The Criminal Process

Although the laws are complex and each case is different, the procedures for criminal cases are basically the same. If you are suspected of a crime, an arrest warrant may be issued and you may be taken into custody. In serious cases, evidence is first presented to a grand jury, and, if the charges are justified, the government will proceed with an indictment against you. While you are awaiting trial you may be released on bail.

You have the right to choose an attorney or have the courts appoint one to represent you.

You have the right to choose whether your trial is by judge and jury or judge alone. The prosecution will present its case by introducing evidence to prove their charges. Remember that you are presumed innocent until proven guilty. The burden of proof is on the prosecution and they must prove guilt beyond a reasonable doubt.

You have the right to enter a “not guilty” plea. If you are found innocent, you are free to go. If you are found guilty, the judge will pronounce sentence.

You have the right to file an appeal if you are found guilty, but the prosecution cannot appeal against you if you are found innocent.

Criminal procedure rules are generally applied to more serious crimes called felonies. Less serious offenses, called misdemeanors, are usually handled in a different way.

GLOSSARY OF LEGAL TERMS

WARRANT
A warrant is a written order usually issued by a judge or court clerk and given to a law enforcement agency (sheriff, marshal, local officer of the peace and constable). The most common types are search warrants and arrest warrants.

ARREST
You may be arrested for an alleged violation of civil or criminal law. A criminal arrest is most often accomplished by presenting an arrest warrant but any one can exercise their right to make a “citizen’s arrest” without a warrant if they witness you committing an alleged felony. Please note that you have the right to immediate counsel regardless of the circumstances surrounding your arrest.

SEARCH WARRANT
A search warrant is a written order by an official of a court authorizing an officer to search a specific place for specific objects and to seize them if found. Your Fourth Amendment rights guarantee that a search warrant may only be issued on oath or affirmation that a crime was probably committed. The U.S. Supreme Court does not recognize evidence presented if it was obtained without a proper search warrant.

INDICTMENT
An indictment is a formal written accusation naming specific persons and crimes. An indictment may be issued by a grand jury if they determine that the evidence presented to them is sufficient to support the charges brought against you.

The Fifth Amendment to the U.S. Constitution safeguards your right to a preliminary hearing by a grand jury in major federal cases. The U.S. Constitution stipulates that no person may be tried in a federal court for a serious offense without a formal indictment, but beware that less than 50% of the states honor your constitutional right to a preliminary hearing. Make sure that your attorney insists on your Fifth Amendment rights.

BAIL
If you have been accused of committing a serious offense you may be eligible to be released from custody while you await your trial. The court has the power to decide whether or not you are entitled to bail and you do not have the absolute right to bail. However, the Eighth Amendment to the Constitution of the United States does provide that "excessive bail shall not be required”.

If you qualify for bail, the court will place a monetary value on your freedom. You may pay the ordered amount in cash, or by signing over the title to any property you have, or by using the services of a Bail Bonds company. A Bail Bonds company is like an insurance company because they require a cash premium from you (approximately 10% of the total amount of your bail). They rely on you to comply with the court’s instructions and, if you don’t, they have the authority to apprehend you, return you to jail, and keep your money.

EVIDENCE
Evidence presented in court must be directly related to your charge. The rules governing evidence (Common Law, the basis of our judicial system) began in Britain during the 16th century. Even though the rules regarding evidence have been modified to reflect modern times, they are still extremely complicated. In short: the prosecution must establish that the evidence presented pertains specifically to the charges against you, each juror must prove neutrality, each juror must swear to being unbiased, and must advise the court of any immediate knowledge of the dispute.