Criminal Justice Process

In the United States the adjudicatory process varies considerably from one jurisdiction to another, although the process throughout the country is highly similar. Most cases originate with an arrest by the police. The Supreme Court has held that the Constitution requires a prompt judicial determination of probable cause to believe that the arrestee has committed an offense. If that judicial probable cause determination was not made prior to arrest by the issuance of a warrant or the return of an indictment by a grand jury, the arrestee must be brought before a judicial officer for a determination of probable cause. Although the time frame prior to this first appearance is not rigidly defined, the Court has recognized a presumption that detention without judicial authorization that lasts longer than forty-eight hours is unconstitutional.

The probable cause hearing need not be more elaborate than the process of issuing an arrest warrant. There does not need to be any formal charge filed at this point, and the Supreme Court has held that the right to counsel does not arise until a charge is filed, whether by indictment, information, or complaint. Nonetheless common practice is to perform several functions at the first appearance in court if the court finds that probable cause indeed exists. Bail or other conditions of pretrial release may be set, counsel for the indigent may be appointed, and a date for further proceedings may be set.

The period between arrest and presentment in court offers the police the opportunity to interrogate the suspect under the Miranda rules. Once the suspect is represented by counsel, it is highly unlikely that the suspect will volunteer information, and any questioning by the police after the right to counsel has attached is unconstitutional. The Miranda right to counsel is not the Sixth Amendment right to counsel at trial, but a right derived from the Fifth Amendment privilege against self-incrimination. If the adjudicatory process were understood to begin with arrest, there would be no period of time in which the suspect was in custody but unprotected by the Sixth Amendment right to counsel at trial. The Supreme Court in Miranda accepted the proposition that counsel may be waived without an appearance in Court or consultation with counsel for purposes of interrogation, but has never intimated that such a waiver of the right to counsel at trial would be valid.

After the arrest and a judicial determination of probable cause, the next step in the process is the selection of a charge by the prosecutor. Prosecutors enjoy extremely wide discretion in selecting charges. Consider, for example, a suspect who fired a gun at another man. This might be dismissed as no crime because the suspect was acting in self-defense (or because the prosecutor concludes that although the defendant was not acting in self-defense a jury might conclude otherwise). At the other end of the continuum the case might be charged out as attempted murder or aggravated assault. In between it might be charged out as illegal possession or discharge of a firearm, or a simple assault. If the suspect has prior convictions the prosecutor may but need not add a charge under a recidivism statute such as the three strikes laws. Thus prosecutors typically have discretion to expose the suspect to a range of liability extending from zero to a substantial term of years.

Prosecutors decline to proceed in a substantial percentage of cases. In some cases the police themselves never expected a prosecution and made the arrest solely for immediate social control purposes. For example, the police might arrest one or both of the drunks involved in a brawl simply to separate them and prevent further violence, or to prevent one of the inebriates from passing out outdoors on a cold night. In other cases the police might hope for an eventual conviction but the prosecutor may decide the evidence is unlikely to persuade a jury.

Often the prosecutor will agree to drop the criminal charges if the defendant will undertake some alternative program to prevent a recurrence of the offense. The prosecutor may agree with a defendant charged with an offense involving or induced by narcotics to abandon the criminal charge provided the suspect enters a drug treatment program. These so-called diversion arrangements are quite common, and there is great variety in the types of programs to which persons might be diverted from the criminal justice system.

Juveniles make up a substantial percentage of the population arrested. All U.S. jurisdictions have by statute created specialized juvenile courts, which deal not only with juvenile behavior that would constitute a criminal offense if committed by an adult (delinquency cases), but also with behavior that is legal for adults but not for juveniles, such as drinking alcohol (status offenses). The juvenile court often also has jurisdiction over child welfare cases. The applicable statutes typically permit juveniles suspected of serious felonies to be transferred to the general criminal justice system and tried as adults.

Although the courts have not applied all the procedural protections of the adult system to the juvenile system, the juvenile court system includes most of the same phases (investigation, accusation, presentment, bail, accusation, discovery, plea bargaining, motions, trial, etc.) as the adult system. The Supreme Court has not yet required trial by jury in juvenile cases, but the issue may fairly be regarded as open for consideration at some future time.

In jurisdictions that do not require grand jury indictment the prosecutor may unilaterally file an information accusing the defendant of the crime or crimes the prosecutor has chosen to pursue. About half the states and the federal government require grand jury indictment in felony cases. Whether the charging instrument takes the form of an indictment or an information, the basic purpose of the accusation is to enable the accused to prepare a defense to present at a subsequent trial.

The grand jury usually consists of twenty-three citizens who review cases presented by the prosecutor. Although the grand jurors have the power to refuse to indict, in practice the grand jury very rarely rejects a prosecutor's request for an indictment.

If the case originates with an indictment filed before arrest, the process will differ somewhat. The accused will be either arrested or will surrender to face the charge. At that point the process will continue just as in cases that begin with arrest, with the important qualification that the accused's Sixth Amendment right to counsel has attached even before the arrest. Absent a valid waiver of that right to counsel, so-called critical stages of the process require the presence of defense counsel. Critical stages include interrogation, lineups, and court appearances. They do not include photo identification sessions, the interviewing of witnesses other than the defendant, or the gathering or testing of physical evidence.

Once the charge selected by the prosecutor is filed in court, whether by indictment, information, or complaint, the next step in the process is an arraignment at which the defendant appears in court to hear the charges and enter a plea. If the defendant has not yet retained or been appointed counsel, counsel must be appointed, retained, or waived in open court before entering a plea. Likewise if bail has not been previously set or denied, a pretrial release decision will be made at this point.

If the defendant and the prosecution do not reach a plea agreement and the case goes to trial, there typically will be a discovery period, an opportunity for pretrial motions, a preliminary hearing, and a trial. The discovery process has become more extensive but still falls far short of the discovery permitted on the civil side. The principal reasons for the difference are fears that criminal defendants are more likely than civil litigants to harass or intimidate witnesses and the belief that the defendant's right not to testify unfairly turns criminal discovery into a one-way street.

The Supreme Court's Brady doctrine requires the prosecution to turn over to the defense all material exculpatory evidence upon a timely request (Brady v. Maryland, 373 U.S. 83 (1963)). Court rules typically require both sides to disclose the names and addresses of the witnesses they intend to call, thus permitting the opposing side to interview the witnesses before trial. In many jurisdictions the defense must give advance notice of the intention to rely on certain defenses, such as insanity, alibi, entrapment, or consent.

The theory of the adversary system is that justice is most likely to emerge from a contest in which the two sides prepare their own cases. In practice the theory is compromised by limited resources. A majority of criminal defendants are represented by publicly provided counsel. There is widespread agreement that the funds provided for indigent defense do not permit anything like an independent investigation by defense counsel in every case. Caseload pressures, often in the range of hundreds of felony files per lawyer per year, require defense counsel to select a few cases for trial while arranging the most favorable plea agreement possible for the rest.

Pretrial motions can be made for a wide variety of purposes, including but not limited to: (1) suppression of otherwise admissible evidence because the evidence was improperly obtained; (2) change of venue; (3) admission or exclusion of evidence; (4) compelling discovery withheld by the other side; (5) determining competence to stand trial; and (6) court appointment of expert witnesses for an indigent defendant. Motions are decided by the court without a jury. If a ruling on a motion turns on disputed facts, the court will hold an evidentiary hearing to determine the facts. Pretrial rulings are ordinarily not appealable by the defense until after a conviction, but are commonly allowed for the prosecution, as otherwise the double-jeopardy principle might prevent a retrial even though the government lost the trial because the trial court erroneously ruled on a motion.

Like rulings on motions, the preliminary hearing is conducted by the court without a jury. In theory the preliminary hearing is designed both as a final test of probable cause for a trial and as a discovery tool. Actual practice varies a great deal. In some cases prosecutors introduce their full case, both to encourage a plea from the defense and to preserve the testimony of wavering witnesses. In other cases the prosecutor may put on the minimum needed to go forward to trial out of fear of giving the defense an opportunity for discovery.