Criminal Procedure

From Masq

This article is a very short summary of RL Criminal Procedure in the United States of America. Think of this as the order in which the criminal process occurs.



1. Law enforcement officer may arrest only where probable cause to believe one has committed a crime. (Arrests can be made with or without a warrant.)


1. Suspects file is opened (fingerprints, booking photos, and pertinent information - date of birth, height, weight, etc.)


1. Prosecutor files a Complaint if there is enough evidence.


1. When defendant is in Custody, after arrest, a magistrate or judge informs him/her within a reasonable period of time of:

 a. The charges against him/her
 b. the right to counsel
 c. the bail amount (the 'bail amount' is the amount of money the Defendant forfeits if he/she
    does not show up at subsequent court proceedings).
 d. Whether the magistrate finds probable cause to believe the suspect committed the crime (in 
    some jurisdictions - probable cause for felony cases is determined at a Preliminary Hearing 
    with live witnesses, prosecution and Defendant with counsel are present).


1. Information

 a. Prosecutor prepares the charging document or Information with the allegations of the crime

2. Indictment

 a. Grand Jury decides whether an Indictment shall issue after hearing the prosecutor's 
    evidence (Defendant charged with Federal felony may only be tried pursuant to a Grand Jury 


1. The Defendant pleads guilty, no contest (nolo contendre), or not guilty to the Information or the Indictment


1. Speedy Trial

 a. Sixth Amendment right to a speedy trial applies to Federal prosecutions and to State 
    prosecutions by the 14th Amendment's Due Process Clause
 b. Exception: "good cause continuances" [NY. v. Hill]

2. Pretrial Motions

 a. Motion to Suppress: Admissibility of evidence sought to be introduced by the prosecution 
    which the defense believes was illegally obtained is determined pretrial by a Motion to 
    Suppress. Example: Motion to Suppress Fruits of an Illegal Search or Seizure. Example: 
    Motion to Suppress an Un-Mirandized Confession
 b. Motion to Dismiss the charges against the Defendant are generally heard before trial. 
    Example: Motion to Dismiss Based on Constitutional Over breadth or Vagueness of the Statute.


1. Prosecution's duty to disclose - includes documents, tangible objects, lists of witnesses the prosecution intends to call at trial. The Constitutions Due Process Clause requires the prosecution to disclose to the defense any 'exculpatory' evidence within the prosecution's possession [Brady vs. MD]

2. Defendant's duty to disclose - more restricted than prosecution's (includes advance notice of Alibi and Insanity defense)


1. Jury Trial - The Federal and all the States give the Defendant the right to a jury trial if charged with a felony or a misdemeanor punishable by more than 6 months in jail

2. Confrontation Clause

 a. The 6th and 14th Amendments give the Defendant the right to be confronted with the 
    witnesses against him/her. Includes Defendant's right to be present at trial
 b. Compulsory Process: Defendant has a right to have the court issue a Subpoena to Compel 
    Testimony of witnesses with information pertinent to their defense
 c. Defendant's right to cross-examine witnesses

3. Defendant's right to remain silent - 5th (and 14th) Amendment states that no person "shall be compelled in any criminal case to be a witness against himself"

 a. Right of Defendant not to take the stand (including a jury instruction stating this right)
 b. Limits on prosecution's right not to comment on the Defendant's silence