The legendary TV series Law & Order summarizes the criminal trial process succinctly in their traditional opening referring to the “police who investigate crime and the district attorneys who prosecute the offenders—these are their stories.”
We’ll put a little more meat on that description with a concise layout of the criminal justice process.
Step 1: Investigation
The police look into the crime and gather evidence pointing to the guilty party. Evidence falls into 2 general categories—direct and circumstantial. Direct evidence does exactly what the phrase suggests—it links a person directly to a crime without need of inference or supporting evidence. Circumstantial evidence relies on at least some level of inference and varies in strength.
Step 2: Filing charges
A grand jury is required by the Supreme Court for felonies that occur under federal jurisdiction. Grand jury requirements for crimes prosecuted at the state level vary, but prosecutors often find them a valuable tool in deciding whether to proceed. A grand jury consists of anywhere from 16-23 people and makes an assessment of the evidence gathered.
A supermajority (either two-thirds or three-fourths) is required to “convict,” but nothing about the grand jury verdict is binding. Where it aids a prosecutor is in determining the strength of the state’s case. If they do choose to bring the case to trial, it expedites the process.
Step 3: Arraignment
Immediately after formal charges are filed, the defendant is brought before a judge. The defendant is instructed as to his rights and, if necessary, provided an attorney. The arraignment includes the formal plea of guilty or not guilty. The judge also decides whether to set bail and what the amount should be.
Step 4: Discovery
In this step, both prosecution and defense dig deep into their evidence, talking to witnesses and reviewing documents. An important part of discovery is that the prosecution must provide the defense with all evidence that may pertain to the case.
This includes evidence that would help the defense’s case—called “exculpatory evidence.” Failure to provide the defense team with all evidence can trigger a mistrial and also bring down formal sanctions on the prosecuting attorney.
Step 5: Plea bargaining
As discovery continues, each side gets a sense of how strong their case might be. The prosecution may offer lesser chargers in exchange for a guilty plea. The prosecution’s motive for doing so might be a lack of confidence they can persuade a jury, while the defense may see taking the lesser charge as a way of cutting their losses.
It’s also common in cases involving organized crime syndicates for plea bargains to be offered in exchange for usable evidence on people higher up in the organization.
Step 6: Preliminary hearing
The purpose is for the prosecution to demonstrate to the judge that they have sufficient evidence to go to trial. In some states, winning a grand jury verdict can eliminate this step. The defendant also has the right to waive it, if they choose. The preliminary hearing includes witnesses and evidence presentation.
It should be noted that the prosecution can present evidence that may end up inadmissible in front of the jury. If the judge determines there is at least probable cause that the defendant committed the crime, the trial proceeds.
Step 7: Pre-trial motions
The most important part of the pre-trial motions are determining what evidence can be presented at trial. The defense can introduce a “motion to suppress.” For example, if they believe an unlawful search was committed by the police or that a confession was illegally obtained.
Either side can also petition for a change of venue—perhaps there is concern about getting an impartial jury in a specific jurisdiction.
If the defense wins important motions to suppress evidence, they may choose to file a motion to dismiss the entire case. This would be on the grounds that the actual admissible evidence no longer adds up to probable cause.
Step 8: Jury selection
A pool of registered voters is randomly chosen and made available for possible seating on the jury. Either side of the case can dismiss a potential juror if there is evidence of bias. Each side is also permitted a limited number of times they can dismiss a juror without giving a reason.
Although, if a pattern emerges where either side is using their so-called “peremptory dismissals” on the basis of race, religion or gender, the judge can intervene. Twelve members end up seated on the jury.
Step 9: Trial
Now it’s finally time to get down to business. Each side can make its opening statement and present its evidence and its witness testimony, with the prosecution going first. Each side can cross-examine the others’ witnesses and each side can object to the presentation of certain evidence.
Common objections include that a witness’ statement is “hearsay”—information they acquired secondhand—or that a witness’ statement is irrelevant. For example, they could claim that the defendant has been unfaithful to their spouse in an effort to prejudice the jury when marital infidelity has no bearing on the actual crime.
Both the prosecution and the defense then rest their case and make closing statements.
Step 10: Jury instruction & deliberation
The judge instructs the jury as to the appropriate law in the case at hand. They are reminded that the defendant, by law, gets the benefit of any reasonable doubt they may hold.
A unanimous verdict is required to convict or acquit. In the event of a “hung jury,” which is anything less than a 12-0 decision, the defendant goes free. However, the prosecution can refile the charges in a new trial.
An acquittal means the defendant can never again be charged with this particular crime.
Step 11: Post-trial motions
If the jury hands down a guilty verdict, the defense can make a motion for judgement of acquittal, which asks the judge to set aside the jury verdict. They can also file a motion for a new trial. These motions are rarely granted.
Step 12: Sentencing
A jury only determines sentencing in cases where the prosecution has asked for the death penalty. Otherwise, the judges issues the sentence based on the guidelines laid out in laws, along with their judgement of any mitigating factors—such as perceived regret on the part of their defendant.
Step 13: Appeal
A convicted defendant can still appeal their case, however appellate courts are not—at least in theory—supposed to re-hear the entire case. They can only rule on whether there were errors in how the trial was conducted.
If the defense lost a motion to suppress evidence in the pre-trial motions, they may revisit the issue here and argue the trial judge did not apply the law correctly. Sentencing can also be appealed.
The highest appellate court is the United States Supreme Court.