Introduction to
Criminal Justice

Section 1.4: The Criminal Justice Process

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an
Open Education Resource (OER) – Quality Master Source (QMS) License.
https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

The Dark Figure of Crime

Crimes often do not come to the attention of law enforcement.

This is what is called the dark figure of crime.

The criminal justice process does not begin until crimes come to the attention of
police.

Since many crimes go unreported, a majority of crimes never begin the process.

2

The Role of Citizens

Most criminal prosecutions begin with a private citizen making a report to police.

Very few offenses are detected by officers performing random patrols; contrary
to the conventional wisdom that preventive patrol serves to prevent crime.

Information from private citizens is the key to success in the criminal justice
system.

3

Investigation

Once a crime is reported to the police, an investigation will begin.

Depending on the nature and seriousness of the crime, this investigation may be
as simple as a patrol officer asking a few questions at the scene, or as complex
as involving detectives and forensic scientists.

The first responder will conduct a preliminary investigation.

4

Types of Investigations

The preliminary investigation involves securing the crime scene and identifying
victims, perpetrators, and witnesses.

Other tasks that do not involve specialized training and large amounts of time
are also part of the preliminary investigation.

Cases that are more complex will require a follow-up investigation, which is
usually conducted by a detective.

5

Arrest

An arrest involves taking a person into actual physical custody by law
enforcement.

For an arrest to be legal, it must be based on probable cause.

Probable cause means that enough evidence is present to convince a reasonable
person that it is more likely than not that the suspect committed the crime.

6

Arrest and the Use of Force

Perhaps one of the most controversial aspects of the arrest process is the use
of force by police in making an arrest.

Constitutional and statutory law authorizes the use of reasonable force when the
force is necessary to take a suspect into custody.

Often, what constitutes reasonable force is a hotly disputed matter.

7

Graham v. Connor (1989)

In the landmark case of Graham v. Connor (1989), the Supreme Court of the
United States established the legal requirement that the use of force by police be
objectively reasonable.

This standard suggests that police may use an amount of force that a
reasonable person would conclude was necessary to effect the arrest and no
more.

8

Arrest v. Self-defense

Note that the force used to effect an arrest is a different legal issue than self-
defense.

Officers are always allowed to answer deadly force with deadly force when lives
are at stake.

9

Booking

After an arrest, suspects are taken to a police station holding facility or jail for
booking.

The difference depends largely on the size of the jurisdiction.

Large municipal agencies often have their own holding cells, while small and
rural agencies usually use the county jail for booking and holding purposes.

10

The Booking Process

Booking is the process of officially recording that a person has been arrested.

This usually involves identifying, photographing, and fingerprinting the suspect.

The identification process usually involves recording the suspect’s personal
information, such as their legal name, date of birth, address, physical
characteristics, and so forth.

Most jails will have a standardized booking form for this purpose.

11

Booking “Paperwork”

An official record is also made at this time about the alleged crime committed by
the suspect.

The suspect’s identifying information will usually be retrieved from a criminal
history database.

The suspect will also be photographed and fingerprinted.

These identification tasks have been made swift and accurate by modern digital
technologies.

12

Booking Searches

The suspect will be thoroughly searched for contraband, and all personal
property will be confiscated and inventoried.

The property is returned to the suspect upon release unless it is deemed illegal
contraband or evidence of a crime.

13

Citation v. Booking

Note that in most jurisdictions, persons suspected of minor offenses can be
issued a written citation in lieu of being booked into jail.

By signing the citation, the person is promising to appear in court at the date and
time listed on the citation.

14

Charging

This crucial step is where law enforcement and prosecutors make the decision
as to what particular crime to charge a suspect with, if at all.

The usual process is for police to turn over a case file to the prosecutor’s office.

The case file will contain the police arrest report, along with supporting
documentation such as witness statements, victim’s statements, forensic
laboratory reports, and so on.

15

The Charging Document

The prosecutor will determine if there is enough evidence to go forward with the case.

If there appears to be enough evidence to go forward in the prosecutor’s professional legal
judgment, then a charging document is filed with the court.

The name of the charging document changes from jurisdiction to jurisdiction.

Some jurisdictions (including the federal courts) require an indictment by a grand jury, and
others use a prosecutorial information.

16

Always the Same?

Note that an arrest does not always precede the issuance of a charging
document.

There are times when the charging document is filed first, and then a warrant is
issued for the arrest of the accused.

This situation is most common in jurisdictions where grand jury indictments are
a common charging document.

17

Initial Appearance

Under the constitution, people cannot be seized and jailed without reasonable
cause.

To make sure that no one is arrested and held illegally, every arrestee has the
right to be brought before a judge within hours of arrest.

During this first or initial appearance, a magistrate will inform the suspect of the
charges against him, advise him of his rights, and determine if there is enough
evidence to hold the suspect for further processing.

18

How Formal Is It?

These hearings tend to be less formal than later formal hearings, and can be
conducted by lower court magistrates who may or may not have the authority to
preside over the actual criminal trial.

In most jurisdictions, bail is set at this stage in the process.

19

The Feds are More Formal

At the federal level, the process is somewhat formalized, and several important
tasks are taken care of in this single step.

At an initial appearance in federal court, a judge advises the defendant of the
charges filed, considers whether the defendant should be held in jail until trial,
and determines whether there is probable cause to believe that an offense has
been committed, and the defendant has committed it.

20

Federal Right to Counsel

Defendants who are unable to afford counsel are advised of their right to a court-
appointed attorney.

The court may appoint either a federal public defender or a private attorney who
has agreed to accept such appointments from the court.

Regardless of the type of appointment, the attorney will be paid by the court
from funds appropriated by Congress.

21

Pretrial Release Conditions

Defendants released into the community before trial may be required to obey
certain restrictions, such as home confinement or drug testing, and to make
periodic reports to a pretrial services officer to ensure appearance at trial.

22

Grand Juries

As a matter of American legal tradition, a grand jury was convened to hear
evidence presented by the prosecutor, and determine if that evidence was
sufficient to warrant a full-blown criminal trial.

In other words, it was the duty of the grand jury to determine if probable cause
existed in a particular criminal case.

Defendants had no right to be present at grand jury proceedings, and these
deliberations were held in secret.

23

Variations by Jurisdiction

States that were more populous found that the grand jury system was unwieldy.

It was too labor intensive and took up too much time.

These states developed a system whereby the prosecutor files a charging document
called an information with the court.

A hearing is then held to determine if probable cause is indeed present as the prosecution
alleges.

Defendants have the right to be present at these preliminary hearings.

24

Probable Cause

Regardless of whether a grand jury system is used or prosecutorial information
is used, the gold standard for moving forward to a criminal trial is probable
cause.

25

Federal Grand Juries

The federal courts still use the old grand jury system.

At the beginning of a federal criminal case, the principal actors are the U.S.
Attorney (the prosecutor) and the grand jury.

The U.S. attorney represents the United States in most court proceedings,
including all criminal prosecutions.

The grand jury reviews evidence presented by the U.S. attorney and decides
whether there is sufficient evidence to require a defendant to stand trial.

26

Arraignment

At this stage, the criminal defendant appears in court to have the formal
charging document read.

This is where the defendant enters a plea.

The most common pleas are guilty and not guilty.

In most jurisdictions, standing mute (saying nothing when asked for a plea) will
result in the court entering a not guilty plea on behalf of the defendant.

27

Plea Bargains

If a defendant pleads guilty in return for the government agreeing to drop certain
charges or to recommend a lenient sentence, the agreement often is called a
plea bargain.

28

Pleas and Sentencing

In federal criminal courts, the defendant enters a plea to the charges brought by
the U.S. attorney.

More than 90% of federal criminal defendants plead guilty rather than go to trial.

If the defendant pleads guilty, the judge may impose a sentence at that time, but
more commonly will schedule a hearing to determine the sentence at a later
date.

29

Federal Felony Trials

In most felony cases, the judge waits for the results of a presentence report,
prepared by the court’s probation office, before imposing sentence.

If the defendant pleads not guilty, the judge will proceed to schedule a trial.

30

Pleading and the Constitution

Because of the seriousness of a guilty plea, the judge must determine that a
guilty plea was made both knowingly and voluntarily.

If it is determined that a guilty plea is entered knowingly and voluntarily, there is
no need to go on with a trial.

In many cases, the judge will impose a sentence at this point.

31

Introduction to
Criminal Justice

Section 1.5: The Criminal Justice Process
(Continued)

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an
Open Education Resource (OER) – Quality Master Source (QMS) License.
https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

Pretrial Detention or Bail

Pretrial detention refers to keeping the suspect in jail until trial.

Most criminal suspects are released on bail prior to trial.

Bail is a specified amount of money paid by the defendant to ensure that they
will show up in court on the appointed day.

If they do not show up, the bail is forfeited and a bench warrant is issued for the
person’s arrest.

2

Pretrial Detention and the Constitution

The right to bail is not a constitutional guarantee as many think.

The actual constitutional rule is that excessive bail may not be required.

If an accused person is determined by the courts to be a flight risk, then the
judge may deny bail and hold the person in jail until trial.

Such a period of incarceration prior to trial is known as pretrial detention.

3

Plea Bargaining

A plea bargain is a negotiated agreement between the prosecution and the
defendant.

In most cases, the defendant agrees to plead guilty to a lesser crime than that
originally charged, or to a lesser sentence than can normally be expected if the
case goes to trial.

There are many critics of the plea bargaining process, but it is unavoidable in our
criminal justice system.

4

The Criminal Trial

The purpose of a trial is to answer the basic question of the defendant’s guilt.

A finding of guilt must be based on facts (evidence), and accordingly the
persons reaching this decision are referred to in legal documents and texts as
the “finders of fact.”

This can be a jury in a jury trial, or a judge acting alone in what is referred to as a
bench trial.

5

An Adversarial Process

Recall that the American legal system is adversarial, which means that two sides
must contest the issue of guilt in court.

The prosecution attempts to prove the guilt of the defendant, and the defense
attempts to demonstrate the accused person’s innocence.

As a technical matter, the burden of proof is on the state (prosecution).

6

The Role of the Defense

The defendant does not have to do anything at all; it is up to the prosecutor to
prove guilt.

As a practical matter, doing nothing is rarely employed as a defense strategy.

In a criminal trial, guilt must be proven beyond a reasonable doubt.

This is a very high evidentiary standards—the highest known to our legal system.

7

Sentencing

If the defendant pleads guilty or is found guilty, a judge (or jury in some states)
will hand down a sentence.

Possible sentences include monetary fines, probation, periods of incarceration in
jail or prison, or some combination of supervision and incarceration.

8

Federal Sentencing

At the federal level, the judge determines the defendant’s sentence according to
special federal sentencing guidelines issued by the United States Sentencing
Commission.

The court’s probation office prepares a report for the court that applies the
sentencing guidelines to the individual defendant and the crimes for which he or
she is guilty.

9

Sentencing Factors

During sentencing, the court may consider not only the evidence produced at
trial, but all relevant information that may be provided by the pretrial services
officer, the U.S. attorney, and the defense attorney.

In unusual circumstances, the court may depart from the sentence calculated
according to the sentencing guidelines.

The federal sentencing guidelines have been controversial, and have resulted in
a huge number of appeals court cases where the person being sentenced
disagreed with the guidelines or their application.

10

Types of Federal Sentences

A federal court’s sentence may include time in prison, a fine to be paid to the
government, and restitution to be paid to crime victims.

The court’s probation officers assist the court in enforcing any conditions that
are imposed as part of a criminal sentence.

The supervision of offenders also may involve services such as substance abuse
testing and treatment programs, job counseling, and alternative detention
options.

11

Appeals

The decisions of trial courts are not set in stone.

If some legal rule is violated, the convict can appeal the decision to a higher
court in an effort to have the wrong corrected.

A successful appeal usually means that the trial court is ordered to rehear the
case while fixing the problem that the appeals court found with the first trial.

12

Get Out of Jail Free

Of course, a rehearing of the case by the trial court is not mandatory.

If the prosecutor believes that the state cannot prove guilt beyond a reasonable
doubt given the appellate court’s directions, then the case will be dropped.

13

Who Can Appeal

The losing party in a decision by a trial court in the federal system normally is
entitled to appeal the decision to a federal court of appeals.

In criminal cases, the defendant may appeal a guilty verdict, but the government
may not appeal if a defendant is found not guilty.

Either side in a criminal case may appeal with respect to the sentence that is
imposed after a guilty verdict.

14

v. Facts

The party to a case who files an appeal is known as an appellant.

The appellant must show that the trial court (or sometimes an administrative
agency) made a legal error that affected the decision in the case.

The court of appeals makes its decision based on the record of the case
established by the trial court.

It does not receive additional evidence or hear witnesses.

15

Exception to the Rule

The court of appeals also may review the factual findings of the trial court or
agency, but typically may only overturn a decision on factual grounds if the
findings were “clearly erroneous.”

16

Federal Circuit Courts

In appeals heard by the United States Circuit Courts, panels of three judges
working together decide cases.

The appellant presents legal arguments to the panel, in writing, in a document
called a brief.

In the brief, the appellant tries to persuade the judges that the trial court made an
error, and that its decision should be reversed.

17

The Other Team

The party defending against the appeal, known as the appellee, tries in its brief to
show why the trial court decision was correct, or why any error made by the trial
court was not significant enough to affect the outcome of the case.

18

Oral Arguments

Although some cases are decided on the basis of written briefs alone, many
cases are selected for an oral argument before the court.

Oral argument in the court of appeals is a structured discussion between the
appellate lawyers and the panel of judges focusing on the legal principles in
dispute.

Each side is given a short time (usually about 15 minutes) to present arguments
to the court.

19

After the Appeal

The court of appeals decision usually will be the final word in the case, unless it
sends the case back to the trial court for additional proceedings, or the parties
ask the U.S. Supreme Court to review the case.

In some cases the decision may be reviewed en banc, that is, by a larger group of
judges (usually all) of the court of appeals for the circuit.

20

Discretionary USSC Appeals

A litigant who loses in a federal court of appeals, or in the highest court of a
state, may file a petition for a writ of certiorari, which is a document asking the
Supreme Court to review the case.

The Supreme Court, however, does not have to grant review.

The Court typically will agree to hear a case only when it involves an unusually
important legal principle, or when two or more federal appellate courts have
interpreted a law differently.

21

Mandatory USSC Appeals

There are also a small number of special circumstances in which the Supreme
Court is required by law to hear an appeal.

When the Supreme Court hears a case, the parties are required to file written
briefs and the Court may hear oral argument.

22

Corrections

Corrections is designed to protect the public and serve the public interest by
punishing or rehabilitating criminal offenders, depending on one’s philosophy.

The idea of corrections is much broader that just prisons and jails where
convicts serve out entire sentences.

It also encompasses mechanisms of early release, such as probation and parole.

23

The Scope of American Corrections

The corrections system in the United States is immense.

On any given day, about 7 million Americans are under some sort of correctional
supervision.

Although only about a third of convicted offenders are actually incarcerated, the
number of convicts in America’s prisons is quite large.

24

A Hot Political Topic

This massive scope translates into massive public expenditures.

Because it is so expensive, corrections remains a topic of much political debate.

25

Release from the System

The final state of the criminal justice process is release from the system.

If an offender is released from confinement on parole, then the conditions of
parole must be met and severe limitations are placed on the offender.

Offenders that have served a complete prison sentence and “flat timed,” are
released free of parole conditions.

26

The CJ Funnel

The criminal justice system is frequently described as acting much like a funnel.

Just as the funnel is wide at the top and narrow at the bottom, so too is the
criminal justice system.

That is to say, as we move forward in the criminal justice process, we find fewer
and fewer cases.

At every step along the way, people drop out of the system.

27

A Matter of Discretion

Of all the crimes known to police, very few result in convictions and prison
sentences because….

● The police may decide to deal with a case informally.

● Prosecutors may decide not to prosecute a case.

● Judges may decide on treatment rather than imprisonment, etc…

These are just a few examples of people leaving the system prior to
incarceration.

28

McKee – Intro to CJ – Section 1.4 CJ Process
Introduction to Criminal Justice
The Dark Figure of Crime
The Role of Citizens
Investigation
Types of Investigations
Arrest
Arrest and the Use of Force
Graham v. Connor (1989)
Arrest v. Self-defense
Booking
The Booking Process
Booking “Paperwork”
Booking Searches
Citation v. Booking
Charging
The Charging Document
Always the Same?
Initial Appearance
How Formal Is It?
The Feds are More Formal
Federal Right to Counsel
Pretrial Release Conditions
Grand Juries
Variations by Jurisdiction
Probable Cause
Federal Grand Juries
Arraignment
Plea Bargains
Pleas and Sentencing
Federal Felony Trials
Pleading and the Constitution

McKee – Intro to CJ – Section 1.5 CJ Process
Introduction to Criminal Justice
Pretrial Detention or Bail
Pretrial Detention and the Constitution
Plea Bargaining
The Criminal Trial
An Adversarial Process
The Role of the Defense
Sentencing
Federal Sentencing
Sentencing Factors
Types of Federal Sentences
Appeals
Get Out of Jail Free
Who Can Appeal
v. Facts
Exception to the Rule
Federal Circuit Courts
The Other Team
Oral Arguments
After the Appeal
Discretionary USSC Appeals
Mandatory USSC Appeals
Corrections
The Scope of American Corrections
A Hot Political Topic
Release from the System
The CJ Funnel
A Matter of Discretion