The Criminal Process

The Process Explained

1. Arrest

An arrest is made when the police take the defendant into custody/jail.

Probable Cause for Arrest:

  • A law enforcement officer may arrest only where probable cause to believe one has committed a crime exists. However, arrests can be made with or without a warrant.
  • The police may only arrest, take physical custody of a person, if they have probable cause to believe the person committed an arrestable offense.

NOTE: "Probable Cause" is a very technical issue and should only be argued by a licensed attorney. The defendant should always consider remaining silent until speaking with an attorney.


  • Police Station Booking - A suspect's file is opened with that agency (i.e. fingerprints, booking photos, and pertinent information such as date of birth, height, weight, etc…)

NOTE: At this point in the criminal process three separate actions can be taken by the arresting agency, which are as follows:

  1. (1st) No charges are filed and the defendant is released from custody
  2. (2nd) Charges are filed. Bail is posted by the defendant, and he/she is released. Alternatively no bail is set and the defendant is released on his/her Own Recognizance ("O.R.")
  3. (3rd) The defendant remains in custody and is transported to court on the scheduled arraignment date.

2. Initial Filing of Charges

Prosecution will file a Complaint and Affidavit of Probable Cause if there is enough supporting evidence.

NOTE: Pending that the arresting agency has sufficient evidence, a report will be submitted for review by the appropriate prosecuting agency. Upon approval by the prosecutor, a complaint is filed with the residing court.

3. Preliminary Arraignment

The defendant must appear in court before a Magistrate or Judge within a reasonable period of time to be informed of the following:

  1. (1st) The defendant must be informed of the violations he/she is charged with
  2. (2nd) The defendant must be informed of their constitutional rights
  3. (3rd) The bail and bail amount is determined.

NOTE: If you plan on using a bail bondsman, it can be expected that 10% of the set bail amount be paid to the bail bonds agency, and is non-refundable. If the bail amount is large enough collateral will be required as well. An alternative option is to post bail with your own money, which is refundable at the conclusion of the prosecution. However, if any appearances are missed the bail is usually forfeited and a warrant is issued.

4. Preliminary Hearing

The preliminary hearing determines whether probable cause exists for bringing the defendant to trial. This hearing consists of witness testimony and presentation of evidence. The defendant has the opportunity to challenge the evidence presented by the prosecution through cross examination of the prosecution's witnesses, and through the calling of their own witnesses and presentation of evidence.

5. Formal Filing of Charges

The prosecutor prepares and submits the final charging document or "information" with the allegations of the crime to the residing court.

NOTE: The prosecutor's office usually will file the "Information" with the court in a state court proceeding.

6. Formal Arraignment

The Defendant pleads guilty, no contest (no lo contendere), or not guilty to the Information or Indictment.

NOTE: This arraignment usually occurs in the court where any trial will be held.

7. Pre-Trial

Speedy Trial:

  • Sixth Amendment right to a speedy trial applies to State prosecutions by the 14th Amendment's Due Process Clause.
  • Exception - "Good Cause Continuances."

Pre-Trial Motions:

  • Motion to Suppress
  • Motion to Dismiss, etc…

NOTE: "Good Cause Continuances" are given when and if the attorney of record can provide rational explanation justifying the need to set aside the matter to another date (i.e. Further time is needed by the defense to prepare for pre-trial, etc…). The motions that are submitted to the judge at this point are case specific and are very technical and should only be submitted by a licensed attorney.

8. Pre-Trial Discovery

  • Prosecution's Duty to Disclose - Includes documents, tangible objects, and lists of witnesses the prosecution intends to call at trial.
  • Defendants Duty to Disclose - Includes advance notice of Alibi and Insanity defense.

9. Trial

Jury Trial:

  • The constitution gives the defendant the right to a jury trial if charged with a felony or a misdemeanor.

Confrontation Clause (Right to Cross-examine):

  • The defendant has the right to be confronted by the witnesses against him/her and cross-examine them.

Compulsory Process:

  • Is the right that allows the defendant to request that the court issue a subpoena to compel testimony of witnesses with information pertinent to their case, at no charge to the defendant.
  • The defendant has the right to remain silent.

10. Verdict

  • Directly after proceeding closing arguments the jury will be instructed to deliberate on the facts and law provided. Upon conclusion of the deliberation the jury must provide a verdict of guilty or not guilty on the existing counts.
  • If the jury cannot reach a unanimous verdict, a hung jury will be declared.

11. Sentencing (Upon Finding of Guilty)

The defendant is sentenced by the Magistrate or Judge presiding over their case. At this time each party may request that the judge take into consideration certain evidence presented in the case.

NOTE: If convicted by a jury the punishment may be more severe. However, an attorney can seek a lesser punishment, even at this point, by offering mitigating circumstances.

12. Appeal

A defendant has the right to appeal the conviction and sentence. Failure to exercise this right within a designated time, results in the defendants waiver of their right.

Criminal Process Overview


  1. An arrest is made
  2. Initial filing of charges
  3. Preliminary Arraignment
  4. Preliminary Hearing
  5. Charges are formally filed
  6. Formal Arraignment
  7. Pre-Trial
  8. Pre-Trial Discovery
  9. Trial
  10. Verdict
  11. Sentencing
  12. Appeal


John Denslow


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