STEPS IN A CRIMINAL PROCEEDING
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A. Many steps: There are many distinct steps in a criminal proceeding. At each of these steps, some defendants “drop out,” typically by either not being prosecuted or by choosing to plead guilty.
1. Arrest: Where a police officer has probable cause (a “legal” reason) to believe a suspect has committed a crime, the officer makes an arrest. An arrest is generally deemed to take place when the officer takes the suspect into custody and transports him to the police station so that he can be charged with a crime. A suspect under arrest faces the possibility of being charged with a misdemeanor or felony. When the charge is a misdemeanor traffic violation, the officer may, instead of taking the suspect into custody, write a “citation” – what we commonly call a “ticket.” In most traffic violation instances, the suspect is then released on his own recognizance and ordered to appear before a judge at some later date.
a. Mostly without warrants: An arrest may occur either with or without a warrant. The vast majority of arrests are made without a warrant.
2. Booking: The arresting officer then transports the suspect to the police station for “booking.” In the booking procedure, the suspect’s name, offense, and other information are entered into a police blotter. The suspect is usually photographed and fingerprinted. He is usually allowed to make one telephone call. For minor offenses, the suspect is usually given the right to pay a cash “stationhouse bail,” and ordered to report before a magistrate. For more serious crimes (or if the suspect cannot make the stationhouse bail), he is kept in custody until he can be taken before a magistrate (see paragraph 4, below).
3. Filing complaint: A prosecutor is now typically brought into the case. The prosecutor reviews the facts, and decides whether charges should be brought, based mostly on the sufficiency of the evidence. If the suspect is to be charged, the prosecutor prepares a “complaint.” Most complaints are sworn to by a police officer or sheriff’s deputy in front of a magistrate. A magistrate is a court officer, typically a court clerk.
4. First appearance: After the complaint has been filed, the suspect (who is now a “defendant”) is brought before a judge. The step of bringing the defendant before the judge for the first time is typically called the “first appearance.” If the defendant received stationhouse bail, the first appearance is usually several days after the arrest. But in the usual case where there is no stationhouse bail, the suspect is still in custody and must be brought for the first appearance “without unnecessary delay.” There will usually be a few hours (but typically no more than 72 hours) between arrest and first appearance, and there may be an intervening weekend (e.g., defendant is arrested on Friday night, and not brought for the first appearance until Monday morning). The judge does not evaluate the sufficiency of the evidence in any way during the first appearance. Instead, the judge typically does the following:
a. Notice of charges: The Judge informs the defendant of the charges;
b. Right to counsel: The Judge notifies defendant that he has the right to counsel. If defendant is indigent and desires appointed counsel, the Judge usually begins the process of appointment here.
c. Bail: Where defendant did not previously post stationhouse bail, the Judge will set bail. Alternatively, the Judge may release defendant without bail, on his own recognizance. Finally, a preventive detention statute may allow the Judge to deny bail altogether, typically if the Judge finds that there is no bail amount that ensures that defendant will show up for trial and also guarantees the safety of the community in the interim.
5. Preliminary hearing: The next proceeding, in felony cases, is usually the “preliminary hearing.” This, like the first appearance, takes place before a Judge. The purpose of the preliminary hearing is for the Judge to make a neutral determination of whether there is probable cause (a “legal” reason) to believe that defendant committed the crime charged. Typically, live witnesses are presented, and both the prosecution and the defendant are represented by counsel. If the Judge finds probable cause, he will “bind over” the case for the next stage (either sending it to the grand jury if an indictment is required, or sending it directly to the trial court if an indictment is not needed). A preliminary hearing must be requested in writing by your attorney within 30 days of your arrest or the court considers your preliminary hearing waived.
6. Filing of indictment: In felony cases, an indictment must be returned by a grand jury. An indictment is a finding by a grand jury indicating that the grand jury believes enough evidence has been presented to proceed with a trial.
a. Nature of grand jury proceeding: The grand jury proceeding is a closed proceeding, at which the grand jurors decide, by majority vote, whether to issue an indictment. A suspect or defendant is not represented or able to present any issue to a grand jury. Only the district attorney presents information to a grand jury. Not all information presented at a grand jury proceeding is admissible at trial.
b. “No Bill”: If the grand jury does not return an indictment, the charge against the defendant is “no-billed” and the case is dismissed.
7. Arraignment: Once an indictment has been returned by a grand jury, the defendant is “arraigned” on the indictment. At the arraignment, the defendant is brought before the trial court, informed of the charges against him, and asked whether he pleads guilty or not guilty to the charge. The case is set for trial typically several months after the arraignment.
8. Pretrial motions: Next, defense counsel has the opportunity to make various pretrial motions. Most common are motions to: (1) obtain discovery of the prosecution’s evidence; and (2) have some of the prosecution’s evidence suppressed (e.g., to have a confession rules inadmissible because Miranda procedures were not followed).
9. Trial: Next comes the trial. If the charge is a felony, or a misdemeanor punishable by more than twelve months in prison, the defendant has the right to have the case tried before a jury. In Alabama, juries consist of 12 citizens. If your offense was a misdemeanor, you will most likely face a bench trial (a trial before a judge alone – no jury).
10. Sentencing: If defendant pleads guilty or is found guilty during the trial, he is then sentenced. Sentencing is usually done by the judge, not the jury.
11. Appeals: All convicted defendants are entitled to an appeal. Most appeals are by defendants who were convicted at trial and sentenced to imprisonment. However, in most states even defendants who have plead guilty are usually allowed to challenge the plea bargain on appeal (e.g., by asserting that the prosecution did not live up to the terms of the deal). The most frequently-asserted ground for appeal, and the most commonly successful one, is that the evidence admitted against defendant at trial was the result of an unconstitutional search. If a defendant is convicted of a misdemeanor, his first appellate action is to appeal the conviction to the Circuit Court of the county in which the Municipal or District Court sits. An appeal from a conviction in a Municipal or District Court must be file within 42 days (6 weeks) from the date of the sentence being imposed in the lower court.
12. Post-conviction remedies: Even after defendant has exhausted all “direct” appeals, certain “post-conviction remedies” will be theoretically available to him. Most importantly, both state and federal prisoners may challenge their convictions through federal-court habeas corpus procedures. In a habeas corpus proceeding, defendant asserts that his conviction violated the federal constitution. For instance, defendant might assert that his conviction rested in part upon a confession whose admission violated the Miranda doctrine. Recall that the basis for federal habeas corpus review of state court convictions has been steadily narrowed by the Supreme Court over the last two decades.
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