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1.4: The Criminal Justice Process

Criminal Justice | Section 1.4: The Criminal Justice Process

Section 1.4: The Criminal Justice Process

As we pointed out in the previous section, crimes often do not come to the attention

of law enforcement. This is what is called the dark �gure of crime. The criminal

justice process does not begin until crimes come to the attention of the police. Since

many crimes go unreported, a majority of crimes never begin the process. Those

that do generally enter the system from the private sector. That is, most criminal

prosecutions begin with a private citizen making a report to the police. Very few

o�enses are detected by o�cers performing random patrols, contrary to the

conventional wisdom that preventive patrol serves to prevent crime. Information

from private citizens is the key to success in the criminal justice system.

Investigation

Once a crime is reported to the police, an investigation will begin. Depending on the

nature and seriousness of the crime, this investigation may be as simple as a patrol

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o�cer asking a few questions at the scene, or as complex as involving detectives

and forensic scientists. The �rst responder will conduct a preliminary investigation.

The preliminary investigation involves securing the crime scene and identifying

victims, perpetrators, and witnesses. Other tasks that do not involve specialized

training and large amounts of time are also part of the preliminary investigation.

Cases that are more complex will require a follow-up investigation, which is

usually conducted by a detective.

Arrest

An arrest involves taking a person into actual physical custody by law enforcement.

For an arrest to be legal, it must be based on probable cause. Probable cause means

that enough evidence is present to convince a reasonable person that it is more

likely than not that the suspect committed the crime. Perhaps one of the most

controversial aspects of the arrest process is the use of force by police in making an

arrest. Constitutional and statutory law authorizes the use of reasonable force when

the force is necessary to take a suspect into custody. Often, what

constitutes reasonable force is a hotly disputed matter. In the landmark case

of Graham v. Connor (1989), the Supreme Court of the United States established the

legal requirement that the use of force by police be objectively reasonable. This

standard suggests that police may use an amount of force that a reasonable person

would conclude was necessary to e�ect the arrest and no more. Note that the force

used to e�ect an arrest is a di�erent legal issue than self-defense. O�cers are

always allowed to answer deadly force with deadly force when lives are at stake.

Booking

After an arrest, suspects are taken to a police station holding facility or jail for

booking. The di�erence depends largely on the size of the jurisdiction. Large

municipal agencies often have their own holding cells, while small and rural

agencies usually use the county jail for booking and holding purposes. Booking is

the process of o�cially recording that a person has been arrested. This usually

involves identifying, photographing, and �ngerprinting the suspect. The

identi�cation process usually involves recording the suspect’s personal

information, such as their legal name, date of birth, address, physical

characteristics, and so forth. Most jails will have a standardized booking form for

this purpose. An o�cial record is also made at this time about the alleged crime

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committed by the suspect. The suspect’s identifying information will usually be

retrieved from a criminal history database. The suspect will also be photographed

and �ngerprinted. These identi�cation tasks have been made swift and accurate by

modern digital technologies. The suspect will be thoroughly searched for

contraband, and all personal property will be con�scated and inventoried. The

property is returned to the suspect upon release unless it is deemed illegal

contraband or evidence of a crime. Note that in most jurisdictions, persons

suspected of minor o�enses can be issued a written citation in lieu of being booked

into jail. By signing the citation, the person is promising to appear in court at the

date and time listed on the citation.

Charging

This crucial step is where law enforcement and prosecutors make the decision as to

what particular crime to charge a suspect with, if at all. The usual process is for the

police to turn over a case �le to the prosecutor’s o�ce. The case �le will contain the

police arrest report, along with supporting documentation such as witness

statements, victims statements, forensic laboratory reports, and so on. The

prosecutor will determine if there is enough evidence to go forward with the case. If

there appears to be enough evidence to go forward in the prosecutor’s professional

legal judgment, then a charging document is �led with the court. The name of the

charging document changes from jurisdiction to jurisdiction. Some jurisdictions

(including the federal courts) require an indictment by a grand jury, and others use

a prosecutorial information. Note that an arrest does not always precede the

issuance of a charging document. There are times when the charging document is

�led �rst, and then a warrant is issued for the arrest of the accused. This situation is

most common in jurisdictions where grand jury indictments are a common

charging document.

Initial Appearance

Under the constitution, people cannot be seized and jailed without reasonable

cause. To make sure that no one is arrested and held illegally, every arrestee has the

right to be brought before a judge within hours of arrest. During this �rst or initial

appearance, a magistrate will inform the suspect of the charges against him, advise

him of his rights, and determine if there is enough evidence to hold the suspect for

further processing. These hearings tend to be less formal than later formal hearings

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and can be conducted by lower court magistrates who may or may not have the

authority to preside over the actual criminal trial. In most jurisdictions, bail is set at

this stage in the process.

At the federal level, the process is somewhat formalized, and several important

tasks are taken care of in this single step. At an initial appearance in federal court, a

judge advises the defendant of the charges �led, considers whether the defendant

should be held in jail until trial, and determines whether there is probable cause to

believe that an o�ense has been committed and the defendant has committed it.

Defendants who are unable to a�ord counsel are advised of their right to a court-

appointed attorney. The court may appoint either a federal public defender or a

private attorney who has agreed to accept such appointments from the court.

Regardless of the type of appointment, the attorney will be paid by the court from

funds appropriated by Congress. Defendants released into the community before

trial may be required to obey certain restrictions, such as home con�nement or

drug testing, and to make periodic reports to a pretrial services o�cer to ensure

appearance at trial.

Preliminary Hearing and the Grand Jury

As a matter of American legal tradition, a grand jury was convened to hear evidence

presented by the prosecutor and determine if that evidence was su�cient to

warrant a full-blown criminal trial. In other words, it was the duty of the grand jury

to determine if probable cause existed in a particular criminal case. Defendants had

no right to be present at grand jury proceedings, and these deliberations were held

in secret.

States that were more populous found that the grand jury system was unwieldy. It

was too labor-intensive and took up too much time. These states developed a

system whereby the prosecutor �les a charging document called an

information with the court. A hearing is then held to determine if probable cause is

indeed present as the prosecution alleges. Defendants have the right to be present

at these preliminary hearings. Regardless of whether a grand jury system is used or

prosecutorial information is used, the gold standard for moving forward to a

criminal trial is probable cause.

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The federal courts still use the old grand jury system. At the beginning of a federal

criminal case, the principal actors are the U.S. attorney (the prosecutor) and the

grand jury. The U.S. attorney represents the United States in most court

proceedings, including all criminal prosecutions. The grand jury reviews the

evidence presented by the U.S. attorney and decides whether there is su�cient

evidence to require a defendant to stand trial.

 Arraignment

At this stage, the criminal defendant appears in court to have the formal charging

document read. This is where the defendant enters a plea. The most common pleas

are guilty and not guilty. In most jurisdictions, standing mute (saying nothing

when asked for a plea) will result in the court entering a not guilty plea on behalf of

the defendant. If a defendant pleads guilty in return for the government agreeing to

drop certain charges or to recommend a lenient sentence, the agreement often is

called a plea bargain.

In federal criminal courts, the defendant enters a plea to the charges brought by the

U.S. attorney. More than 90% of federal criminal defendants plead guilty rather

than go to trial. If the defendant pleads guilty, the judge may impose a sentence at

that time, but more commonly will schedule a hearing to determine the sentence at

a later date. In most felony cases the judge waits for the results of a presentence

report, prepared by the court’s probation o�ce, before imposing a sentence. If the

defendant pleads not guilty, the judge will proceed to schedule a trial.

Because of the seriousness of a guilty plea, the judge must determine that a guilty

plea was made both knowingly and voluntarily. If it is determined that a guilty plea

is entered knowingly and voluntarily, there is no need to go on with a trial. In many

cases, the judge will impose a sentence at this point.

Key Terms

Arrest, Arrest Report, Booking, Charging Document, Counsel, Follow Up

Investigation, Graham v. Connor (1989), Grand Jury, Indictment, Information,

Initial Appearance, Knowingly and Voluntarily, Magistrate, Objectively

Reasonable, Plea, Preliminary Hearing, Preliminary Investigation, Presentence

Report, Pretrial Services O�cer, Probable Cause, Reasonable Force, Standing

Mute, U.S. Attorney

7/14/2021 Criminal Justice | Section 1.4: The Criminal Justice Process | Professor McKee's Things and Stuff

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Last Modified:  06/29/2021

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