• What is criminal procedure exactly?

    Author : The Blanch Law Firm September 21, 2016

    Becoming a participant in the criminal justice system in America can be confusing, intimidating and downright scary – with one of the highest rates of incarceration per person in the world, it’s hard not to panic if you become the suspect of a criminal investigation. Certainly, the fear can strike victims equally, who are involuntary participants in trials, questioning and are uncertain if justice will ultimately be served. What follows is a general overview of the criminal justice system in the U.S., which can help you navigate it more confidently should you become involved.

    First, it’s important to understand who the basic players are – there are the police, who are typically the first point of contact for both victims and defendants. They report the crimes, investigate and gather evidence for the prosecution, the second player. The prosecution (or district attorneys) are the ones who will present the case to the jury. The prosecution represents the state – not the victim – and they have a huge amount of discretion in how, and even whether, they will take the case to a full trial. They usually attempt to settle via a plea bargain with the defense attorneys, another actor. The presence of a defense attorney is a constitutionally protected right, and they defend the accused against the accusations presented by the state. This all takes place in the court room, with the judges who oversee trial and make sure the law is followed, and sometimes a jury gets involved as the ultimate trier of fact. Finally, if there is a conviction, the corrections system is involved, either in incarcerating the defendant or providing supervisory services for probation or parole.

    A criminal case will usually initiate with the police, either when they witness a crime, or a victim or witness reports it directly. Law enforcement will investigate both before and after an arrest, depending on the crime. Their role is to build up enough evidence that the prosecution can present a strong case to the judge or jury at trial. Law enforcement will present what they have gathered during their investigation to the prosecutor, who can decide whether to file charges, which charges to file, or even dismiss the case without any prosecution. If charges are filed, the defendant will appear in court to determine whether there is enough evidence to hold the defendant, and then may determine whether to hold them, release them on bail, bond or on their own recognizance (basically that they promise to return to court and are not a flight risk). There are a few other preliminary hearings depending on the type of crime or jurisdiction, such as a grand jury or arraignment. A good criminal defense attorney will help you from the moment of arrest and trial – it is a good idea to seek out their advice.

    Finally, the case will culminate in either a plea agreement, meaning that the defendant will plead guilty to a crime in exchange for either a dismissal of more serious charges or a lesser sentence. Most cases in the criminal justice system are resolved through a plea agreement. The ones that cannot be resolved in this fashion will proceed to trial. Trials are held either before a judge or a jury, depending on the type of crime. Most cases are divided into two sections – first, the guilt phase (or whether the accused can be convicted of the crime). Then, if there is a conviction, there is a sentencing phase. Each phase has different procedural and evidentiary requirements, and your attorney should be able to guide you through each process as necessary. The process is not straightforward or easy to navigate, but if you become involved in a criminal case, use your constitutional right to obtain an attorney if you are accused. If you are a victim, most jurisdictions have multiple resources for victims going through this process. Use all of these to your advantage, depending on your position, and you will have a less stressful time.