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Arrest and Criminal Prosecution Process

What is “criminal law”?

Criminal law is public law passed by the federal, state, or local government. It restricts or requires affirmative conduct of its citizens under the threat of prosecution. These prohibitions may be in the form of a statute, common law rule, regulatory rule or decision, or local ordinance. Criminal laws prohibit conduct that is either considered, “malum in se” or “malum prohibitum”.

Malum in se – means that conduct is inherently wrong without regard to a statute proscribing the conduct.

Example: Most people consider murder and theft to be innately wrong or evil without regard to a government’s prohibition of the conduct.

Malum prohibitum – means that conduct is not necessarily wrong or evil, but it is made illegal based upon a law.

Example: A public company’s failure to adequately disclose corporate information to the public is made illegal by statute. Without such a statute, it may not be considered inherently wrong.

The authority for each type of law may differ, but generally criminal laws are enforced by the government and exist to protect the health, safety, and welfare of citizens. This includes protecting the property and rights of those citizens. Failing to comply with criminal laws can result in fines or imprisonment.

Discussion: Do you generally believe that criminal laws are effective at curbing prohibited conduct? Do they effectively protect the health, safety, and welfare of citizens? Does a criminal penalty ever violate the purpose of protecting citizens? With the prison population at record levels in the US, is there a need to reform the criminal punishment system? If so, what are some alternatives that may achieve a similar purpose to the penalty of imprisonment?

Practice Question: Explain the primary differences between criminal law and civil law?

What are the elements of a crime?

Every crime is composed of certain elements. Common among all crimes are the physical and mental characteristic of the defendant in failing to comply with the criminal law.

Actus Reus – Actus Reus is a latin phrase meaning, “guilty act”. This element simply means that the individual committed the act proscribed by the statute. In some cases a threat to act or a failure to act constitutes the crime. In any event, the defendant must be responsible for that action or inaction.

Example: If an individual is involuntarily intoxicated, this may negate the actus reus. If someone slips drugs in a person’s drink unknowingly, it may excuse the voluntary act required to find a person guilty of a criminal offense. That is, she may not have the control over her physical actions necessary to satisfy the actus reas. The act of voluntary intoxication, however, will not excuse the actus reas. Voluntarily drinking or taking medications is a sufficient act.

Mens Rea – Mens rea is a latin phrase meaning a “guilty mind”. This generally means that there must be some mental intent to commit the act that is wrongful under the law.

“General intent” crimes simply require that the individual intend to do the act that constitutes a crime, without specific intent as to the results of the harmful action.

Criminal Negligence – If an actor intends a physical act that is negligent under the circumstances, she may be criminally liable for the harm resulting from the action. Generally, the action must pose a foreseeable risk of harm and the actor’s failure to observe due care brings about that harm.

Example: Bob is driving while texting on his phone. He takes his eyes off of the road and accidentally strikes a pedestrian who is killed. In this instance, he may be criminally negligent.

Strict Liability Crimes – This type of crime does not require a defendant’s mens rea. That is, if an individual undertakes an action, regardless of whether there was intent, she is criminally liable.

Example: An individual who has sexual intercourse with someone under the legal age of consent may be convicted of statutory rape. It does not matter if the defendant believed that the other person was above the legal age of consent. A strict liability crime looks solely at the action and not the intent of the parties.

“Specific intent” crimes require that the individual have the intent to achieve that harmful result or be indifferent or reckless with regard to the probable results of her conduct. The specific intent requirement is generally satisfied if the defendant acts recklessly with regard to the potential harm that could result from her actions or inactions.

Intentional Crime – The actor intends the physical act and the likely result of that act constituting a crime.

Example: Tom intentionally provides false information to a bank when applying for a line of credit. When the bank learns of the false information, it presses charges against Tom for fraud. If Tom is able to demonstrate that he did not know that the information was false, it will negate the specific intent required for a charge of fraud.

Criminal Recklessness – An actor may be criminally liable for undertaking an action without regard for the potential harm to persons or property. Generally, the actor must understand the substantial risk and consciously disregard it.

Example: Merrick is anxious to try out his new bow and arrow. He walks outside and fires an arrow straight up into the air. Merrick lives in the city and the area is densely populated. He knows that it is a substantial risk that the arrow will strike someone, but he disregards this risk. He will likely be criminally reckless if that arrow strikes someone.

In some instances, a guilty act may constitute more than one crime. This may be the case when one crime is a “lesser-included offense” of another crime. That is, less than all of the elements required for one crime may meet all of the elements of another crime. For example, theft may be a lesser-included crime of burglary. A general intent crime may be a lesser-included offense of a specific intent crime.

Discussion: Do you think the mental element of a crime is important? If a person causes harm without intent, is there less reason to subject that individual to criminal punishment?

Practice Question: Donald is driving down the road listening to his favorite heavy metal songs. He gets so excited that he does not realize that he is traveling 20 mph over the speed limit. A police officer witnesses the speeding, stops Donald’s car, and issues him a citation. Donald goes home and looks up the citation under state law. The statute indicates that speeding is a strict liability crime. What does this mean for Donald? Does it matter that Donald’s excessive speed was accidental? Would it matter if Donald were temporarily disoriented when driving due to a carbon monoxide leak in his car that caused him to lose the ability to effectively control his automobile?

What are the classifications of criminal conduct?

Criminal conduct is generally classified by the level of severity and the potential punishment from breaking the law. The two primary classifications of crimes are as follow:

Misdemeanor – A misdemeanor is crime of lesser significance that is punishable by a fine or a joint sentence of less than one year.

Felonies – Felonies are more serious crimes that are punishable by fine or imprisonment in a penitentiary for a period of one year or more.

Historically, the common law identified “treason” as a class of serious offense that was separate from a felony. Also, today, many jurisdictions identify a less severe form of criminal act, known as an “infraction”. The infraction is generally a minor violation of an ordinance or regulation.

Discussion: Do you believe that laws are always classified appropriately? Do you believe that criminal conduct is generally classified too leniently or too harshly? Do you believe that the misclassification of crimes has a negative impact on society?

Practice Question: Clark is a college student at City College. He is at a house party drinking alcohol when the police arrive to break up the party. Clark is cited for underage drinking. Angry at the occurrence, Clark gets into an argument with a police officer and punches him. Clark is arrested and taken to jail. What is the likely classification of each of Clark’s criminal acts? Why?

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.

What is the process for executing an arrest?

Law enforcement officers generally carry out arrests. There must be “probable cause” for a government official to make an arrest. This may include observance of the criminal activity or based upon reliable evidence. If an officer does not witness the illegal conduct or have immediate evidence in her possession regarding the commission of the crime, she must generally seek an arrest warrant prior to arresting a suspect. A judicial officer (generally a magistrate judge) must hear evidence and make a determination as to whether probable cause exists to arrest someone. If the magistrate determines that probable cause exists, she will issue an arrest warrant that empowers the police to arrest the individual. The police must execute the arrest warrant within the terms of the authority granted by the judicial officer.

Discussion: Why do you think a judicially issued warrant is required to make an arrest if the officer does not witness the criminal conduct? Why is a warrant not required when the officer witnesses the criminal conduct? Do officers ever make arrests without personally witnessing criminal conduct? How close in time must the criminal conduct be to the arrest to justify an arrest without a warrant? Do officers ever exceed there authority when making an arrest? What should be the repercussions of making an arrest without a warrant when a valid warrant should be required?

Practice Question: Jane witnesses Frederick committing a crime. She chases after Frederick, but he is too fast and escapes. What process must Jane follow in order to effectuate an arrest of Frederick?

Miranda Rights & Exceptions – What is the process for executing an arrest?

Once an individual is under arrest, the government agent (collectively referred to as “police officer” or “officer”) will generally make the individual aware of her constitutional rights against self-incrimination. A “Miranda warning” is a written or verbal statement to the arrested individual substantially as follows, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you at no cost.” Once the police officer delivers the Miranda warning, anything that the defendant says in response to questions from the officer may be used in court. If the officer fails to advise the defendant of her rights, any statements made by the defendant pursuant to interrogation are not admissible at trial. There are, however, a number of exceptions to this rule:

Unsolicited Statements – If a defendant makes unsolicited statements to the officer, those are admissible at trial. This means that the defendant made statements voluntarily and without being interrogated.

Public Safety Exception – If there are exigent circumstances where public safety is at risk, this can justify government questioning prior to reading the Miranda warning. In such a situation, any statements made by the individual could be used against her in court.

• Other Evidence Sufficient of Conviction Rule – If there is sufficient evidence to convict an individual without the use of the individual’s statements in violation of the Miranda rights, failing to appropriately deliver the Miranda warning and using subsequent statements in court will not disrupt the conviction.

Unequivocally and Assertively Request Counsel – If an individual does not request the presence of an attorney during interrogation, the Government does not have to immediately supply the individual with counsel. The request for counsel must be unequivocal.

The limited exceptions to the requirement to inform an accused of her Miranda rights are subject to some degree of controversy.

Discussion: What purpose do you think reading the Miranda rights serves? How effective is reading the Miranda rights in achieving this purpose? Do officers often fail to read an individual her Miranda rights following arrest? Can you think of a situation in which it may be a good tactic for the officer to not read the Miranda rights?

Practice Question: Gwen is a police officer. She receives a call that there is a violent crime in process and that an individual is injured. The only other information she receives is the address of the alleged incident. Gwen arrives on the scene and notices Thomas sitting on the curb with his head hung down. Gwen jumps out of the car and yells to Thomas, “There has been a violent crime reported. Have you seen anything suspicious?” Thomas looks up and say, “I’m sorry. I didn’t mean to hurt her.” Gwen, realizing that Thomas is the alleged perpetrator replies, “Where is she?” Thomas replies, “I left her in the kitchen.” Gwen immediately handcuffs Thomas and radios in for assistance. She then rushes into the house and finds the victim on the floor. When the ambulance arrives, Gwen drives Thomas to the police station. She does not inform him of his Miranda rights. During the drive Thomas laments out loud about having hit the victim with a frying pan. Will Thomas’ statement made while sitting on the curb be used against him? What about the statements made while riding in the police car?

How does the government initiate criminal charges?

If criminal conduct constitutes a misdemeanor, the prosecutor will file a document called an “information” with the court. This document attests that there is sufficient evidence to bring charges against the defendant. If the alleged criminal conduct constitutes a felony, the prosecutor must submit the case to a “grand jury” to seek an indictment. A grand jury is a group of citizens chosen at random to serve this judicial function. The grand jury must consist of at least 16 citizens who live in the court’s jurisdiction. The grand jury will hear evidence and vote on whether to send a case to trial. To issue an indictment, a majority of the grand jury must vote that a crime has been committed and that there is sufficient evidence to warrant the accused standing trial. The grand jury does not determine guilty or innocence; rather, it determines whether probable cause exists to believe the accused committed the alleged crime. The grand jury has broad investigatory power, such as the authority to subpoena business records or witnesses to testify. Grand jury proceedings are kept confidential to protect the accused. To issue an indictment, the court will issue a “true bill”. If the grand jury declines to indict, it will issue a “no true bill”. If an indictment is issued, the indicted person is still presumed to be innocent until convicted by a court of law.

Discussion: Should a grand jury be the final decision maker in determining whether to initiate a prosecution? Should public sentiment or a prosecutor’s sentiment about an accused have any bearing on whether the grand jury hands down an indictment? Why do you think grand jury proceedings are closed to the public and confidential? How do you feel about that fact that the grand jury is often used as an investigatory tool for its ability to solicit testimony and subpoena witnesses and information?

Practice Question: Darla calls the police and reports that a suspicious man is outside of her house and trespassing on her property. She provides a description of the individual. Justin, a police officer, arrives and detains Bill for trespass. The Officer Justin is aware of several burglaries in the neighborhood and has suspicions about Bill. He takes bill to the police station. Justin then calls witnesses to the prior burglaries who pick Bill out of a suspect line up as the perpetrator. What would be the process for initiating misdemeanor charges against Bill for trespass? What would be the process for initiating felony charges for burglary?

What is the “initial appearance” and the “arraignment”?

Initial Appearance

The initial appearance is the first court proceeding for a defendant. Generally, the first appearance will take place with 24-72 hours of arrest. The judge will review whether probable cause exists to detain the individual on the subject charges. During the initial appearance, the judge will review the defendant’s rights. It is a restatement of the Miranda warning as well as reassurance of other certain constitutional rights afforded the defendant, including:

• the right to remain silent
• the right to be represented by counsel (and appointment of counsel if indigent);
• the right to know all charges against her;
• the right to a preliminary hearing;
• the right to seek pre-trial release (if the Judge so grants);

This process helps ensure that the defendant’s 5th Amendment right against self-incrimination is preserved.


The arraignment is the judicial proceeding that officially starts the trial process. At the arraignment the court will officially inform the defendant of the charges against her. She will be asked to respond to the charges in the form of a plea of guilty, not guilty, or no contest. In some cases, the initial appearance and arraignment will take place at the same time. This is particularly true when there is no formal arrest. Often, white-collar crimes do not involve a traditional arrest. If the grand jury hands down an indictment, the defendant will voluntarily appear before the court for a combined initial appearance and arraignment.

Discussion: Why do you think the arraignment is necessary? Should a defendant be informed of the charges against her at the initial appearance, rather than at the arraignment? Should a party be able to forgo arraignment by entering in a plea by other methods?

Practice Question: On Friday night, Charles was arrested on Friday night for assault after getting into a fight at a bar. At what point is Charles first informed of the charges against him? When is Charles first required to respond to those charges against him?

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