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National Crime Victim Law Institute

What are some common steps of a criminal investigation and prosecution?

April 15, 2010

Pre-arrest Investigation: Pre-arrest investigation is the stage of criminal procedure that takes place after a report of suspected criminal activity or law enforcement otherwise becomes aware of such activity, but before an arrest is made. Law enforcement investigates whether a crime has occurred and whether an arrest should be made. If law enforcement determines that the evidence uncovered during pre-arrest investigation reveals that a crime was committed and a suspect is identified, law enforcement may arrest the suspect or, depending upon the jurisdiction, present the investigation results to the prosecuting attorney. If the jurisdiction is one in which the prosecuting attorney becomes involved pre-arrest, the prosecuting attorney generally decides whether and what charges to file; only after such determination does an arrest take place. Alternatively, after an investigation, law enforcement may determine that there is insufficient evidence to pursue the matter, and no arrest is made.

Arrest: An arrest occurs when the individual accused of a crime is taken into custody by law enforcement. Generally, an arrest may be made in two ways: 1) if a law enforcement officer arrives at the scene of the crime and determines that there is probable cause for an arrest, the officer can take a person into custody immediately, or 2) the officer may make an arrest pursuant to an arrest warrant. The requirements for making a proper arrest and obtaining a warrant vary jurisdiction-to-jurisdiction and often depend upon whether the crime at issue is a felony or a misdemeanor.

Initial Appearance: Generally, as soon as practicable following arrest, the accused must be brought before a court. At the initial appearance, the court will inform the accused of the charges and advise the accused of his or her rights to counsel and to remain silent. The defendant may be released at the initial appearance.

Grand Jury: (Not all jurisdictions have grand juries) A felony case is usually commenced by grand jury indictment or a preliminary hearing, which is discussed below. If instituted by a grand jury, the prosecutor goes to the grand jury to ask the grand jury to indict an accused. A grand jury is a group of private citizens who conduct proceedings, generally with the grand jury members sworn to secrecy. The proceedings consist of the prosecutor presenting evidence and providing legal advice to the grand jury. As part of its investigation, the grand jury has the power to compel testimony, including the testimony of a crime victim. After hearing the evidence presented by the prosecution, and through its own investigation, the grand jury votes on whether the case should be indicted or dismissed.

Preliminary Hearing: A felony case may also be commenced by a preliminary hearing held within a reasonable time of the filing of the information. If commenced by a preliminary hearing, the defendant has the right to be present and to be represented by counsel at such hearing. At the hearing, the prosecutor and the defense attorney can each present evidence to establish or challenge whether probable cause exists to believe a felony was committed, and whether it was committed by the defendant. This evidence can include testimony, including that of the victim. Generally, limited discovery is available to the defendant at this stage and, during the presentation of evidence, the defense is generally allowed to cross-examine any of the state’s witnesses, including the victim. If the court finds there is probable cause to believe a felony was committed by the defendant, the defendant is “bound over” for trial. A defendant may be released at this stage. If the court finds there is no probable cause to believe a felony was committed by the defendant, the court must dismiss the case and release the accused.

Arraignment: After charges have been brought, whether by information or grand jury indictment, the defendant is arraigned. At the arraignment, the defendant is formally informed of the charges, given a copy of the indictment or information, and enters a plea responding to the charges. A defendant may enter a plea bargain at the arraignment. Even if a defendant does not enter a plea, the defendant may be released.

Discovery & Motion Practice: Discovery is the pretrial process by which the prosecutor and the defendant exchange information and material about the case. Discovery is an intricate process governed by each jurisdiction’s rules of criminal procedure. It is important to remember that the criminal defendant has no constitutional right to discover information from the victim.

In addition to discovery, and often stemming from discovery, there is usually considerable pretrial motion practice. “Motion” is the name for the papers filed with the court asking it to do something in the case. Motions by the defense may include motions to dismiss the indictment, to suppress evidence, or to introduce specific evidence at trial such as “rape shield” evidence. Motions by the state may include a request for reciprocal disclosure or a request for defendant to disclose alibi or psychiatric evidence. A crime victim’s attorney may also bring motions asserting the victim’s rights. These may include motions to quash a subpoena, to protect a victim’s identifying information, or to preclude the press from certain hearings.

Plea Bargaining & Entry of Plea: Instead of going to trial, a defendant may plead guilty pursuant to a plea agreement. A plea agreement is an agreement that the defendant will plead guilty to the original charge, or to another charge, in return for a concession from the prosecutor. Typical concessions include: 1) dismissal of other charges; 2) recommendation of a particular sentence, or agreement not to oppose defendant’s request for a particular sentence; or 3) recommendation for, or agreement on, another appropriate disposition of the case. After a plea agreement has been reached, the plea is presented to the court, and the court may do one of three things: 1) reject the plea agreement; 2) discuss alternatives to the plea agreement that are acceptable to the court; or 3) accept the plea agreement. If the court rejects the plea agreement, the defendant may withdraw the guilty plea.

Trial: A trial is the proceeding during which evidence is presented and guilt is determined. A trial is held before a jury or, if the defendant waives the right to trial by jury or for certain misdemeanors, before a judge, which is called a bench trial. Generally, a trial proceeds as follows:

Voir dire: Voir dire is the process by which a jury is questioned and selected. In a capital case, voir dire is split into two phases: the death qualification phase and the general voir dire phase.

Guilt Phase: The guilt phase generally begins with the prosecutor’s opening statement. The defense then has the option to make an opening statement or, in some jurisdictions, reserve its opening statement for the beginning of its case-in-chief. The prosecutor presents the state’s direct case after which the defense may move the court to acquit, arguing that there is legally insufficient evidence to convict. If the defense motion is denied, the defense presents its case-in-chief. Following the defense case, the prosecutor and defendant may each present a rebuttal case. The defense may then again move for an acquittal. If the defense motion is denied, closing arguments are presented by each side; the order of these is jurisdiction-specific. Following closing arguments, the case will be submitted to the jury or bench for deliberation and return of a verdict.

Sentencing: Upon a finding of guilt on some, even if not all, counts charged, the formal imposition of the punishment occurs. Depending upon the jurisdiction, the judge or the jury decides the punishment that will be given to the offender. In most jurisdictions, before a sentencing hearing is conducted, a probation officer will prepare a pre-sentence report. Most reports contain a variety of information that may be helpful in imposing sentence: information about the offender’s prior criminal record and about the offender’s characteristics, financial condition, social history, and circumstances affecting behavior. In addition, most jurisdictions now require that these reports contain victim information. Generally, a sentencing hearing cannot occur unless the offender is present, although this requirement may be waived in certain instances. In addition, in most jurisdictions, the victim has the right to be present and give a victim impact statement at the sentencing hearing.

At the sentencing hearing, the court generally has three options. First, the court may impose sentence, which may include imprisonment or some other punishment, such as probation, community service or a treatment program. Second, in many jurisdictions, the court may decide not to sentence the offender, but to instead suspend imposition of sentence and place the offender on probation. Finally, the court may impose sentence, but suspend execution of it and place the offender on probation subject to conditions. After sentence is imposed, the court will enter a judgment of conviction, setting forth the plea, verdict, findings, the adjudication, and the sentence imposed. At this point, the offender may make a motion to set aside the verdict.

Restitution: Restitution is the monetary payment by an offender to the victim to compensate the victim for the financial consequences caused by the commission of the crime. Generally, restitution must be requested at or before sentencing. What a victim receives during the criminal case is usually an order for an amount of restitution and a payment schedule. Once an offender is released from prison and is no longer on probation a victim may have to go to civil court to convert a restitution order into a civil judgment in order to collect additional monies.

Appellate Review by the Defendant or the State: Appellate review is the way you ask a higher court to review what the lower court or a lower actor in the system has done to see if they did it right. There are a number of avenues to seek appellate review in a criminal case but each is specifically set forth in law and some only attach to the defendant or the state, leaving the victim with fewer remedies. The most common appellate review devices are identified here.

  • Interlocutory appeal. This is an appeal of a non-final court decision that may occur anytime before the final judgment.
  • Direct appeal. A direct appeal may be taken after the final judgment has been rendered.
  • Post-conviction relief. A post-conviction motion may be brought by the defendant.
  • Habeas corpus. A defendant may petition for habeas corpus – both under state and federal law.
  • Writ of mandamus. A writ of mandamus is an extraordinary writ that compels performance of a mandatory duty.
  • Writ of prohibition. A writ of prohibition is an extraordinary writ issued by a higher court to a lower court prohibiting that lower court from acting in excess of its jurisdiction.

Probation & Probation Revocation Hearings: Probation is a procedure under which a defendant found guilty of a crime is not imprisoned but instead is released subject to conditions imposed by the court and subject to the supervision of a board of probation or parole, or the jurisdiction’s equivalent. If a defendant is accused of violating the conditions of probation, generally he or she may be arrested and brought to court for a hearing to determine whether there is probable cause to conclude that a violation took place. If probable cause is found, or if the defendant waives the hearing, the defendant is subject to a revocation hearing to have probation revoked and to be re-sentenced.

Parole and Parole Revocation Hearings: Parole is the release of an offender to the community by the court or a probation/parole board prior to the expiration of the offender’s term, subject to conditions imposed by the court or board. In many jurisdictions, offenders are eligible for parole prior to the completion of their entire sentence. Generally, before an offender is released, there is a parole hearing to determine if there is reasonable probability that the offender can be released without detriment to the community. If it is determined that it is proper to release the offender, the offender is released but remains in the legal custody of the department of corrections, or the jurisdiction’s equivalent, and is subject to conditions placed on him or her. If the offender violates any of the conditions imposed, generally the offender may be arrested, incarcerated, and – unless waived – given a preliminary hearing on whether the alleged violation occurred. Following the preliminary hearing, the offender will generally have a full parole revocation hearing at which there is a determination of whether a violation took place and whether to revoke parole.

Compensation: Compensation, sometimes referred to as Reparations, is money paid by the government to victims of crimes to restore all or part of the financial losses the victim suffered as a result of the crime committed against him or her.

The steps involved in the investigation and prosecution of a criminal case vary from jurisdiction-to-jurisdiction. The following information provides an overview of common stages of a criminal investigation and prosecution in adult criminal proceedings. It is important to remember that many of the stages identified here can recur throughout a criminal investigation and prosecution. For instance, in most jurisdictions a defendant may be released at any stage of the criminal prosecution.