Criminal Law & Procedure

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While the criminal justice system as a whole is important, the court system plays a large role after a complaint and lawful arrest. The process includes, but not limited to: arraignment, discovery, plea bargaining, trial, and sentencing. An arraignment is the defendant’s first court appearance. An arraignment is also known as first appearance and a preliminary hearing (Hails, 2012, page 53). Discovery is where the prosecution and defense disclose all information that will be used for/against the defendant during the criminal process, plea bargaining is where the prosecution and defense work out an agreement for the defendant to plea guilty prior to a trial, trial is where the defendant is either found guilty or not guilty by a judge or a jury of his/her peers, and sentencing is where the defendant is sentenced by a judge to ???do time for breaking the law.

The criminal justice process usually starts with a citizen complaint or proactive criminal investigation by law enforcement. Once law enforcement officials have enough evidence to charge a suspect with a crime, they have something called probable cause, which is the facts and circumstances within the officer’s knowledge and of which they have reasonably and trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular crime had been or was being committed (Scheb & Scheb II, page 519). Once probable cause is developed an arrest is made. An arrest is the most serious type of law enforcement encounter, and it is subject to the strictest constitutional requirements. Even though law enforcement officials do not have to be present when a crime is committed, they must have enough information to conclude that the perpetrator probably committed the crime. Arrests can occur while investigating the criminal complaint or law enforcement officials can seek an arrest warrant through the courts.

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Once an arrest is made, the court process begins with an arraignment, which is also known as a first appearance hearing or a preliminary hearing (Hails, 2012, page 53). The purpose of an arraignment is to advise the defendant of the charge(s) brought against them, to make sure they have legal representation, make sure bail is set, enter a plea (usually not guilty), and set a date for the next court appearance. If the defendant does not have an attorney, the judge will try and determine if they qualify for a public defender. During an arraignment, the defense may ask that the case be dismissed against the defendant because the complaint does not contain all the required information (Hails, 2012, page 54). Arraignments can also qualify for a probable cause hearing and in this case must be held within 48 hours of an arrest (Hails, 2012, page 54). If the defendant was arrested on a judge’s warrant or the defendant bonded out of jail, a probable cause hearing will not be held.

After arraignment, the discovery phase of the court process begins. Discovery is best described as the prosecution and defense becoming aware of any/all evidence that will be used for or against the defendant at trial. With both sides having knowledge of what the other will be presenting at trial, it makes the trial more efficient by reducing the number of times to stop the trial so that an attorney can prepare to question surprise witnesses (James, 1929, page 746). Until 1970, only the prosecution was required to disclose what evidence they planned to use against the defendant at trial. At this time, the Supreme Court ruled that the privilege was not violated and required the defense to disclose any/all evidence that they planned to use during trial (Hails, 2012, page 59).

Items covered by discovery in many states (Hails, 2012, page 59):

  • List of all witnesses each side intend to call excluding the defendant.
  • Recorded statements from everyone except for statements made to the defense.
  • A list of physical evidence each side intends to present during trial.
  • Results from laboratory tests.
  • Reports generated by expert witnesses.
  • Statements made by all co-defendants.

Items not subject to discovery (Hails, 2012, page 60):

  • Statements the defendant made to his attorney.
  • Memos wrote between the prosecution and defense regarding legal strategy.
  • Weather the defendant plans to testify.

Once the information is requested by the defense, the prosecution is required to produce it or the items will be declared as inadmissible in court or the judge won’t allow a witness to take the stand (Hails, 2012, page 60). Even in cases where the prosecution does not disclose informants in fear that they will be killed is grounds for dismissal (Hails, 2012, page 60). Other cases that can be dismissed come from prosecutors not having knowledge of evidence that exists with law enforcement as well as when prosecutors refuse to produce evidence pursuant to a court order (Hails, 2012, page 60).

The next key phase of a criminal case is plea bargaining. A plea may be offered to the defendant if the prosecution has a strong case. This action will allow the defendant to avoid a trial and reduce his/her exposure to a lengthier sentence (USDOJ, n.d.). During the plea bargaining phase, the prosecutor may agree to drop one or more charges as a part of the plea deal or reduce the sentence. In most jurisdictions, plea bargaining is part of the legal process. An example of a plea bargain would be that a defendant was charged with five counts of grand theft, but may plea to two grand thefts and one petit theft while the other two grand theft charges were dropped. Plea bargaining may be initiated by either the prosecution or the defense and the strengths and weaknesses of the case will be factors. Requirements for plea bargaining are set by the Supreme Court and include the following (Hails, 2012, pg. 61).

  • The defendant must have an attorney.
  • No threats or promises can be made.
  • The defendant must be notified of the charges and criminal elements.
  • The defendant must be notified of consequences that may be a result of a guilty plea.

Once the defendant agrees to the plea bargain, they are questioned by a judge to make sure they understand that certain rights are being waived when a guilty plea is entered (Hails, 2012, pg. 61). The defendant also has the right to withdraw their plea to the court if the judge does not honor the agreement made by the prosecutor to the defense.

The next key phase of the court process is the trial. The trial is known as the highest-profile action in the criminal justice system (Hails, 2012, page 62). Most trials follow the same format, which includes: jury selection, opening statements, prosecution/defense witnesses, and rebuttal witnesses, closing arguments, jury instructions from the judge, deliberation, and verdict (Hails, 2012, page 62). This is the phase of the court process where the defendant has not pled out his/her case and is going before a judge and/or jury to be found guilty or not guilty. Under the Sixth Amendment, a defendant is guaranteed a fair trial in which they are adjudicated guilty solely based on admissible evidence and no other circumstances in which were not added as proof of trial (Criminal Law Right to a Fair Trial, 2008, page 2238). Also covered under the Sixth Amendment, the defendant has the right to an attorney, the right to face their accuser, and to know the charges against them (Hails, 2012, page 62). Juries in a criminal proceeding can range from a minimum of six up to twelve jurors. Jurors are picked from the jurisdiction in which the trial is held and discrimination based on race or gender is not allowed.

At the beginning of a criminal trial, an opening statement is given to the jury by the prosecutor and the defense if they are wanting to provide one. The purpose of an opening statement is to familiarize the jury with the case. While opening statements are optional, both the prosecution and defense are given an opportunity to give an opening statement.

Once the opening statements are heard, the prosecution and defense will call all their witnesses to the stand one by one. During trial, the prosecution presents their case first and must establish all the elements of a crime charged to prove the case beyond a reasonable doubt (Hails, 2012, page 67). Once the prosecution is done questioning the witness, the defense attorney will then have their chance to question the witness. This is called cross-examination. During the cross-examination phase, the defense attorney will be allowed to follow up on statements made during direct examination, ask relevant questions that were not asked during the direct examination, and challenge the credibility of the witnesses (Hails, 2012, page 70).

Once the prosecution and the defense are done with direct and cross examinations, the witness can then be called to the stand to testify again. This process is called re-direct and re-cross examination and is again done by the respective attorney.

Once the prosecution and the defense have called all witnesses to testify, they will rest. Sometimes during witness testimony new issues may arise and a rebuttal takes place. A rebuttal gives the prosecution a chance to call the witnesses on the new issues (Hails, 2012, page 73).

Once all witnesses have been called to testify, the next phase of a trial is where closing arguments are made. During this phase of the trial, it is the prosecutions responsibility to again prove all elements beyond a reasonable doubt to obtain a guilty conviction, which it is the defense attorney’s responsibility to point out all the weaknesses in the prosecution’s case in an attempt to obtain a not guilty verdict. Tools that are often used in the closing arguments are instructions from the court, the verdict form, the rhetorical question, and analogies (Cleveland, 2009, page 437).

Once the prosecution and defense rest their case, the judge will read the jury instructions, which is a set of instructions that the jury will use when deciding the case against the defendant (Hails, 2012, page 74). During the reading of the jury instructions, several key terms will be read including: beyond a reasonable doubt, malice, and competency of a witness (Hails, 2012, page 74). The jury will then be provided with a copy of the instructions to be taken to the jury room. Also, exhibits that were introduced as evidence will be sent to the jury room (Hails, 2012, page 75). Nobody else besides the jury are allowed in the jury room. Upon completion of deliberation, the jury usually ???reach a verdict. A foreman will then inform the bailiff, who will then notify the judge. Once everyone is returned to the courtroom, each charge and verdict will be read in open court.

Once the defendant is found guilty, they will be sentenced. Most times, sentencing does not occur on the day the verdict is read (Hails, 2012, page 78). This allows for a pre-sentence investigation report to be completed, which will assist the judge in deciding the appropriate sentence/punishment for the defendant. Once the defendant is sentenced, the defense attorney may inform the judge that they plan to appeal, at which time the judge will determine if the defendant shall be allowed out on bail while the appeal is in process (Hails, 2012, page 79). In the federal system, sentencing guidelines have been around since 1987. These guidelines were put in place to create equal justice for similar offenders and allow little room to sentence offenders utilizing their discretion (Wu, 2011, page 1). Depending on the defendant’s sentence, they may be placed on probation, spend time in jail, or spend time in prison. In the state of Florida, defendants who are sentenced to be incarcerated more than one year are housed in prisons while others who are sentenced to be incarcerated less than one year are housed in jails.

In conclusion, there are many key components of the court process, which include, but are not limited to: arraignment, discovery, plea bargaining, trial, and sentencing. Although most cases resolve around the plea bargaining stage, there are some cases that go to the end, which is trial. Some elements of the court process are longer than others and in the end the entire process could resolve in a few months in upwards of a few years. This depends on the amount of evidence that has to be examined in a lab to the plea bargaining between the prosecution and defense to the trial, which could take hours to days or even weeks. Furthermore, the prosecution and the defense must have ample amount of time to prepare for trial.


Scheb, J. M., & Scheb, J. M., II. (2014). Criminal Law & Procedure (8th ed.). Belmont, CA: Wadsworth.

Hails, J. (2012). Criminal Evidence, 7th Edition. [Chegg]. Retrieved from

James, F. (1929). Discovery. The Yale Law Journal, 38(6), 746-774. doi:10.2307/790073

USAO. (n.d.). Plea Bargaining. Retrieved July 17, 2018, from

Criminal Law – Right to a Fair Trial – Seventh Circuit Holds That a Codefendant’s Repeated and Violent Outbursts, Coupled with Intimidation from the Gallery, Denied Defendant a Fair Trial. – United States V. Mannie. (2008, June 01). Retrieved July 22, 2018, from

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Cleveland, W. C. (2009, October 01). Closing Arguments. Retrieved July 22, 2018, from

Wu, J. (2011). Citizenship Status, Race, Ethnicity, and Their Effects on Sentencing. Retrieved July 22, 2018, from

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Criminal Law & Procedure. (2020, Apr 02). Retrieved from