An arrest usually signals the beginning of complex and sometimes drawn-out experience with the criminal justice system. Though procedures might differ from state to state and even within a state, there are some common, critical stages to a criminal prosecution.
Most criminal cases start with an arrest. Prosecutors and grand juries sometimes decide to investigate and charge someone beforehand, but most cases begin with a warrantless arrest soon after a report of a crime.
After an arrest, officers regularly ask the suspect questions. They often give the Miranda warning, but not always. A common misperception is that officers must read arrestees their rights. Really, though, they’re required to only when a suspect is both in custody and subject to interrogation. If they don’t give the warning when they’re supposed to, the case usually continues on. The Miranda violation simply limits the evidence the prosecution can use against the defendant at trial.
When officers make an arrest and keep someone in custody, they usually set bail in an amount designated by the bail schedule. A bail schedule lists crimes and their corresponding bail amounts. Judges can later increase or reduce bail.
(For a variety of information on bail and booking—and even “own recognizance” release—see Going into and Getting out of Jail.)
In a typical case, the police file a report after an arrest. Sometimes several officers, each of whom was somehow involved in bringing the suspect in, will file arrest reports. An arrest report contains information about the circumstances of the crime, including the officer’s perceptions and statements from witnesses.
Prosecuting offices often have designated lawyers whose job it is to review police reports and decide whether to file charges. These kinds of prosecutors determine which, if any, charges to file against a suspect.
The initial charges filed against the suspect are subject to change, and even dismissal in the right circumstances. A prosecutor might, for example, drop charges after learning about evidence that suggests the defendant’s innocence.
After getting discovery (including the police report) from the prosecution and beginning any necessary investigation, a defense lawyer can begin to evaluate the strength of the government’s case.
The overwhelming majority of criminal cases end by plea bargain, whereby the defendant typically pleads guilty or “no contest” in exchange for a conviction on a less-serious charge, a reduced sentence, or both.
Defense attorneys can sometimes get cases dismissed. Ways to get this result include winning a pretrial motion (like a motion to suppress the prosecution’s evidence) or a preliminary hearing.
After a guilty plea or a guilty verdict comes sentencing. Unless they agree on the appropriate punishment, the prosecution and defense argue over the sentence the defendant deserves. The judge, of course, decides on the penalty.
An oft-overlooked aspect of a criminal prosecution is the sealing or expunging of records related to the case. Sealing and expungement are frequently limited in that some entities can still access the records and the conviction can still be used to increase the punishment for a subsequent offense.
Though records can sometimes be dealt with as soon as the case ends—for example, if the prosecution doesn’t file charges and the defendant gets the records of arrest sealed or destroyed—oftentimes there’s a delay. For example, a defendant might have to wait until completing probation to have a felony conviction reduced to a misdemeanor and then dismissed.
Former defendants often aren’t in touch with their attorneys at the point they’re eligible to clean up their records. For that reason, and because there are usually time limits to this kind of relief, they can miss out on the opportunity.
If you’ve been arrested, make sure to consult an experienced criminal defense attorney. A lawyer can tell you about differences in the law in your jurisdiction, analyze your case and any available defenses, and guide you through the process. An attorney, for example, can advise you of all the options for cleaning up your record. And a lawyer can inform you about other important processes, like the appeal.
