Steps of the Legal Process


    There are many ways to model or represent the process of criminal justice in America.  Models exist with as few as eight steps and as many as fifteen.  Here, we use a ten-step model.  There are also different ways to diagram the criminal justice system.  Some sources utilize what looks like a multi-layered wedding cake or a funnel turned sideways.  Regardless of the model chosen, it’s important to remember that these are more analytical tools than a reflection of reality.  The purpose is to try and present a loose array of multi-jurisdictional agencies, institutions, and procedures (“non-system”) as an aggregate, comprehensive whole (“system”).  Admittedly, the notion of a coordinated, perfectly harmonious system is more fiction than reality.

  1. INVESTIGATION and ARREST — The process begins with the police discovering something or having it discovered for them.  This is known as proactive or reactive policing, respectively.  Most policing is reactive, with the police following up, or probing, allegations or complaints.  Someone becomes a “subject” of investigation when they are someone police are looking into, and someone becomes a “target” of investigation when it is likely they will be charged with a crime.  There are many constitutional safeguards at this step of the process, but nobody questions the right of police to investigate and make arrests.
  2. BOOKING — This is a part of the process that involves custody, detainment, deprivation of liberty, and other personal intrusions.  Someone is “booked” when their picture and fingerprints are taken.  An administrative record is made of the arrest, and it’s at this step of the process when the suspect finds out the details of what they are being charged with and fills out a form that they have been advised of their rights.  This step is characterized by accuracy of identification and records.  Interrogation and confession can also occur at this stage.  
  3. FIRST APPEARANCE — Within hours of being booked, suspects are either brought before a magistrate, have their cases heard before a magistrate, or have the going rate determined by a magistrate, all for the purpose of setting the amount of bail.  Bail bondsmen and appointed counsel also become initially involved at this step, depending upon a person’s financial circumstances.  This step is characterized by something that makes the justice system look bad – how much money a person has.
  4. PRELIMINARY HEARING — The purpose of a preliminary hearing is for a judge to look into the probable cause the police used and determine if probable cause exists for continuing with legal proceedings.  A hearing judge considers the sufficiency of evidence, whether a nexus, or connection, exists between the statutory elements of the crime and what police say the person did, and whether the proper jurisdiction exists.  This step is characterized by discovery and disclosure, which means that a number of people share information about the suspect in their respective advocacy roles (prosecution, defense).  Upon completion of this step, a suspect has either cleared himself or herself, is declared incompetent to stand trial, or formally becomes a defendant for trial.
  5. INFORMATION or INDICTMENT — The word information refers to a form the prosecutor files with a court to declare his or her intention to prosecute the case.  An information is only filed upon completion of a successful preliminary hearing.  A prosecutor also has the option (and is required in some states) to go before a Grand Jury, which is best seen as a standing committee of honorable citizens.  Defendants and their attorneys are not allowed in Grand Jury proceedings. Any majority vote by the Grand Jury to proceed with prosecution is known as a true bill, resulting in a different form, called an indictment, filed with a court.  As a general rule, felonies are usually handled by indictments and misdemeanors by information.  Prosecutors have an enormous amount of resources and decision-making authority at this point.
  6. ARRAIGNMENT — This is the first public appearance of the defendant in open court that has the jurisdiction to conduct a trial.  The accused must stand and listen as the indictment or information is read, although they should have already been given a copy.  Their identification is confirmed, and they are asked if they have been informed of the charges and their legal rights.  The judge may also inquire as to whether the defendant has legal counsel, and why or why not, but this is not required and many judges prefer not to go into it.  An arraignment is generally a brief process where the judge only wants to hear one of three things: guilty, not guilty, or no-contest (nolo contendere, an admission of guilt that cannot be used as an admission of guilt in civil justice).  This is known as the plea, and the defendant must utter one of those with no room for explanation or elaboration.  If the defendant pleads guilty or no-contest, they are sentenced on the spot.  If they plead not guilty they are scheduled for trial and/or ordered to undergo psychiatric evaluation.  A defendant who stands mute has a plea of not guilty entered on their behalf.  Most defendants will have had their defense attorney arrange a plea bargain beforehand, so that the act of pleading guilty is openly noted as a negotiated plea to which the judge has or does not have prior knowledge of, but in all cases must consent to.  Some 90% of all criminal cases are resolved with plea bargains, but they can’t go on at the last-minute during arraignment.  A judge can reject a plea of guilty if they think it was made under duress, non-intelligently, or if the bargain is too last-minute or lenient. 
  7. ADJUDICATION — This is an open or closed trial in which matters of fact and law are examined for the purpose of reaching a judgment of conviction or acquittal.  A jury is usually the trier of fact (did they do it) and the judge the trier of law (admissibility of evidence and penalties).  Less serious offenses don’t require a jury, and even in serious cases (if state law allows), the defendant can waive his or her right to a jury trial.  Such proceedings are called bench trials where the judge serves as both trier of fact and law.  The adjudication stage is ruled by strict rules of procedure, evidence, and precedent.  An adversarial system is also adhered to where both sides (prosecution, defense) argue vociferously within boundaries set by professional ethics.  The standard for conviction is beyond a reasonable doubt.  This step is enormously expensive, time-consuming, and stressful.  There are many salaries to be paid.  Private attorneys, for example, make $800 an hour for time spent in the courtroom (public defenders make less, about $40 an hour).  Add DNA testing or forensic analysis, and each modern trial in America easily costs millions of dollars.  
  8. SENTENCING — This is a hearing held after a judgment of conviction where a judge imposes some form of punishment.  Prior to this hearing, the judge may order a presentence investigation on the defendant’s family history, economic circumstances, emotional state, social background, and criminal history.  A judge has considerable discretion in sentencing, although some state and federal laws now place limits on that discretion.  Offenders found guilty on more than one charge can serve sentences consecutively (one at a time) or concurrently (all at the same time).  Sentencing is also used to order court costs and victim reparations be paid by the offender.  Many sentences are appealed, but the appeals process is complex.   
  9. CORRECTIONS — This is the process of doing time in prison, being classified according to local procedures, being housed in an appropriate facility, and being assigned to an adequate treatment program.  Also called institutional corrections, prisons are generally places characterized by violence, overcrowded conditions, and minimal opportunities for treatment.  There are no luxuries, and prison life is becoming less and less attractive with the elimination of privileges like smoking, cable TV, weightlifting, boxing, and martial arts.  At a cost of about $25,000 per year to house and feed two million inmates, corrections today is a relative bargain.  
  10. PROBATION and PAROLE — Not all convicted persons wind up in prison, and most of those that do eventually get released back into the community.  Traditionally, probation occurs as an alternative to prison and parole as a form of supervision after prison, but things such as shock probation (a taste of prison life before probation) and shock parole (a taste of prison life after parole) have become commonplace.  Also called community corrections, probation and parole involve monitoring readjustment to society under strict rules or conditions.  Violators of those conditions are called technical violators, and those kind of violators far outnumber the few who commit new crimes while out in the community.  A large number of people are on probation or parole.  Adding them to the correctional count (calling it the number under some form of correctional care) comes out to about 6 million.