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How the Criminal Justice System Works – Courts & Procedures

Anyone who has ever received a traffic ticket, been arrested, or been charged with a crime knows that the criminal justice process can be intimidating. Investigation, arrest, and the court proceedings that often follow are never pleasant experiences. They’re always stressful, even if the potential consequences are minimal. Not having a firm grasp of exactly what’s happening can make an already difficult experience that much more trying.

While most people only ever have minor involvement with the criminal justice process, an understanding of it can go a long way toward alleviating stress should you ever come face to face with it. Though the process differs depending on where you live and the circumstances of your situation, there are general principles that apply to any criminal case.

As with any discussion of legal issues – especially criminal cases, which involve such high stakes – it’s always in your best interests to consult a lawyer. Criminal law can be frustratingly complicated, and only trained and experienced attorneys can provide the advice and guidance you need to protect yourself and your rights.


What makes something a crime? If you are sued, does that mean someone is accusing you of violating the law, or being a criminal? If you want to press criminal charges, do you have to know what the applicable laws are? To understand the answers to these questions, it’s important to clarify the basic difference between two types of laws: criminal and civil.

A crime is any act – or, sometimes, failure to act – prohibited by a statute (a law created by a legislative body), and for which the statute imposes a criminal punishment, such as jail, fines, or probation. It is an offense against society, or the rules that society – through its legislators and governmental systems – has deemed necessary to maintain order, ensure justice, and protect individuals and property. When people commit crimes, they are not just harming others or the interests of others – they are harming society’s interest in creating and maintaining a peaceful, orderly community.

Civil cases are different. In a civil case, two or more people or organizations (known as parties) have a disagreement, and ask a court to settle it. A contract dispute is a civil matter, as are personal injury cases, divorces, child custody agreements, and fights over inheritances. While the actions that lead to a civil case might be described as illegal in that they violate someone else’s rights or abilities, civil cases do not involve the possibility of criminal penalties.

The State and the People

There are two general groups of people in the criminal justice system: members of the public, and representatives of the state or the government who are charged with enforcing or prosecuting criminal laws. The people who represent the state’s interests work for governments at the local, state, or federal level as law enforcement officers, prosecutors, or others who play a role in the criminal justice process.

Members of the general public, on the other hand, do not represent the state’s interests. These are the people who can be accused by the representatives of the state of having committed a criminal offense. Once charged, they are generally referred to as criminal defendants. In other words, the state is the party in a criminal case that accuses someone of committing a crime, while those accused are the defendants. Of course, being an employee of the state does not preclude people from becoming criminal defendants, as anyone can be charged with a crime.

Those who represent the state’s interests in the criminal justice process fall into several categories.

Law Enforcement

People who work for law enforcement agencies are primarily responsible for investigating possible crimes, arresting suspected criminals, and providing, analyzing, or securing evidence the state can use to prove an accused criminal is guilty. Law enforcement officers can work for municipal police departments, county sheriff’s departments, state police agencies such as the Idaho State Police or Texas Rangers, and federal law enforcement agencies such as the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or the Federal Bureau of Investigations. Law enforcement officers can also work for criminal investigative divisions of various state and federal agencies, such as the Department of Education’s Office of Inspector General’s Investigative Services.

Law Enforcement ProcecutionsProsecutions

Prosecutors are attorneys who work for a local, state, or Federal Government and who have the responsibility of prosecuting criminal cases in criminal courts. Prosecutors must determine if there is enough evidence to charge someone with a crime, which crimes apply to any set of circumstances, and whether filing charges serves the state’s interests or the interests of justice. Then, depending on their determination, they must present the state’s case against an accused criminal in court. They may also negotiate plea agreements with criminal defendants.

Just as there are different types of law enforcement agents, there are different types of prosecutors:

  • Federal Prosecutors. Federal prosecutors work for the Department of Justice in one of 93 federal districts, and are known as United States Attorneys. United States Attorneys (USAs) are responsible for enforcing federal criminal laws in their respective districts. Large United States Attorneys Offices, such as those in the District of Columbia and the Central District of California, can have hundreds of assistant prosecutors, known as Assistant United States Attorneys. The smallest officers, such as the United States Attorney’s Office of Guam and the Northern Marianas Islands, can have a handful. Federal prosecutors file about 85,000 criminal cases each year.
  • State Prosecutors. State prosecutors work for individual states and are responsible for enforcing that state’s criminal laws. Similar to how federal prosecutors are assigned to different districts, individual state prosecutors typically work in specific areas, such as a single county. According to the Bureau of Justice Statistics, state prosecutors file about 102 million criminal cases each year, with a majority (about 54%) of those being traffic offenses. State criminal cases constitute the vast majority of criminal cases filed in any area.
  • Local Prosecutors. Local prosecutors work for individual cities or municipalities and are typically responsible only for prosecuting violations of municipal ordinances, which are usually charged as either misdemeanors or infractions, or violations that only impose fines instead of jail or prison penalties.


Criminal cases that involve jail, prison, probation, or parole bring a third state institution into the mix: corrections. Corrections officers and officials are charged with ensuring that convicted criminals serve their sentences in accordance with the terms established by the sentencing court. Corrections officers also manage prisoners who have been arrested or who are being held pending a final outcome on their cases.

Corrections officers and officials manage jails and prisons, serve as probation or parole officers, and can work at the local, state, or federal level.

Criminal Courts

Criminal laws, like all laws, are subject to the authority of courts. Criminal courts are a distinct and separate entity from the other government organizations that represent the state in the criminal justice system. Police, prosecutors, and corrections officials are all considered part of the executive branch of government, while the criminal courts are part of the judicial branch.

Criminal courts exist at the municipal, state, and federal level. Municipal courts typically hear minor criminal cases, such as those involving ordinance violations, traffic tickets, and some misdemeanor offenses. State courts, such as county or district courts, are generally the primary criminal courts in any jurisdiction, hearing most of the state-level criminal cases that arise in their jurisdictions. Federal criminal courts, though they may exist in the same geographic areas as state or municipal courts, only hear criminal cases that arise out of federal criminal violations.

Judges or magistrates run criminal courts, though the court organization can also include legal clerks, bailiffs, records keepers, and other representatives. Courts are not responsible for enforcing criminal laws, but for ensuring that the criminal justice process proceeds in accordance with the law. They act as neutral arbiters between the state representatives who prosecute crimes, and the criminal defendants accused of crimes.

Criminal Procedures

The laws upon which the criminal justice system operates can also be grouped into two main bodies: laws that prohibit specific crimes (criminal statutes), and laws that create the process by which the criminal justice system must operate. These process or procedural laws protect the rights of the people and ensure that the state can protect the interests of justice.

For example, under the Fourth Amendment of the United States Constitution, the people are guaranteed the right to be free from unreasonable searches and seizures. The Fourth Amendment does not create a criminal statute in that it does not identify a crime and a punishment, but rather, imposes restrictions on what the state is or is not allowed to do in the criminal justice process – namely, it may not engage in unreasonable searches or seizures.

Both sets of laws are at work simultaneously in any criminal case. Criminal laws tend to be specific and focused, while procedural laws, though they can be just as specific, can also be harder to define. Take the example of the language of the Fourth Amendment: What constitutes a search? What is a seizure? And what is – or isn’t – unreasonable?

This ambiguity is why so many procedural laws are almost entirely court-made. When courts hear cases that involve unanswered or unclear questions about the law, they have to interpret what those laws mean when applied to specific cases or circumstances. These court rulings then become laws themselves.

Burden Proof Reasonable Doubts

The Burden of Proof and Reasonable Doubt

At the heart of every criminal case lives the idea of the burden of proof. This is an easy idea to articulate, but not always easy to apply, as it can sometimes go against our notions of guilt or culpability. Put simply, any time the state accuses someone of a crime, it must prove that the accusations are true.

The way the state does this is to show evidence, such as eyewitness testimony, incriminating statements the accused made, video or audio recordings, forensic evidence, expert testimony, and so on. More specifically, to find someone guilty of a crime, the state must provide enough evidence to prove beyond a reasonable doubt that the accused person has committed each element of the crime(s) with which he or she is charged.

This “reasonable doubt” standard is the test that measures if the state has overcome its evidential burden. If the evidence the state provides is sufficient to show that the accused committed the crime (beyond a reasonable doubt), the defendant will be found guilty. Conversely, if the state’s evidence is insufficient to show guilt beyond a reasonable doubt, the defendant will be found not guilty.

Therefore, the difference between guilty and not guilty is based on the evidence the state can provide. Even if the defendant committed the crime he or she was charged with, that person cannot be found guilty if the state does not have sufficient evidence.

So, from the point of view of someone charged with a crime, the burden of proof in a criminal case is a shield. If you are a criminal defendant, you are not under an obligation to prove, nor provide evidence to show, that you are innocent. The legal system presumes you are innocent, and unless the state has enough evidence to overturn that presumption, you cannot be found guilty.

Criminal Statutes

The mention of the word “crime” often conjures well-known offenses such as murder, kidnapping, or theft. However, these only scratch the surface. Because a crime comes into existence when a legislative body passes a new law establishing an act or omission as punishable by criminal penalties, anything a legislature wants to criminalize can become a crime.

In other words, a crime is anything a legislature says is a crime.

Legislatures are constantly passing new criminal laws, and courts are constantly interpreting those laws and issuing rulings that limit, expand, or affect how those laws are enforced. According to the Library of Congress, there are so many criminal laws in existence, and so many new laws coming into effect, that no one has ever been able to determine how many criminal offenses exist. Or, as retired Louisiana State University law professor John Baker puts it, as quoted in The Wall Street Journal, every adult in the United States today can be indicted for some federal crime.

Crimes and Elements

All crimes are comprised of elements. An element is a behavior or set of facts that makes any action a crime. For example, a homicide is the killing of one person by another. However, while all acts of homicide involve one person killing another, not all homicides are crimes – they only become crimes if criminal elements are present.

Traditionally, there were two elements to any crime: the “actus reus” (the action taken) and the “mens rea” (the guilty mind). These elements effectively required that to be convicted of a crime, a defendant had to intend to act in a way that violated the law, and had to go beyond that intention by taking some action the law deemed illegal. So, when a legislature passes a new criminal law, that law not only states what penalties apply, but also identifies the criminal elements by stating the kinds of actions (actus reus) and state of mind (mens rea) that make up the crime.

When a statute identifies a murder as a crime, it also includes the elements the state needs to prove to convict someone of that offense. For example, take the crime of murder in the first degree in Nebraska. The law states, in part, that to commit murder in the first degree, a person must kill another person “purposefully and with deliberate and premeditated malice.” Further, the statute explains that murder in the first degree is a Class 1A felony crime. (Under Nebraska law, a class 1A felony is a crime punishable by up to life in prison.) A person can be convicted of first degree murder in Nebraska if that person kills someone purposefully (the action), and with premeditated, deliberate malice (the intention). So, if a killing is unintentional or done without premeditated, deliberate malice, it is still a homicide, but not murder in the first degree – it may qualify as another kind of crime, such as manslaughter, for example.

Today there are more distinctions between the traditional actus reus and mens rea elements. For example, there are different types of mens rea, each of which can apply to different crimes. A crime with a “strict liability” mens rea is one in which simply acting in a prohibited way is enough to show intent, while a crime with a “purposeful” mens rea requires that the accused engage in the conduct with the intended outcome in mind. Nevertheless, the basic idea that all crimes are comprised of elements is an essential part of every criminal case.

Types of Crimes

There are so many different types of crimes that it can be hard to classify them. Each jurisdiction that creates a crime, such as a state or the Federal Government, determines which category each identified crime falls into. The jurisdiction also determines the type of criminal penalties that apply. These penalties can differ significantly from state to state, even for similar crimes. So, for example, while one state might categorize a second-time drunk driving offense as a felony, a bordering state might categorize it as a misdemeanor.

In general, crimes can be divided into three basic types: felonies, misdemeanors, and infractions. Felonies are the most serious crimes, while misdemeanors are less serious, and infractions are least in severity.

  • Infractions. An infraction, also called a violation or petty offense, is a type of crime that occurs when a person violates a city ordinance, traffic law, or regulatory rule. Infractions typically do not involve the possibility of jail or incarceration. They are usually punished by fines or other non-criminal sanctions, such as the revocation of driving privileges. Because infractions are civil or quasi-criminal offenses, the burden of proof the prosecution must meet is lower than in criminal cases. Those charged with an infraction are not entitled to have an attorney appointed to defend them, but do have the right to hire an attorney if they wish. Examples of infractions include parking citations and most traffic tickets or violations.
  • Misdemeanors. Misdemeanors are more serious than infractions, involving crimes with potential penalties of up to one year in jail. Anyone charged with a misdemeanor is entitled to be represented by an attorney, even if the accused is unable to afford a private attorney. Common misdemeanors include vandalism, disorderly conduct, and simple battery or assault.
  • Felonies. A felony is the most serious type of crime, and is typically defined as any criminal offense that involves a potential penalty of more than one year in prison, or death. Like misdemeanors, anyone charged with a felony is entitled to be represented by an attorney. Examples of felonies include murder, rape or sexual assault, counterfeiting, drug trafficking, and treason.
  • Felony/Misdemeanor. Many crimes are punishable as either a felony or misdemeanor offense depending on the circumstances present. For example, theft of property worth $500 or less in Arkansas is a misdemeanor offense, while theft of property worth more than $500 is a felony. Similar distinctions commonly exist for many other crimes that can either be felonies or misdemeanors, such as drunk driving, battery, conspiracy, and fraud.

From Crime to Punishment

The criminal justice process is designed to achieve goals society deems important, such as the administration of justice, the discovery of the truth, the protection of public safety, and the punishment of those who harm society’s interests. But, how? How does a criminal case begin, and how does it end? There are numerous stages involved in the criminal justice process, each of which serves a different function.

Observed Reported Crimes

Observed or Reported Crimes

The number of crimes committed every year is much larger than the number of crimes reported to, or observed by, the state. Regardless, the criminal justice process cannot begin until someone reports a potential crime to law enforcement officials, or those officials otherwise become aware of it. Unreported or unobserved crimes do not become a part of the criminal justice process.

Criminal Investigations

Once law enforcement officials become aware of a potential crime, they often decide to investigate. However, investigations are not certain or automatic. Law enforcement officials have discretion in deciding what to investigate, when to investigate, how long to conduct an investigation into a potential crime. They are not legally obligated to investigate everything that might be a crime.

Criminal investigations can range in scope and duration. They can be nearly instantaneous, consisting of little more than a police officer witnessing a crime take place, to lengthy, years-long investigations involving numerous agents, agencies, witnesses, experts, and investigative techniques. A single police officer asking a witness a question is as much of a law enforcement investigation as technicians installing listening devices, laboratory workers performing scientific tests on potential evidence, officers adopting false personas as a part of an undercover investigation, or detectives interrogating a witness taken into custody.

Unsolved Cases
Not all investigations are successful, and even if the police believe a crime has been committed, they are not always able to find enough evidence to charge a suspect. Even cases in which the investigation produces enough evidence do not have to result in arrests or criminal charges. Unsolved cases progress no further in the criminal justice system.


In order to effect an arrest, or obtain an arrest warrant, a law enforcement officer must have enough evidence to show that there is probable cause to believe the accused has committed an offense. The “probable cause” standard is an evidentiary threshold, and one that requires the police to have some articulable, objective, rational reason to believe a suspect may have committed a crime. In other words, the police cannot simply believe or suspect that someone has committed a crime or is a criminal – they must have a specific reason to believe someone has engaged in some criminal activity.

If the police have probable cause they can ask a judge or magistrate to issue an arrest warrant. Alternatively, if they have evidence that a crime has been committed but believe they need additional evidence before arresting someone, they can ask a court for a search warrant to look for that evidence.

Once a judge has issued an arrest warrant, or once a law enforcement officer has probable cause to believe a suspect has committed a crime, the officer can arrest the accused and take that person into custody. Law enforcement agents have discretion in determining if, and when, to arrest someone – and can in fact choose not to arrest someone, even if they have probable cause.

Released Without Charge
Once law enforcement agents have arrested a criminal suspect, the state is obliged to either charge or release that suspect, and must typically do so within 48 to 72 hours after arrest. If someone is arrested for a crime, the state doesn’t always file charges. While law enforcement officers can arrest someone when they have probable cause, if a prosecutor does not believe there is enough evidence to lead to a guilty verdict, the state may decline to file charges, and the arrestee will be released.

Filing Charges

If a prosecutor believes there is enough evidence, the prosecutor’s office files criminal charges. The specific process differs somewhat depending on jurisdiction, but the general process is similar. Prosecutors typically file charges after an accused criminal – called a “defendant” once charges have been filed – has been arrested and is in the state’s custody. However, they can also file charges prior to arrest, as well as file additional charges after initial charges have already been filed.

For misdemeanor offenses, a prosecutor files a charging document with a criminal court. That document is typically called an “information,” or a “complaint.” For infractions, police officers typically write a ticket, which effectively serves as the charging document. The charging document states the specific crimes with which the accused is charged, and also contain a brief statement about the facts or circumstances that serve as the basis for the charges.

For felony charges, the prosecutor can file an information or complaint, but may also ask a grand jury for an indictment. A grand jury is a group of citizens whose sole purpose is to determine if the state has enough evidence (probable cause) to charge someone with a felony offense.

There is no judge in a grand jury proceeding – only a prosecutor, the jurors, and any witnesses the prosecutor may call to testify. If a grand jury finds that there is enough evidence to charge someone with a felony, it issues an indictment. An indictment serves the same purpose as a criminal information or complaint, stating the crimes with which the accused is charged and the factual basis for the charges.

Pressing Charges

In the vast majority of situations, a prosecutor is the only person who can charge people with crimes. The term “pressing charges” is commonly used and may incorrectly imply that individuals, or members of the public, can initiate the criminal justice process by accusing someone else of a crime. Outside of limited circumstances in a few states, members of the public cannot file criminal charges on their own. Prosecutors have discretion in determining when they file charges, which charges to file, and whether to file charges at all.

While prosecutors may be more likely to file criminal charges against a defendant if a victim is willing to cooperate or is intent on pursuing a criminal case, having a cooperative witness is neither necessary nor sufficient for a prosecutor to file a criminal charge. If a prosecutor believes there is enough evidence to initiate a criminal prosecution, that prosecutor can file charges regardless of whether a victim, witness, or anyone else desires such an outcome.

The concept of pressing charges is often confusing because it can be common for law enforcement officers to ask a victim of a crime if the victim wants to “press charges.” Similarly, some victims may express a desire to “drop charges,” or to stop the criminal justice process from proceeding.

These questions or statements can make it seem like it’s up to the victim to determine whether the state files criminal charges against the accused, but that is not the case. If the police ask a victim if that person wants charges filed, they may be asking as a way to determine if that person will be a cooperative witness, or if that person is likely to provide the evidence the state needs to secure a conviction. The state may use a victim’s desires or willingness to cooperate as a factor to determine if charges should be filed, but the final decision is always a prosecutor’s.

First Appearance and Arraignment

Following an arrest – and once prosecutors have filed a criminal complaint or a grand jury has filed an indictment – the case proceeds to a judge for the first time. It is important to note that if law enforcement agents have already asked a judge or magistrate (a type of judge) to issue a warrant, such a request does not involve the presence of the defendant. The “first appearance” is the first time the defendant appears before a judge.

For felonies, this first appearance is often called an “initial appearance.” It involves a court apprising the defendants of their rights, appointing an attorney if a defendant does not have one, and scheduling an arraignment. For misdemeanors, the first appearance and arraignment are often combined into the same hearing. The court apprises the misdemeanor defendants of their rights and appoints an attorney, and also conducts an arraignment – the point at which a court asks the defendant to enter a plea. If the defendant pleads not guilty, the court schedules a preliminary hearing or a trial; however, if the defendant pleads guilty, the court schedules sentencing.

Bond Order (Bail)
It is typically during either first appearance or arraignment when courts address the issue of a bond order, or bail. After someone has been arrested and charged with a crime, law enforcement officers, or corrections officers, typically keep that person in custody until the conclusion of the criminal case. However, it is often possible for the defendant to be released from custody under the terms of a bond order.

A bond order is an order for payment that courts require defendants make to ensure that they return to court for the duration of the criminal justice process, if and when they are allowed out of police custody. To determine the appropriate amount to set, the court may hold a hearing in which prosecutors and defense counsel argue their sides. In some situations a court does not require defendants to pay a bond to be released, but instead orders them to return for any required hearings on their own recognizance. This is often referred to as an “OR” bond.

Cash bonds, often referred to as “bail,” are cash payments made to the court, while property bonds designate title of a defendant’s property to the court. If defendants are unable to pay the entire bond amount, they may use the services of a bail bond agent or bondsman, who offers them a “surety bond.” In these cases, the bondsman is licensed to pay the court the ordered bond amount on behalf of the defendant. In return for this payment, the defendant typically pays a percentage of the total bond amount to the bond agent as a nonrefundable fee. This fee can differ depending on the state and type of crime involved, but it is typically 10% of the total bond amount.

A bond order can be imposed for either felonies or misdemeanors, but as a general rule, the more serious a crime, the higher the amount. In the most serious cases where the court believes the defendant will not return to court no matter the bond, the court can refuse bond and require the defendant to stay in custody. Once a defendant pays the bond, or someone else pays on behalf of the defendant, the court holds onto the money until the case is over.

Once the case is finished and, assuming the defendant appeared back in court, the court returns the money to the defendant (or bondsman, if used), though the court may keep a small portion of the bond in some situations – when the defendant is convicted, for example. Also, some courts, such as federal courts, do not return a bond until petitioned (asked through a document filed with the court) to do so.

First Appearance Arraignment Preliminary Hearing

Preliminary Hearing

In some states, a preliminary hearing is conducted after arraignment, while in others there may or may not be such a hearing. At the preliminary hearing, the state (prosecutor) presents its evidence to show that there is probable cause to believe the defendant committed at least one of the crimes charged. Defendants in a preliminary hearing have the right to challenge the evidence presented by the state in much the same way they would at trial.

If the court agrees that the state has provided enough evidence to show probable cause, the court schedules the case for trial. However, the court can also find that there is not enough evidence to support any charges, that there is only enough evidence to support some charges, or that there is only enough evidence to support lesser charges.

Charges Dropped
If the court in a preliminary hearing determines that the prosecution failed to present evidence to show probable cause, it dismisses the charges against the defendant. When this happens the criminal case is terminated, and the defendant is free to go.

Similarly, at any time during the criminal justice process, the prosecutor can choose to drop the charges against the defendant. This can happen after the charges have been filed but before initial appearance, after initial appearance but before preliminary hearing, and after a preliminary hearing but before trial. There are many reasons why a prosecutor might choose to drop charges, but they typically involve changes to the evidentiary basis for the state’s case. In other words, prosecutors may be more likely to drop charges against the defendant if the evidence the state had been relying upon turns out to be unreliable, false, or otherwise significantly weakens the state’s case against the accused.

Charges Diverted
In some situations – typically after the arraignment or preliminary hearing – a criminal case can go into pretrial diversion or deferred adjudication in which the defendant enters into an agreement with the prosecutor (or sometimes with the court) that allows the defendant to participate in a diversion or deferred adjudication program. The terms of such a program are very similar to those of probation, requiring the defendant to comply with a number of restrictions. These restrictions can include the defendant not leaving the jurisdiction, not committing further crimes, paying all court costs or restitution, or other similar conditions.

Pretrial diversion programs typically last at least a year, during which time the criminal charges against the defendant are effectively put on pause. If the defendant complies with all the terms of the program, the state agrees to drop the pending criminal charges once the program’s time period has come to an end. Once the prosecutor drops those charges, the case is over.

Plea Bargains

Similar to charges being diverted, the defense and the prosecution can enter into a plea bargain or plea agreement at almost any stage of the criminal justice process. The vast majority – an estimated 97% of federal cases and 94% of state cases, according to The New York Times – are resolved through plea bargains. Therefore, of all the criminal cases that go before a court, the vast majority never result in a trial.

In a plea bargain situation, the prosecution typically offers the defense a lesser charge or decreased sentence in exchange for a guilty plea. Plea negotiations can take place at almost any time, but typically only happen after both sides have had at least some chance to investigate the state’s evidence.

If the two sides enter into a plea agreement, the court typically accepts that agreement, and the case proceeds to sentencing. However, not all plea agreements are the same. Depending on the situation, the prosecutor may agree to charge the defendant with a specific crime (or crimes), drop some charges but not others, or only agree to recommend a specific sentence to the court.

Furthermore, courts have discretion in determining whether they wish to accept a plea agreement. If a court determines that certain circumstances are present, such as the plea not being in the best interests of the victims or of the general public, it can refuse to accept it. If the court refuses the plea agreement, the case continues.


If the state has shown that it has enough evidence to proceed to trial and the two sides do not enter into a plea agreement, the case then moves to the trial phase. At trial, the state is obligated to show evidence that the defendant committed each element of the charged crime(s), and do so beyond a reasonable doubt. At the same time, the defense is allowed to challenge the evidence the state presents in an attempt to show that it does not meet the state’s burden of proof.

Both sides must comply with specific rules during this trial process. These rules cover a wide array of issues, including what kind of evidence is acceptable, when a witness can be qualified as an expert, whether a witness is competent to provide testimony, when each side gets to speak or present evidence, and even the kinds of questions each side can ask at different stages of the trial.

Triers of Fact and Triers of Law
There are two main kinds of trials in the criminal justice process: the jury trial and the bench trial. In a jury trial, the prosecution presents its case to the jury, which is typically comprised of 12 people (though sometimes fewer) chosen prior to trial through a process called “voir dire.” During the voir dire process, the prosecution and the defense attorneys have an opportunity to ask questions to would-be jurors in order to determine who should be a part of the jury.

The jury’s role in a criminal case is to determine whether the evidence presented is sufficient to find the defendant guilty of the crimes charged. Therefore, the jury is the trier of fact.

The judge in a criminal trial – often referred to as “the court” – is not there to determine whether the evidence is sufficient to result in a conviction. Rather, the judge’s role in the trial is to make rulings about any legal issues that arise, and to ensure that the criminal justice process works as it should. The judge is therefore referred to as the trier of law.

In trials where there is no jury, known as bench trials, the judge serves as both trier of law and fact. Bench trials are far more common in misdemeanor cases, while felony cases are often, though not always, held before a jury. People charged with a felony have the right to demand a trial by jury, while those charged with a misdemeanor typically do not.

Acquittal or Conviction
Once the trial process has completed, it then falls to the trier of fact to determine if the state has met its burden of proof and provided enough evidence to prove the defendant’s guilt.

If the trier of fact finds that there is enough evidence, it returns a verdict of “guilty” on any charges for which the state has met its burden. For cases in which the state has not met its burden of proof, the trier of fact returns a verdict of “not guilty.”

A not guilty verdict acquits the defendant, who is then allowed to go free. Cases in which the trier of fact returns a guilty verdict then proceed to sentencing.


If a defendant is found guilty or enters a guilty plea, the court proceeds to the sentencing phase. For infractions and minor misdemeanor charges, this typically takes place immediately after the defendant enters a guilty plea or is found guilty by the trier of fact. The court issues its sentence based on what the jurisdiction’s sentencing laws require or allow.

In felony cases, or misdemeanor cases involving substantial potential penalties, the court typically schedules a sentencing hearing in which it determines what sentence it should give. Prior to the sentencing hearing, state officials may submit a report to the court to provide guidance as to the kind of sentence the state believes to be appropriate. At the sentencing hearing the court may also hear from defense counsel, the convicted, and the prosecutor, as well as victims and other witnesses. After that, the court issues its sentence and the convicted person must begin serving it.

Sanctions and Corrections

Depending on the type of crime, its severity, the presence of aggravating or mitigating factors, the defendant’s criminal history, the jurisdiction’s sentencing laws, and other factors that the court may consider, sentences between criminal cases can vary greatly. However, typical sentences include one or more common punishment or sanctions, such as jail or prison time, fines, house arrest, probation, drug or alcohol rehabilitation program participation, and restitution.

Sanctions Corrections Appeals


The criminal trial is not always the end of the criminal justice process. Sometimes, criminal cases go to the appeals stage. When people file an appeal, they ask a court other than the trial court to review the case (or aspects of the case) for errors, problems, or mistakes. Appeals are not second trials. Appellate courts do not hear evidence from witnesses, have juries, or make a determination about facts or guilt in the same way a trial court does. An appellate court only makes determinations about the legal issues that arose during the case, and whether the court in the trial case acted properly or followed the correct procedures.

Appeals can take place at both the state and the federal court level, and there are multiple levels of appellate courts. For example, a convicted criminal – called an appellant when filing an appeal – might file an appeal of a state criminal case with the state’s appellate court. Once that appellate court hears the appeal and makes a ruling, the appellant might then file an appeal with the state Supreme Court asking it to determine whether the appellate court made an error. In some situations, the case might also elevate to a federal appellate court, a federal circuit court, or even the Supreme Court of United States.

While appeals are possible in most criminal case situations, they are not automatic. People who are convicted of a crime after trial have the automatic right to file a criminal appeal, while those who enter a guilty plea do not.

Furthermore, people filing an appeal cannot simply do so because they don’t like the verdict. They have to state one or more legally recognized reasons why their conviction was erroneous, and why they believe the appellate court should take an appropriate action to correct the error. Depending on the type of case and the type of appeals that arise from it, the appellate process can last months or even years, especially if there are numerous appeals, or appeals heard by different courts.

Final Word

The criminal justice process goes on every day without interruption. Every part of that process, from investigation to trials to appeals, operates under the requirements of numerous laws, court decisions, procedural requirements, and local rules. When you are facing a charge, understanding what part of the system you are currently in, what laws apply to you, what your options are, and what you should and should not do can be almost impossible to determine on your own.

The risks you face as a criminal defendant can be higher than any other you face in your lifetime. Not only are the consequences of being found guilty of a crime potentially life-altering, but even the most minimal participation in the criminal justice process can be stressful and have permanent repercussions. Any time you have questions about criminal laws or believe you need legal advice, your best option is always to speak to an experienced criminal defense attorney. Failing to do so can be a significant mistake, and one you could regret for the rest of your life.

For those who have been involved in the criminal justice process, was there something you wished you had known before going into it?

Mark Theoharis is a former attorney who writes about the intersection of law and daily life, covering everything from crime to credit cards. He mostly writes for legal publishers, marketing agencies, and law firms, but gets the occasional chance to publish fiction. When he is not writing, Mark restores vintage and antique typewriters, though his editors have made it quite clear that typed submissions are strictly prohibited.