Criminal Procedure: FAQ

Criminal procedure refers to how the criminal justice system operates and applies criminal law. You likely have questions about this process, as it can be complex. Seek out an attorney in your area with experience in defending criminal cases to give you legal advice.

I’ve Been Charged With a Crime. Do I Have the Right to an Attorney?

The Sixth Amendment of the U.S. Constitution gives all individuals accused of a criminal offense the right to an attorney. If you cannot afford to pay for an attorney yourself, the court will provide an attorney, usually a public defender, for you for as long as you are facing criminal charges. This applies in federal cases as well.

You have the right to a court-appointed attorney even if your sentence results in a fine rather than jail time. It does not make a difference how long the imprisonment is, as long as you are facing jail or prison time. Because of this, you won’t have the right to counsel in cases such as traffic violations because these are usually infractions or violations that do not result in jail time.

Can I Represent Myself in Court?

If the court determines that you are competent, you might be able to represent yourself in court. The court will consider whether you understand the proceedings, as well as your age and level of education. However, representing yourself is usually not recommended and is often considered a bad idea.

What Is a Grand Jury?

A grand jury is a group of people who decide if there is enough evidence to charge someone with a crime. The court has the authority to call grand juries, which consider whether there is probable cause to believe that the person accused committed a crime and should stand trial. The grand jury can also investigate and report on any condition that involves or tends to promote criminal activity.

What Is a Plea Bargain?

A plea bargain is an agreement between the prosecutor and the defendant that settles a criminal case. In a plea bargain, the defendant pleads guilty or no contest to the charges in exchange for some agreement from the prosecutor as to the sentencing. For example, in some cases, the prosecutor might agree to charge the defendant with a lesser crime or dismiss some of the charges in exchange for a guilty plea. The vast majority of criminal cases are resolved by plea bargains.

What Are My Options After the Arraignment?

There is a whole set of processes that happen before trial, or pretrial. Usually, after the arraignment or preliminary hearing, you will either meet with your court-appointed attorney or you will select a private attorney. You will usually have a month or so before your next court date, where you will either enter into a plea agreement or decide to go to trial.

What Is a Jury Trial?

A jury trial is a trial where jurors, typically 12 in a criminal case, decide the facts, including whether a defendant is guilty or not guilty. The judge determines all questions of law, such as whether testimony is relevant or the questions an attorney can ask a witness on cross-examination. The jurors decide whether the testimony is true. The jurors are selected through a process where the judge and lawyers ask potential jurors questions to determine their potential biases.

What Is a Bench Trial?

Bench trials are typically conducted without a jury present. Bench trials are common in civil lawsuits, but a criminal defendant can also request a bench trial. Juries are usually present in criminal trials.

What Is a Hung Jury?

A hung jury is a jury that cannot reach a verdict. The number of votes required for a verdict depends on the state. If a jury tells the judge they cannot reach a verdict, the judge may ask the jury to keep deliberating in hopes of an agreement. If the jury still cannot agree, the judge must declare a mistrial. If there is a mistrial, the case may be retried.

Who Can Be a Judge?

Judges have typically practiced law for a significant amount of time before being elected or nominated to oversee a court. Many times, attorneys will serve as judges for small or administrative matters.

Can Anyone View a Trial?

Generally yes, most trials are open to the public. This is because the Sixth Amendment also establishes the constitutional right to a public trial.

The government must show a good reason for a trial to be closed. This includes protecting the privacy of victims and witnesses, especially children. Other reasons include cases with sensitive information such as espionage and those with trade secrets.

What Is a Stenographer or Court Reporter?

A court reporter or stenographer transcribes or writes down all testimony, arguments, and rulings as they happen in the courtroom. The document they write is called a “transcript” and is important for potential criminal appeals.

What Happens if a Judge or Jury Finds Me Guilty?

If found guilty beyond a reasonable doubt, you will be sentenced. This can include prison time, probation, fines, and any other penalties the judge deems appropriate and the law in your jurisdiction allows. If you lose your trial, you may be able to appeal your case to a higher court.

In felony cases, the court will usually hold a hearing to determine the final sentence. Depending on the jurisdiction and the crime, it can happen immediately or a few days or weeks after the trial. The judge will consider your criminal record, criminal history, character, the severity of the crime, the effect of the crime on the victims, and a number of other factors.

At the sentencing hearing, both the prosecution and the defense can present evidence and testimony to recommend an appropriate sentence. The judge is free to ignore these recommendations, even if the prosecutor and defense lawyer have agreed to a sentence as a part of a plea agreement.

It’s a Complicated Process. Don’t Do It Alone.

If you’ve watched a television show or movie about a criminal trial, you’ve seen prosecutors and criminal defense attorneys argue, strategize, and maneuver. It’s an adversarial process, and you need someone who knows the process to help you. Whether you’re accused of a felony or a misdemeanor it’s crucial to have an experienced criminal defense lawyer by your side.