How are Criminal Charges Filed Against a Suspect

A person who is suspected of having committed a crime or similar offense may be immediately arrested, or charges may be authorized at a later date:

  • The person may be detained by a police officer who witnessed the allegedly unlawful activity, and be issued a notice to appear in court;

  • The person may be arrested based upon probable cause that a crime was committed and that the arrested person committed the crime; or

  • The person may be charged or indicted following a criminal investigation.

If not charged following an arrest, sometimes a person will later be informed that charges have been filed, and will be asked to present himself at the police station by a particular date and time.

At other times, a warrant may be issued for the person's arrest and, if the police encounter and identify the person, an arrest may follow. If the charges are serious, the police may attempt to enforce an arrest warrant at a location where the person is known to be present, such as the person's home or place of work.

What Types of Charges Can Be Pressed

Following a stop by the police or a criminal investigation, a suspect may be charged with a range of potential offenses.

Potential classed of charges include:

  • Civil Infractions: Charges that are non-criminal in nature and are punishable only by the payment of a fine. For example, most states classify minor traffic offenses as civil infractions.

  • Misdemeanors: Criminal charges that are considered to be less serious are classified as misdemeanors or petty offenses.

  • Felonies: Criminal charges that are considered to be more serious are classified as felony offenses, or indictable offenses.

Civil Infractions

Although it is a charge filed against the defendant by the government, a civil infraction is not a crime.

In order to convict a suspect of a civil infraction, the prosecution must prove its case by a preponderance of the evidence, meaning that it is more likely than not that the offense occurred and that the defendant committed the offense. That is a much lower standard of proof than exists in a criminal case, in which the defendant must be proved guilty beyond a reasonable doubt.

A few states require a higher burden of proof for conviction of traffic violations, but most states that have decriminalized minor traffic offenses allow for conviction based upon the preponderance standard.

As a non-criminal case, a civil infraction hearing may occur before an administrative officer of the court or magistrate, or may be heard by a judge.

A defendant has no constitutional right to a jury trial for a civil infraction, and few states grant jury trial rights for infractions. Trials on civil infractions are usually brief.

Civil Infractions vs. Misdemeanors

Before pleading guilty to any charge, a defendant should have a clear understanding of the nature of the charge. Sometimes people are confused about a charge, and mistakenly believe that a misdemeanor charge is a civil infraction. For example, in some states the offense of driving without your license on your person or driving with expired tabs on your license plate may be charged as a civil infraction, while in other state's it is charged as a criminal misdemeanor.

Often it will be possible to determine from the ticket itself whether the charge is a civil infraction or is for a criminal misdemeanor offense. Misdemeanor offenses usually require an appearance in court, while civil infractions for the most part do not. Any person who reviews a ticket but remains confused about whether the charge is a misdemeanor or civil infraction should seek clarification from a criminal defense lawyer.

Misdemeanor Offenses

Misdemeanor Charges

A misdemeanor is a criminal offense, and conviction normally results in a criminal record. Misdemeanors are technically a classification of less serious criminal offenses, but the consequences of conviction may nonetheless be quite severe.

  • Possible punishments for misdemeanors include imprisonment, probation, fines, and at times driver's license sanctions.
  • Some misdemeanors are classified as sex offenses and require that a person convicted of the offense register as a sex offender, and keep the police informed of his place of residence. Sex offender registration requirements often continue for decades and in some cases for life.

If the maximum possible penalty for a criminal offense does not exceed 180 days of incarceration, the defendant no right to a jury trial under the U.S. Constitution. Some states will allow for trial by jury even when it is not required by the federal constitution, but others will require a bench trial.

Sometimes it is not clear if a charge is criminal or non-criminal in nature. It may be possible for a defendant to plead guilty to an offense without realizing that the guilty plea will result in a criminal record. When a defendant is not certain as to whether an offense is criminal or non-criminal, it is important to consult a lawyer for clarification of the charge.

Petty Offenses and Minor Misdemeanors

Some states have created a class of petty offenses, minor offenses for which a defendant may be tried without a jury before a judge or magistrate.

  • States may have special classifications for this type of offense, using terms such as violation, petty offense or minor misdemeanor.
  • In most states, the only punishment for a petty offense is a fine.

Some states classify even minor offenses such as traffic tickets as criminal offenses, but may treat convictions for petty offenses or minor misdemeanors as non-criminal dispositions.

Some states maintain only a local record of conviction for minor offenses, and do not include the conviction in the defendant's state criminal history.

Felony Charges

Felony offenses, sometimes referred to as indictable offenses, are the most serious criminal offenses that can be charged.

At times, the distinction between felony and misdemeanor offenses may seem arbitrary, as opposed to being directly related to the seriousness of the offense or the facts of the alleged crime. However, all of the most serious criminal offenses, including murder, sexual assault, embezzlement, burglary, robbery, arson, and treason, are felonies.

The penalties for a felony conviction may be severe:

  • A defendant who is convicted of a felony charge may be sentenced to prison, to a lesser period of incarceration in a county jail, or to probation.
  • The defendant may be sentenced to pay fines, court assessments and restitution.
  • Felony convictions will result in the loss of certain rights, such as the right to possess a firearm, the right to participate on a jury, and voting rights.

When civil rights are lost as the result of a felony conviction, the restoration of rights depends upon the laws of the jurisdiction where the conviction occurred. Depending upon the governing law and the severity of the offense,

  • Some or all rights may be automatically restored upon the completion of the defendant's sentence, or
  • It may be necessary to bring a motion or petition for a pardon to obtain a restoration of rights.

In some jurisdictions, the full restoration of rights may require a pardon or similar grant of executive clemency.

What Are a Defendant's Rights When Facing Felony vs. Misdemeanor Charges

A defendant charged with a misdemeanor has fewer legal rights than a defendant charged with a felony.

  • Right to Counsel: A defendant who will not face imprisonment as a result of a misdemeanor conviction has no right to an attorney under the U.S. Constitution. Felony defendants have the right to counsel, and to petition for court-appointed counsel if unable to afford an attorney.

  • Right to Indictment: A defendant facing misdemeanor charges does not have a right to indictment by grand jury or to have the charges reviewed for probable cause at a preliminary examination. A felony defendant is entitled to indictment or a probable cause hearing.

  • Right to Jury: For charges punishable by a maximum of 180 days or less of incarceration, a defendant does not have the right to a jury. In some states, misdemeanor offenses are tried before six-person juries, while felonies are tried before twelve-person juries.

Most other rights extended to criminal defendants are the same for both felonies and misdemeanors.

How to Find Out if You Have Been Charged With a Crime

Often, a criminal charge is filed following a defendant's arrest. However, in some cases, formal charges may be filed after a lengthy examination.

When charges are filed without an arrest, or an arrested person is released without charges, the person may learn of the charges in a number of ways. For example,

  • Sometimes the person will be informed, directly or through counsel, that a charge has been filed.
  • Sometimes the person will find out after being stopped for a traffic violation that a charge has been filed and, after checking the person's identification, a police officer discovers an outstanding arrest warrant.
  • Many people only learn of an arrest warrant after a traffic stop, or similar encounter with a law enforcement agency.

If an arrest warrant is issued, upon checking the person's identification, the police may learn of the warrant. When a warrant is discovered, the officer may arrest the person on the warrant and take the person into custody, or may advise the person of the warrant without making an immediate arrest.

  • Upon review of the warrant, the officer may decide that an immediate arrest is not necessary.
  • The warrant may indicate a limited pickup radius, meaning that the court has only ordered the person's arrest within a specified distance from the court in which the charge is pending, and the person's encounter with the officer may be beyond that limit.

If an officer does not make an immediate arrest, the officer will usually advise the person that an arrest warrant is pending and that the person should address the warrant in the jurisdiction in which the charge was filed.

If you have reason to believe that you have been charged with a crime, you may benefit from having an attorney contact the police or prosecutor to find out if a warrant has been issued for your arrest.

What Happens After a Person is Arrested

After an arrest, a person is booked by the police.

  • The booking process usually involves obtaining identifying information from the person, including the person's name, address, telephone number and Social Security number.
  • The person is checked for any outstanding warrants for other offenses or from other jurisdictions.
  • The police will normally take the suspect's photograph (mug shots) and fingerprints.

If a person is under arrest at the time he is booked, he will ordinarily be thoroughly searched. If the arrest was legal, any evidence found in this search can be used as evidence in court.

If the person is held in jail, the police will prepare an intake report containing information about the person, the crime charged, and an assessment of the person's physical condition. For example, if the person appears to be intoxicated, that will be noted on the intake report, possibly along with a measurement of the person's blood alcohol level.

Setting of Bail

Sometimes an arrest warrant will indicate a bail amount that the person may post in order to be released. Particularly for minor charges, sometimes a person will be released on recognizance (also known as cite and release), meaning that they are released based upon their promise to appear in court as instructed. In some cases, also normally for minor offenses, the defendant may be able to post bond in a predetermined, scheduled amount, determined by the nature of the charges pending against the defendant.

If a person is detained in jail and bail has not already been set, a bail hearing is scheduled where a bail amount will be determined by a judge. A bail hearing is to be scheduled as soon as it is reasonably feasible.

Most defendants do not spend more than a night in jail before being given the opportunity to post bail. A defendant who is arrested on a weekend or court holiday may be held for a longer period. Many states limit the period that a defendant may be held prior to a bail hearing to forty-eight hours. The maximum period of detention allowed under the U.S. Constitution before bail is set is seventy-two hours.

Should You Consult An Attorney Before You Are Charged

If you believe you will be charged with a criminal offense, whenever possible you should consult with a criminal defense attorney before a charge is filed.

  • An attorney can advise you about your rights,
  • An attorney can give you instructions on what you should do if you are contacted by the police,
  • If the attorney believes that you may benefit from making a statement to the police, the attorney may accompany and advise you when you are making the statement,
  • An attorney may be able to arrange for you to voluntarily surrender on a charge, rather than being arrested at home or work,
  • An attorney may be able to speak with the prosecutor about a criminal charge before it is formally filed, and may be able to influence the prosecutor's charging decision.

Although it is not always possible, sometimes a criminal defense lawyer will be able to convince a prosecutor to charge a less serious offense, to send the complaint back to the police for more investigation, or even to refuse to authorize a warrant.

Once a warrant is issued, except perhaps in the context of a plea bargain, it is very difficult to get a prosecutor's office to amend to a lesser charge.

Copyright © 2000 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.