The Basics of Criminal Procedure

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Basics of Criminal Procedure

Procedurally, Felonies and Misdemeanors work their way through the system in very different ways. However, they are similar during pre-booking phase of criminal matter; that is, from first contact with the police to booking. After that, these crimes diverge dramatically. Below is a brief description of the two from a procedural point of view.


Any criminal matter begins with an investigation by law enforcement agents, usually police. Nevertheless, these agents could include agents from the State Attorney General's Office, Game Wardens, District Attorney's Office, or even agents from the Department of Motor Vehicles, among others. In every case, however, an arrest cannot be made nor charges brought except upon probable cause.

However, in modern times it does not take much to satisfy the probable cause requirement. For example, witness testimony alone may form the basis for a probable cause determination. Many commentators have opined that probable cause may be defined as it be more probable than not, or 51% certainty, that a crime was committed and the suspect committed the crime. Other argue that probable cause is satisfied if it is simply likely, or 30% to 40% certain, that a crime was committed and the suspect committed the crime.

Many criminal cases are won by the state at the investigative level because suspects foolishly decide to speak to police despite having a constitutional right to remain silent. Most Defendants are not aware that the police are under no obligation to be truthful during an interrogation or investigation and so routinely lie in order to elicit a confession.

Nevertheless, pursuant to Miranda, the police are required to advise defendants of their legal right to remain silent and have an attorney present, among other things, during a custodial interrogation. Much ink and paper has been wasted defining what it is to be in custody and being interrogated. Suffice it to say, if a defendant is not free to leave, cuffed or otherwise reasonably believes he is detained and the police are asking questions that may result in incriminating statements being made, a custodial interrogation is underway.

Although there are countless other issues at this stage of the game, probable cause and confessions are the most common issues and the most litigated.

Felonious Crimes

Felonies are serious crimes that may result in a prison term of at least one (1) year or more depending on the crime in question upon conviction. Examples of Felonious crimes are: Robbery, Kidnapping, Drug Trafficking, Possession of Controlled Substances, Sex Crimes and Murder. If the police have probable cause to believe that a felony was committed by a person, that person will be arrested and transported to the local jail for booking.

Procedurally, Felony cases work their way through the criminal justice system in the following manner: First, if a defendant is in custody, there will be a probable cause hearing within 72 hours of arrest. There, a Justice of the Peace will review the Police Officer's probable cause statement to determine if there is probable cause to hold the defendant in custody.

If so, then a date for an initial arraignment is set. There, a Not Guilty Plea is entered and the matter is set for a Preliminary Hearing. At the "Prelim", the State has the burden to show that a crime was committed and the defendant committed that crime. The burden of proof is very low at a "prelim", really no more than what is required to make a probable cause determination. However, at the "Prelim" the State is required to provide hard evidence to support its case. Until this point, the matter is handled in the local Justice Court in front of a Justice of the Peace. However, if the State meets its burden, then the defendant is "bound over" to District Court for trial by jury.

In District Court, the defendant is again arraigned and a Not Guilty Plea is again entered. At that point, a date is set for Calendar Call and Trial. In District Court a Trial is held before a jury which is tasked with determining whether or not the facts presented support the charges levied against the defendant. The Judge is tasked whether determining all issues of law and evidence. If after Trial the defendant is acquitted, the case is closed and the defendant is freed. However, if the defendant is found guilty then the matter is set for sentencing.

At sentencing, the Judge will hear from the defendant, his counsel, the State and the victims, if any. In rendering his decision, the Judge will balance the aggravating and mitigating circumstances and will factor any restitution made by the defendant and any acts or conduct demonstrating remorse by the defendant. The Judge has discretion to sentence a defendant to the minimum or the maximum term and, where there are multiple counts, to have those terms run consecutively or concurrently, depending on the circumstances. The only limit on the Judge's discretion is the rule that the minimum sentence must not exceed 40% of the maximum sentence. Additionally, the Judge has the discretion to grant the defendant a term of probation in lieu of a prison sentence.

Misdemeanor Crimes

Misdemeanor crimes are relatively minor but may result in significant jail time nonetheless. Examples of misdemeanor crimes are DUI, Domestic Battery, Simple Battery, Petit Larceny, and Possession of Drug Paraphernalia. Procedurally, prior to booking, the same issues discussed above apply. Substantively, a misdemeanor case starts when an attorney receives discovery from the Prosecutor or City Attorney. Discovery consists of the arresting officer's written report which includes his probable cause determination, including any statements made by the complaining witness and any other witnesses and whatever physical evidence the police recovered as part of their investigation.

If there is a substantial problem with the Police Officer's investigation such that it is apparent there was no probable cause to arrest, then that problem will become the basis of the defendant's defense and a trial will likely be held. However, if a trial would likely result in a conviction and a harsher sentence, then we will negotiate the case on your behalf and ensure that, at worst, you are sentenced to the minimum on whatever offense you are finally charged with.


At every stage in the process the same Constitutional Rights are implicated whether the crime be a felony or misdemeanor. Then only difference is that the trier of fact is Judge and not a jury in a misdemeanor case and there are more procedural safeguards with felony crimes, such as a preliminary hearing. No matter what, it is critical that a defendant get the proper representation regardless of the alleged crime.