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Process for Bringing Criminal Charges

Cite this article as: Jason Mance Gordon, "Process for Bringing Criminal Charges," in The Business Professor, updated January 5, 2015, last accessed April 9, 2020, https://thebusinessprofessor.com/knowledge-base/process-for-bringing-criminal-charges/.
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Bring Criminal Charges
This video explains the process of charging someone with a crime.

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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?

Discussion Input

  • The arrest stage is likely the most important step in the process for the defendant’s due process rights to be protected since that is where the person is thrown into the (often lengthy and expensive) criminal justice system. Even if the person is ultimately not charged, has their charges dismissed, or is found not guilty at trial, at the moment of the arrest they become a person with an arrest record whose life is now disrupted by being taken into police custody (and often resulting in missed work, appointments, and other obligations). The defendant’s due process rights are also important at various other stages of the criminal justice process. At the initial appearance, it’s important for the defendant to be made aware of the charges against them without excessive time spent in custody and the additional anxiety of not knowing what charges they’re facing. At this stage, as well as at the formal filing of charges, it’s also important that only charges for which there is probable cause to believe that the defendant committed the crime are filed. At the arraignment stage, it’s important for the defendant to not be unduly pressured into a plea or for the defendant to not be made aware of any plea bargain offers.  The due process rights of the defendant are also incredibly important at the trial stage since that is the stage at which guilt is determined. Examples of violations of the defendant’s due process rights at trial include being denied of their right to an attorney or being compelled to testify against themselves. If the defendant’s due process rights are not honored at trial, it is likely that their attorney will have to appeal to a higher court, thus subjecting the defendant to further legal expenses and entanglement with the criminal justice system, such as more time spent in custody and additional court appearances and legal fees.

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.

Proposed Answer

  • The attorney should explain to Laura that the indictment means that she is facing felony charges and is likely facing a lengthy legal process. She should tie up whatever personal loose ends she can (arranging for childcare, pet care, time off work, etc) before reporting to the station for processing as, at minimum, she may not be home for several days.  At the station, she should expect to be administratively processed (fingerprints, medical check, etc), formally arrested and assigned a cell, and spend a few nights in custody before her eligibility for bail is determined. Her attorney should advise her not to answer any questions regarding her securities trading activities (or any other questions unrelated to her processing such as name, birthday, medical history, etc) without her attorney present and to verbally state her desire to speak to her attorney.  Since she was indicted instead of arrested, the next step will be her arraignment at which time she will be asked to enter a plea. Her attorney will advise her to enter a plea of not guilty since at this stage neither she nor her attorney are aware of what evidence the prosecution has against her. If she is eligible for pretrial release, she will likely have to post bail as well as abide by other conditions set by the court. If she is ineligible for bail, she will return to jail during pre-trial and trial proceedings.  Then she should expect to meet with her attorney to plan for her defense, to be made aware of the evidence against her as well as any witnesses, and to decide if she will testify in her own defense at trial. After reviewing the evidence against her with her attorney, she should expect to either negotiate a plea or to go to trial where the prosecution will present the evidence against her and her attorney will present her defense and she will be found guilty or not guilty by either a judge or a jury.

Academic Research

Hodgson, Jacqueline S. and Roberts, Andrew J., An Agenda for Empirical Research in Criminal Justice: Criminal Process and Prosecution (July 29, 2010). Warwick School of Law Research Paper No. 2010/13. Available at SSRN: https://ssrn.com/abstract=1650552 or http://dx.doi.org/10.2139/ssrn.1650552

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