The Criminal Process
The criminal process starts when someone allegedly breaks a law, and continues through the arrest, booking, arraignment, trial and appeal. It is a complex and confusing process and this information explains the process and its jargon in the simplest terms possible.
Crimes are generally classified as misdemeanors or felonies, with misdemeanors being less serious crimes. The distinction between misdemeanors is based on the possible punishment, with misdemeanors being punishable by a jail term of less than one year, and felonies being punishable by a jail term of more that one year. Fines range from $300 to $1,000. Fines can be as high as $5,000 for a misdemeanor of a high and aggravated nature.
There are two basic types of arrests -- those with a warrant and those without a warrant. Most arrests are made without a warrant.
Here are explanations of some of the words used in the criminal justice system:
Warrants are issued by a judge or other court officer who finds probable cause for an arrest. The warrant directs the police to arrest the person named in the warrant. An arrest without a warrant occurs when a police officer has probable cause to believe a person has committed or is about to commit a crime. Click for more information on warrants.
Arrest is the action by which a person is stopped from his normal activities by virtue of a legal authority or sanction, either by detaining him or by stopping his external accesses. By an arrest, a person is deprived of his liberty. The Fourth Amendment in the Constitution governs arrests, and when arrested, individuals have certain rights. So the law contain many provisions like requirement of a warrant, adherence of Miranda rights, arraignment within the statutory limit etc.
Miranda v. Arizona, 384 U.S. is the Supreme Court decision that created Miranda Rights. They are an explanation of a suspect's rights that the police must give before any "custodial interrogation." The Miranda warning is, "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."
Once you tell law enforcement officers that you're exercising your right to remain silent -- which you should do if you are ever arrested -- law enforcement officers are not allowed to question you.
After arrest, a criminal suspect is usually taken into police custody and "booked," or "processed." During booking, a police officer typically:
- Takes the criminal suspect's personal information (i.e., name, date of birth, physical characteristics);Records information about the suspect's alleged crime;
- Performs a record search of the suspect's criminal background;
- Fingerprints, photographs, and searches the suspect;
- Confiscates any personal property carried by the suspect (i.e., keys, purse), to be returned upon the suspect's release; and
- Places the suspect in a police station holding cell or local jail.
(Note: persons arrested for minor offenses may merely be given a written citation and released, after signing the citation and promising to appear in court at a later date.)
After an arrest, a preliminary hearing may be conducted. Witnesses and/or police officers are usually subpoenaed to appear at this hearing. At that time the Magistrate Court Judge listens to the testimony to determine whether there is probable cause for the case to go to a higher court; i.e., State or Superior Court.
Felony cases only) The 23 citizens on the Grand Jury hear testimony and review evidence relating to the crime. They determine whether there is sufficient evidence to bring an indictment to trial. If an indictment is returned (True Bill), the case goes to the Superior Court for trial. If the Grand Jury decides not to return an indictment, the case is "no billed." This hearing is done in private. Neither the defendant nor his/her attorney is present.
The arraignment is where the defendant responds to the grand jury indictment or the prosecutor's bill of information. Several things typically happen at the arraignment, including:
- the defendant is informed of the charges against him or her;
- the defendant is advised of constitutional rights and guarantees;
- the defendant enters an plea.
The defendant can admit to committing the crime and plead "guilty," or state that he or she did not commit the crime and plead "not guilty." There is also a "no contest" plea (also known as nolo contendre). With a "no contest" plea, the defendant is not admitting guilt, but is not contesting the charge. A "no contest" plea is often better than a guilty plea, since it usually cannot be used against the defendant as evidence of liability in a civil lawsuit.
At the arraignment the defendant also learns if he or she will have to remain in jail until the trial. The defendant will either be released "on recognizance," the court resets bail, or the court does not set bail.
Bail (Sometimes Called Bond)
Bail (sometimes called a bond) is money or other property deposited with the court as a promise the defendant will appear in court when required. Judges use several factors in setting the bail amount, including the seriousness of the crime, the defendant's ties to the area, and the defendant's wealth. If the defendant fails to appear in court when required, the money or property posted as bail may be lost.
Some people go to a bail bondsman to post bail. In these cases, a fee is paid to a bail bondsman, and in return the bail bondsman posts the bail, guaranteeing to the court full payment of the bond if the accused does not appear in court. The fee charged by a bail bondsman is set by law. For bail bonds up to $10,000 the bail bond agent can charge up to 12 percent of the amount of the bond. For any bonds over $10,000 the maximum bail bond fee is 15 percent. These fees are regulated by the Georgia Department of Insurance and are state law.
More than 90 percent of all federal and state criminal cases do not go to trial. This is because prosecutors and the defendant's lawyer strike a deal over what the defendant will agree to plead guilty to and the sentence the prosecutor will recommend. Once a plea bargain is made, the judge's role is mainly to ensure all laws and constitutional guarantees have been followed.
There are various types of plea bargains. One is reducing the charge to a lesser offense than the evidence supports. Another is dropping some charges against the defendant while keeping others. A third type of plea bargain is if the charge stays the same, but the defendant agrees to plead guilty in return for a lesser sentence.
If the defendant does not agree to a plea bargain, the case will proceed to trial. The U.S. Constitution guarantees people charged with a crime the right to a speedy trial. How fast a trial must begin is usually set by state law. This often ranges between one and two months from the time the defendant is arraigned. The defendant can also waive his or her right to a speedy trial in order to gain more time preparing a defense.
The U.S. Constitution also guarantees the right to trial by jury (though smaller offenses are not covered by this right). If the defendant chooses not to be tried by a judge, then a jury will be selected. At the trial, the prosecutor and defendant will present evidence and call witnesses to testify. Once both sides are done presenting their case, the jury will decide if the defendant is guilty or not guilty. If the defendant is found not guilty, he or she will be released. If the defendant is found guilty, he or she can be sentenced immediately or the sentencing can be postponed to a later date.
Misdemeanor: For a misdemeanor conviction in Georgia, the standard sentence is less than one year in prison and fines of no more than $1,000.
Misdemeanor of a High and Aggravated Nature: For an aggravated misdemeanor conviction, the sentence is less than one year in prison and fines no more than $5,000.
Felony: For a felony conviction in Georgia,the sentence is more than one year in prison and potential fines greater than $1,000.
Georgia judges use sentencing guidelines when deciding on the final sentence.
For all federal and state trials, everyone has a right to appeal a felony conviction. An appeal is typically based on a mistake of law made during the trial (for example, evidence was admitted that should have been excluded). The mistake must have been a "reversible error," meaning it is serious enough that it would have affected the verdict of the judge or jury. If the appeal succeeds, it is likely (but not always) that a new trial will be held.
This is a general summary of what happens from the time a person allegedly breaks a law and is arrested.