4. What is the process for initiating and processing criminal charges against a defendant?
The general process for initiating criminal charges against an accused is as follows:
• Arrest – An arrest is the first step of the prosecutorial process. It involves the physical detention of an individual. If the defendant is an organization, the arrest may be carried out through injunctions against continued business operations. The arrest takes place pursuant to some form of legal authority. This may include the arresting individual witnessing criminal activity or pursuant to an arrest warrant.
• Initial Appearance – Once an individual is arrested, she has a right to be informed of the charges against her. As such, the defendant must go before a judicial officer within a statutory period (generally 72 hours) to receive notice of the charges.
• Bringing Charges – To bring formal charges against someone, the case is handed over to the prosecuting officer of the court. The prosecuting attorney may have any number of titles (solicitor, district attorney, etc.). This prosecuting officer orchestrates the process for bringing charges against a defendant in the name of the people of that jurisdiction. For example, the charges may read, “US v. John Smith” or “State of Georgia v. John Smith”. Who has the decision-making authority to bringing charges against the defendant depends upon the classification of the alleged criminal conduct. A prosecutor must file an “information” with the court to begin prosecution of a misdemeanor. The prosecutor must submit the matter to a grand jury to bring felony charges against a defendant. The grand jury decides to bring felony charges against a defendant, this is known as handing down an “indictment.”
• Arraignment – The arraignment is the first appearance by the defendant before the court to answer the criminal charges. At the arraignment, the court will review the defendant’s rights and accept the defendant’s plea. The plea will either be guilty, not guilty, or nolo contendere (no contest). If the defendant pleads guilty (or no contest), the court will set a trial date for sentencing. If the defendant pleads not guilty, the court will set the matter for trial.
• Trial Burden – To convict a defendant of a crime, the Government bears the burden of proof and the burden of persuasion. Burden of proof means that the Government must demonstrate sufficient evidence to demonstrate each element of the charged offense. The burden of persuasion means that evidence must be sufficient to convince a jury that the defendant is guilty beyond a reasonable doubt.
Each step of the criminal process may vary slightly among jurisdictions. Prosecution of a violation of a criminal law is carried out in an Article III court (judicial branch court). Article I courts (administrative courts) do not prosecute violations of criminal law.
• Note: States establish a special court, “juvenile court”, to handle criminal infractions by adolescents.
• Discussion: Of the major steps in the criminal process, do you think any procedural step is more important in terms of observing a defendant’s due process rights? Can you think of situations or examples of how a defendant’s rights could be infringed upon in each of the steps?
• Practice Question: Laura receives notice from the state’s criminal law division that she has been indicted for illegally trading in corporate securities. The criminal detective advises Laura to report to the local police station where she will be processed for arrest and detention. On the way to the police station, Laura calls her attorney and asks about the process that she will face if the government continues with the charges against her. If you are Laura’s attorney, explain to Laura the process that she can expect.