Stages of a Criminal Case

Stages of a Criminal Case

Criminal prosecution develops in a series of stages, beginning with an arrest and ending at a point before, during or after trial. The majority of criminal cases terminate when a criminal defendant accepts a plea bargain offered by the prosecution. In a plea bargain, the defendant chooses to plead guilty before trial to the charged offenses, or to lesser charges in exchange for a more lenient sentence or the dismissal of related charges.

Preliminary Hearing or Grand Jury Proceedings
Pre-Trial Motions
Plea Bargaining


Criminal prosecution typically begins with an arrest by a police officer. A police officer may arrest a person if (1) the officer observes the person committing a crime; (2) the officer has probable cause to believe that a crime has been committed by that person; or (3) the officer makes the arrest under the authority of a valid arrest warrant. After the arrest, the police books the suspect. When the police complete the booking process, they place the suspect in custody. If the suspect commited a minor offense, the policy may issue a citation to the suspect with instructions to appear in court at a later date.


If a suspect in police custody is granted bail, the suspect may pay the bail amount in exchange for a release. Release on bail is contingent on the suspect's promise to appear at all scheduled court proceedings. Bail may be granted to a suspect immediately after booking or at a later bail review hearing. Alternatively, a suspect may be released on his "own recognizance." A suspect released on his own recognizance need not post bail, but must promise in writing to appear at all scheduled court appearances. Own recognizance release is granted after the court considers the seriousness of the offense, and the suspect's criminal record, threat to the community and ties to family and employment.


The suspect makes his first court appearance at the arraignment. During arraignment, the judge reads the charges filed against the defendant in the complaint and the defendant chooses to plead "guilty," "not guilty" or "no contest" to those charges. The judge will also review the defendant's bail and set dates for future proceedings.

Preliminary Hearing or Grand Jury Proceedings

The government generally brings criminal charges in one of two ways: by a "bill of information" secured by a preliminary hearing or by grand jury indictment. In the federal system, cases must be brought by indictment. States, however, are free to use either process. Both preliminary hearings and grand juries are used to establish the existence of probable cause. If there is no finding of probable cause, a defendant will not be forced to stand trial.

A preliminary hearing, or preliminary examination, is an adversarial proceeding in which counsel questions witnesses and both parties makes arguments. The judge then makes the ultimate finding of probable cause. The grand jury, on the other hand, hears only from the prosecutor. The grand jury may call their own witnesses and request that further investigations be performed. The grand jury then decides whether sufficient evidence has been presented to indict the defendant.

Pre-Trial Motions

Pre-trial motions are brought by both the prosecution and the defense in order to resolve final issues and establish what evidence and testimony will be admissible at trial.


At trial, the judge or the jury will either find the defendant guilty or not guilty. The prosecution bears the burden of proof in a criminal trial. Thus, the prosecutor must prove beyond a reasonable doubt that the defendant committed the crimes charged. The defendant has a constitutional right to a jury trial in most criminal matters. A jury or judge makes the final determination of guilt or innocence after listening to opening and closing statements, examination and cross-examination of witnesses and jury instructions. If the jury fails to reach a unanimous verdict, the judge may declare a mistrial, and the case will either be dismissed or a new jury will be chosen. If a judge or jury finds the defendant guilty, the court will sentence the defendant.


During the sentencing phase of a criminal case, the court determines the appropriate punishment for the convicted defendant. In determining a suitable sentence, the court will consider a number of factors, including the nature and severity of the crime, the defendant's criminal history, the defendant's personal circumstances and the degree of remorse felt by the defendant.


An individual convicted of a crime may ask that his or her case be reviewed by a higher court. If that court finds an error in the case or the sentence imposed, the court may reverse the conviction or find that the case should be re-tried.

Plea Bargaining


There is no perfect or simple definition of plea bargaining. Black's Law Dictionary defines it as follows:"[t]he process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge."

In practice, plea bargaining often represents not so much "mutual satisfaction" as perhaps "mutual acknowledgement" of the strengths or weaknesses of both the charges and the defenses, against a backdrop of crowded criminal courts and court case dockets. Plea bargaining usually occurs prior to trial but, in some jurisdictions, may occur any time before a verdict is rendered. It also is often negotiated after a trial that has resulted in a hung jury: the parties may negotiate a plea rather than go through another trial.

Plea bargaining actually involves three areas of negotiation:

Charge Bargaining: This is a common and widely known form of plea. It involves a negotiation of the specific charges (counts) or crimes that the defendant will face at trial. Usually, in return for a plea of "guilty" to a lesser charge, a prosecutor will dismiss the higher or other charge(s) or counts. For example, in return for dismissing charges for first-degree murder, a prosecutor may accept a "guilty" plea for manslaughter (subject to court approval).
Sentence Bargaining: Sentence bargaining involves the agreement to a plea of guilty (for the stated charge rather than a reduced charge) in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the defendant with an opportunity for a lighter sentence.
Fact Bargaining: The least used negotiation involves an admission to certain facts ("stipulating "to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into evidence.

The validity of a plea bargain is dependent upon three essential components:

a knowing waiver of rights
a voluntary waiver
a factual basis to support the charges to which the defendant is pleading guilty

Plea bargaining generally occurs on the telephone or in the prosecutor's office at the courtroom. Judges are not involved except in very rare circumstances. Plea bargains that are accepted by the judge are then placed "on the record" in open court. The defendant must be present.

One important point is a prosecuting attorney has no authority to force a court to accept a plea agreement entered into by the parties. Prosecutors may only "recommend" to the court the acceptance of a plea arrangement. The court will usually take proofs to ensure that the above three components are satisfied and will then generally accept the recommendation of the prosecution.

Moreover, plea bargaining is not as simple as it may first appear. In effectively negotiating a criminal plea arrangement, the attorney must have the technical knowledge of every "element" of a crime or charge, an understanding of the actual or potential evidence that exists or could be developed, a technical knowledge of "lesser included offenses" versus separate counts or crimes, and a reasonable understanding of sentencing guidelines.

Pros and Cons

Although plea bargaining is often criticized, more than 90 percent of criminal convictions come from negotiated pleas. Thus, less than ten percent of criminal cases go to trial. For judges, the key incentive for accepting a plea bargain is to alleviate the need to schedule and hold a trial on an already overcrowded docket. Judges are also aware of prison overcrowding and may be receptive to the "processing out" of offenders who are not likely to do much jail time anyway.

For prosecutors, a lightened caseload is equally attractive. But more importantly, plea bargaining assures a conviction, even if it is for a lesser charge or crime. No matter how strong the evidence may be, no case is a foregone conclusion. Prosecutors often wage long and expensive trials but lose, as happened in the infamous O. J. Simpson murder trial. Moreover, prosecutors may use plea bargaining to further their case against a co-defendant. They may accept a plea bargain arrangement from one defendant in return for damaging testimony against another. This way, they are assured of at least one conviction (albeit on a lesser charge) plus enhanced chances of winning a conviction against the second defendant. For the defendants, plea bargaining provides the opportunity for a lighter sentence on a less severe charge. If represented by private counsel, defendants save the cost for trial and have fewer or less serious offenses listed on their criminal records.

U.S. Supreme Court Cases

Article III, Section 2[3] of the U.S. Constitution provides that "The trial of all crimes, except in Cases of Impeachment, shall be by Jury." However, it has never been judicially determined that engaging in a plea bargaining process to avoid trial subverts the Constitution. To the contrary, there have been numerous court decisions, at the highest levels, that discuss and rule on plea bargains. The U.S. Supreme Court did not address the constitutionality of plea bargaining until well after it had become an integral part of the criminal justice system.

In United States v. Jackson, 390 U.S. 570 (1968), the Court questioned the validity of the plea bargaining process if it burdened a defendant's right to a jury trial. At issue in that case was a statute that imposed the death penalty only after a jury trial. Accordingly, to avoid the death penalty, defendants were waiving trials and eagerly pleading guilty to lesser charges. Justice Potter Stewart, writing for the majority, noted that the problem with the statute was not that it coerced guilty pleas but that it needlessly encouraged them.

Two years later, the Court actually defended plea bargaining in Brady v. United States, 397 U.S. 742 (1970), pointing out that the process actually benefited both sides of the adversary system. The Court noted that its earlier opinion in Jackson merely required that guilty pleas be intelligent and voluntary. The following year, in Santobello v. New York, 404 U.S. 260 (1971), the Court further justified the constitutionality of plea bargaining, referring to it as "an essential component of the administration of justice." The Court added that '[as long as it is] properly administered, [plea bargaining] is to be encouraged."

The Alford Plea

But the most cited and most familiar Supreme Court case on plea bargaining is North Carolina v. Al- ford, 400 U.S. 25 (1970). In 1970, North Carolina law provided that a penalty of life imprisonment would attach to a plea of guilty for a capital offense, but the death penalty would attach following a jury verdict of guilty (unless the jury recommended life imprisonment). Alford faced the death penalty for first-degree murder. Although he claimed innocence on all charges (in the face of strong evidence to the contrary), Alford pleaded guilty to second-degree murder prior to trial. The prosecutor accepted the plea, and he was sentenced to 30 years' imprisonment. Alford then appealed his case, claiming that his plea was involuntary because it was principally motivated by fear of the death penalty. His conviction was reversed on appeal. However, the U.S. Supreme Court held that a guilty plea which represents a voluntary and intelligent choice when considering the alternatives available to a defendant is not "compelled" within the meaning of the Fifth Amendment just because it was entered to avoid the possibility of the death penalty. (Alford had argued that his guilty plea to a lesser charge violated the Fifth Amendment's prohibition that '"No person … shall be compelled in any criminal case to be a witness against himself.") The Supreme Court reversed the court of appeals and reinstated Alford's conviction and sentence.

The term "Alford Plea" has come to apply to any case in which the defendant tenders a guilty plea but denies that he or she has in fact committed the crime. The Alford plea is expressly prohibited in some states and limitedly allowed in others. In federal courts, the plea is conservatively permitted for certain defenses and under certain circumstances only.

Plea Bargaining in Federal Courts

The Federal Rules of Criminal Procedure (F.R.Crim.P), and in specific, Rule 11(e), recognizes and codifies the concept of plea agreements. However, because of United States Sentencing Guideline (USSG) provisions, the leeway permitted is very restrictive. Moreover, many federal offenses carry mandatory sentences, with no room for plea bargaining. Finally, statutes codifying many federal offenses expressly prohibit the application of plea arrangements. (See "Sentencing and Sentencing Guidelines.")

Federal criminal practice is governed by Title 18 of the U.S. Code, Part II (Criminal Procedure). Chapter 221 of Part II addresses arraignments, pleas, and trial. The U.S. Attorney's Manual (USAM) contains several provisions addressing plea agreements. For example, Chapter 9-16.300 (Plea Agreements) states that plea agreements should "honestly reflect the totality and seriousness of the defendant's conduct," and any departure must be consistent with Sentencing Guideline provisions. The Justice Department's official policy is to stipulate only to those facts that accurately represent the defendant's conduct. Plea agreements require the approval of the assistant attorney general if counts are being dismissed, if defendant companies are being promised no further prosecution, or it particular sentences are being recommended (USAM 7-5.611).

Prohibitions and Restrictions

Aside from legal considerations as to the knowing or voluntary nature of a plea, there are other restrictions or prohibitions on the opportunity to plea bargain. In federal practice, U.S. attorneys may not make plea agreements which prejudice civil or tax liability without the express agreement of all affected divisions or agencies (USAM 9-27.630). Moreover, no attorney for the government may seek out, or threaten to seek, the death penalty solely for the purpose of obtaining a more desirable negotiating position for a plea arrangement (USAM 9-10.100). Attorneys are also instructed not to consent to "Alford pleas" except in the most unusual circumstances and only with the recommendation of assistant attorneys general in the subject matter at issue. In any case where a defendant has tendered a plea of guilty but denies that he or she committed the offense, the attorney for the government should make an offer of proof of all facts known to the government to support the conclusion that the defendant is in fact guilty (USAM 9-16.015). Similarly, U.S. attorneys are instructed to require an explicit stipulation of all facts of a defendant's fraud against the United States (tax fraud, Medicare/Medicaid fraud, etc.) when agreeing to plea bargain (USAM 9-16.040).

State Provisions

Plea bargaining is not a creature of law: it is one of legal practice. Therefore, state statutes do not create the right to plea bargain, nor do they prohibit it, with one exception. In 1975, Alaska's attorney general at the time, Avrum Gross, banned plea bargaining in Alaska. Although the ban remains officially "in the books," charge bargaining has become fairly common in most of Alaska's courts. Nonetheless, Alaska has not suffered the unmanageable caseloads or backlogged trials that were predicted when the ban went into effect.

If plea bargaining appears at all in state statutes, it is generally in the context of being prohibited or restricted for certain matters or types of cases. For example, many states have prohibited plea bargaining in drunk driving cases, sex offender cases, or those involving other crimes that place the public at risk for repeat offenses or general harm. Another common provision, found in a majority of states, is a requirement that a prosecutor must inform a victim or the victim's survivors of any plea bargaining in a case. In many states, victims' views and comments regarding both plea bargaining and sentencing are factored into the ultimate decisions or determinations.

At least one state (Alabama) has expressly ruled that once a plea bargain is accepted, or there is detrimental reliance upon the agreement before the plea is entered, it becomes binding and enforceable under constitutional law (substantive due process). Ex Parte Hon. Orson Johnson, (Alabama, 1995).

Additional Resources

"The Core Concerns of Plea Bargaining Critics." Douglas D. Guidorizzi. Available at

The Court TV Cradle-to-grave Legal Survival Guide Little, Brown and Company, 1995.

"Criminal Procedure: an Overview." Available at

"Federal Rules of Criminal Procedure." Available at

"Plea Bargains: Why and When They're Made." Available at

United States Attorneys Manual. (USAM. Office of the U.S. Attorney General, Dept. of Justice. Available at

U.S. Code, Title 18: Crimes and Criminal Procedure, Part II: Procedure, Chapter 221: Arraignment, Pleas and Trial. U.S. House of Representatives. Available at