PLEASE READ THIS SUMMARY (Refer To The Websites For More Information) Criminal Procedure

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PLEASE READ THIS SUMMARY (refer to the websites for more

information)
Criminal Procedure
Criminal justice systems at the federal, state, and local levels must follow a series of rules
governing the stages of a criminal case, beginning with police investigations and
continuing all the way through trial and appeal. Federal criminal procedure is governed by
substantive criminal laws found in Title 18 of the U.S. Code and the Federal Rules of
Criminal Procedure. Every state has its own code of criminal statutes. Procedural rules
help ensure that the government applies the law in as consistent a manner as possible,
and also help safeguard individuals’ constitutional rights. These procedures apply in all
criminal matters, as well as in some quasi-criminal proceedings, such
as deportationhearings.
Fourth Amendment Rights
The Fourth Amendment to the U.S. Constitution protects people from “unreasonable
searches and seizures” by police. In order to prevent violations of this right, police
are required to obtain a search warrant from a judge, after showing probable cause
to believe the search is likely to produce evidence related to a crime. A defendant who
alleges that police seized evidence in violation of his or her Fourth Amendment rights may
file a motion to suppress that evidence under the exclusionary rule.
Fifth and Sixth Amendment Rights
A series of constitutional rights, commonly known as Miranda rights, protect people

during police investigations and at trial. The right to remain silent, well-known to
anyone who watches cop shows on television, means that the police cannot force people
to incriminate themselves, and prosecutors cannot call a defendant as a witness at the
defendant’s own trial.
A person has the right to an attorney of his or her own choosing once he or she has
been arrested and during any custodial interrogation by police. In some situations, a
person who cannot afford an attorney has the right to a public defender or a court-
appointed lawyer. Once a person has invoked his or her right to silence or to an attorney,
all questioning must cease.
Other rights guaranteed by the Fifth and Sixth Amendments include the right to

confront one’s accuser in court, known as the Confrontation Clause; the right against
being charged with the same offense more than once, known as double jeopardy; the
right to a trial before an impartial jury; and the right to a speedy trial without undue
delay.
Eighth Amendment Rights
The Eighth Amendment protects people after an arrest, which might be in the early stages
of a criminal case, and after a conviction. It prohibits “excessive bail,” which means that
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while a judge is not obligated to grant bail for a person after his or her arrest, the
amount of bail may not be unreasonable or excessive.
The Eighth Amendment also prohibits “excessive fines” and “cruel and unusual
punishment.” Supreme Court Justice William Brennan identified four principles to consider
in determining whether a punishment violates the Eighth Amendment: (1) whether its
“severity” is “degrading to human dignity”; (2) whether it is assessed in a “wholly arbitrary
fashion;” (3) whether society has generally rejected it as a punishment; and (4) whether it
is “patently unnecessary.” Furman v. Georgia, 408 U.S. 238 (1972). That decision ruled
that capital punishment violated the Eighth Amendment, but the court reversed that
holding four years later in Gregg v. Georgia, 428 U.S. 153 (1976).
Stages of the Criminal Process
After a person has been arrested, the state must formally bring charges, either by filing a
complaint or obtaining a grand jury indictment. The court informs the defendant of the
charges at the first court appearance, known as an arraignment. Pre-trial proceedings
allow the defendant to request suppression of evidence under the exclusionary rule and
resolve other matters.
The criminal trial process begins with empaneling a jury, unless the defendant chooses
to have a bench trial. The state, which has the burden of proving guilt, presents its
evidence and witnesses first. The defendant then has the opportunity to rebut the state’s
claims or prove an affirmative defense. The judge or jury determines a verdict. If the jury
cannot reach a unanimous verdict, the court may declare a mistrial. If they defendant is
found guilty, the court determines a sentence.
Last updated April 2018
Stages of a Criminal Case
When the state brings charges against someone for an alleged offense, it is required to
follow specific rules of criminal procedure in order to maintain consistency in the
system and protect defendants’ constitutional rights. A criminal case has numerous
distinct stages, only one of which is the trial.
Arrest
Criminal cases usually begin with the defendant’s arrest by police. This may occur after
police respond to a call or during a traffic stop, or when police identify a suspect during an
investigation. Some jurisdictions require police to obtain an arrest warrant in many
circumstances.
Bail
Once a person is in police custody, a magistrate or other judge may grant bail. In

determining the amount of bail, a judge may consider factors like the severity of the
alleged offense and the likelihood that the person would return to court throughout the
case. A judge may order a person held without bail if the circumstances weigh
substantially against letting him or her out. In some cases, such as minor offenses or a
person with no criminal history, a judge may allow the defendant’s release without bail, or
on his or her “own recognizance.” This requires a written agreement to return to court for
all appearances.
Arraignment
A defendant’s first court appearance is known as the arraignment. At this appearance, the
defendant has the right to have the charges against him or her read by the judge. This is
also often the time when the defendant may plead “guilty,” “not guilty,” or “no contest.”
The court may set dates for future proceedings and deadlines for motions and other
filings.
Indictment or Information
Prosecutors may bring formal charges in any of several different ways, depending on the
jurisdiction. They may file an information or complaint, or they may seek a grand jury
indictment. Federal charges require an indictment. Grand jury proceedings are typically
not open to the public, and only the state may present evidence. A preliminary hearing on
an information or complaint, however, is an adversarial proceeding where a defendant
may present evidence to challenge the existence of probable cause.
Preliminary Hearings and Pre-Trial Motions
Most criminal cases involve a period of time during which each side prepares its case while
also negotiating a possible plea. Either side may also bring motions seeking to dispose of
certain issues before trial. A defendant might bring motions to suppress evidence obtained
in violation of his or her rights, which may be inadmissible under the exclusionary rule.
Shortly before trial, each side may bring motions in limine, which ask the court to exclude
evidence or testimony regarding certain matters.
Trial
A defendant has the right to a trial by jury in federal criminal cases, as well as many
state proceedings. They can waive jury trial and have a bench trial, in which case the
judge will decide both questions of law and fact. The state presents its case first, followed
by the defendant. At the close of evidence, the jury deliberates and renders a verdict of
“guilty” or “not guilty.” If the jury cannot reach a unanimous verdict, the court may
declare a mistrial, in which case the state may be able to re-try the case with a new jury.
Sentencing
If the judge or jury finds the defendant guilty, the court will determine the punishment.
Federal sentencing guidelines and similar state guidelines often define minimum and
maximum sentences and identify factors the court may consider. The court may hold a
separate sentencing hearing, at which the state may present evidence in support of a
harsh sentence, and the defendant may request leniency by presenting evidence
of mitigating factors.
Appeal
A defendant may request review of his or her conviction by an appellate court. An appeal
must allege specific errors or abuses of discretion by the trial court. The appellate court
may affirm the conviction, reverse it, or remand the case for retrial.
Other Constitutional Rights
The Bill of Rights provides numerous protections for people involved in criminal
proceedings, starting with police investigations and continuing through the trial and
appeal processes. The Fourth Amendment places important restrictions on police,
including the requirement of search warrants. Most people are familiar with the rights
commonly known as Miranda rights, such as the right to remain silent and the right
to an attorney. Once the state has brought charges against a person, the Fifth and Sixth
Amendments provide important protections that help to ensure a fair trial and limit the
state’s ability to charge a person in connection with an alleged crime once that person has
been acquitted.
Confrontation Clause
The Confrontation Clause of the Sixth Amendment essentially guarantees a criminal

defendant’s right to a face-to-face confrontation with his or her accuser. Any statements
offered into evidence that would tend to incriminate the defendant should
be inadmissible as hearsay if the witness is not available to testify at trial.
For several decades, out-of-court statements could be admitted if they were found to be
“reliable,” such as if they were corroborated by additional evidence. Ohio v. Roberts,
448 U.S. 56 (1980). The Supreme Court changed this standard in Crawford v.
Washington, 541 U.S. 36 (2004), holding that the Confrontation Clause excludes any
evidence that is “testimonial” in nature if the witness is not available. Justice Scalia,
writing the opinion for the court, noted that "[d]ispensing with confrontation because
testimony is obviously reliable is akin to dispensing with jury trial because a defendant is
obviously guilty."
Speedy and Public Trial
The Sixth Amendment guarantees criminal defendants the right to a speedy trial, which
generally means that the state may not unreasonably delay a criminal proceeding. The
Supreme Court developed a four-part test, applied on a case-by-case basis, to determine
whether a defendant’s right to a speedy trial has been violated:
 The length of the delay;

 The reason offered by the state for the delay;
 Whether the defendant adequately asserted the right to a fair trial; and
 Whether the delay prejudiced the defendant’s rights.
Barker v. Wingo, 407 U.S. 514, 530-33 (1972).

The federal government and numerous states have enacted “speedy trial statutes” that set
deadlines for different phases of a criminal case. The federal Speedy Trial Act, 18 U.S.C.
§ 3161 et seq., requires the state to file an information or indictment within 30 days of
an arrest, and it requires commencement of a trial within 70 days. Exceptions and
continuances are available with the court’s permission.
Fair and Impartial Jury
A criminal defendant has the right under the Sixth Amendment to a trial before “an
impartial jury of the State and district wherein the crime shall have been committed.” In
federal criminal trials, a jury must reach a verdict unanimously, but states are not bound
by this part of the Sixth Amendment. Apodaca v. Oregon, 406 U.S. 404 (1972). Courts
typically hold a proceeding, known as voir dire, shortly before the beginning of a trial to
allow the defendant and the state to question prospective jurors. Each side may strike
prospective jurors for various reasons, including bias or conflict of interest.
The right to a jury in a criminal trial does not apply to “petty crimes,” defined as those for
which the maximum possible sentence of imprisonment is six months or less. This is true
even if a defendant is facing multiple petty offense charges in a single trial. Lewis v.
United States, 518 U.S. 322 (1996). Minors who are involved in proceedings in
the juvenile criminal system also do not have a right to trial by jury, except for serious
felonies.
Double Jeopardy Clause
The Fifth Amendment states that a person may not “be subject for the same offence to be
twice put in jeopardy of life or limb.” In practice, this means that the state may not
prosecute a person for the same offense after an acquittal, a conviction, or a mistrial past
a certain point in a trial. It also means that a person may not be subject to multiple
punishments for a conviction. The point after which this right applies, or when jeopardy
“attaches,” usually occurs once a jury is sworn in, a judge begins to hear evidence in a
bench trial, or a court accepts a defendant’s plea.
The most common dispute regarding double jeopardy involves whether multiple
prosecutions involve the same offense. The same conduct may violate multiple statutes,
and in some cases, prosecutors may bring charges under one statute after an acquittal of
charges on another statute. A particular offense is not the same, for double jeopardy
purposes, as conspiracy to commit that offense. United States v. Felix, 503 U.S. 378
(1992). If the same evidence is required to prove two separate offenses, however, double
jeopardy may prevent prosecution for one offense if jeopardy has already attached in a
prosecution for the other offense. Blockburger v. United States, 284 U.S. 299
(1932); Brown v. Ohio, 432 U.S. 161 (1977).
Charges under federal law do not violate double jeopardy after an acquittal of state
charges, or vice versa, under the “dual sovereignty” doctrine. Bartkus v. Illinois, 359
U.S. 121 (1959); Abbate v. United States, 359 U.S. 187 (1959). However, the federal
government rarely pursues charges for alleged crimes that have already been litigated in a
state criminal proceeding. Petite v. United States, 361 U.S. 529 (1960).
Stages of a Criminal Trial
The trial is perhaps the best-known part of the criminal process, but it is only one of
many stages of a criminal case. Very few criminal cases ever go to trial. Prosecutors
and defendants frequently reach plea agreements, by which the state might agree to
reduce the charge to a lesser offense in exchange for a guilty plea. Trials must follow
certain procedures that are intended to maximize the court system’s efficiency while
protecting defendants’ rights.
Voir Dire
Defendants have the right to a trial by jury in many criminal cases, including all trials in
the federal criminal system. A jury is usually empaneled just before the beginning of trial.
The process of interviewing prospective jurors is known as voir dire.
Both the prosecutor and the defense may ask prospective jurors questions in order to
identify possible biases or conflicts of interest. Each side may ask the court to strike
prospective jurors for cause. They each have a limited number of “peremptory
challenges,” which they may use to strike potential jurors without identifying a reason,
although they may not use a peremptory challenge based solely on a group characteristic
like race, gender, or ethnicity. See Batson v. Kentucky, 476 U.S. 79 (1986).
Opening Statements
Once a jury is empaneled, each side may present opening statements summarizing the
case that it intends to present.
Prosecution Evidence and Witnesses
The state presents its case first. It has the burden of proving the defendant’s guilt,
including all of the elements of the indicted offense or offenses, beyond a reasonable
doubt. It can call witnesses and offer other evidence in order to meet its burden of proof.
Prior to trial, the court may have suppressed evidence obtained in violation of the
defendant’s rights under the exclusionary rule, or it may have ordered the parties to
exclude certain evidence based on a party’s motion in limine.
Motion for Directed Verdict

At the close of the state’s case, a defendant can move for a directed verdict or
a judgment of acquittal, which asks the court to rule that the evidence presented by
the state is “insufficient to sustain a conviction.” Most courts are limited in their discretion
to grant motions like this. SeeCarlisle v. United States, 517 U.S. 416 (1996).
Defense Evidence and Witnesses
The defendant may present evidence and call witnesses to rebut the state’s case. The
defendant is not obligated to testify, nor may the state call him or her as a witness due to
the Fifth Amendment’s privilege against self-incrimination.
Since prosecutors have the burden of proving guilt, a defendant does not have to prove
innocence. A defendant does, however, have the burden of proof for certain affirmative
defenses, such as self-defense, entrapment, or insanity.
Closing Arguments
Each side may make closing arguments once it has finished presenting evidence. The
arguments summarize their cases and identify flaws in the opponent’s arguments or
evidence.
Jury Charge
The judge issues instructions to the jury, known as the jury charge, including questions
related to the elements of the charged offense. Both the state and the defendant can
submit proposed jury charges to the court.
Jury Deliberations and Verdict
The jury retires to deliberate over the evidence. In some cases, jurors are sequestered
during the deliberation period, but usually they are simply instructed not to discuss the
case with anyone. If the jurors cannot reach a unanimous verdict, the judge may declare a
mistrial.
Post-Trial Motions
If the jury enters a guilty verdict, the defendant can bring post-trial motions, such as a
motion for judgment of acquittal or a motion for new trial. If the court denies a
defendant’s post-trial motions, the defendant may proceed to an appeal.

Admissibilty of Evidence
The Admissibility of Evidence and the Exclusionary Rule
Prosecutors and defendants in criminal proceedings may present evidence in support of

their cases. The state has the burden of proving guilt beyond a reasonable doubt, while
the defendant may present evidence to challenge the state’s case. Each side should have
the opportunity to review the other side’s evidence before trial and object to the
introduction of certain evidence before or during trial. In criminal cases, defendants may
move the court to exclude evidence that the state obtained in violation of
their constitutional rights. The Federal Rules of Evidence govern the admission of
evidence in the federal court system. Each state has its own evidence rules, which are
often similar to the federal rules.
Types of Evidence
The term “evidence” broadly refers to materials relating to the subject matter of a legal
proceeding, such as:
 Witness testimony;
 Written statements;
 Audio or video recordings;
 Photographs;
 Physical objects, such as clothing or a weapon allegedly used to commit an offense;
 Digital evidence, including both data and the media storing the data;
 Scientific findings, such as blood test results; and
 Demonstrative evidence, such as displays, charts, or models used to educate the
judge or jury about a complicated issue.
The most important factor in determining whether a piece of evidence is admissible is

its relevance to the proceeding. “Relevant evidence” includes any evidence that would
make the existence of a material fact “more probable or less probable than it would be
without the evidence.” As a general rule, relevant evidence is admissible, while evidence
deemed irrelevant is not.
Even if evidence is deemed relevant by a judge, it could be excluded if the possibility that
it would confuse a jury, mislead jurors, or unfairly prejudice jurors against a defendant
is greater than its “probative value.”
Evidence must also be sufficiently reliable to be admitted at trial. Evidence from expert
witnesses, which might be used to establish the validity of or to challenge drug test
results, ballistics, or computer forensics, to name but a few, must meet standards defined
by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579
(1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Hearsay
“Hearsay” is defined as any statement made outside of court that is “offered in evidence
to prove the truth of the matter asserted.” An example would be evidence that a person,
in a non-court setting, said to another person that the defendant committed a robbery, if
the state tried to introduce it as evidence that the defendant committed robbery.
Hearsay is generally inadmissible, since the judge or jury is unable to form an opinion
regarding whether the person making the out-of-court statement is reliable. Multiple
exceptions to the hearsay rule exist, and a defendant’s own out-of-court statements are
excluded from the definition of hearsay entirely.
Fifth Amendment Right to Silence
The Fifth Amendment states that no one may “be compelled in any criminal case to be a
witness against himself.” During a criminal trial, neither the state nor the court may
compel a defendant to testify, nor may they compel a defendant to provide evidence that
would incriminate him or her.
Exclusionary Rule
Defendants may move to suppress evidence obtained by police or prosecutors in violation

of their constitutional rights, including the Fourth Amendment right against warrantless
searches and seizures, the Fifth Amendment right against self-incrimination, and
the Sixth Amendment right to an attorney in a criminal case. Evidence obtained in
violation of a defendant’s rights is known as “fruit of the poisonous tree.” See Silverlight
Lumber Co. v. United States, 251 U.S. 385 (1920). The rule requiring suppression of
such evidence, known as the exclusionary rule, applies in all federal and state cases,
according to the Supreme Court’s ruling in Mapp v. Ohio, 367 U.S. 643 (1961).
Since its ruling in Mapp, the Supreme Court has set limits on the applicability of the
exclusionary rule. A defendant may only seek suppression of evidence obtained in violation
of the defendant’s own rights. Evidence against the defendant obtained in a warrantless
search of someone else’s home may not be subject to suppression by the defendant.
“Fruit of the poisonous tree” also may be admitted if police could have obtained it through
lawful means. The Supreme Court has held that constitutional violations and the
suppression of evidence obtained as a result are two separate questions, and that the
“mere fact that a constitutional violation” occurred does not require suppression. Hudson
v. Michigan, 547 U.S. 586, 592 (2006).

Types of Bail
When a person is arrested and charged with a crime, they may be able to avoid going to
jail while their case is pending. If a judge permits, the defendant can pay a sum of money
known as bail to guarantee that they will appear in court when required. The money will
be returned to them if they appear. If the defendant fails to appear, the defendant will
lose the money, and they also may be charged with bail jumping. This is a separate crime
that can result in penalties beyond those imposed for the original crime. A defendant can
be convicted of bail jumping even if they are not convicted of the original crime. (Read
more here about bail jumping.)
If you can afford to pay the full amount that the judge sets, you can post bail directly by
cash or credit card. Many defendants instead post bail by getting a bond from a bail bond
company. This involves paying a premium that is not refundable, since the bail bond
company will lose the bail amount if the defendant fails to appear. The premium usually
amounts to about 10 percent of the bail required by the judge. A third, less common
option is to give the court a certain tangible asset that is worth the amount of the bail.
This might be something such as clothing, jewelry, or a vehicle. The asset will be returned
to the defendant after the case is over, just as the money would be.
Securing Bail Bonds with Collateral
If you get a bail bond through a company, you may need to secure it with collateral in one
of your assets. In addition to paying the premium, therefore, you might need to give the
company an interest in your home, your car, or another valuable piece of real estate or
personal property. This would cover the loss that the bail bond company risks if you fail to
appear in court, and it forfeits the amount of the bond. You will not be able to sell the
property that is used as collateral during the course of the case. A defendant may be able
to find a company that does not require securing the bond with collateral, but these are
rare in many areas.
Hybrid Bail Payment Structures
Perhaps you are unable to post the full amount of bail on your own, but you also are
reluctant to purchase a bond from a bail bond company. Depending on the state where
you live, you may be able to finance your bond through the court system. You might need
to pay about 10 percent of the full bond amount to the court, and you might need to
secure the bond with collateral, as you would with a bail bond company. However, a key
difference between private bail bonds and court-financed bail bonds is that the court will
return the 10 percent fee upon the conclusion of the case, assuming that the defendant
does not fail to appear. If the defendant misses a court appearance, they will lose the full
amount of the bond and possibly the asset that secured it. They also may face a bail
jumping charge and may be required to stay in jail until the case ends.
Bail Jumping
You may believe that failing to appear in court after you have been released on bail simply
means that you will forfeit bond. However, bail jumping can be charged as a separate
crime in both state and federal courts. As a result, a defendant who fails to appear in
court will continue to face their original charge, may forfeit bond, and may face a separate
bail jumping charge. Being innocent of the underlying charge for which you failed to
appear is not a defense to the bail jumping charge.
Sometimes bail jumping will be charged only if a defendant fails to surrender within a
certain period of time after forfeiting bond, such as 30 days. In other states, it may be
charged only if the defendant is facing an underlying charge that is classified as a felony.
Bail jumping may be charged as either a misdemeanor or a felony in some states,
depending on whether the underlying charge is a misdemeanor or a felony. Even if you
showed up at your first court appearance, you can be charged with bail jumping if you
miss subsequent court appearances.
Excuses for Missing a Court Appearance
A bail jumping charge usually requires the prosecution to prove that the defendant failed
to appear intentionally. This means that they were aware of the court appearance. In
other words, a defendant may be able to defeat the charge if they can show that they did
not have proper notice of the court date. Sometimes notice can be conveyed through the
language of the bond, which may include the date of the first court appearance. Notice
also may involve mailing a letter to the defendant.
Sometimes a defendant can establish a valid excuse for failing to appear in court if
circumstances outside their control prevented them from appearing. They even may have
an excuse for failing to surrender within the required period, although this can be more
challenging. Judges have substantial discretion in determining whether an excuse is
sufficient to defeat a bail jumping charge. If the defendant was drunk or using drugs, this
may not be enough to persuade the court. Intoxication generally is thought to be a
decision within a defendant’s control. If a defendant can show that they were seriously ill,
this may be a valid defense, but they will need to provide strong evidence of their illness.
The illness may need to be so severe that the defendant was hospitalized or was
otherwise physically unable to appear. Sometimes being incarcerated in a different state
will be a sufficient excuse, although this does not always succeed.
You should consult an attorney if you have failed to appear at a court date and are
worried about being charged with bail jumping or facing other consequences. The laws in
this area vary depending on the state, and different judges may take different approaches
to a defendant who fails to appear. An attorney can advise you on whether you may be
able to avoid a charge by surrendering within a certain time. They also can help you
present evidence supporting your excuse for failing to appear.
Last updated May 2019

PAROLE AND PROBATION
Probation and parole are privileges which allow criminals to avoid prison or to be released
from prison after serving only a portion of their sentences. The goals of probation and
parole are to rehabilitate offenders and guide them back into society while minimizing the
likelihood that they will commit a new offense.
Probation
A judge may grant probation as an alternative to imposing a jail sentence. Probation is

ordered when the circumstances and seriousness of the crime suggest that the
probationer is not a threat to society and that incarceration is not an appropriate
punishment. The probationer may freely live in the community, but must abide by certain
conditions of probation for a period of time specified by the court and and report regularly
to an appointed probation officer. General conditions of probation may include living
where directed, participating in rehabilitation programs, submitting to drug and alcohol
tests and maintaining employment. Probationers may be required to show proof to the
court that they have complied with all conditions of probation. If a probationer fails to
comply with all required conditions, the court may revoke probation and require the
probationer to serve a jail sentence.
Parole
Parole is granted after an offender has served a portion of his or her prison sentence.
Thus, parole differs from probation in that it is not an alternative sentence, but rather a
privilege granted to some prisoners after a percentage of their sentence has been served.
Parolees must abide by certain terms and conditions while they are on parole. These
terms include living within state or county lines, meeting regularly with a parole officer,
submitting to drug and alcohol tests, and providing proof of residence and employment. If
a parolee violates the conditions of parole, his parole will be revoked and he will be re-
imprisoned.
Parole Eligibility
Most states limit parole to inmates convicted of certain crimes who have served a certain
percentage of their sentence. For instance, offenders who have been convicted of first
degree murder, kidnapping, rape, arson, or drug trafficking are generally not eligible for
parole. For other offenders, the parole board will consider each inmate's personal
characteristics, such as age, mental stability, marital status and prior criminal record.
Parole boards do not grant parole to offenders simply for "good behavior" exhibited during
incarceration. The parole board will also consider the nature and severity of the offense
committed, the length of sentence served and the inmate's degree of remorse for the
offense. Finally, the parole board will examine the inmate's ability to establish a
permanent residence and obtain gainful employment upon release. Parole will be granted
if there is no apparent threat to public safety and the inmate is willing and able to re-enter
the community.
Fourth Amendment Rights
The Fourth Amendment of the United States Constitution protects the public from unlawful
searches and seizures by law enforcement officers. However, this protection does not
extend to those on probation and parole. The homes of those on probation and parole
can; however, be searched at any time without a search warrant. If drugs, weapons or
other paraphernalia is found that violates the conditions of probation or parole, those
items may be seized and used in evidence against the offender. In addition to revocation
of probation or parole, the offender may face additional criminal charges for possessing
the drugs, weapons or other paraphernalia recovered during the search.
Probation Violations
The term “probation” refers to a variety of alternatives to incarceration. It is also known as

“community supervision” or “suspended sentencing” in some circumstances. Probation is
common for many first offenders and juvenile criminals. If the defendant meets all of
the court-ordered conditions during the probation period, the court will release the
defendant from further obligation. If the defendant fails to meet one or more conditions,
however, prosecutors may ask the court to revoke probation, which could result in
imposition of the original sentence.
What Is Probation?
A court typically orders probation as part of a plea agreement, in which a defendant

enters a plea of not guilty or nolo contendere in exchange for a lesser sentence. The court
makes a final adjudication and pronounces a sentence, but it also orders that the sentence
be probated for a defined period of time. For example, a judge may sentence a defendant
to six months in jail but probate that sentence for five years. The defendant is therefore
“on probation” for five years.
Two other possible dispositions that resemble probation are deferred prosecution and
deferred adjudication. Probation generally occurs after the entry of a plea, meaning that
the case has resulted in a conviction. Under a deferred adjudication agreement, the court
defers a final ruling in the case. Deferred prosecution involves delaying everything beyond
the filing of a criminal complaint or indictment. If the defendant successfully completes the
term of the agreement, the charges will be dismissed with no conviction. A defendant who
completes a deferred prosecution agreement may be able to expunge the records of the
case.
Probation also resembles parole, a conditional release from prison, in many ways. A
parolee must abide by many of the same conditions as a person on probation.
Probation Violations
During a probation period, a defendant must abide by conditions set by the court and
avoid any additional criminal conduct. Conditions may include maintaining employment or,
in juvenile cases, staying in school, meeting regularly with a probation officer, paying
restitution, and submitting clean drug tests. Courts may order a defendant to participate in
certain activities, such as community service, counseling, parenting classes, or substance
abuse treatment.
Failure to meet any of these conditions could constitute a violation. The probation officer
assigned to a defendant’s case makes regular reports to the court regarding the
defendant’s progress, and he or she is often the person who decides whether to report
something as a violation. Once a violation is reported, the prosecutor makes the next
move.
Probation Revocation
The state must file a motion to revoke probation, with notice to the defendant and a
request or order to appear in court. The case then proceeds much like the initial criminal
case, with the state required to prove that a violation occurred and the court deciding the
matter. One major difference is that, in most jurisdictions, the state must only prove a
probation violation by a preponderance of the evidence, meaning a likelihood of more than
50 percent that a violation occurred. In most criminal cases, by contrast, the state must
prove guilt beyond a reasonable doubt.
Consequences of Probation Revocation
If a court decides that a defendant violated his or her probation, it has numerous options
for sentencing. The decision may depend on the nature of the violation itself, the
defendant’s history of probation violations, or the severity of the underlying offense.
Possible sentences could include extension of the probation term, imposition of more
community service or other additional probation terms, or a revocation of the probation,
followed by service of the entire original sentence.

AGGRAVATING AND MITIGATING FACTORS
Overview of Aggravating and Mitigating Factors
If a judge or jury finds a defendant guilty at the end of a criminal trial, the court must
determine the defendant’s punishment. State and federal criminal statutes often set
maximum penalties based on the offense classification, with felonies having the most
serious possible punishments. Judges have some discretion with regard to sentencing, and
a sentencing hearing allows both prosecutors and defendants the chance to present
evidence for the court to consider.
Aggravating Factors
Prosecutors can offer evidence of aggravating factors that would merit a harsh sentence
during trial. Criminal statutes often identify specific factors that should result in harsher
punishments. A common aggravating factor is a prior record of similar convictions. Other
aggravating factors typically relate to the circumstances of the offense itself, such as the
use of a weapon or the severity of the injuries suffered by a victim. With the exception of
prior convictions, a court may not use aggravating factors to impose a harsher sentence
than usual unless the jury found those factors to be true beyond a reasonable
doubt. Cunningham v. California, 549 U.S. 270 (2007).
Repeat Offenses: A court may impose a harsher penalty on a defendant with multiple
prior convictions. In states that have a “three strikes” law, such as California, a
relatively minor offense may result in a lengthy jail or prison term if the defendant has two
or more prior convictions. California's Three Strikes sentencing law was originally enacted
in 1994. The essence of the Three Strikes law was to require a defendant convicted of any
new felony, having suffered one prior conviction of a serious felony to be sentenced to
state prison for twice the term otherwise provided for the crime. If the defendant was
convicted of any felony with two or more prior strikes, the law mandated a state prison
term of at least 25 years to life.
On November 6, 2012 the voters approved Proposition 36 which substantially amended

the law with two primary provisions:
1. The requirements for sentencing a defendant as a third strike offender were

changed to 25 years to life by requiring the new felony to be a serious or violent
felony with two or more prior strikes to qualify for the 25 year-to-life sentence as a
third strike offender; and
2. The addition of a means by which designated defendants currently serving a third
strike sentence may petition the court for reduction of their term to a second strike
sentence, if they would have been eligible for second strike sentencing under the
new law.
Vulnerability of Victim: In some jurisdictions, court may impose a harsher sentence if

the victim is found to be vulnerable, either according to an objective standard or in
relation to the defendant. Vulnerability based on age, such as a crime of violence against a
child or a fraudulent scheme targeting the elderly, may be an aggravating factor. Other

factors may include physical or mental disability, illness or injury, and incapacitation.
Leadership Role: If the defendant played a prominent role in a criminal scheme, such as
a leadership or managerial role, some jurisdictions allow courts to consider that as an
aggravating factor. This is particularly true if the defendant influenced or controlled others
involved in the offense.
Hate Crimes: Some states have enacted laws that allow sentencing enhancements if the
state proves that the defendant was motivated by bias or animus based on a group
characteristic. Most hate crime statutes include categories like race, religion, and
national origin. Some states include categories like sexual orientation and gender identity
as well.
Mandatory Minimum Sentencing: For certain offenses, the circumstances of the case

may trigger laws that remove a court’s discretion to adjust a sentence downward.
Mandatory minimum sentencing laws are still common for many drug-related offenses.
The penalties for offense involving crack cocaine, for example, used to vary widely from
the penalties for offenses involving cocaine in powder form, due to mandatory minimum
laws targeting crack. The Fair Sentencing Act of 2010 sought to eliminate the
disparity, but other laws still have a similar effect.
Mitigating Factors
The defense may put on evidence of mitigating factors that would support leniency in
sentencing. Criminal statutes devote far less attention to factors that might mitigate a
defendant’s punishment, but courts have held that evidence relating to a defendant’s
character may be introduced provided that it is relevant to the sentencing
process. See Lockett v. Ohio, 438 U.S. 586 (1978). Common mitigating factors include:
 Lack of a prior criminal record

 Minor role in the offense;
 Culpability of the victim;
 Past circumstances, such as abuse that resulted in criminal activity;
 Circumstances at the time of the offense, such as provocation, stress, or emotional
problems that might not excuse the crime but might offer an explanation;
 Mental or physical illness; and
 Genuine remorse.

RESTITUTION FOR CRIME VICTIMS
In addition to receiving a jail sentence and fines, criminal defendants may be ordered to
pay restitution to the victims of their crimes. Restitution is different from fines because
fines are punitive, while restitution is compensatory. States believe that restitution offers a
way to hold a defendant directly accountable for the consequences of their actions. A
victim does not need to ask for restitution. A judge must consider ordering restitution in a
plea bargain or a post-conviction sentence, and they may need to state their reasoning if
they decide not to order it.
Some types of crimes will result in mandatory restitution as part of the sentence. These
may include drunk driving, domestic violence, sexual assault, child abuse, identity theft,
and financial elder abuse. Restitution also is very common in theft crimes, white collar
crimes, and other cases in which a victim suffered a direct financial loss. The defendant
will be ordered to pay back the value of the money or property that they stole. In other
situations, a judge may order restitution if it is necessary to compensate the victim and
rehabilitate the defendant.
Setting the Amount of Restitution
A judge usually will consider the defendant’s ability to pay, both now and in the future, as
well as the circumstances surrounding the offense, the losses of the victim, the financial
benefit that the defendant gained from the crime, and the financial burdens faced by the
victim and anyone else who was affected by the crime. Sometimes state law prevents a
judge from setting a restitution amount based on the defendant’s current ability to pay.
However, all states allow a judge to consider a defendant’s future ability to pay. If a
defendant has few resources now but will have more resources in the future, the judge
may set up an installment payment plan with increasing payments over time.
In addition to criminal penalties, a defendant may face civil liability to the victim in a
separate case. If this case results in a settlement for the amount of the victim’s losses, the
judge in the criminal case may not order restitution or may reduce the restitution amount.
This is to avoid issuing a double recovery to the victim. Since the criminal and civil court
systems are separate, though, a settlement in the civil case does not require a judge in
the criminal case to refrain from ordering restitution.
People Eligible to Receive Restitution
The most obvious recipient is anyone who suffered direct losses because of the crime.
This could be an individual or an entity, or both. Often, the defendant will need to pay
restitution to a government agency or another entity that has compensated the victim for
their losses, such as an insurer or a victim compensation program. If there is no victim of
a crime, restitution will not be ordered in most states. Some states still may require a
defendant to pay restitution to government agencies to cover the costs of investigating
the crime.
A defendant in a murder case may be ordered to pay restitution to the family members of
the victim. This can overlap with the damages paid in any wrongful death case brought by
the family members.
Expenses Covered by Restitution
The types of expenses covered in a restitution award often resemble damages in personal
injury cases. For example, a defendant might need to pay restitution for a victim’s lost
income resulting from injuries, and they might need to cover medical and therapy costs.
In a murder case, the defendant might be ordered to pay the funeral expenses of the
victim and pay for counseling for their family members. Any costs of replacing or repairing
property may be included, in addition to any other out-of-pocket expenses. Similar to
personal injury damages, restitution awards can cover anticipated future losses.
PLEA BARGAINS
The traditional image of a criminal trial has become all but obsolete in the American legal
system. The overwhelming majority of criminal convictions (over 90 percent) result from
plea bargains. Their prevalence has arisen as a matter of necessity for many prosecutors
and judges, since the criminal justice system has become overburdened and inefficient. In
a plea bargain, the defendant and the prosecutor reach an agreement in which the
defendant pleads guilty or no contest in exchange for concessions by the prosecutor.
These might involve a reduction in the level of the charge, a recommendation for a lenient
sentence, or a reduction in the number of charges if the defendant is facing multiple
charges.
Many people believe that plea bargains are an improper shortcut that denies a defendant
their right to have their voice heard in court. However, they are firmly entrenched in the
system. Defendants often appreciate the ability to arrange a result that allows them to
move forward with their life and avoid the uncertainty of a trial.
When to Make a Plea Deal
In most states, a defendant can arrange a plea bargain with a prosecutor at any time
during the course of a criminal case. It can be arranged before the prosecutor files
charges, or it can be arranged after the jury has started deliberating on its verdict in a
case. A prosecutor even may be willing to negotiate a plea bargain after a conviction if the
defendant appeals the conviction, and their argument appears to have merit.
Sometimes a criminal trial results in a hung jury, which means that the jurors cannot
reach a unanimous agreement on the verdict. This may encourage both sides to reach a
plea deal to avoid the additional expense and effort of a new trial.
Impact of Guilty Pleas and No Contest Pleas
A guilty plea is an admission of guilt, while a no contest plea means that the defendant is
not contesting the charge. The result is largely the same, since the defendant will have a
conviction on their record either way. The defendant will lose the same civil rights as they
would if a jury convicted them of the same crime. Sometimes it can be easier to seal or
expunge a criminal record after a plea bargain.
The main advantage of no contest pleas is that they cannot be used against the defendant
in a related civil case as an admission of liability. For example, in a personal injury case
based on a drunk driving accident, the plaintiff cannot use the defendant’s no contest plea
in the related DUI case to show that they were driving drunk at the time of the accident.
Types of Plea Bargains
The main types of plea bargains are charge bargains and sentence bargains. Charge
bargaining involves pleading guilty to a less serious crime than the crime originally
charged. Sentence bargaining involves pleading guilty in exchange for the prosecutor
recommending a lower sentence.
Another type of bargaining that may arise when the defendant is facing multiple charges is
known as count bargaining. This involves pleading guilty to one or some of the charges in
exchange for the prosecution dropping the other charges.
If aggravating factors would increase the sentence, the defendant may conduct fact
bargaining with the prosecution. This means that the defendant pleads guilty in exchange
for a stipulation by the prosecution that it will overlook the aggravating factors during the
sentencing process.
ARRESTS AND ARREST WARRANTS
Many people think of an arrest as placing a suspect in a jail cell, but often an arrest
happens much earlier in the process. It can happen whenever an officer takes a suspect
into custody against their will, such that they are not free to leave. An arrest can involve
the use of physical force, but it also can consist of submission to a show of force. Under
the Fourth Amendment, the police have the power to make an arrest only if they have
probable cause to believe that the individual has committed a crime. (Read
more here about what probable cause means.) If an officer simply questions someone on
the street, this is not an arrest unless the officer prevents the person from leaving.
A reasonable person standard applies to determining whether an arrest has occurred.

Courts will not rely on technical definitions of an arrest under state law. Instead, they will
consider whether a reasonable person in the position of the suspect would have believed
that they were not able to leave.
Arrest Warrants
If a police officer has probable cause, they may seek an arrest warrant from a judge or
magistrate. This involves completing an affidavit under oath, which will contain the facts
supporting probable cause. The affidavit must be reasonably specific in explaining why the
officer believes that the individual named in the warrant committed a certain crime. A very
general description that matches a certain individual should not be enough to justify a
warrant for that person’s arrest.
The warrant will provide authorization for the police to arrest the person who is the
subject of the warrant. It will outline the manner of making the arrest and state the crime
that forms the basis of the arrest. The warrant may provide the amount of bail that must
be posted for the defendant to be released from custody. (Read more here about how
bail works.) Some warrants, known as bench warrants, are issued when a suspect fails to
appear in court proceedings regarding a separate crime. A suspect probably will not get
bail in these cases.
Addressing Errors in a Warrant
Sometimes a police officer or a judge may make a mistake in completing an affidavit or a

warrant. The police officer may show the warrant to the suspect while they are making
the arrest, which should allow the suspect to identify any errors in it. Perhaps the warrant
contains the wrong name or states the wrong crime as the basis for the arrest. If there is
a typo or an error that does not defeat the main basis for the warrant, this will not make
the warrant invalid. However, if the warrant is for a completely different person, the
suspect may be able to prevent an arrest by explaining the mistake to the officer.
A suspect does not have a right to see the warrant, and the police may believe that it is
prudent not to show the warrant for various reasons. If this happens, the suspect will
need to comply with the police during the course of the arrest and then resolve any issue
of mistaken identity later in the process.
SEARCH WARRANTS
The police can get a search warrant from a judge if they have probable cause to believe
that a crime is occurring at the property that they want to search or that the property
contains evidence of a crime. “Probable cause” does not require a very high probability,
despite the use of the word “probable.” (Read more here about what probable cause
means.) The police will present an affidavit to the judge that outlines the justification for
the warrant. It may contain not only their own impressions but also information that they
obtained from trustworthy sources. If the judge is persuaded by the affidavit, they will
issue a warrant that authorizes a search of the location for certain types of evidence.
An occupant of the home or other location being searched does not have the opportunity
to contest a finding of probable cause before the search. Any challenge to the basis for a
warrant will need to occur after the search. A successful challenge can result in the
suppression of any evidence obtained through the unlawful search.
The Scope of a Warrant
The warrant will define the physical location that can be searched and the type of
evidence for which the police are searching. If it limits the search to a certain area of the
building, the police cannot search other areas. If it limits the search to drugs and related
paraphernalia, the police cannot search for firearms or images of child pornography. The
police sometimes have the right to seize illegal items or incriminating evidence that is not
described in the warrant if they find it during a legitimate search for the evidence
described in the warrant.
If the warrant limits the search to a certain person and their belongings, the police cannot
search other people and their personal possessions without a separate justification based
on probable cause. Having a reasonable suspicion that someone else is involved in a crime
can justify a brief detention and possibly a frisk, but it will not justify a thorough search.
Any evidence found in a search that exceeds the scope of the warrant usually will be
thrown out, unless an exception applies.
Exceptions to the Warrant Requirement
An exception to the warrant requirement may arise when the Fourth Amendment does not
apply because there is no reasonable expectation of privacy. Or an exception may arise
when certain circumstances justify the search. Perhaps the most obvious exception is
when an item is in plain view, and the officer has a legitimate reason to be in a position to
observe it. They cannot seize the item unless they have probable cause to believe that it is
illegal or evidence of a crime.
One of the most complex exceptions is when the police receive consent to conduct a
search from someone who has the authority to give valid consent. This usually means that
they can conduct a search within the scope of that person’s consent, even if they do not
have a warrant. Read more here about the consent exception.
Another exception involves searches incident to arrest and protective sweeps. Read
more hereabout these types of searches. Similarly, there is an exception for stop and
frisks when an officer has a reasonable suspicion that someone is involved in criminal
activity, and the officer believes that they may be armed and dangerous. Read
more here about stop and frisk searches. Finally, there is a general emergency exception
that allows the police to conduct a search without a warrant if a delay would endanger
public safety or cause vital evidence to be destroyed. Sometimes this arises when an
officer is in “hot pursuit” of a fleeing suspect.

PROBABLE CAUSE AND PROBABLE CAUSE HEARINGS
To make a valid arrest or get an arrest warrant from a judge, the police must have
probable cause. This is a different standard from the reasonable suspicion standard
required to make an initial stop. Determining how much evidence is necessary to justify a
finding of probable cause depends on the specific facts of the situation. A police officer
needs more evidence than the level required for the reasonable suspicion standard, but
they do not need to have enough evidence to prove that the suspect is guilty beyond a
reasonable doubt. No percentage has been assigned to probable cause. Some judges
seem to believe that the standard is less demanding than the preponderance of the
evidence standard used in civil cases. Since that standard involves a greater than 50
percent probability, probable cause may not be what most people would consider
“probable.”
Determining Probable Cause
A police officer must have more than a subjective hunch to make an arrest or get an
arrest warrant. They need to have objective evidence that indicates the suspect’s
responsibility for the crime. Even if a police officer believes that they have probable cause,
a judge may not necessarily agree. They will review the information in the affidavit for the
warrant and make a final decision. You should be aware that being guilty of a crime and
having probable cause for an arrest are two different things. Probable cause may exist
even if the defendant is not guilty.
Probable Cause Hearings
This term can refer to either of two types of hearings. Generally, a probable cause hearing
happens together with the defendant’s first court appearance after their arrest. The judge
will determine whether probable cause supported the arrest. If it did not, law enforcement
will not be able to continue holding the defendant in custody if they have not been
released on bail or on their own recognizance. The other type of probable cause hearing
happens after the prosecution has filed charges and involves the judge considering
testimony on whether the defendant more likely than not committed the crime. If
probable cause exists, the case will move forward toward trial.
If the police get a warrant before making an arrest, the warrant will satisfy the Fourth
Amendment requirement of probable cause. However, since officers generally do not get a
warrant before making an arrest, a judge often will need to determine whether probable
cause exists soon after a suspect is taken into custody. The judge may make a finding of
probable cause if they are persuaded by a written statement from the police or
prosecution regarding the facts of the case.
Timing for Probable Cause Hearings
Prompt action can be important for probable cause hearings. States may require a hearing
within 24 hours after an arrest, but the U.S. Supreme Court has ruled that 48 hours is
close enough for constitutional purposes. Even if the hearing occurs within the required
period, a constitutional violation still may arise if law enforcement delayed the hearing for
improper reasons, such as looking for evidence to support probable cause. Failing to meet
the deadline likely will justify the suspect’s release unless law enforcement can show that
there is an extraordinary reason warranting an exception.
POLICE STOPS ON THE STREET
A police officer generally has a right to stop a citizen on the street and ask them
questions, even if they do not believe that the person has committed a crime. The officer
may even seek consent to search their person or their possessions. However, in most
cases, a citizen does not have a duty to comply with a police officer’s request for
information or a search. They may have a duty to comply if the officer has a warrant or if
they have a reasonable suspicion to conduct a stop and frisk (a pat down). Often, it is
hard to tell whether an officer has a sufficient basis to detain someone who wants to leave
the scene. You may want to ask an officer who starts an interaction whether you can
leave, rather than simply walking away. If the officer tells you that you cannot leave, you
should comply and challenge the legality of the interaction later.
Many people wonder if a police officer needs to issue Miranda warnings before asking
them questions during these interactions. Miranda rights take effect only if a suspect is
being interrogated while they are in custody. If you volunteer information, or if you are
not in custody, your statements can be admitted without the police issuing Miranda
warnings. Read more hereabout when Miranda rights take effect.
Many criminal defense attorneys would say that you should never talk to the police if you
believe that you may be a suspect, or you should wait until you retain an attorney before
speaking with the police. However, there may be some situations in which you can get rid
of a minor suspicion by answering a few routine questions. Failing to cooperate with the
police, or lying to the police, can result in separate charges. Deciding how to handle a
police interaction can be challenging, and you may want to consult a lawyer if you know in
advance that the police want to talk to you.
In some states, police officers can stop someone and ask them for identification if they
have a reasonable suspicion that the person has been involved in criminal activity. If this
type of rule applies, you cannot refuse to provide identification, since this can be charged
as a separate crime of resisting an officer’s lawful order. Whether a police officer has a
reasonable suspicion may be contested. A reasonable suspicion does not need to reach
the level of probable cause. Different courts will apply the standard differently.
This type of law also may apply when an officer stops a driver for a traffic infraction.
States often permit an officer to require the driver to provide their identification, such as a
driver’s license, in these cases.
Loitering
Some stop and identify laws hinge on whether a person is found to have been loitering.
This is a technical term that involves wandering without an apparent purpose in a manner
that appears to threaten public safety. In these states, an officer may be able to ask for
identification and ask questions about the person’s activities only if they are found to have
been loitering. Laws on loitering have been criticized for allowing police officers to
discriminate against poor people or minority groups. Sometimes they have been struck
down as unconstitutional. However, the best strategy when accused of loitering is to
comply with the police officer’s demands and challenge the law in court later, if
appropriate.
STOP AND FRISKS
An officer who has a reasonable suspicion that an individual is armed and dangerous has
the right to pat them down, or frisk them. Any frisk must be limited to weapons and the
outer clothing of the individual. If the officer finds a weapon or an object that feels like a
weapon, they can retrieve it, and it can be used against the suspect in court, even if it is
not actually a weapon. If the officer finds an object that is not a weapon but that is
obviously illegal, they can seize the object, and the prosecution later can bring charges
based on it.
If the officer can tell that an object is not a weapon, they cannot investigate it further if
they cannot tell what it is. They may still ask the individual about it. Any evidence that was
obtained in violation of the scope of a stop and frisk usually can be suppressed.
MIRANDA RIGHTS
Anyone who has ever watched a television show or movie about American police officers is
probably familiar with the warnings that officers must recite to criminal suspects when
they place them under arrest. These warnings, known as Miranda warnings
or Miranda rights, identify some of the basic constitutional rights protected by the Fifth
and Sixth Amendments. Failure to “Mirandize” a suspect could result in any statements
that he or she makes during or after an arrest being ruled inadmissible in court. This
includes statements or confessions made by a person during an interrogation in police
custody.
Miranda v. Arizona
The name of the Miranda doctrine comes from the U.S. Supreme Court’s decision
in Miranda v. Arizona, 384 U.S. 436 (1966). The case involved a defendant who
confessed to a crime after several hours of interrogation by police. At no time did the
officers advise him of his right against self-incrimination or his right to consult with a
lawyer. The court admitted the defendant’s written confession, over his objection, at trial,
and he was convicted. The Supreme Court ruled that the coercive nature of the police’s
custodial interrogation required them to advise the defendant of his Fifth and Sixth
Amendment rights. It further ruled that an interrogation must cease if a suspect asserts
the right to silence or to an attorney.
Police Custody
Police do not have a duty to read the Miranda warnings to a suspect until they take the
person into custody for a formal interrogation or place him or her under arrest. If a person
speaks to the police voluntarily, the point at which they are obligated to read the suspect
the Mirandarights is not always clear. The Supreme Court dealt with this sort of situation
in Salinas v. Texas, 570 U.S. ___ (2013), when a man spoke to investigators voluntarily
and did not assert any of the Miranda rights. The court held that his non-verbal conduct
was admissible as evidence of his guilt, since the police had not arrested him yet.
The Miranda Warnings
The specific warnings that police must give are listed by the court in the Miranda opinion
at 384 U.S. at 444-45:
“He has a right to remain silent.”
This refers to the right to silence, or right against self-incrimination, found in the Fifth
Amendment.
“Any statement he does make may be used as evidence against him.”
Statements made by a defendant outside of court, such as during a police interrogation,

are not considered hearsay and are therefore admissible in court as evidence of guilt.
“He has a right to the presence of an attorney, either retained or appointed.”
A suspect has the right to an attorney of his or her choice during a police interrogation.
Indigent suspects may be entitled to representation, at no expense to them, by a public
defender or court-appointed attorney.
“The defendant may waive effectuation of these rights, provided the waiver is
made voluntarily, knowingly and intelligently.”
Courts have generally held that a suspect must clearly invoke his or her Miranda rights in
order to stop a police interrogation. The Supreme Court has held, for example, that
statements made by a suspect after the reading of the Miranda rights are admissible in
court if the suspect does not expressly state that he or she is exercising those
rights. Berghuis v. Thompkins, 560 U.S. 370 (2010).
The “Public Safety Exception”
The one generally accepted exception to the Miranda doctrine, known as the “public safety
exception,” allows questioning of a suspect after arrest but before reading
the Miranda rights if there is an immediate and significant danger to the public. New
York v. Quarles, 467 U.S. 649, 655-56 (1984). In the Quarles case, an officer discovered
an empty gun holster after placing the suspect in handcuffs. The officer asked the suspect
about the location of the gun, and the court held that his responses were admissible at
trial. More recently, the public safety exception has featured prominently in terrorism
investigations, including the arrest and interrogation of the Boston bombing suspect in
2013.
INTERVIEWING PROSECUTION WITNESSES
Part of the discovery process in a criminal case involves investigating the evidence that the
other side will present. Criminal defendants and their attorneys will want to assess the
strength of the prosecution’s case. This will help them decide whether to accept a plea
bargain or go to trial, as well as helping them craft arguments that may be persuasive in
negotiations or at trial. If the defense finds out who will be testifying for the prosecution,
they can get access to their statements. However, they also may want to talk to these
witnesses on the phone or in person.
Reasons to Interview a Prosecution Witness
The prosecution probably will disclose the contents of a witness statement to the defense.
You might think that this would make talking to the witness redundant, but the statement
provided by the prosecution might not be complete or accurate. Sometimes the statement
does not cover all of the information that the defense might want to know from the
witness, since the prosecution is approaching the case from a different perspective.
By talking to an opposing witness in person, the defendant’s attorney can get a better
sense of their credibility. If they do not remember the events clearly or in detail, this may
be a basis for challenging their testimony at trial. Also, by hearing their story in advance,
the defense can more easily impeach the witness if they make inconsistent statements
during direct examination or cross-examination. If a witness declines to speak to them,
the defense may raise their refusal at trial as evidence of their bias against the defendant,
which may reduce the credibility of their testimony. Sometimes the conversation may
inform the defense about other witnesses and evidence that may bolster their arguments.
A criminal defense attorney or their assistants have a right to ask a prosecution witness
for an interview as long as they are not harassing or threatening them. The prosecution
can advise the witness that they are not required to go through this conversation, but they
cannot block them from meeting with the defense. The attorney rather than the defendant
should conduct the interview. If the witness is a victim, the interaction may lead to
additional charges if the defendant conducts it. Anything that the defendant says to a
victim or any other witness can be used against them in court, and other complications
also can arise.
When a Prosecution Witness Refuses to Cooperate
An attorney might be able to convince a witness to talk with them despite their reluctance.
In other situations, they might retain a private investigator to handle the conversation.
This can avoid the problem of the defense lawyer needing to testify about the contents of
the conversation if they need to impeach the witness for inconsistent statements at the
trial.
You might feel concerned that you cannot afford to pay for a private investigator in
addition to an attorney, especially if you are proceeding with a public defender. Courts
sometimes offer the option of a free investigator for charges related to serious crimes. The
public defender’s office might have a group of investigators who are regularly available to
them, at least to a limited extent.
Depositions are rarely permitted in criminal cases, even though they are common in civil
cases. In the unlikely event that your state permits criminal depositions, your attorney
might serve a prosecution witness with a subpoena to appear at a deposition. They would
answer questions from your attorney under oath in a setting outside court, such as the
attorney’s office.
Discovery in Criminal Cases
In both civil and criminal cases, discovery involves investigating the evidence that the
other side plans to present. It can prevent any surprises at trial, narrow the issues that are
disputed, and often help the two sides reach a resolution out of court rather than going
through a full trial. In the criminal context, discovery once consisted mostly of the
defendant getting evidence from the prosecution. This might include the reports and
records made by the police, as well as statements by witnesses who will testify for the
prosecution. (Read more here about interviewing prosecution witnesses.) However, this
has changed in the modern era, allowing the prosecution to get some types of evidence
from the defense.
Avoiding an Ambush at Trial
You may have seen TV shows or read novels in which trials are decided by a shocking
twist when one side or the other reveals a surprise witness or document. Historically, this
could happen because prosecutors were not required to share their evidence with
defendants. Modern conceptions of fairness have changed this rule and recognized the
importance of allowing defendants and their attorneys to craft the strongest defense
available. Sharing the prosecution’s evidence also levels the playing field between the vast
resources at the disposal of the government and the limited resources available to a
defendant. Discovery rules apply at both state and federal levels.
That said, the prosecution does not need to offer a completely open book to the defense.
Prosecutors do not need to share their theory of the case with the defendant’s attorney,
nor do they need to provide them with notes taken about the case. These are protected
by the work product rule, which covers an attorney’s impressions, observations, and
subjective thoughts about a case. Discovery is limited to objective types of information,
such as police records, scientific evidence, and witness lists and statements, as discussed
above.
The Impact of Discovery
You might think that discovery increases the chance that a defendant will win at trial, but
this is not necessarily true. Often, knowing more about the strengths of the prosecution’s
case will encourage a defendant to accept a plea bargain rather than taking their case to a
jury. This can further the efficiency goals of the prosecution and secure a conviction for
the prosecutor, which is usually viewed as a successful result. Almost all criminal cases
end in plea bargains, and the transparency of the discovery process probably forms part of
the explanation. Therefore, discovery can help both defendants and prosecutors.
Timing in the Discovery Process
There are very few rules that govern the timing of discovery. Notions of fairness prevent
the prosecution from dumping all of the relevant information on the defense just before
trial, but they do not need to disclose all of it immediately. Sometimes the prosecution
might disclose certain items, such as the police report of the incident leading to the arrest,
before certain other items, such as forensic analysis. Witness lists may not be developed
until the prosecution has spent some time developing the case, and they may change over
time. Unless a case is very simple, discovery is usually an ongoing exchange rather than a
single transfer of information.
Getting Police Personnel Records
Often, the prosecution’s case rests heavily on the testimony of the arresting officer. Most
jurors will trust the testimony of an officer over the testimony of other witnesses, and they
often assume that the officer handled a situation appropriately. If part of the defense
involves a claim that the police mishandled the situation, the defendant’s attorney may
want to get the officer’s personnel records. This will contain any history of misconduct or
complaints by people who interacted with the officer. The defense then might follow up on
any leads and interview potential witnesses who could testify about the officer’s previous
behavior.
The government does not need to hand over these files to the defense if they will not be
relevant to the defendant’s case. Usually, the appropriate agency will conduct a review of
a file and give the defense only the parts of the file that may be relevant. A court may
need to intervene if any dispute arises over whether and how much of the file should be
shared with the defense.

GUIDE TO CRIMINAL PROSECUTIONS IN THE UNITED STATES
An Introduction to Practice and Procedure
In the United States, both the federal government and the states have authority to
prosecute criminal offenses. The federal government and each state has its own
criminal statutes, court system, prosecutors, and police agencies. Whether a
particular crime will be prosecuted by a state or by the federal government will depend on
factors too numerous and complex to be addressed in this brief paper. [1]
As a consequence of both law and practice, the crimes most frequently

prosecuted by the federal government include drug trafficking offenses,
organized crime, and financial crimes, large scale frauds and crimes in which
there is a special federal interest such as crimes against federal officials, and
frauds against the United States. In addition, there are certain crimes that
only the federal government may prosecute. These include customs offenses,
offenses involving federal tax matters, and crimes of espionage and treason.
The states prosecute most crimes against the person, such as murders
and assaults, and many crimes against property, such as robberies and thefts.
Indeed, states prosecute a far greater number of crimes than does the federal
government.[2]
While the states have broad authority to prosecute many types of crimes, they
may investigate and prosecute only criminal acts committed within their boundaries. The
power of the federal government, however, extends throughout the United States.
Therefore, the federal government is often better able to investigate and prosecute
sophisticated and large-scale criminal activity.
The Office of International Affairs (OIA), Criminal Division, U.S. Department of

Justice, is responsible for all international extradition, as well as international legal
assistance, for both state and federal prosecutors. In that capacity, OIA supervises the
representation of foreign governments’ extradition and evidence requests in U.S. courts.
Although there are differences in criminal procedure among the states

and between the states and the federal government, certain core principles of
United States criminal law and practice apply equally to all state and federal
investigations and prosecutions. First, it is true throughout the United States that
the investigation and prosecution of crime is the responsibility of the executive branch of
government. Prosecutors, investigating agents, and police officers are members of the
executive branch, not the judicial branch. In the United States, there is no concept of an
investigating judge, as is found in a civil system.
Therefore, the role of judges in the investigation of criminal offenses is limited.

However, certain actions during an investigation can be taken only upon the authorization
of a judge. Only a judge may issue a warrant to search for and seize evidence of crimes;
only a judge may order the recording of telephone conversations; only a judge may take
action to enforce a subpoena (an order that a witness give testimony or produce
documents or other evidence in his or her possession under penalty of incarceration for
refusal); and, except in limited circumstances, only a judge may issue a warrant for the
arrest of an accused person.[3]
Whenever a prosecutor (or, in some instances, a police officer) determines that

such a judicial act is needed in an investigation, he or she must make a formal request to
the court and present facts or evidence that are legally sufficient to support the action
requested. A judge will issue the warrant or order requested only if he or she determines
that there is a sufficient factual basis for it. For example, in the case of a request for a
search warrant, the court must determine that the evidence presented is sufficient to
establish probable cause to believe that an offense has been committed and that
evidence of that offense may be found at a specific place to be searched.
Second, certain aspects of procedure in criminal cases are required under the
Constitution of the United States. These apply equally to state and federal prosecutions.
For example, a person accused of a serious offense has a right to be tried by a jury and
to be represented by an attorney. At trial, the defendant has a right to question persons
giving testimony against him or her.[4] Also, no person may be compelled to give
testimony against himself or herself. [5] Similarly, the Constitution requires that no warrant
shall be issued except upon a determination that there is sufficient evidence to support a
finding of “probable cause.”
Thus, a warrant for the arrest of a person may not be issued unless there is
sufficient evidence to support a finding that it is more probable than not that a crime has
been committed and that the person to be arrested committed that crime.
I. Authorities Involved in the Investigation, Prosecution, and Trial of Federal

Crimes
A. The Department of Justice
As noted above, the responsibility to investigate and prosecute crimes in the

United States rests in the executive branch of government. All federal prosecutors are
part of the United States Department of Justice. In addition, the investigating officers of
Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA),
the U.S. Marshals, and the criminal investigators of the Bureau of Alcohol, Tobacco,
Firearms and Explosives (BATFE) are all employed by the Department of Justice, [6] and as
Justice Department employees are overseen by the Attorney General.
The prosecution of federal criminal cases in each of the U.S. District Courts is the
responsibility of the U.S. Attorney for that District. Each U.S. Attorney is appointed by the
President and reports to the Attorney General.
There are 94 U.S. District Courts and 93 U.S. Attorneys. The number of federal
judges and prosecutors in each District varies widely, depending on the number of federal
legal matters (both criminal and civil) in each District. For example, U.S. Attorney’s Office
for the Southern District of New York (Manhattan) has more Assistant U.S. Attorneys than
the U.S. Attorney’s Office for the District of Connecticut.
Attorneys from the Criminal Division of the Department of Justice in Washington,

D.C., may also handle prosecutions throughout the United States, but the chief federal
prosecutors are the 93 U.S. Attorneys, and the attorneys whom they supervise, the
Assistant U.S. Attorneys.
B. The Federal Judiciary
There are three levels of federal courts and federal judges empowered to hear
civilian criminal cases. Once appointed, all federal judges, except U.S. Magistrate Judges,
may continue to serve as judges throughout their lives. The U.S. Constitution provides
for the lifetime tenure of U.S. judges.
1. The United States District Courts
At the first level of the federal judiciary are the 94 U.S. District Courts. The judges
in the district courts are either U.S. Magistrate Judges (the lowest level of federal judges)
or U.S. District Court Judges. All trials of federal criminal cases take place in the U.S.
District Courts.
Certain minor offenses may be tried before a U.S. Magistrate Judge. Otherwise, all
federal criminal trials are conducted by a single U.S. District Judge. At trial, the judges
rule on all questions of law and evidence. If there is no jury, they also determine
whether the evidence is sufficient to convict. The sentencing of convicted persons is also
the responsibility of the judges at the District Court level.
The power of the District Judges is greater than that of the Magistrate Judges,
and, in many instances, District Court judges determine what actions the Magistrates may
perform. For example, all extradition hearings occur in the District Courts, but the rules
established by the District Court Judges will determine whether the extradition hearing
may be held before a Magistrate rather than a District Judge.
In addition to conducting trials, the judges of the District Court have authority to
issue warrants of arrest and warrants for search and seizure, to grant provisional liberty
of a person accused of crime, and to rule on all legal matters prior to trial.
2. The United States Courts of Appeals
At the next level are the U.S. Courts of Appeals, also called the Circuit Courts of
Appeals. There are thirteen Circuit Courts of Appeals. [7] Each of the twelve Circuit courts
that hears appeals from criminal cases has jurisdiction over a particular geographic area
called a “Circuit.”[8] Each Circuit Court hears appeals from the District Courts within its
area. For example, the Second Circuit Court of Appeals hears appeals from decisions of
the various District Courts in the States of Connecticut, New York, and Vermont.
Persons convicted of federal crimes have a right to appeal to the Circuit Court
having jurisdiction.[9] The Circuit Courts, however, will generally give great deference to
the evidentiary (factual) findings at trial and will not conduct a broad review of the
evidence. They will conduct a more extensive review of decisions of law, rather than
findings of fact. The prosecutor’s ability to appeal is very limited. For example, the
prosecutor may not appeal a judgment of acquittal.
Appeals in the Circuit Courts are heard by a panel of three Appellate Court judges.
In very rare circumstances, the decision of the three-judge panel may be reviewed by all
the judges for the Circuit. At the appellate level, the attorneys for the prosecution and
defense submit documents to the court outlining the law applicable to the facts of the
case and the reasons why the court should find in their favor. The court then generally
hears the “argument” or oral presentation of each attorney, and will ask him or her
questions regarding the case. The court then considers the case and renders a decision.
[10]
Generally, this decision is written, and will explain the court’s reasons for the decision.
3. The United States Supreme Court
The Supreme Court is composed of nine judges. Except in unusual circumstances,

the Supreme Court acts as an appellate court, reviewing the decisions of the U.S. Courts
of Appeals and the Supreme Courts of the various states. Decisions of the Supreme Court
are not subject to further appeal. In criminal cases, there is generally no right to appeal
to the Supreme Court. Instead, the person seeking review by the Supreme Court must
file an application for review with the Court, explaining why the legal issue in his or her
case is important enough for the court to consider. [11] Only in a few cases does the Court
accept a petition for review. The Supreme Court has not reviewed an extradition case in
more than fifty years.
II. Procedure in Federal Criminal Cases
A. The Investigation and Bringing of Formal Charges
When one of the federal investigative agencies believes that it has evidence of a
violation of United States law, the investigative agents will present their findings to the
Office of the U.S. Attorney in their district. One of the Assistant U.S. Attorneys will review
the case and question the agent about it in detail to determine whether the evidence
shows that there is probable cause to believe a crime has been committed.
If the evidence is not sufficient to establish probable cause, the Assistant U.S.
Attorney (AUSA) may ask the agents to continue their investigation, in the alternative, he
or she may decide that the evidence should be presented to a grand jury and that the
grand jury should continue the investigation of the case.
If the AUSA determines that there is probable cause, he or she will present the
evidence to the grand jury and ask that they vote on a proposed criminal charge. This
charge is called an indictment. However, in some instances, there is insufficient time to
present the case to the grand jury because of an urgent need to arrest the person
believed to have committed the offense.
In these instances, the AUSA will ask a judge to issue an arrest warrant based on a
sworn statement called a complaint, which sets out the essential facts of the offense
charged. The complaint, or sworn statements filed with the complaint, must also set out
evidence sufficient to establish probable cause to believe that the specific crime charged
was committed by the person charged with that crime. If, after a careful review, the
judge determines that there is sufficient evidence to meet the probable cause standard,
the judge will issue a warrant for the arrest of that person. If a person is arrested
pursuant to this procedure, the AUSA must thereafter present the case to the grand jury
and obtain an indictment.
A grand jury consists of between 16 to 23 citizens who have the duty, after
reviewing the evidence, to vote on a proposed criminal charge. Generally, the grand jury
hears evidence only from the government. A target of an investigation (i.e., a person on
whom the investigation is focused) may not be subpoenaed before a grand jury but may
volunteer testimony before the grand jury. This seldom occurs.
In order for a person to be indicted, at least 12 members of the grand jury must
find that there is probable cause to believe that the person or persons to be charged
committed the crime or crimes to be charged. While the grand jury is deliberating on
whether to return an indictment, i.e., to issue an indictment, the prosecutor and the
agent, court reporter, and everyone else must remain outside the grand jury room.
Persons accused of crimes punishable by more than one year’s imprisonment have
a Constitutional right to be indicted by a grand jury. [12] The grand jury does not
determine the guilt or innocence of the defendant. That can be done only at trial.
A federal prosecutor does not have the authority to issue a subpoena ordering a
person to give testimony or to produce evidence in his or her possession. The grand jury
has the authority to issue such subpoenas, and it therefore has substantial investigative
powers. In practice, the AUSA or other federal prosecutor usually issues subpoenas in
the name of the grand jury. However, the grand jury can subpoena additional witnesses
of its own volition.
When a witness is subpoenaed before the grand jury, the AUSA generally asks the
questions although in many instances the grand jurors also question witnesses. A witness
before a grand jury, like a witness at a trial, may not be compelled to give evidence that
would tend to show that he or she has committed a criminal offense. As discussed
above, this right is referred to as the Fifth Amendment privilege or the privilege against
self-incrimination.
Grand jury proceedings are recorded verbatim by a stenographer and are secret.
It is a crime for a prosecutor or a member of the grand jury to discuss grand jury
proceedings in public. Also, a prosecutor may not disclose grand jury information to
another prosecutor or investigating officer, unless that prosecutor or officer is also
involved in the same criminal investigation. Information gathered by a grand jury may be
disclosed only upon the order of a federal court. Such permission is rarely given. Of
course, evidence obtained by the grand jury may be used later at trial, if the grand jury
formally indicts one or more persons for a criminal offense.[13]
In complex crimes such as most bank frauds, the involvement of a grand jury from
the beginning is essential to an effective investigation. In such cases, the prosecutor and
investigator will work very closely together from the start of the investigation.
B. The Arrest of the Defendant
In the federal system, accused persons are usually arrested after a grand jury
formally charges them with a crime. (As noted above, a judge may issue an arrest
warrant before indictment upon the filing of a complaint setting forth sufficient evidence
to establish probable cause.) Generally, the AUSA will apply to the court for the issuance
of a warrant of arrest for the person named in the indictment. [14] Depending on a number
of factors, the defendant may, after arrest, be released on bail (provisional liberty or
conditional release) pending trial or may remain in prison. These factors include the
seriousness of the crime, the criminal history of the accused, and the likelihood that he or
she will become a fugitive. A judge determines whether a defendant is to remain in
prison or is to be released, and, if released, on what conditions. These conditions may
include a requirement that the defendant, or someone acting on the defendants behalf,
pledge money or other property that will be forfeited if the defendant fails to appear for
trial.
Soon after the defendant is arrested, he or she will be brought before a judge.
The judge will inform the defendant of the charges against him or her and ask whether
the defendant pleads guilty or not guilty to the charges. This proceeding is called the
arraignment.
C. The Trial of the Defendant
Under the U.S. Constitution, a person accused of all but very minor offenses has a
right to be tried by a jury. This is a trial jury, which is sometimes called a “petit jury.”
Trial juries in criminal cases are composed of 12 citizens, who must all agree on the
defendant’s guilt in order to convict. At trial, the prosecution must prove “beyond a
reasonable doubt” that the defendant committed the crime or crimes charged. The
defendant has no obligation, to testify or to call any witnesses on his or her behalf.
[15]
However, a defendant who chooses to testify is placed under oath like any other
witness and may be prosecuted like any other witness for perjury.
At a jury trial, the jury determines whether the evidence against the defendant is
sufficient for conviction. The jurors must base their determination only on the evidence
presented at trial. If they reach the personal conviction that a defendant committed a
crime as charged, but determine that the prosecution’s evidence does not prove guilt
beyond a reasonable doubt, the jury must acquit.
The judge presides over the trial and rules on all issues of law, including whether
evidence is admissible (i.e., whether it can be presented to the jury for use in determining
whether or not the defendant is guilty as charged). The judge also instructs the jury on
the legal principles it is to apply in deciding whether the defendant is guilty or not.
A defendant may waive his or her right to a jury trial. The judge will then function
as the “trier of fact” and determine whether the evidence presented is sufficient to find
the defendant guilty beyond a reasonable doubt.
A trial the judge may, on occasion, question a witness. However, the questioning
of witnesses is primarily the responsibility of the prosecutor and the defense attorney.
They do most if not all of the questioning.
A court reporter makes a verbatim record of everything said at trial by the

witnesses, prosecutor, defense counsel, and judge. This includes everything said at so-
called bench or sidebar conferences in which the prosecutor and defense lawyer argue
points of law, e.g., whether a given piece of evidence is admissible, before the judge but
out of the hearing of the jury.
If a defendant is found guilty, it is the responsibility of the judge to impose the

sentence. A defendant found guilty following a trial may appeal his or her conviction to
the U.S. Court of Appeal for the circuit that includes the U.S. District Court in which the
defendant was convicted. If the defendant is acquitted, the prosecution may not appeal.
In certain circumstances, the defendant may also appeal the sentence imposed. The
prosecution and defense must designate the portions of the verbatim trial record and
items of evidence that they wish the appellate court to consider in deciding the appeal.
No new evidence may be presented on appeal.
1. Declining Prosecution
One of the most significant aspects of the American legal system is the wide
discretion that American prosecutors have in criminal matters. For example, a federal
prosecutor may decline to prosecute an offense because he or she finds it not significant
enough to merit prosecution in federal court. For instance, the quantity of drugs involved
or the loss to a victim may be relatively small. The investigating agents may then present
their evidence to a state prosecutor (assuming the offense is one that may be prosecuted
in state court), where, again, the state prosecutor has discretion to prosecute the offense
or to decline prosecution. Similarly, the federal prosecutor may decline prosecution of a
minor offense if he or she considers that there is an acceptable alternative to prosecution,
such as an agreement by the defendant to compensate the victim of the offense.
Defendants charged with minor, non-violent crimes may be eligible for pre-trial
diversion into a program that usually includes making restitution to the victim. If the
defendant completes the program successfully, he or she will not be prosecuted and may
avoid a criminal record.
Another instance in which a prosecutor may decline to bring charges or ask the
grand jury to return an indictment is where, although there is enough evidence to obtain
a persons arrest, (that is, probable cause), the prosecutor knows that enough additional
evidence to convict the person at trial will be unavailable. In such circumstances, the
prosecutor is not obligated to seek an arrest warrant. In fact, if a prosecutor did bring
charges or obtain a grand jury indictment and have a defendant arrested under those
circumstances, this could be viewed as an abuse of the prosecutor’s discretion.
2. Plea Agreements
Most criminal cases in the United States are concluded prior to any trial or even
during trial by the defendant’s entering a plea of guilty. Often, these guilty pleas are the
result of negotiations between the prosecutor and the defense attorney. This process is
called plea bargaining. The agreement is called a plea agreement or plea bargain. In a
plea agreement, the defendant, generally through his or her attorney, agrees to plead
guilty to some or all of the charges against him or her in return for certain actions by the
prosecutor. The prosecutor may agree to dismiss one or more of the charges, or may
agree either to make a recommendation to the judge about the sentence to be imposed
or not to oppose a sentence suggested by the defense counsel. [16] The prosecutor’s
agreement binds the United States. As part of a plea agreement, the defendant may also
agree to give truthful testimony about crimes of which he or she has knowledge.
Therefore, a prosecutor may use the plea agreement to obtain testimony of a minor
criminal that is necessary to convict a more significant criminal.
A guilty plea must be made before a judge. A court reporter makes a verbatim
record of everything said in the proceeding. Before the judge will accept the guilty plea,
he or she will question the defendant in open court to make sure that the defendant
understands his or her right to plead “not guilty” and to demand a trial; that the
defendant is pleading guilty voluntarily; that the defendant understands the terms of any
plea agreement and the consequences of the guilty plea; that the defendant has not been
subject to coercion or improper promises on the part of the prosecutor; and that there is
a factual basis for the plea. If the judge is not satisfied by the defendant’s responses to
the questions, the judge will reject the defendant’s guilty plea.
3. Grants of Immunity
Obtaining evidence necessary to convict persons involved in organized criminal

groups is particularly difficult. The secretive nature of these groups and their powers of
intimidation make it very difficult for the prosecutor to obtain necessary testimony against
the groups leaders. Witnesses outside the group are often afraid to testify. Persons
within the group are generally not only unwilling to testify, but also may assert their Fifth
Amendment privilege against self-incrimination and refuse to testify about any crimes in
which they were involved. The special powers of U.S. prosecutors to “immunize”
witnesses often allows them to obtain testimony that is critical to these cases.
First, the prosecutor may determine that the cooperation or expected testimony of
a minor figure will be especially significant, and that the importance of that person’s
testimony or cooperation outweighs the need to prosecute the person for minor criminal
involvement. In these cases, the prosecutor may agree not to prosecute the person for
the crimes about which he or she is to testify or to cooperate, e.g., by providing
information and investigative leads. Thus, the prosecutor can grant immunity from
prosecution for particular crimes.
Second, the prosecutor may determine that a narrower grant of immunity is

appropriate. This narrower immunity, called “use” immunity, is designed to overcome a
witness’s assertion of the privilege against self-incrimination. In these cases, the
prosecutor asks the court to compel the witness to testify, and the witness is assured that
this testimony (and any information derived from that testimony) may not be used in a
prosecution against him or her. This type of immunity is controlled by a statute passed
by the Congress specifically to address the problems of obtaining evidence in organized
crime cases. A prosecutor may still prosecute a person granted this second type of
immunity, as long as the evidence against the person does not use or derive from the
testimony that the person has been ordered to give.
IV. American Judges, Prosecutors, and Defense Lawyers: Members of a Single Legal

Profession
A. Qualifications
The highest court of each of the 50 states and the District of Columbia establishes
the qualifications for practicing law in the courts of that jurisdiction. Practically all states
require prospective lawyers to have completed a four-year college or university degree in
subjects of the candidate’s choice, plus three years of law school leading to the Juris
Doctor degree. Although many prospective lawyers study government (political science)
as undergraduates, no particular course of undergraduate study is required.
To be admitted to practice law in a state or the District of Columbia, a person must

then be acceptable to the ethics committee of that jurisdiction and must pass a
comprehensive examination on general U.S. law, including Constitutional law; legal ethics;
and the jurisdiction’s law and procedure.
Examinations for the first two topics are multiple-choice tests that are
administered on a national basis by a private testing agency and are scored by machine.
However, each jurisdiction decides what it will consider as a passing grade on the multi-
state tests. Each jurisdiction makes up and grades its own essay examination on its
substantive law and its criminal and civil procedure.
Those who pass the examinations for a jurisdiction and who are considered to
have character appropriate to the practice of law are admitted to practice before its
courts. They must apply separately to practice before the appropriate U.S. District Court
and the appropriate Circuit Court of Appeals. An additional examination is not normally
required in order to practice before these federal courts. Many American lawyers belong
to the bars of more than one state. Many states have agreed among themselves to admit
one another’s lawyers on a reciprocal basis if a lawyer has practiced a certain number of
years, generally five, and is of fit character.
B. Terminology
When a person has been admitted to a bar, he or she is a member of that bar and
is therefore called a lawyer or an attorney. In the United States, the terms mean the
same thing. “Esquire” after the name of an American means that the person is a lawyer.
The use of “Esquire” for this purpose is informal but widespread. The terms “counsel” or
“counsellor at law” are also used for attorneys. Again, these simply mean that a person is
an attorney.
C. Career Paths
American attorneys may engage in the private practice of law, meaning that they
are available to represent anyone who wishes to retain them. Private practitioners may
or may not represent persons accused of crime, i.e., they may or may not act as defense
counsel. Attorneys may also be employed by a city, state, or the federal government in
any one of a number of jobs requiring knowledge of law. Prosecutors in the United
States are always attorneys and are always city, state, or federal employees.
Attorneys who start out in private practice may later become employed by one or
another governmental office, including employment as prosecutors. Prosecutors may
later leave government service and go into private practice, where they may act as
defense attorneys.
D. The Judiciary
Judges are chosen both from among those who have been in the private practice
of law for a number of years and from among experienced prosecutors and, sometimes,
lawyers in government service who are not prosecutors. They may also be chosen from
the faculty of law schools.
State court judges are often elected and serve for limited terms. Federal judges
and judges of the courts of the District of Columbia are appointed by the President with
the advice and consent of the U.S. Senate. Senators nominate judicial candidates for the
federal courts in their states. Federal judges are appointed for life. Federal judges rarely
leave the bench and return to (or go into) private practice.
The American Bar Association (ABA), a private national association of lawyers

which includes private practitioners, government attorneys (including prosecutors), and
judges among its members, rates nominees for federal judgeships. Although the ABA’s
ratings are unofficial, the U.S. Senate would almost never confirm a nominee whom the
ABA regarded as unqualified.
The Federal Judicial Center in Washington, D.C., conducts short training courses
for new federal judges. There is also training center in Reno, Nevada, open to state court
judges from any state.
Justices of the U.S. Supreme Court, interestingly, need not be lawyers. However, in practice they
always are.
[1]
The bases for federal criminal jurisdiction are particularly complex, and are unique to the legal
system of the United States. For example, certain federal crimes require the involvement or use of the U.S.
mails, telephone or wire communications, or travel or transportation between the states before they can be
prosecuted in federal court. The peculiar nature of these jurisdictional elements is recognized in many,
modern extradition treaties, by providing that the existence or nonexistence of these elements is not to be
considered in determining whether a crime would be punishable in, for example, Mexico and the United
States.
[2]
The combination of federal and state legal systems is a function of our federal system of
government.
[3]
In the federal system, a clerk of the court may issue a warrant of arrest if there is already an
indictment charging a person with a criminal offense. As discussed more fully below, an indictment is a
finding by a grand jury that there is probable cause to believe that a crime has been committed and that a
certain person committed it. Under United States law, an arrest warrant may be issued only after a finding
of probable cause. Since the indictment itself is sufficient to establish probable cause, a warrant of arrest
following indictment generally does not require an additional finding of probable cause by a judge.
[4]
This right is called the right of confrontation. It is guaranteed by the Sixth Amendment to the
U.S. Constitution.
[5]
This right is referred to as the privilege against self-incrimination, or the Fifth Amendment
privilege, since it is guaranteed by the Fifth Amendment to the Constitution. Any person may assert this
right. The person need not be formally accused of a crime.
[6]
Other federal investigating officers are employed by other Departments, and investigate matters
within the special jurisdiction of their Departments. For example, officers of the Secret Service (which
investigates counterfeiting), the Bureau of Customs and Immigration Enforcement, and Border Patrol are all
employed by the U.S. Department of Homeland Security. The U.S. Treasury Department, Internal Revenue
Service, employees law enforcement officers to investigate tax crimes.
[7]
These are the U.S. Courts of Appeals for the First through Eleventh Circuits, the Court of Appeals
for the District of Columbia (Washington, D.C.), and the Court of Appeals for the Federal Circuit. The
jurisdiction of the “Federal Circuit” does not extend to criminal matters.
[8]
In the last century, federal judges would in fact make a circuit, or travel about within the
geographic area, to conduct trials and hearings. Even today, the Courts of Appeals will meet in different
cities within their Circuits. For example, the Court of Appeals for the Ninth Circuit may conduct hearings in
Alaska, California, or Hawaii.
[9]
Persons found extraditable do not have a right of appeal to the Circuit Courts. They may appeal
only by petitioning for a writ of habeas corpus. Such a petition is in effect a claim that the person’s custody
is unlawful. The scope of review in such cases is very limited. The petition must first be made to the District
Court. If the District Court denies the petition, the Circuit Court may review the District Court’s decision.
[10]
A court’s decision is often referred to as its “opinion.” Many, though not all, opinions are
published in various sets of printed reports generally issued by private law publishing companies. Judges
generally select the opinions they want published. Commercial services also provide computerized access
to decisions of state and federal courts. Current decisions, including those of the U.S. Supreme Court, are
now available free of charge on the Internet from a combination of public and private sources.
[11]
This application is called a petition for a “writ of certiorari.”
[12]
A person may waive his or her right to indictment by a grand jury. Anyone waiving this right is
charged in a document called an “information.”
[13]
Witnesses who testify before a grand jury will generally be called to testify again at trial, where
the defendant or the defendants’ lawyer may cross-examine them to test the credibility of their testimony.
This is because the accused person has a right to confront and question all witnesses against him or her in
a trial open to the public. Thus, a witness’s testimony before the grand jury is ordinarily not used at trial to
determine whether the defendant is guilty as charged unless the witness changes his or her testimony at
trial or becomes unavailable for trial.
[14]
The warrant of arrest simply specifies the crime(s) charged and orders the arrest of the person
accused of the crime(s). The warrant of arrest is not the charging document. The charging document,
which accuses the defendant of the crime(s), is the indictment, complaint, or information.
[15]
In fact, the prosecutor is forbidden even to comment on the defendant’s failure to testify, and
the judge instructs the jury that it may not regard the defendant’s silence as evidence of guilt.
[16]
A judge need not follow the recommendation of the prosecutor regarding sentencing. The judge
will therefore warn the defendant of this prior to accepting the guilty plea, so that there is no
misunderstanding about the force of the prosecutor’s recommendation. (In contrast, the prosecutor’s
decision to dismiss certain charges is binding on the court.)
Retrieved from https://www.oas.org/juridico/mla/en/usa/en_usa-int-desc-guide.html
Retrieved from https://www.law.cornell.edu/wex/criminal_procedure
Criminal Procedure
Overview
Criminal procedure deals with the set of rules governing the series of proceedings through
which the government enforces substantive criminal law. Municipalities, states, and the
federal government each have their own criminal codes, defining types of conduct that
constitute crimes. Title 18 of the U.S. Code outlines all federal crimes. Typically, federal
crimes deal with activities that either extend beyond state boundaries or directly impact
federal interests.
Federal prosecutions follow the Federal Rules of Criminal Procedure, cited as Fed. R. Crim.
P., which the U.S. Supreme Court promulgated and Congress passed. The Federal Rules
outline the procedure for conducting federal criminal trials. The Federal Rules incorporate
and expound upon all guarantees included within the U.S. Constitution's Bill of Rights,
such as the guarantee to due process and equal protection, the right to legal counsel, the
right to confront witnesses, the right to a jury trial, and the right to not testify against
oneself.
State prosecutions follow the criminal procedure code of the individual state. Although
every state has its own criminal procedure code, many states choose to mimic the Federal
Rules. State procedural rules may offer greater protection to a defendant in a criminal trial
than the U.S. Constitution or the Federal Rules, but may not offer less protection than
guaranteed by the U.S. Constitution.
Investigatory and Accusatory Police Procedure

The U.S. Constitution, the Federal Rules, state and local rules, and court interpretation of
these documents not only set out how trials are run, but also prescribe the procedures
that law enforcement agencies must follow. Should an officer fail to abide by the proper
procedure, the trial court may suppress evidence obtained in violation of proper
procedure, which could even lead to the suspect's acquittal.
Law enforcement agencies are limited in their abilities well before an arrest is made. A
portion of the criminal procedure process deals with an officers’ ability to stop individuals,
search them or their properties, and seize any incriminating evidence the officer finds.
This pre-arrest investigation is limited by the Fourth, Fifth, Sixth, and Fourteenth
Amendments.
Fourth Amendment
The Fourth Amendment protects individuals from unreasonable searches and seizures. As
the Supreme Court explained in Mapp v. Ohio, 367 U.S. 643 (1961), evidence obtained by
searches and seizures in violation of the U.S. Constitution is inadmissible in a criminal trial.
In order to avoid illegally searching or seizing the property of a suspect, law enforcement
personnel typically obtain search warrants. To obtain a search warrant, law enforcement
must show probable cause, must support the showing by oath or affirmation, and must
describe in particularity the place they will search and the items they will seize.
Just as criminal procedure limits what is a reasonable search, so criminal procedure

specifies what constitutes a reasonable interrogation. In Miranda v. Arizona, 384 U.S. 436
(1966), the Supreme Court held that police must make defendants aware of their rights
prior to the defendant making any statements, provided the government intends to use
those statements as evidence against the defendant. The Fifth Amendment and the Sixth
Amendment require law enforcement to ensure that defendants understand their right to
remain silent and their right to have an attorney present during the interrogation.
The Fourteenth Amendment applies all the aforementioned substantive due process rights
to state criminal defendants.
Pre-Trial Procedure
Right to a Speedy Trial

The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to
a speedy trial. Consequently, prosecutors cannot wait an inordinate amount of time before
filing charges or proceeding with the prosecution after filing charges. Under the Speedy
Trial Act, which Congress passed to clarify the speedy trial guarantee, a trial must begin
within 70 days of the prosecutor filing the indictment.
Voir Dire
The Sixth Amendment also guarantees the right to a public trial by an impartial jury of
one's peers. The criminal justice system provides for an impartial jury by permitting both
sides to use peremptory challenges during jury selection. If a party exercises a
peremptory challenge against a prospective juror, then the court must excuse that
particular juror from the panel. These challenges occur during jury voir dire, and are
meant to root out bias. While neither the prosecution nor the defendant need to explain
their reasons for a challenge, not every challenge is permissible. As the Supreme Court
explained in Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. v. Alabama, 511 U.S. 127
(1994), a party cannot remove a juror solely for the juror’s race or gender.
Guarantee Of A Fair Trial

The Fifth Amendment's guarantee of due process requires that criminal defendants receive
a fair trial. In high-publicity trials, trial judges have the responsibility to minimize effects of
publicity on jurors’ decisions, perhaps by implementing a gag-order on the parties.
In Carey v. Musladin, 549 U.S. 70 (2006), the Supreme Court held that a jury was not
unduly influenced by the family of the victim wearing buttons with the picture of the victim
on them.
Other Miscellaneous Guarantees

Due process further commands that defendants have the right to call their own witnesses,
mount their own evidence, and present their own theories of the facts. In order to
properly mount a defense, the prosecution must turn over all evidence that will be
presented against the defendant and allow the defendant pre-trial access to question the
prosecutor's witnesses.
Pre-trial would also be the point at which the defense might raise a defense of double
jeopardy, if such a defense existed in the particular case. The Fifth Amendment, through
the Double JeopardyClause, prohibits states from charging the same defendant with
substantially the same crime on the same facts.
Trial Procedure
Once a trial begins, the U.S. Constitution affords further rights to criminal defendants.
Trying to avoid convicting an innocent defendant at all costs, the law only permits the
prosecution to overcome the defendant's presumption of innocence if they can show the
defendant's guilt beyond a reasonable doubt. This very high burden differs drastically from
a civil trial's much lower standard in which the plaintiff must only prove a claim by
a preponderance of the evidence.
One right guaranteed by the Sixth Amendment is the right of an individual to confront
witnesses. The difficulty of upholding this right arises when a witness testifies to the police
and passes away shortly after. In such a case, the prosecution would be unable to allow
the defendant to cross-examine the witness.
Right to Effective Counsel

The Sixth Amendment also guarantees a defendant the right to assistance of counsel
during trial. If a defendant cannot afford an attorney, the government is required to
provide the defendant an attorney. Such defendants receive legal representation from the
Public Defender's Office. The Federal Rules of Criminal Procedure provide that an accused
shall have access to counsel at every stage of the proceedings, beginning with the
defendant's initial appearance. If a defendant demands the presence of counsel during
police interrogation, police must stop the interrogation until the defendant's counsel is
present. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that the
Sixth Amendment's guarantee of counsel applies to state criminal proceedings as well.
However, a defendant may choose to voluntarily and intelligently waive assistance of
counsel and self-represent. This is called "pro se" representation.
The legal counseling received must also constitute "effective counseling." Ineffective
assistance of counsel may serve as grounds for a new trial. Establishing ineffective
assistance of counsel requires establishing that the prevailing professional norms at the
time of trial render the actual assistance received inadequate and that the ineffective
assistance caused a fundamentally unfair result.
Right Not To Self-Incriminate

Under the Fifth Amendment of the U.S. Constitution provides, the defendant enjoys a right
of not having to provide self-incriminating testimony. At the stage of a trial when the jury
determines guilt or innocence, a jury cannot infer the defendant's failure to appear or
answer as an admission of guilt.
Stages of a Trial
Bail
After law enforcement arrests a suspect, a judge will set the suspect's initial bail, which is
a specified amount of cash that allows the defendant to get out of jail after the initial
arrest. If the defendant shows up for the proper court dates, the court refunds the bail,
but if the defendant skips the date, then the court keeps the bail and issues a warrant for
the individual's arrest.
Arraignment
The arraignment comes next. During an arraignment, a judge calls an individual charged
with committing a crime, reads to the individual the criminal charges laid against him or
her, asks the accused whether the accused has access to an attorney or needs the
assistance of a court-appointed attorney, asks the accused to plead, decides whether to
amend the initial bail amount, and sets the dates of future proceedings.
Preliminary Hearing
The preliminary hearing follows the arraignment. At the preliminary hearing, the judge
determines whether enough evidence exists for the prosecution to meet its burden of
persuasion. The burden of persuasion refers to whether the prosecution even has enough
evidence to make the defendant stand trial. The defense has the right to cross
examine the government witnesses during this proceeding. Under the Fifth Amendment,
a grand jury, rather than a judge, makes this determination when the
defendant is charged with a "capital or infamous crime.”
Pre-Trial Hearing
A pre-trial hearing is the next step in the process. The prosecution and the defense team
use the pre-trial to file motions before a judge. These motions usually concern whether
the court should suppress certain evidence, whether certain individuals can testify, or
whether the judge should dismiss all charges for lack of evidence.
Trial
After all these preliminary stages, the defendant stands trial. Both sides offer opening
statements first, although the defense can reserve their opening statement until the
prosecution “rests”—finishes presenting their case. The prosecution presents its witnesses
and evidence first. Then, the defense presents its witnesses and evidence. After the
defense rests, the defense offers a closing argument, and then the prosecution offers its
final closing argument. After closing arguments, the jury deliberates and returns a verdict.
Sentencing
General
Sentencing usually occurs immediately for infractions and misdemeanors. For such minor
infractions penalties may include probation; fines; short-term incarceration; long-term
incarceration; suspended sentence, which only takes effect if the convict fails to meet
certain conditions; payment of restitution to the victim; community service; or drug and
alcohol rehabilitation.
More serious crimes result in the trier of fact hearing evidence and arguments from both
the prosecution and the defense regarding the appropriate sentence. Some jurisdictions
allow the judge alone to determine the sentence; others will have a separate sentencing
phase trial, complete with a new jury, to determine the sentence for certain crimes.
During a sentencing trial, the prosecution presents evidence of aggravating factors, and
the defense presents evidence of mitigating factors. The U.S. Supreme Court has
interpreted the U.S. Constitution to protect the right to a jury sentencing trial for all
defendants facing the death penalty.
Allocution
Before the judge announces the sentence, a defendant is entitled
to allocution. Allocution is the right of the defendant to directly address the judge without
the help of counsel. During this direct address, the defendant may offer a personal
explanation of any unknown facts, may ask for mercy, or may offer an apology for the
criminal behavior. This is an opportunity for defendants to show remorse or to offer the
motivations behind their criminal acts, so as to influence the judge to be lenient.
Sentencing Guidelines
The federal government and state governments have created various sentencing
guidelines. Federal courts use the Federal Sentencing Guidelines, while state courts will
look at state-specific sentencing guidelines.

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