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The Criminal Justice System Explained by an Attorney

The Criminal Justice System Explained by an Attorney

Navigating the criminal justice system can be confusing and frightening. This short article is designed to provide an overview of the system to help you better understand its structure, different stages of a criminal case and possible outcomes by which a criminal case may be resolved.

About the American Criminal Justice System

The American criminal justice system is designed based on the many rights provided under the United States Constitution. States have their own constitutions, but most are modeled after the federal constitution.

Though the nuances of the criminal justice system may differ from state to state, or from state to federal courts, or even in military courts, the American system has distinct similarities in the many jurisdictions throughout the country. In the American justice system, all persons accused of a crime are called defendants.

All defendants are presumed innocent. This important presumption of innocence applies regardless of the severity of the crime(s) charged or the strength of the evidence in support of the charge(s). All defendants are presumed innocent until either admitting guilt or being adjudged guilty after trial.

The right to a trial is embodied in the constitution. As a practical matter, approximately 5% of all criminal cases nationally actually proceed to trial. The majority of cases are either dismissed or resolve with guilty pleas. However, the decision of whether to plead guilty or proceed to trial rests with the defendant.

Because all defendants have an absolute constitutional right to a trial, the criminal justice system is built around the possibility that a defendant may choose to exercise this important right. If a defendant chooses to have trial, he or she must be provided with one. With these basic concepts in mind, below is an outline of the criminal justice system.

Criminal Justice System Part 1
Criminal Justice System Part 2

Investigation and Arrest

The wheels of the criminal justice system begin to turn when law enforcement receives information of suspected criminal activity. Police receive this information in various ways. Some crimes are reported by way of 9-1-1 emergency calls. Others are reported by victims of or witnesses to crimes who visit a police station to make a complaint or to report criminal activity.

Police officers on patrol may observe suspected criminal activity such as in the context of a motor vehicle stop. In other instances, detectives working on long term investigations may receive information of suspected criminal activity from informants or others.

Once police receive initial information of suspected criminal activity, they investigate. This may include interviewing witnesses, obtaining statements, conducting surveillance, reviewing photographs or video footage, seizing physical evidence, collecting forensic evidence, subpoenaing and reviewing documentation, etc.

The possible directions of an investigation are endless and contingent on many variables such as the nature and extent of the suspected criminal activity, person(s) involved, and much more.

Investigations are not designed to establish guilt or innocence. Rather, they are designed for police to collect enough information to answer the following question: is there reason to believe, based on specific information, that someone committed a crime.

This question is the definition of probable cause, which is the legal standard required to arrest and charge an individual with a crime.

If the answer is yes, that is, if probable cause exists to believe the suspected individual committed a crime, the person is placed arrested and charged or accused with committing the crime(s).


Once a person is placed under arrest, he or she must be presented before a court or judicial officer as soon as possible. This initial court appearance is called an arraignment. The arraignment process is very short in duration, often lasting just a few moments. However, at arraignment, the court performs four important functions.

First, the court formally notifies the defendant of the criminal charge(s) both verbally and in writing. The charge(s) is/are usually set forth in a charging document, which may be a criminal complaint, criminal information or indictment.

These are the three forms of criminal charging documents filed with the court. The charging document, regardless of type, contains the accusation(s) against the defendant such as the nature of the charge(s), time and place where the alleged crime was committed, and the way it was allegedly committed.

At the arraignment, the court typically reads to the defendant the charges set forth in the complaint and provides him with a copy of the document.

Second, the court calls upon the defendant to plead or answer to the charge(s). The charge(s) is/are allegations. Because the defendant is presumed innocent of the allegation(s), the most common plea at arraignment is not guilty. Even though many cases in the criminal justice ultimately resolve with guilty pleas, almost everyone pleads not guilty at arraignment. This is standard procedure.

Third, the court ensures at arraignment that the defendant has a lawyer. A defendant may hire his own criminal defense lawyer of his choosing at his own expense. Counsel is often retained by the defendant or by family or friends of the defendant on the defendant’s behalf prior to arraignment.

Counsel may also be retained after arraignment. In circumstances where the defendant cannot afford to hire an attorney, the court will appoint a lawyer free of charge. This appointment of counsel is typically made through the Public Defender’s Office or of private counsel who have volunteered to be available for assignment by the court to represent indigent defendants.

Fourth and lastly, the court addresses the issue of bail at arraignment. When people hear the term bail, they automatically think of money. However, bail refers to the following question: what will the court do with the defendant while the criminal case is pending. The court has many options. On one end of the spectrum, the court may release the defendant on his or her promise to return to court in future when directed. On the opposite end of the spectrum, the court may order the defendant detained without bail pending resolution of the case. The court may also order the defendant’s release subject to conditions such as the payment of money, curfew, home detention, electronic monitoring, supervision by the court, drug testing, remaining drug and/or alcohol free, attendance of counseling, travel restrictions, surrender of passport, or any combination of these conditions.

The laws of bail are concerns with two factors: flight risk and danger to the community. Defendants on bail are required to voluntarily appear for all future court appearances. A defendant considered a flight risk is someone whom the court is concerned will not appear as directed.

This concern may arise from the defendant’s criminal history, history of warrants or failure to appear in the past, ties to a foreign country, lack of ties to the local community and/or court’s jurisdiction, out-of-state residence, frequency of international travel, lack of U.S. citizenship or lawful status to remain in the United States, strength of the evidence in support of the charged offense(s), and severity of punishment, if convicted.

Danger to the community is assessed based on the nature of the charge(s), defendant’s criminal history, reputation for violence, suspected gang membership or affiliations, suspected connections to organized crime, history of restraining orders, and any other evidence that may give rise to a conclusion or inference that the defendant poses a danger to others.

Risk of flight and danger to the community factors are considered and weighed on a case-by-case basis to determine the appropriate bail terms and conditions the court should set for each defendant.

Pretrial Conferences

After the arraignment, the case is scheduled for a pretrial conference. As mentioned above, the justice system is designed around the possibility that a defendant may elect to go to trial. The period between arraignment and when the case ends is known as the pretrial phase. This is the longest phase of the criminal justice process. During this time, the case is scheduled periodically for pretrial conferences. This is when the defense and prosecuting attorneys meet, discuss the case, exchange evidence and information, file motions, and negotiate for a possible resolution.

The exchange of information between attorneys during the pretrial phase of the case is called discovery and is governed by rules of procedure. The discovery process is designed to promote the free and open exchange of information.

A defendant is entitled to learn the supporting basis for the charge(s) or accusation(s) against him. This consists of the prosecution’s evidence.

Discovery comes in various forms such as:

  • police reports,
  • witness statements,
  • photographs,
  • video and audio recordings,
  • business records,
  • medical records,
  • public records,
  • scientific analyses and reports,
  • expert opinions,
  • former witness testimony,
  • physical objects seized or collected during the investigation,
  • forensic evidence, and more.

Before a defendant either pleads guilty or elects to go to trial, he must be informed of (or discover) the evidence against him. This is the only way he can make an informed decision on how to proceed and if he elects to go to trial, to meaningfully prepare his trial defense.

In addition to obtaining information from the prosecution, the defense may conduct further discovery on its own by issuing subpoenas for records in the custody or control of third parties or entities. The defense may physically inspect any evidence in the government’s custody or control.

The defense may also conduct its own independent investigation such as locating and interviewing potential and known witnesses, testing items of evidence (examples: suspected drugs, firearms, bodily fluids, DNA) and consulting with experts.

The rules of procedure in each jurisdiction govern the defense’s obligation to share information with the prosecution before trial. The spirit of the discovery process is to eliminate unfair surprise and place the parties on an equal playing field at trial. Conducting discovery may be time consuming.

The process is conducted and information is exchanged between the parties over time at over the course of multiple pretrial conferences.

The parties also file motions at pretrial conferences. A motion is a written document filed with the court asking for the court’s help, relief or permission to do something with respect the case. The number of possible motions is infinite. The actual motions that may be filed vary from case to case.

Examples include motions to compel discovery or production of information not voluntarily disclosed by one party to another, to inspect items in the opposing party’s possession, to modify bail terms and conditions, to suppress evidence believed to have been illegally obtained, to issue subpoenas compelling the production of records or items in third party possession, to issue subpoenas compelling witness testimony, to dismiss charge(s), and many more.

Motions are typically filed at and heard in conjunction with pretrial conferences. This process is also time consuming. A motion may be filed at one pretrial conference.

The court may then require the party opposing the motion to file a written response at the next pretrial conference. Once an opposition or objection is filed, the court may hear the motion at a third conference or some other pretrial conference, and often not issue a decision until a fourth conference or even later.

Because filing motions and conducting discovery is a long process, the pretrial phase is the longest stretch of the criminal justice process.


All criminal charges must be resolved. Bringing a case to an end is referred to as disposition. There are only three possible ways for a criminal case to end: dismissal, pretrial disposition or trial.

Dismissal refers to closing the criminal case without any acceptance of responsibility or admission of guilt. This is the best outcome possible. In this circumstance, the defendant pleads not guilty at arraignment, is presumed innocent throughout the life of the case, and receives a dismissal in the end.

Cases may be dismissed in different ways and for different reasons. The court may dismiss a case upon a motion for lack of probable cause to support the charge(s), absence of prosecution witnesses on the day of trial, failure by the prosecution to comply with discovery requirements, failure to prosecute, prosecutorial misconduct during the criminal process, or lack of evidence after a successfully motion to suppress evidence.

The prosecution may also exercise its discretion to dismiss a case. This may be done without a motion, over the defense’s objection, without the defense’s consent, and without any justification. The prosecution represents the state or federal government that filed the charge(s).

Because it filed the charge(s), it may dismiss them at any time for any reason. Typically, the prosecution files a dismissal when it cannot locate or produce witnesses or other evidence needed to prove its case, and in some cases, based upon extenuation and mitigation evidence presented to it by the defense.

Dismissal may be done with or without prejudice. A dismissal with prejudice is a permanent end to a case. This means the government cannot later re-charge the case or file the same(s) charges, based on the same factual allegation, against the defendant in the future.

Dismissals may also be entered without prejudice A dismissal without prejudice means the prosecution may re-file the case in the future. Though this rarely happens, it can and does occur. When a case is dismissed, the defense should always advocate for it to be done with prejudice where possible.

Pretrial disposition refers to the resolution of the case short of proceeding to trial. This typically involves the prosecution and the defense reaching an agreement. The agreement may be oral or in writing. Sometimes the agreement may lead to dismissal upon the satisfaction of certain conditions by the defendant.

Most often, however, the agreement calls for the defendant to accept responsibility or plead guilty to a particular charge in exchange for a particular sentencing recommendation.

The crime to which the defendant pleads or accepts responsibility to may be one or more of the charge offenses, or something different, which is called an amended charge. The plea is conditioned upon the prosecution’s sentencing recommendation, which is usually a punishment that is less severe than the defendant would receive after trial, if convicted.

Plea Agreements

Plea agreements may be simple or complex. They vary by jurisdiction, as well as by the nature and complexity of the case. Plea agreements may contain sentencing terms such as duration of probation or incarceration, conditions of probation, fines and restitution amounts.

In cases were probation is an anticipated sentence, the parties may agree on terms of probation such as attendance of counseling, drug testing, remaining drug and alcohol-free, the performance of community service, no contact with named victims, travel restrictions, payment of restitution and more.

Plea agreements may also contain terms regarding the forfeiture of seized assets, waiver of appellate rights and agreements regarding certain facts that may impact sentencing, such as identity and number of victims, amounts of financial loss, types and quantities of drugs, etc.

The prosecution and defense are free to negotiate the terms of a plea agreement. The terms are left to the discretion and creativity of the parties. The court does not usually play a role in the plea agreement negotiating process, and may even be barred from doing so by law. Any agreement reached by the parties must be placed on the court record at the time of disposition, and may not remain silent and secretive.

Plea agreements may or may not be binding on the court. If a plea agreement is binding, the court must either accept and abide by its terms or the defendant must be afforded the opportunity to withdraw his plea or acceptance of responsibility.

If the plea agreement is not binding on the court, the defendant will be advised of this usually in the terms of the written agreement and by the court verbally on the record. In some jurisdictions, if the parties enter into an agreement that is not binding on the court, the defendant cannot later withdraw his plea if he is dissatisfied with the court’s sentence or if the court fails to rule as either he had hoped or how legal counsel predicted it would rule.

In other jurisdictions, the defendant may withdraw his plea if the court refuses to abide by the terms of the parties’ agreement.

When a defendant chooses to resolve his case with a pretrial disposition, he must physically appear in court to have an on-the-record open discussion with the judge. This discussion is conducted in a question-and-answer format after the defendant is placed under oath.

A defendant cannot plead guilty or accept responsibility for a criminal charge unless the court is satisfied he is doing so with knowledge, voluntarily and for factual reason. These are the elements of a legally sound guilty plea.

The Elements of a Guilty Plea

Pleading guilty with knowledge means the defendant understands the nature and elements of the charge(s), the maximum allowable punishment for the charge(s), the rights being given up or waived by pleading guilty, and the collateral consequences of the plea.

To ensure the defendant is acting with knowledge, the court inquires of the defendant as to age, education and ability to read, write and understand English. If the defendant does not fluently speak English, the court will provide the services of an interpreter who speaks the defendant’s native language.

Next, the court will ensure the defendant has not consumed any drugs, alcohol or prescription medication within the 24-hour period prior to the plea that would inhibit or interfere with his ability to think clearly and understand the nature of the court proceedings. The court will also ask the defendant if he suffers from any mental illness or disability that would inhibit or interfere with his ability to understand the proceedings.

Pleading guilty with knowledge also means the defendant is aware of and understands the many important constitutional rights being waived or given up by the plea. This includes the presumption of innocence, right to remain silent, right to a trial, right to challenge, confront and cross-examine the prosecution’s evidence and witnesses at trial, right to present defense evidence and witnesses at trial, right to either testify in one’s own defense at trial, or alternatively, to remain silent at trial with an instruction to the jury that such silence may not be considered evidence, and the right to appeal any verdict of guilt after trial.

The court will also advise the defendant that certain civil rights may be suspended or waived by pleading guilty such as the right to vote, hold public office or sit on a jury during any period of incarceration. If the defendant is pleading guilty to a felony, the court may also advise the defendant that upon conviction of a felony offense, he may no longer own or possess a firearm under federal law.

The court will further advise the defendant of potential immigration consequences of pleading guilty. While the specific immigration consequences of pleading guilty vary by defendant and case type, those defendants who both plead guilty and who are not citizens of the United States may face adverse immigration consequences under federal law such as deportation, involuntary removal from the United States, denial of naturalization of citizenship and bar from reentering the United States. This warning is required for all defendants when pleading guilty in any case.

Pleading guilty voluntarily means the defendant has decided to do so on his or her own with the benefit of legal advice. The court will ensure the defendant has consulted with counsel, has had all questions answered, and is satisfied with his legal representation.

The court also inquires to make sure the defendant has not been forced to plead guilty, threatened or coerced to induce his plea, or received any promises to induce the plea other than the sentencing recommendations and agreements reached by the parties. The court must ensure the defendant is pleading voluntarily because he or she believes it is in their best interest to do so, and not for any other reason.

Lastly, the plea must be based on some factual basis or reason. At this stage of a guilty plea, the court asks the prosecution to summarize for the court the facts it would expect to prove, beyond a reasonable doubt, if the matter proceeded to trial.

Here the prosecution may read the charge, excerpts from police reports or a prepared statement that sets forth the legal elements and supporting evidence for the charge(s) to which the defendant is pleading guilty. The court will then ask the defendant to confirm the accuracy of facts stated. This is required in order for the court to conclude there is a factual basis for the guilty plea.

If the court is satisfied that the defendant’s plea is knowing, voluntary and with a factual basis, it will accept the plea and adjudge the defendant guilty. From there, the court will impose sentence. If the court for any reason rejects the defendant’s plea, he retains the right to proceed to trial.

As for sentencing, the court will usually impose the sentence agreed upon by the parties. In instances where the parties were unable to reach an agreement on sentence, the court will hear sentencing recommendations and arguments from both the prosecution and defense. It will then exercise its discretion to impose sentence in accordance with any applicable sentencing guidelines or benchmarks applicable in the jurisdiction, and subject to any minimum and maximum sentences required by law.


A defendant who maintains his innocence may elect to proceed to trial. A trial is a fact-finding event to decide the defendant’s guilt or innocence. This decision may be made by a judge sitting alone or a jury. Depending upon the jurisdiction, a defendant may have an absolute choice of a trial by jury or judge sitting without a jury. In some jurisdictions, a defendant may only have a judge alone trial with the consent of the government.

In in any event, if the judge is the fact-finder, the judge will preside over the trial, decide the defendant’s guilt or innocence, and if guilty, impose sentence. In a jury trial, the jury must unanimously agree on the defendant’s guilt for a verdict of a guilty.

The number of jurors is 12, however, some jurisdictions call for fewer jurors. A jury trial requires all jurors to agree in unanimity before returning a guilty verdict. If a jury finds the defendant guilty, then the judge who presided over the trial will impose sentence. At trial, the defendant is presumed innocent and the prosecution has the burden of proving guilt beyond a reasonable doubt. This burden is the highest standard of proof recognized by law.

A jury trial begins with jury selection. On the morning of trial, a large group of people from the community is summoned to court for jury duty. The group of potential jurors is then questioned by the judge and lawyers from both sides to determine their suitability for jury service in the particular case. This process of questioning jurors is called voir dire. A defendant is entitled to a jury made up of open-minded, neutral and impartial individuals to decide his or her case. Jurors who express an unwillingness to give either side a fair trial or the inability to be neutral, fair and impartial will be excused for cause.

Parties may seek the excusal of a juror for cause by filing a challenge for cause with the court. There is no limitation on the number of challenges for cause that may be made. If the judge agrees there is a basis for cause, the potential is excused from further service in the case. If the court disagrees, the party who sought excusal of the juror for cause may exercise another type of challenge to the particular juror known as a peremptory challenge.

The rules of procedure provide each party with a limited number of peremptory challenges. When exercised, a party may have a juror excused for any reason at all, without explanation, except if based upon race or gender. Challenges made on such grounds are prohibited. Once voir dire is complete and the requisite number of satisfactory jurors has been selected, the jury is empaneled and sworn.

The second step in the trial process is for the parties to make opening statements. This involves providing a short speech or oral presentation of the evidence it expects to present at trial. This is often referred to as a roadmap of the witnesses, items, documents and other types of evidence expected to be presented.

The prosecution opens first. After the prosecution, the defense has the option of making an opening statement, but is not required to do so. The defense may waive opening statement all together, or defer making an opening statement until after the prosecution’s presentation of evidence, known as the case-in-chief, and before the presentation of the defense evidence, if any.

Because the prosecution has the burden of proof and the defendant is presumed innocent, the defense has no burden to do anything at trial to include making an opening statement or presenting any evidence. Opening statements may not be argumentative and are designed to aid the jury (or judge sitting alone) to understand the nature of the case, charged offense(s) and supporting evidence to be presented.

The third step at trial is for the prosecution to present its evidence. This is known as the government’s case-in-chief. Because the prosecution has the burden of proving the defendant’s guilt beyond a reasonable doubt, it also has the burden of producing evidence. Trial evidence comes in many forms, though the most common form of evidence is witness testimony.

The prosecution calls its witnesses and presents their testimony in a non-leading, question and answer format called direct examination. After each prosecution witness’s direct examination, the defense is given the chance to question the witness with the use of leading questions. This process is called cross-examination, and is designed to test the witness’s memory, perceptions, knowledge, biases, prejudices, potential motives to fabricate and overall credibility.

The defense has no obligation to question prosecution witnesses and way waive its right to do so. However, cross-examination is the most powerful and effective defense tool at trial. Often, the best defense work at trial is conducted during the cross-examination of prosecution witnesses. The process of direct and cross-examination repeats itself witness after witness until the prosecution has presented all if its witnesses.

During the case-in-chief, the prosecution may also offer items of evidence such as photos, videos, recordings, records, and even physical objects collected during the investigation. The defense is given notice of this evidence before trial during discovery.

At trial, however, the defense may challenge and ask the court to exclude any piece of prosecution evidence from the trial. If the court rejects the defense evidentiary challenge, the evidence is deemed admissible and may be considered by the jury (or judge sitting alone) to decide guilt or innocence. If the court accepts the defense evidentiary challenge, the item of evidence is excluded and may not be considered.

The fourth step at trial is for the defense presentation of evidence, if any. This is known as the defense case. Though the defense has no burden or obligation to present any evidence at trial, it may do it if it wishes. The decision of whether to present defense evidence is a function of the existence and availability of such evidence, as well as tactical and strategic considerations.

In some cases, a trial defense may be that the prosecution has not and cannot prove the defendant’s guilt beyond a reasonable doubt. This is a very common defense trial strategy. In other cases, the defendant may offer evidence of a specific defense such as alibi, self-defense or consent. If the defense chooses to present evidence, its witnesses’ testimony is presented through direct examination.

The prosecution is given an equal opportunity to cross-examine defense witnesses and to challenge any items of evidence offered as defense.

At trial, the defendant has the right to testify in his or her own defense, or he may elect to remain silent. If the defendant chooses to testify, he or she is then subject cross-examination by the prosecutor. Alternatively, if the defense chooses to remain silent, the jury will be instructed that the defendant’s silent is not evidence, may not be considered against him for any purpose and that no negative inferences may be drawn from the silence.

The fifth stage of the trial involves closing arguments or closing statements. This stage is also referred to as summation. This is when the lawyers make further speeches or oral presentations about the evidence or lack of evidence presented.

Closing statements are much more aggressive and argumentative than opening statements. Here the lawyers attempt to persuade the jury (or judge sitting alone) to find in their favor. The prosecution argues for a guilty verdict and outlines how he or she believes the evidence presented proves the defendant’s guilt beyond a reasonable doubt.

The defense, on the other hand, argues that the evidence fails to prove guilt. This may involve discrediting witnesses, discounting certain items of evidence, arguing that certain witnesses or evidence are unreliable, offering alternative interpretations of the evidence, or claiming an affirmative defense based upon evidence offered by the defendant at trial.

The order of closing statements varies by jurisdiction. In some, the prosecution goes first, the defense second, and then the prosecution is permitted to respond briefly to the defense arguments in what is called rebuttal. In other jurisdictions, rebuttal is not allowed. In some jurisdictions, particularly where rebuttal is not permitted, the defense argues first followed by the prosecution.

The sixth stage of the trial process involves deliberations and delivering the verdict. Once closing statements are finished, the jury is instructed by the judge regarding the applicable law to each case. This involves legal instructions on the charge(s) and various forms and types of evidence offered during the trial.

The instructions also include legal principles such as the presumption of innocence, the prosecution’s burden of proof, and proof beyond a reasonable doubt. After the jury is instructed on the law, the jurors are instructed to retire to a private area to begin their deliberations. This is the first time in the trial process where the jurors are permitted to discuss the case and evidence offered at trial among themselves.

The process should involve an open discussion of the evidence and testimony presented, and a health exchange of respective views, opinions and perspectives on what occurred at trial. The process is aimed at the jurors reaching a unanimous verdict, of guilty or not guilty, as to the charged offense(s). If the jury returns a not guilty verdict to all charges, the defendant is discharged, and the trial process is over. On the other hand, if the jury returns a verdict of guilty as to any charge, the judge will impose sentence.


Sentencing is the final stage of the trial process where the defendant is found guilty. Typically, the judge imposes sentence after trial. This involves circumstances where a judge sat alone and found the defendant guilty or if the jury returned a guilty verdict. In a very limited number of jurisdictions, the jury will impose sentence if the jury returned a guilty verdict.

Determination of sentence after trial involves the consideration of many factors. These include the potential minimum and maximum sentences set forth by law for the convicted offenses, sentencing guidelines and/or benchmarks, oral arguments and written submission of counsel, matters in aggravation offered by the prosecution and matters in extenuation and/or mitigation offered by the defense. Once sentence is imposed, the trial process is completely over.

A defendant who is found guilty after trial may file notice of appeal. Every defendant is entitled to a fair trial. An appeal is a request to a higher court to review what occurred at trial to determine if the process was fair. Sometimes the court will make ruling that may deprive a defendant of a fair trial.

In other instances, the attorneys or jurors may engage in conduct that undermines the defendant’s right to a fair trial. Trial records are reviewed on appeal for legal error. Where error exists, the appellate court must determine if the error was harmless or harmful, meaning it deprived the defendant of a fair trial. Where there is no error or only harmless error, an appeal will be denied. Where harmful error exists, a guilty verdict may be overturned, and the defendant shall be entitled to a new trial. The appellate process can be very long, transcending both multiple courts and years. Notwithstanding, the appeals process is an important aspect of the criminal justice system.