Section 1.4: The Criminal Justice Process
As we pointed out in the previous section, 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 the police. Since many crimes go unreported, a majority of crimes never begin the process. Those that do generally enter the system from the private sector. That is, most criminal prosecutions begin with a private citizen making a report to the 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.
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. 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.
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. 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. 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. 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.
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. 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. 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. 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. 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.
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 the 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, victims statements, forensic laboratory reports, and so on. 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. 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.
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. 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.
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. 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. 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.
Preliminary Hearing and the Grand Jury
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.
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. 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.
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 the evidence presented by the U.S. attorney and decides whether there is sufficient evidence to require a defendant to stand trial.
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. 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.
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. In most felony cases the judge waits for the results of a presentence report, prepared by the court’s probation office, before imposing a sentence. If the defendant pleads not guilty, the judge will proceed to schedule a trial.
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.
Arrest, Arrest Report, Booking, Charging Document, Counsel, Follow Up Investigation, Graham v. Connor (1989), Grand Jury, Indictment, Information, Initial Appearance, Knowingly and Voluntarily, Magistrate, Objectively Reasonable, Plea, Preliminary Hearing, Preliminary Investigation, Presentence Report, Pretrial Services Officer, Probable Cause, Reasonable Force, Standing Mute, U.S. Attorney
Last Modified: 06/29/2021
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