An Overview on Criminal Law

How a criminal charge makes its way through the courts

If you have been arrested, you might be wondering what happens next. Most people know that the arrest and trial are part of the process, but a lot happens in between. And though you’ve probably seen the criminal justice system on TV, or listened to a true crime podcast or two, exposure to the system through pop culture won’t necessarily help you understand everything that goes on in a criminal law proceeding.

Criminal law can be complicated, as there are state crimes and federal crimes, and the two systems don’t always work the same. The following is designed to help you understand the basics of how a criminal charge makes its way through the courts so that you feel comfortable speaking to a lawyer if you decide to hire one.


Criminal law is the general term for the state and federal laws that make certain conduct illegal. Each state has its own criminal code that defines what conduct constitutes a crime and how that conduct will be punished. In many cases, the same conduct will be a crime in every state, but that does not mean that a crime one state will always be a crime in another.

Illegal conduct can be charged as a felony, misdemeanor or infraction. A felony charge results from serious misconduct, and results in the most severe sentence. Each state determines at what level illegal conduct will be charged, so a felony in one state might be a misdemeanor in another. 

The Charge

When the police arrest someone, they will write up a report. They then submit the report to the prosecutor’s office, where a prosecuting attorney will read it and decide whether to bring criminal charges. If the prosecutor declines to bring a charge based on the report, then your case likely ends there. If, however, the prosecutor decides to bring felony charges, they will use one of two processes, depending on your jurisdiction and prosecutor preference.

One option is for the prosecutor to present the charges to a grand jury. The grand jury process is private, and the person being charged does not usually get to attend. The grand jury will listen to all the prosecutor’s evidence and decide whether to indict. If the grand jury declines, the prosecutor can bring more evidence to the same jury or file charges anyway.

If the prosecutor does not use the grand jury process and instead files charges first, then the prosecutor must bring the evidence to a preliminary hearing with a judge. The person charged will be able to attend this hearing and present evidence, and after both sides present their evidence, the judge will decide whether the prosecutor has enough evidence to proceed to trial.

Plea Negotiations

Before your case goes to trial, you and your attorney might engage in plea negotiations with the prosecution. During these negotiations, you and your attorney will seek an agreement where you will plead guilty or no-contest to some charges in exchange for a concession from the prosecution. Usually, these concessions are dismissed or reduced charges, or specific sentencing recommendations.

If you hire or are appointed an attorney, they will be required to inform you of every plea offer extended by the prosecution. Your lawyer can help you determine whether the plea offer is a good one and how strong your chances are at trial. But, ultimately, the choice about whether you will accept the offer of a plea agreement is yours.

The Trial

If you choose to reject all plea agreements, you will then proceed to trial. The prosecution will be responsible for proving beyond a reasonable doubt that a crime was committed and that you committed the crime. This is the highest burden of proof in the legal system. You have the right to have your attorney cross-examine the prosecution’s witnesses, and you can also call your own witnesses and testify in your own defense. But you cannot be compelled to testify.

Throughout the trial, the judge will make the final decision about what evidence will and will not be allowed to be given to the jury. And when both sides have finished presenting their witnesses and arguments, the jury will make the final determination in the case.

Your Rights

Criminal procedure is determined by state laws and can vary from state to state. However, all state laws and procedures must be constitutional. The Constitution, of course, provides a basic set of rights. States can provide greater protections than the Constitution offers, but they cannot provide fewer protections than the Constitution.

Fourth Amendment

The Fourth Amendment protects you against unreasonable searches and seizures. This means that the police are required to get a search warrant from a judge based on probable cause. The warrant requirement is subject to some exceptions that can depend on the facts of your situation. If you believe evidence was seized in violation of your rights, a lawyer can help you file and argue a motion to suppress the evidence. If successful, a motion to suppress prevents improperly seized evidence from being used in the prosecution’s case against you.

Fifth and Sixth Amendments

The Fifth Amendment protects you, after arrest, during police questioning. You may know of these rights as Miranda rights, which include the right to remain silent and the right to an attorney during police questioning. The Fifth Amendment also protects you during trial by preventing the prosecutor from calling you as a witness at your own trial.

Like the Fifth Amendment, the Sixth Amendment also gives you the right to an attorney. However, it does not apply until after you have been formally charged. Before formal charges are filed, you will have a right to a lawyer under the Fifth Amendment.

Eighth Amendment

You might recognize the Eighth Amendment as the ‘right against cruel and unusual punishment.’ But the amendment also protects you if you have been charged with a crime: Judges are not required to grant bail, but if they do, the Eighth Amendment assures the amount is not unreasonable.

Common Questions

Below are some common questions you might want to consider when meeting with an attorney for the first time.

  1. How do I know if I have been charged with a crime?
  2. What will happen if I am charged with a crime?
  3. When do the police have to read me my rights?
  4. Do I have to accept a plea deal?
  5. What happens if I am found guilty?

Finding the Right Attorney for Your Needs

It is important to approach the right type of attorney so that you can hire someone who can help through the entire case. To do this, you can follow this link to the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.

To help you get started, you may want to consider looking for a criminal defense attorney.

Why Should I Talk to a Lawyer?

An experienced criminal defense lawyer can evaluate the strengths and weaknesses of your case, and help you make informed decisions about plea agreements and whether you would like to testify at trial. Your lawyer might also have rapport with prosecutors, which can be beneficial during plea negotiations or sentencing. An experienced defense attorney will further have experience with the way the process works, so there will be someone there to explain every step of the process to you.

Why Super Lawyers?

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. As Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public. You can learn more about the selection process here.

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