to allow you to familiarize yourself with general criminal court process. If you have any questions regarding this information, or other questions regarding a criminal matter, please contact us.
THE ACTORS IN CRIMINAL PROCESS
Federal Prosecutors -- also called US attorneys and assistant US attorneys, federal prosecutors are the chief federal law enforcement officers within their respective jurisdictions (93 of them). They are appointed by the President and confirmed by the Senate for a term of four years. It is customary for US attorneys to resign their positions when the opposition party wins the presidency. Assistant US attorneys serve at the discretion of the US Attorney General (aka Head of the USDOJ, America's highest ranking law enforcement officer, and the only member of the President's Cabinet who is not given the title Secretary).
State Prosecutors -- most commonly known as district attorneys, state and local prosecutors are usually elected, although in many places they are appointed. Assistant district attorneys are usually recent graduates of law school. Such offices have a great deal of discretion, but not as much as their federal counterparts because of budget and personnel limitations. Many cases are handled via plea bargaining, but some cases, however, are handled vigorously. Some offices use what is called a horizontal model which assigns assistants to different steps in the judicial process; other offices use a vertical model where each assistant is given full responsibility over a case from start to finish; and still other offices use a mixed model. District attorneys can create special bureaus and have their own special investigators for certain kinds of crimes, like organized crime, drug trafficking, or other special problems in the community.
Public Defenders -- these are usually appointed lawyers who are paid at state expense to represent indigent defendants. Some parts of the nation have statewide public defender systems; some cities (like New York) have independent legal aid societies; and in still other places, the public defender is a local official usually holding some other county or city office. Offices can be organized horizontally, vertically, or mixed, and special assistants as well as investigative personnel may be employed.
Appellate lawyers -- some attorneys are specialized or better known for their work at this level.
Assigned defense counsel -- private attorneys appointed on an ad hoc basis to represent indigent defendants for a flat rate
Private defense counsel -- private attorneys in a solo practice or law firm retained by defendants for a fee
US Solicitor General -- this is the third highest-ranking official in the USDOJ. They technically work for the Attorney General and serve at the pleasure of the President, but traditionally are seen as a "must-be" independent lawyer. They decide, on behalf of the US, which cases will or will not be presented to the Supreme Court for review. For example, when the government loses a case in court somewhere, there is a process by which that agency automatically requests the Justice Dept. seek certiorari, but it is up to the Solicitor General to decide whether an appeal should be sought or not. In addition, the Solicitor General personally argues government cases heard by the Supreme Court. They are assisted by five deputies and about twenty assistants.
State Attorneys General -- These are each state's chief legal official who, in most places, is elected on a partisan statewide ballot. They oversee a staff of attorneys who primarily handle civil cases involving the state (most criminal cases are handled by local district attorneys). However, often this office will get involved in assisting with a case involving statewide criminal activity. They do not ordinarily control the appeals process in state courts, but they do personally argue cases involving the state in state supreme courts. State attorneys also perform the important function of issuing advisories and opinions to state and local agencies, particularly law enforcement agencies, which frequently find their way into police training curricula.
ROCEDURE IN CRIMINAL COURT
INVESTIGATION and ARREST -- The process begins with the police discovering something or having it discovered for them. This is known as proactive or reactive policing, respectively. Most policing is reactive, with the police diligently following up, or probing, the truthfulness of any allegations or complaints. Someone becomes a "subject" of investigation when he/she is a someone police are looking into, and someone becomes a "target" of investigation when it is likely that he/she will be charged with a crime. Although there are special procedures for when somebody formally becomes a "suspect," all investigative procedures at this level are characterized by suspicion. When police arrest somebody, they have worked up such suspicion to a probable cause.
BOOKING -- This is a part of the process that involves custody, detainment, deprivation of liberty, and other personal intrusions, up to and including body cavity searches. Someone is "booked" when their picture and fingerprints are taken. An administrative record is made of the arrest, and it's at this step of the process when the suspect finds out the details of what they are being charged with and fills out a form that they have been advised of their rights. This step is characterized by accuracy of identification and records. Interrogation and confession can also occur at this stage.
IDENTIFICATION PROCEDURES -- Identification is arguably the most problematic part of the process. In cases where the offender is caught red-handed, there's no identification problem. Nor is there any problem if the suspect confesses. In other cases, the police must rely upon eyewitness identification and testimony, arguably the weakest link in the whole process. Best guesses are that about half of all wrongful convictions are the result of eyewitness error. Eyewitnesses are necessary because the rules of evidence require circumstantial evidence (such as that which links an offender to the scene of the crime) to be corroborated by testimonial evidence; and also because there's a constitutional right to confrontation by one's accusers - and this means any witnesses at the scene as well as those who helped out the police in an investigation. There are various exceptions to the confrontation right, such as those involving juveniles and confidential informants, but police have historically conducted lineups or facilitated other forms of pretrial confrontations in order to satisfy constitutional requirements. Judicial rules exist which govern different procedures for identification depending upon whether the defendant has been already indicted or not. Forensic psychology has made some inroads, but not enough, into eyewitness testimony issues.
PRELIMINARY HEARING -- The purpose of a prelim is for a hearing judge to look into the probable cause that police used and determine if such probable cause exists for continuing with legal proceedings. A hearing judge considers the sufficiency of evidence, whether a nexus, or connection, exists between the statutory elements of the crime and what police say the person did, and whether the proper jurisdiction exists. This step is characterized by discovery and disclosure, which means that a number of people share information about the suspect in their respective advocacy roles (prosecution, defense).
DISCOVERY PROCEDURES -- Discovery is a pretrial procedure originating from civil law whereby opposing parties share information with one another which is necessary to their respective positions at trial. When done voluntarily, the process is called disclosure, and works most of the time informally. Police generally turn over to defense attorneys all copies of lab reports and transcripts of video- or tape-recorded interrogations, and are under a professional obligation to turn over any evidence that might be favorable (exculpatory) to the accused. When done formally, discovery takes one of three forms: (1) deposition, which occurs when a material witness is called into an attorney's office or some neutral place to record a verbatim statement under oath before a stenographer; (2) interrogatory, which is a means of obtaining answers to a series of possible cross-examination questions likely to be asked at trial; and (3) subpoena duces tecum, which consists of a series of hypothetical questions to be asked, and in the case of expert witnesses, what books or resources they have based their expertise on. If certain facts can be agreed upon by both parties prior to trial, these are called stipulations, and those facts will be readily admissible without the need for establishing them at trial. Other facts, such as matters of common knowledge, may become the basis of judicial notice, also not required to be brought up at trial. At the discovery stage, some agreement may be reached on presumptions and rebuttable presumptions. Upon completion of this step, a suspect has either cleared himself, is declared incompetent to stand trial, or formally becomes a defendant for trial.
COMPLAINT, INFORMATION or INDICTMENT -- Criminal charges are brought against an accused either by way of complaint, information or indictment. An information is a complaint that contains no hearsay allegations. The word information refers to a form the prosecutor files with a court to declare his or her intention to prosecute the case. A complaint can be converted (conversion) to an information by use of a supporting deposition or corroborating affidavit. Whether a complaint or an information, the accusatory instrument should have two parts: an accusatory part and a factual part. If the instrument is a complaint, the factual part must allege facts of an evidentiary nature supporting or tending to support the charges. If it does not, the complaint is not sufficient on its face and is subject to dismissal. In order for an information to be sufficient, every element of the offense charged and the accused's commission thereof must be supported by nonhearsay allegations. As a general rule, all misdemeanor cases in New York are handled by information, and all felony cases prosecuted by the way of grand jury indictment, or, in noncapital cases, by information provided prosecution, defense and court agree. The grand jury must be composed of no fewer than 16 and no more than 23 people. Every action taken by the grand jury requires the concurrence of at least 12 members. A majority vote by the Grand jury to proceed with prosecution is known as a True bill, resulting in a form, called an indictment, filed with a court. The grand jury may vote an indictment only when the evidence establishes a legally sufficient case. The test is whether the evidence before the grand jury, if unexplained and uncontradicted, would warrant conviction by a trial jury.
ARRAIGNMENT -- This is the first public appearance of the defendant in open court, a court that has the jurisdiction to conduct a trial. The accused must stand and listen as the indictment or information is read, although they should have already been given a copy. Their identification is confirmed, and they are asked if they have been informed of the charges and their legal rights. The judge may also inquire as to whether the defendant has legal counsel, and why or why not, but this is not required and many judges prefer not to go into it. An arraignment is generally a brief process where the judge only wants to hear one of three things: guilty, not guilty, or no-contest (nolo contendere, an admission of guilt that cannot be used as an admission of guilt in civil justice). This is known as the plea, and the defendant must utter one of those with no room for explanation or elaboration. If the defendant pleads guilty or no-contest, they are sentenced on the spot. If they plead not guilty, or give the court any static, they are scheduled for trial and/or ordered to undergo psychiatric evaluation. A defendant who stands mute has a plea of not guilty entered on their behalf. Most defendants will have had their defense attorney arrange a plea bargain beforehand, so that the act of pleading guilty is openly noted as a negotiated plea to which the judge has or does not have prior knowledge of, but in all cases must consent to. Some 90% of all criminal cases are resolved with plea bargains. A judge can reject a plea of guilty if they think it was made under duress, non-intelligently, or if the bargain is too last-minute or lenient.
STEP BY STEP
1. Calling of the case - the court officer will announce the case usually by calling out the docket number and then the name of the accused like "People against John Doe".
2. Once the case is called in, the police will bring the accused out from behind the courtroom to the place in front of the judge where they have the defendants stand. The defense attorney will be standing next to the defendant and the prosecutor will be standing off to either the right or the left depending on the custom of the county. Everyone will be face the judge.
3. The court officer will then usually ask the defense lawyer whether he "waives the reading" to which custom in New York City makes the answer "yes." The defense lawyer has the power to force a detailed public reading of the accusations, but tradition in New York City is that such a public reading is dispensed with in favor of simply getting on with it. A refusal to waive the reading is considered a serious breach of etiquette.
4. The judge will then usually take a minute or so to review the file and then ask the prosecutor for "notices". This is the signal for the prosecutor to provide certain required formal notices that may be required by law or custom at the arraignment. These notices can take a number of different forms. The defense lawyer may return some "cross" notices in a seemingly confusing exchange of paperwork. If the case is a felony, the prosecutor will notify the defense lawyer that the case will eventually be scheduled to be presented to a Grand Jury. The defense lawyer will likely serve "CROSS-One-Ninety-Fifty" notice which means simply that the defense lawyer is reserving the defendant's to testify before the Grand Jury. The Grand Jury presentation, if it ever happens, will not happen on that day. It doesn't mean the defendant must testify before the Grand Jury, but simply that, out of an abundance of caution, the defense lawyer wants to keep the option open. It is custom in New York City for defense lawyers to file this "CROSS" notice purely as a means to keep the option open even in cases in which they believe the likelihood of the defendant actually testifying in the Grand Jury to be extremely low.
5. After the scurrying around with paperwork is completed, the judge will ask the prosecutor make a statement with respect to bail. The traditional purpose of bail is to ensure the accused's presence at trial. The amount of bail is statistically the best predictor of sentence length. Bail set at a figure higher than the amount calculated to ensure the accused's return to court can be construed as "excessive". Detectives are sometimes consulted on bail recommendations. There are five (5) circumstances the court can consider in setting bail:
- seriousness of the offense (some crimes can be "non-bailable") - weight of the evidence against the accused - ties with the community, family, and employment - prior criminal record - history of failure to appear or attempt to escape
This is the prosecutor's chance to tell the judge whether or not he thinks bail should be set, how much he thinks the bail should be, and a brief description of the case.
6. After the prosecutor is finished, assuming that bail is requested, the judge will ask the defense lawyer to say something in response. This is the defense lawyer's chance to challenge statements made by the prosecutor or add in information that the prosecutor may have left out. In this argument the defense lawyer may request outright release on defendant's own recognizance (ROR), or if that seems unlikely, an amount of bail more likely to be made by the defendant or his family.
7. Finally, after hearing once from both sides, the judge will make his decision about bail and the arraignment is over.
8. If bail is set the police will escort the defendant back into the cells behind the courtroom ("the pens") and the defendant will remain in jail until the bail is posted. If the judge releases the defendant, he will then be permitted to leave the courtroom out the door. In some cases, the defendant will need to stay for a short time in the court and wait for various documents, like an order of protection.
PLEA BARGAINING CONSIDERATIONS -- Where the accused is charged with a misdemeanor or felony, it is not unusual for the prosecution to seek to negotiate a plea bargain. In that case, the prosecution must seek permission of the court to have the charge reduced to a lesser-included offence to cover the indictment or information. While speedy resolution of the case can be an attractive proposition for the defendant, pleas should not be hastily entered into because of collateral consequences that attach as a result of criminal convictions. For example, those convicted of a felony or a "serious offence" may not be eligible for certain professional licenses. Some collateral consequences are reserved only for noncitizens who may be deported if convicted of crimes deemed under immigration law to constitute "crimes of moral turpitude" or "aggravated felonies." An accused can seek to ameliorate some of the collateral effects of a conviction by seeking a Certificate of Relief from Disabilities. In addition, a Certificate of Good Conduct may be obtained from the Board of Parole after one to five years of good conduct, depending on the seriousness of the crime. These certificates, with certain exceptions, preclude reliance on the conviction as an automatic bar or disability, but they do not preclude agencies from considering the conviction as a factor in licensing or other decisions. However, neither certificate erases the conviction and neither can prevent collateral effects such as a noncitizen's eligibility for deportation following conviction of an "aggravated felony."
ADJUDICATION -- This is an open or closed trial in which matters of fact and law are examined for the purpose of reaching a judgment of conviction or acquittal. A jury is usually the trier of factand the judge the trier of law (admissibility of evidence and penalties). Less serious offenses don't require a jury, and even in serious cases (if state law allows), the defendant can waive his or her right to a jury trial. Such proceedings are called bench trials where the judge serves as both trier of fact and law. The adjudication stage is ruled by strict rules of procedure, evidence, and precedent. An adversarial system is also adhered to where both sides (prosecution and defense) argue zealously within boundaries set by professional ethics. The standard for conviction is beyond a reasonable doubt. This step is characterized by being enormously expensive, time-consuming, and stressful.
SENTENCING -- This is a hearing held after a judgment of conviction where a judge imposes some form of punishment. Prior to this hearing, the judge may order a presentence investigation on the defendant's family history, economic circumstances, emotional state, social background, and criminal history. A judge has considerable discretion in sentencing, although some state and federal laws now place limits on that discretion. Offenders found guilty on more than one charge can serve sentences consecutively (one at a time) or concurrently (all at the same time). Sentencing is also used to order court costs and victim restitutions to be paid by the offender. Many sentences are appealed, but the appeals process is complex. This step is characterized by the court's desire to settle everything.
