Criminal Procedure Steps

Why This Matters

Criminal procedure isn't just a checklist—it's the constitutional framework that balances two competing interests: the government's power to prosecute crimes and the individual's fundamental rights. Every step you'll study here connects directly to amendments you've already learned (Fourth, Fifth, Sixth, Eighth, and Fourteenth), and exam questions frequently ask you to identify which constitutional protection applies at which stage. Understanding the sequence matters because rights attach at specific moments, and violations at one stage can invalidate everything that follows.

You're being tested on your ability to recognize due process in action: when probable cause is required versus proof beyond a reasonable doubt, when the right to counsel attaches, and how the adversarial system creates checks on government power. Don't just memorize the order of steps—know what constitutional principle each step protects and what happens when that protection fails.

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Pre-Charging: Investigation and Custody

These early stages occur before formal charges are filed. The key principle here is probable cause—the reasonable belief, based on facts, that a crime has been committed and the suspect committed it. This is a lower standard than trial proof but higher than mere suspicion.

Arrest

• Probable cause is required—law enforcement must have articulable facts supporting the belief that a crime occurred and this person committed it (Fourth Amendment protection)
• Miranda warnings must be given before custodial interrogation; failure to do so makes statements inadmissible, not the arrest itself invalid
• Warrantless arrests are permitted in public spaces with probable cause, but home arrests generally require a warrant absent exigent circumstances

Booking

• Administrative processing occurs at the police station—fingerprints, photographs, and personal information are recorded
• Inventory searches of personal belongings are permitted without a warrant as a routine booking procedure
• Initial custody determination happens here; the suspect may be held or informed of bail options pending the first court appearance

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Initial Court Proceedings: Judicial Oversight Begins

Once the accused enters the court system, judicial review of the government's actions begins. The Sixth Amendment right to counsel attaches at these "critical stages," and the Eighth Amendment's prohibition on excessive bail becomes relevant.

Initial Appearance

• Prompt presentation before a judge (typically within 48 hours) is constitutionally required to prevent indefinite detention without judicial review
• Bail determination occurs here—the Eighth Amendment prohibits excessive bail, but bail can be denied entirely if the defendant poses a flight risk or danger
• Right to counsel attaches at this critical stage; indigent defendants must be informed of their right to appointed counsel

Preliminary Hearing

• Probable cause review by a judge—the prosecution must demonstrate enough evidence to justify continued prosecution
• Adversarial proceeding where defense counsel can cross-examine witnesses and challenge evidence, unlike the grand jury process
• Bindover decision determines whether the case proceeds; dismissal here doesn't trigger double jeopardy because no trial has occurred

Grand Jury Indictment

• Fifth Amendment requirement for federal felony prosecutions ("no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury")
• Secret, non-adversarial proceedings—only the prosecution presents evidence; the defendant has no right to appear or present a defense
• True bill vs. no bill—the grand jury either indicts (true bill) or declines to charge (no bill), requiring agreement from a supermajority of jurors

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Formal Charging and Pre-Trial Resolution

After charges are formally filed, the system creates opportunities for case resolution without trial. Over 90% of criminal cases end through plea bargaining, making this stage statistically more important than trial itself.

Arraignment

• Formal charge reading and entry of plea—guilty, not guilty, or nolo contendere (no contest, which cannot be used against the defendant in civil proceedings)
• Trial scheduling and procedural calendar are established; speedy trial rights under the Sixth Amendment begin running
• Plea entry consequences—a guilty plea waives the right to trial and most appeal rights; courts must ensure pleas are knowing, voluntary, and intelligent

Plea Bargaining

• Charge bargaining (pleading to a lesser offense) vs. sentence bargaining (agreed recommendation to the judge)—both require prosecutorial discretion
• Voluntariness requirement—pleas cannot result from coercion, threats, or misrepresentation; the defendant must understand the rights being waived
• Judicial approval is required; judges can reject plea agreements but cannot participate in negotiations

Pre-Trial Motions

• Motion to suppress challenges evidence obtained in violation of constitutional rights (fruit of the poisonous tree doctrine)
• Motion to dismiss argues legal defects in the charges—statute of limitations, double jeopardy, or failure to state an offense
• Motion for change of venue seeks relocation due to pretrial publicity that would prevent a fair trial (Sixth Amendment impartial jury right)

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Trial: The Adversarial System in Action

Trial represents the full expression of Sixth Amendment protections: the right to a speedy and public trial, an impartial jury, confrontation of witnesses, compulsory process for obtaining favorable witnesses, and assistance of counsel.

Trial

• Burden of proof rests entirely on the prosecution—"beyond a reasonable doubt" is the highest standard in American law, reflecting the presumption of innocence
• Jury trial right applies to offenses carrying more than six months imprisonment; bench trials (judge only) require defendant waiver of this right
• Confrontation Clause guarantees the right to cross-examine witnesses; hearsay restrictions protect this right by generally excluding out-of-court statements

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Post-Conviction: Punishment and Review

After a guilty verdict, the focus shifts from determining guilt to imposing appropriate punishment and ensuring legal errors can be corrected. The Eighth Amendment (cruel and unusual punishment) and due process protections remain active.

Sentencing

• Judicial discretion operates within statutory ranges; judges consider aggravating and mitigating factors, victim impact statements, and sentencing guidelines
• Eighth Amendment limits prohibit disproportionate sentences; the Supreme Court has applied this to ban execution of juveniles and the intellectually disabled
• Allocution right allows the defendant to address the court before sentencing—a procedural protection ensuring the sentence reflects individual circumstances

Appeals Process

• Right to appeal is statutory, not constitutional, but due process requires meaningful access to appellate review for criminal convictions
• Appellate review is limited to legal errors in the record—no new evidence, no witness credibility determinations, only questions of law
• Standards of review vary: legal errors are reviewed de novo (fresh), while factual findings receive deference; harmless error doctrine prevents reversal for minor mistakes

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Quick Reference Table

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Self-Check Questions

1. At which two stages must the government demonstrate probable cause, and how do those determinations differ in who makes them?

2. Compare and contrast the preliminary hearing and grand jury indictment—what constitutional amendment requires grand jury indictment, and why might a defendant prefer a preliminary hearing?

3. A defendant's confession was obtained without Miranda warnings. At which stage would defense counsel challenge this, and what doctrine would they invoke?

4. Which constitutional amendments are implicated at sentencing, and what specific protections do they provide?

5. If an FRQ asks you to trace the Sixth Amendment right to counsel through criminal procedure, at which stage does it attach, and which stages are considered "critical" requiring counsel's presence?