Criminal Justice | Section 1.5: The Criminal Justice Process (Continued)

Criminal Justice: An Overview of the System by Adam J. McKee

Section 1.5: The Criminal Justice Process (Continued)

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 forfeit and a bench warrant is issued for the person’s arrest. 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.

Plea Bargaining

Plea bargaining 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.


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. 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). This legal jargon means that 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 (BRD). This is a very high evidentiary standards-the highest known to our legal system.


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 a jail or prison, or some combination of supervision and incarceration.

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. 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.

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.


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. 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.

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.

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. 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.”

In appeals heard by the United States Circuit Courts, cases are decided by panels of three judges working together. 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. On the other hand, 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.

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. 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.

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. 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.


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. 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. This translates into massive public expenditures. Because it is so expensive, corrections remains a topic of much political debate.

Release from the System

The final stage 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 sentenced and ” flat timed,” are free of parole conditions and can return to a semblance of life before entry into the criminal justice system.

The Criminal Justice Funnel

The criminal justice system is frequently described as acting much like a funnel. Just as the funnel is wide at the top and narrows 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. Of all the crimes known to police, very few result in convictions and prison sentences. 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. These are just a few examples of people leaving the system prior to incarceration.

Decision Points in the Criminal Justice Process

Decision Maker Task Decision to move forward…

Decision to Stop…


Inform police. Police are informed.

Nothing is done.


Investigation. An arrest is made.

No arrest is made.


Charging. Charges are filed with the court.

No charges are filed.


Initial Appearance. Defendant is held over for trial.

Defendant is released.


Plead. Plead not guilty.

Plead guilty.


Decide guilt. Find the defendant guilty.

Find the defendant not guilty.

Judge or Jury (Depending on jurisdiction)

Determine sentence. Sentence offender to incarceration.

Sentence the offender to community supervision.

Key Terms

Appeal, Appellant, Bail, Bench Warrant, Beyond a Reasonable Doubt (BRD), Burden of Proof, Criminal Justice FunnelEn Banc, Evidentiary Standard, Flat Timed, Monetary Fine, Oral Argument, Petition for a Writ of Certiorari, Pretrial Detention, Probation Officer, Restitution, Sentence, Sentencing Guidelines, Trial, United States Circuit Courts, United States Sentencing Commission

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Last Modified:  01/12/2023

APA Citation

McKee, A. J.  (2015).  Criminal Justice: An Overview of the System.  Booklocker.

This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License

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