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The 8 Stages of a Criminal Defense Case

Supreme Court

By: T.C. Kelley

Takeaway: Although each case is unique, criminal charges tend to follow a pretty familiar path through the justice system.  Although the details vary, every state and the federal government follow the same basic procedure for processing a criminal case. This article will help you understand the broad outline of how criminal charges move through the criminal justice system. If you are charged with a crime, you should consult a criminal defense lawyer to learn how your case will proceed in the court that hears it.


Stage 1: Arrest

As a general rule, when a police officer sees a crime being committed or has probable cause to believe a crime is being committed in his or her presence, the officer can make an arrest. Many states permit officers to make warrantless arrests whenever they have probable cause, regardless of whether they witnessed the crime, as long as they do not need to enter a home or other private place to arrest the suspect. Some states require the police to obtain an arrest warrant from a court before arresting for a crime they did not witness. Even in those states, exceptions are typically made when the failure to make an immediate arrest is likely to jeopardize public safety, allow a suspected felon to escape, or lead to the destruction of evidence.


A judge or magistrate issues arrest warrants. They are based on affidavits (sworn statements) submitted by law enforcement officers explaining the facts that justify an arrest. If those facts establish probable cause to believe the named suspect committed a crime, the magistrate will issue a warrant that allows an officer to enter private property to arrest that suspect.

Stage 2: Posting Bail

Every person who has been arrested is presumed innocent. Because innocent people should not be jailed, most persons who have been arrested are released from custody pending the outcome of their criminal charges. At the same time, courts want some assurance that criminal defendants will appear for their trial and other court proceedings. In some cases, courts also want assurances that defendants released from custody will not threaten witnesses or commit new crimes. Courts resolve the tension between freeing the presumptively innocent and assuring future court appearances by allowing release on bail.

In many jurisdictions, arrested individuals can post a fixed amount of cash to obtain release before appearing in court. In all jurisdictions, arrested individuals who cannot or are not allowed to post bail immediately are promptly taken before a judge or magistrate so that bail can be set.

If the suspect is not a flight risk, the magistrate may decide to authorize a release without requiring cash or another security to be posted. If the magistrate is concerned that the suspect will flee if released, the magistrate may require the defendant to post cash that will only be returned if the defendant appears at all court hearings that require the defendant’s personal appearance. The court can also impose conditions of release, including prohibiting contact with the victim or witnesses, requiring the defendant to participate in drug testing or treatment, imposing a curfew, and other restrictions or requirements that assure the public’s safety.

If cash bail is required, defendants who cannot post it remain in custody until their cases end. Some states permit defendants to hire a bail bond agent who secures the defendant’s release by promising to pay the full bail amount if the defendant fails to appear in court. In federal court and some states, the court can detain a defendant without bail for certain crimes (usually crimes of violence and serious drug crimes). (Learn more in The Basics of Posting Bail.)

Stage 3: The Filing of Formal Charges

Prosecutors typically charge misdemeanors by filing a criminal complaint with a court. Criminal complaints usually contain a sworn statement of facts that explain how, when, and where the defendant committed the charged offenses.

In the federal system and some states, felonies are charged by an indictment returned by a grand jury. An indictment is a formal statement of the crimes with which a defendant is charged. The grand jury listens to evidence and votes to “return” (or authorize) the indictment if it decides that the defendant probably committed the charged crimes.

In states that do not use grand juries, felonies are usually charged in a criminal complaint followed by a preliminary hearing. The court determines whether the charges are supported by probable cause after considering the testimony of witnesses. If the court decides that the defendant probably committed a felony, the state files formal charges in a document called information.

Stage 4: Investigation and Discovery

Every state and the federal government provides a defendant with the right to discovery. Although the details vary, defendants generally have the right to obtain or inspect police reports, laboratory reports, photographs, and physical evidence that will be introduced against the defendant at trial. Witness statements must be disclosed, although, in some jurisdictions, that disclosure will not occur until the witness testifies. Defendants have a constitutional right to disclose all evidence in the government’s possession that tends to establish their innocence or cast doubt on government witnesses’ credibility.

The defense lawyer will often conduct an independent investigation. A private investigator may locate and interview witnesses or search for other evidence that would cast doubt on the defendant’s guilt. (Not guilty? Read But I’m Innocent! What to Do If You’re Charged With a Crime You Didn’t Commit.)

Stage 5: Motions

Many criminal cases are dismissed as a result of motions filed by a defense attorney. Some motions challenge defects in the charging process. Other motions ask the court to suppress (or throw out) evidence that was acquired illegally. For example, if evidence was obtained by stopping a vehicle for no reason or conducting an unauthorized search of a house, a defendant can seek to suppress that evidence. A defendant whose confession or statement was coerced or who answered questions after being arrested without first being advised of the right to counsel can seek suppression of those statements. Courts decide those motions after considering the evidence presented at motion hearings.

Stage 6: Negotiation and Settlement

Some form of plea bargaining occurs in every jurisdiction, even in those that claim to prohibit the practice. Plea bargaining is the process of negotiating a resolution of the case. It may involve an agreement to dismiss some charges, plead guilty to lesser charges, or recommend that the judge impose a specific sentence. Most cases are resolved through negotiation.

When a plea agreement is reached, the defendant attends a plea hearing. The court advises the defendant of his or her right to a trial, and the defendant formally waives that right. The defendant then enters a plea of guilty or no contest to one or more charges.

Stage 7: Trial

Every defendant has the right to have guilt proved beyond a reasonable doubt and to have that guilt determined by a jury. After a jury is selected, the prosecutor and defense attorney make opening statements that outline the evidence they expect will be produced at trial. The prosecution then calls witnesses to testify. The defense attorney has the opportunity to cross-examine those witnesses. When the prosecution completes its presentation of evidence, the defense has the right to call witnesses. The defendant has the right to testify but can elect to remain silent. The prosecutor and the defense attorney make closing arguments, analyzing the evidence’s strengths and weaknesses as they see it. The judge then explains the law to the jury, and the jurors meet privately to discuss a verdict. In federal trials and most states, the jury must reach a unanimous agreement on a verdict of guilty or not guilty. If the jurors cannot reach a verdict, a mistrial is declared based on a hung jury. If the jury finds the defendant not guilty, the case is dismissed, and the defendant is released from bail.

Stage 8: Sentencing

After a defendant enters a plea of guilty or no contest, or after a jury finds a defendant guilty, the court must sentence the defendant. Courts typically have the discretion to impose any sentence that does not exceed the legislature’s maximum for the crime. Some legislatures have established minimum jail or prison sentences that the judge must impose for certain crimes. Some states limit the choices a judge can make when imposing a sentence. Sentencing options often include probation or other alternatives to incarceration.

The primary factors that courts consider in imposing sentences are the severity of the offense, the need to protect the public from future offenses, and the defendant’s good or bad character (including the defendant’s criminal history). The federal government and some states have created sentencing guidelines to guide the court’s discretion in imposing sentences.


If the defendant believes that mistakes were made during the trial or other proceedings that affect the conviction or sentence’s fairness, the defendant can appeal. A higher court will then review the conviction, including transcripts of relevant court proceedings, and may grant a new trial or sentencing hearing if needed to cure errors that were made.

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