What are the stages of a criminal prosecution?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

1. Arrest– being taken into custody by police in order to be charged with a crime.

Who you interact with: arresting police officers and booking police officers

Basic legal rights at this stage: right to remain silent rather than responding to police questions and the right to seek a lawyer’s help for interactions with the police, the prosecutor, and the court. These rights come from the Sixth Amendment to the U.S. Constitution and similar components of state constitutions, as interpreted by court cases.

The Sixth Amendment and links to cases about the right to representation are available at: http://supreme.justia.com/constitution/amendment-06/index.html
2. Arraignment– a pre-trial court appearance where the charges are put on record and the defendant pleads guilty or not guilty. No evidence is presented and no arguments are made. It is simply a first chance for the prosecutor and the defendant to each formally put their positions in writing. “He committed this crime.” “No I didn’t.”

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to hear what crimes the prosecutor plans to prove. The state or federal rules of criminal procedure http://www.llrx.com/courtrules/ tell specifically what information has to be conveyed to a defendant at this state. If the criminal charges are serious enough that the defendant can be punished with imprisonment, the defendant has a right to have an attorney represent him in future court appearances and transactions involved with this case.

3. Preliminary Hearing – a pre-trial court appearance where the prosecution has to demonstrate that it has enough proof to demonstrate that the elements of the crime were met by this defendant’s actions.

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to contest the prosecutor’s claim that he can prove the elements of the crime. The state or federal rules of criminal procedure tell how a defendant can respond to the prosecutor’s claims at this stage. Generally, there is nothing written at this stage. When the prosecutor finishes telling about his case, the defendant (or the defendant’s lawyer) tells what the prosecutor’s claim is missing. For example, if the prosecutor says that the defendant committed burglary-breaking and entering with the intent to commit a crime-but then doesn’t show how he can prove whether the defendant actually entered the place, the defendant can point out to the hearing officer that the prosecutor has not shown that he can make the case. Find the crime components, which the prosecutor has to present, in your state’s crimes code or your local ordinances at http://www.justia.com/us-states/ or http://www.law.cornell.edu/topics/state_statutes2.html#criminal_code.

See the Rules of Criminal Procedure http://www.llrx.com/courtrules/ to find out how the hearing is supposed to be conducted.

4. Indictment or Information– filing with the trial court a written list of the charges approved in the preliminary hearing.

Who you interact with: This is not a proceeding in which the defendant interacts with anyone. The prosecutor communicates with the court by submitting the document.

Basic legal rights at this stage: The right to receive a copy of the indictment or information. This is not always an automatic right; the document might be provided only when the defendant requests it from the court clerk. The state or federal rules of criminal procedure regulate the way this document is written and presented to the court as well as how and when the defendant can get a copy of the indictment or information.

Rules of Criminal Procedure http://www.llrx.com/courtrules/

5. Discovery – parties collect information from each other. The prosecution is typically required to provide the defendant with copies of evidence and names of witnesses that are relevant to the case. The defendant is usually required to provide the prosecution with the results of mental or physical health exams related to the case and a list of experts and other witnesses.

Who you interact with: the prosecutor and witnesses for your defense

Basic legal rights at this stage: the right not to incriminate yourself and the right to know what evidence the prosecutor plans to use. The right against self-incrimination comes from the Fifth Amendment to the U.S. Constitution and similar components of state constitutions as interpreted by cases. The right to full disclosure of the prosecutor’s evidence comes from the state or federal rules of criminal procedure.

Fifth Amendment http://supreme.justia.com/constitution/amendment-05/index.html  

Rules of Criminal Procedure http://www.llrx.com/courtrules/

6. Trial – elaborate court presentations in which the prosecutor tries to prove that the defendant is guilty of the crime and the defendant tries to prove that the prosecutor has not proved his claims.

Who you interact with: judge, jury, witnesses, prosecutor

Basic legal rights at this stage: right to a fair trial which comports with all of the rules of criminal procedure including the right to object to improper evidence, the right to present evidence contradicting the prosecutor’s assertions, and the right to cross examine the prosecution’s witnesses. These rights come from previous cases as well as the rules of criminal procedure.

To find cases about trial techniques, look under the topic “trial” in any source published by Thomson West Publishing. Books about trial techniques are in  the KF 8915 Library of Congress call number range.

Rules of Evidence and Criminal Procedure http://www.llrx.com/courtrules/

After the trial, a defendant who is found innocent is free to get away from the courthouse and the criminal justice system. A defendant who is found guilty will probably have a separate hearing at which his sentence (or punishment) is decided. In that hearing, the prosecutor tries to show why the defendant deserves the harshest possible sentence and the defendant tries to show that he deserves the lightest possible sentence. The ranges of possible sentences are published in each jurisdiction’s sentencing guidelines.[i]

Meanwhile, if the defendant can show that the judge made errors in handling the case, he can appeal the case to a higher court. The appeal is not an opportunity to prove the whole case again; it is merely a forum in which to show that the judge improperly allowed or disallowed certain evidence, that he demonstrated bias, that he failed to properly instruct the jury, or that he made other errors. When filing an appeal, it is usually necessary to request that the trial court postpone sentencing until the appellate process is over.

If the appeals process doesn’t work out in a convicted criminal’s favor, the last resort is to file a federal or state court habeas corpus petition asserting that the conviction violates federal laws or the U.S. Constitution.[ii] In this case, the defendant has to show that the prosecutor or trial judge did something that truly was illegal, for example: not providing defendant with a lawyer, allowing evidence from illegal search to be presented in court, being biased or prejudicial in judging, or misinforming the jury about appropriate sentencing options.


Who you interact with: Trial court judge, witnesses, and lawyers for sentencing; appellate court clerk to file appeal; district court clerk/judge for filing habeas corpus petition.

Basic legal rights at this stage: In the sentencing phase, defendants have the rights to: 1. attorney representation-even during the court’s pre-sentence investigation 2. read and contradict or explain parts of the pre-sentence report and 3. speak on their own behalf at the sentencing hearing.[iii] In the appeal, convicted criminals have the following rights: 1. representation by an attorney (court-provided for indigents) 2. have a copy of the trial transcript 3. access to a law library or other appeal preparation resources while incarcerated. The appellate rights also apply when petitioning for habeas corpus.

[i] Federal Sentencing Guidelines are at http://www.ussc.gov/guidelin.htm. States’ sentencing commissions, which typically post the guidelines on their Web sites, can be reached through the National Association of State Sentencing Commissions. http://www.ussc.gov/STATES.HTM.[ii] The federal court system provides habeas corpus forms at http://www.uscourts.gov/forms/uscforms.html. Many federal district courts post forms for Habeas Corpus and other actions on their Web sites. http://www.uscourts.gov/courtlinks Volume 13 of Am Jur Pleading and Practice Forms has a broad assortment of habeas corpus forms. The Federal Judicial Center http://www.fjc.gov/ has an outline of the habeas process with references to all of the relevant laws. Search within the FJC site using the phrase “habeas corpus” the get the publication containing this outline “Habeas Corpus Review of Capital Convictions”


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