Criminal Charges: How Are Crimes Prosecuted

In most cases, a criminal case begins when the police respond to a citizen's complaint that a crime has been committed. Sometimes, the police observe suspicious activity.

Once the police are called or see something suspicious, the police investigate, take statements from witnesses, and prepare a report on their findings.

At times, the police will arrest suspects during the course of their investigation. At other times, the police will complete their investigate, prepare a report summarizing their findings and submit it to the prosecutor's office for evaluation, so that a prosecutor will decide whether charges should be filed against any suspects named in the police report.

How Are Criminal Charges Filed?

After being stopped or investigated by the police, a person may be ticketed for a non-criminal offense such as a civil infraction, may be cited or arrested for a misdemeanor criminal offense, or may be arrested for a felony, a more serious type of criminal offense.1

The exact procedure for how charges are filed varies from jurisdiction to jurisdiction.

  • Some jurisdictions give the police considerable discretion to charge defendants with specific crimes,
  • Other jurisdictions place more power with the prosecutor's office.

Although it is common to speak in terms of being "charged by the police," in many cases that's not an accurate description of how charges are filed.

  • Although the police may arrest a person and may recommend a specific charge, in many jurisdictions criminal charges are chosen solely by the prosecutor's office.
  • For more serious offenses, states may require that a defendant be indicted by a grand jury or the right to have their charge reviewed at a probable cause hearing.

While a misdemeanor citation issued by a police officer may indicate a specific charge, it is also possible that the charge will be amended upon review by a prosecuting attorney.

Grand Jury Proceedings

Although not all states require grand jury proceedings to charge a criminal defendant, most states may use a grand jury as a means of indicting a defendant charged with a serious crime. Minor crimes may be charged by citation, without the need for either a grand jury indictment or a formal information.

  • Slightly less than half of the states require a grand jury indictment for serious crimes, but have alternative charging mechanisms for less serious criminal offenses.
  • In most other states, the state has an option of commencing charges through a grand jury process, or by filing a document called an information with the court.

An information describes the basic facts of the alleged offense and the crime that is alleged to have been committed by the defendant.

In federal court, a grand jury is required for all felony charges unless the right to indictment by grand jury is waived by the defendant. A federal grand jury is comprised of between 16 and 23 jurors.

Grand Jury Proceedings

The grand jury process is less formal than most criminal court proceedings.

  • In typical grand jury proceedings there is no judge present, and the only lawyer present is the prosecutor.
  • The rules of evidence do not apply, meaning that a wide range of evidence may be submitted to a grand jury even though that evidence may not be admissible in a criminal trial.
  • The defendant does not normally testify at a grand jury, and is not present for grand jury proceedings unless present to testify.

Grand jury proceedings are closed to the public and are confidential, although transcripts of a grand jury witness's testimony will have to be provided to the defense if that witness later testifies at trial.

When charges are sought through grand jury proceedings, a prosecutor reviews all of the evidence available in the case, and assembles the evidence for presentation to a grand jury, along with testimony of witnesses. After the prosecution presents its case, the grand jury decides whether or not the defendant should face a criminal charge and go to trial.

A grand jury may be used by a prosecutor to help build a case, by using the subpoena power to collect evidence and to compel sworn witness testimony that will help clarify whether criminal acts occurred, who committed those acts, and whether criminal charges are likely to succeed if a prosecution is commenced.

How Will My State Handle A Criminal Investigation or Prosecution?

The exact manner in which criminal cases are handled varies from state to state, and from county to county. Typical procedures include the following court proceedings:

  • Arraignment: A hearing at which the defendant is formally charged with a crime, and is offered an opportunity to enter a plea to the charges.

  • Bail Hearing: A hearing to set bond or bail for the case which, if posted, may allow the defendant to be released pending trial or the final resolution of the prosecution.

  • Preliminary Examination: For defendants charged with felony offenses and not indicted by other means under the laws of their state, such as through grand jury proceedings, a preliminary hearing is scheduled to review if there is probable cause to believe that a crime was committed and that the defendant was the person who committed the crime.

  • Pretrial: A hearing at which the court reviews the status of the case and sets a schedule for pretrial proceedings and the eventual trial of the defendant's case.

  • Plea Hearing: A hearing that may be scheduled if a defendant intends to enter a guilty plea, perhaps at the conclusion of plea negotiations.

  • Trial: The trial of a criminal case, whether by judge (bench trial) or jury (jury trial).

  • Sentencing: A hearing at which the defendant is sentenced, following a guilty plea or conviction at trial.

The following articles provide an outline of the criminal justice system, from the time the police first stop or question a suspect through conviction and sentence. However, the laws of your state may differ from those described herein.

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What Happens In Juvenile Criminal Cases?

Juvenile court cases involve charges against minors who are not yet old enough to be charged as adults.

The principal goal of a juvenile court prosecution is to try to help the minor become a law-abiding adult, as opposed to taking the more punitive stance of the adult criminal system, but minors may nonetheless face serious consequences for their offenses including probation and incarceration.

Laws pertaining to juvenile records, when they may be sealed and when they will remain public vary significantly by state. In most states it is possible to seal juvenile records after a minor reaches adulthood, with some states automatically sealing the records once certain criteria are met. Sometimes a juvenile's subsequent criminal activity will prevent the later sealing of their juvenile record.

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What Happens In Drunk and Impaired Driving Cases

Drunk and Impaired Driving Cases involve the prosecution of defendants who are alleged to have been operating a motor vehicle while impaired in their ability to safely operate the vehicle due to the consumption of alcohol, drugs or other intoxicants.

The issues that arise in drunk and impaired driving cases can be complicated, involving a range of issues from the propriety of the traffic stop, to the manner in which roadside sobriety tests are conducted, to the conduct and accuracy of drug and alcohol tests.

When charged with impaired driving is often best to seek the assistance of an attorney who specializes in drunk and impaired driving cases, in order to evaluate any defenses that you may have, and to minimize the potential consequences to your driver's license and your freedom.

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What Constitutional Rights Apply In Criminal Cases?

State and Federal constitutions provide important protections to the public, to people suspected of crimes, and to people who are being prosecuted for crimes. Under the federal constitution, most protections come from:

  • The Fourth Amendment, which protects against unreasonable searches and seizures, and which creates a right to indictment by grand jury within the federal court system;

  • The Fifth Amendment, which provides guarantees of Due Process, protects defendants against self-incrimination and prohibits double jeopardy;

  • The Sixth Amendment, which provides a right to jury trial in criminal cases, the right to compel witnesses to appear and testify for the defense, and the right to legal representation;

  • The Eighth Amendment, which provides the right to a speedy trial, the right to be informed of charges, the right to be tried in a reasonable jurisdiction, and which forbids excessive bail in federal prosecutions.

For state court prosecutions, additional constitutional protections may be available under the constitution of the state in which the prosecution is proceeding.

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What Rights Do Crime Victims Have?

Increasingly, the rights of crime victims are being recognized and protected by the states. Victims often have the right to be informed of all court proceedings, and to speak at a defendant's sentencing.

Although the specific rights that are granted to crime victims may vary depending upon the laws of the state in which the prosecution is proceeding, every state now recognizes the legal rights of victims. Most prosecutor's offices employ a victim's rights officer who can help crime victims understand and exercise their rights.

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1. Although most jurisdictions classify charges using terms like infraction, misdemeanor and felony, some states use different terminology to describe those classes of offenses, such as "petty offense" and "indictable offense". This article uses the traditional terms, misdemeanor and felony.

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.