Rules
Sources of rules in criminal justice include the U.S. Constitution and Bill of Rights, state constitutions, the U.S. Code, state codes, court decisions, federal rules of criminal procedure, state rules of criminal procedure, and department and agency rules and regulations. The Federal Rules of Criminal Procedure, for example, govern the procedure in all criminal proceedings in courts of the United States.
Discretion
Decision making in criminal justice involves more than the learning of rules and the application of them to specific cases. Decisions are based on discretion, that is, the individual exercise of judgment to make choices about alternative courses of action. Discretion, or making decisions without formal rules, is common in criminal justice. Discretion comes into play whenever police make choices about whether to arrest, investigate, search, question, or use force. Similarly, prosecutors exercise individual judgment in deciding whether to charge a person with a crime and whether to plea‐bargain. Judges also use discretion when setting bail, accepting or rejecting plea bargains, ruling on pretrial motions, and sentencing. Parole board members exercise discretion when deciding whether and when to release inmates from prison.
Steps in the criminal justice process
The major steps in processing a criminal case are as follows:
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Investigation of a crime by the police. The purpose of a criminal investigation is to gather evidence to identify a suspect and support an arrest. An investigation may require a search, an exploratory inspection of a person or property. Probable cause is the standard of proof required for a search. Probable cause means there are facts or apparent facts indicating that evidence of criminality can be found in a specific place.
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Arrest of a suspect by the police. An arrest involves taking a person into custody for the purpose of holding the suspect until court. Probable cause is the legal requirement for an arrest. It means that there is a reasonable link between a specific person and a particular crime.
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Prosecution of a criminal defendant by a district attorney. When deciding whether to charge a person with a crime, prosecutors weigh many factors, including the seriousness of the offense and the strength of the evidence.
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Indictment by a grand jury or the filing of an information by a prosecutor. Under the Federal Rules of Criminal Procedure, an indictment is required when prosecuting a capital offense. A prosecutor has the option of an indictment or an information in cases involving crimes punishable by imprisonment. In about half the states and the federal system, a grand jury decides whether to bring charges against a person in a closed hearing in which only the prosecutor presents evidence. The defendant has no right to be present at grand jury proceedings and no right to have a defense attorney represent him or her before the grand jury. The standard for indicting a person for a crime is probable cause. In the remaining states, a prosecutor files a charging document called an information. A preliminary (probable cause) hearing is held to determine if there is enough evidence to warrant a trial. The defendant and his or her attorney can be present at this hearing to dispute the charges.
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Arraignment by a judge. Before the trial, the defendant appears in court and enters a plea. The most common pleas are guilty and not guilty.
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Pretrial detention and/or bail. Detention refers to a period of temporary custody prior to trial. Bail is an amount of money paid by a defendant to ensure he or she will show up for a trial.
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Plea bargaining between the defense attorney and the prosecutor. Usually, in plea bargaining, the defendant agrees to plead guilty in exchange for a charge reduction or sentence reduction.
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Trial/adjudication of guilt by a judge or jury, with a prosecutor and a defense attorney participating. A trial is held before a judge or jury. The standard of evidence for a criminal conviction is guilt beyond a reasonable doubt—less than 100 percent certainty but more than high probability. If there is doubt based on reason, the accused is entitled to be acquitted.
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Sentencing by a judge. If the accused is found guilty, a judge metes out a sentence. Possible sentences include a fine, probation, a period of incarceration in a correctional institution, such as a jail or prison, or some combination of supervision in the community and incarceration.
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Appeals filed by attorneys in appellate courts and then ruled on by appellate judges. If an appellate court reverses a case, the case returns to trial court for retrial. With a reversal, the original trial becomes moot (that is, it is as though it never happened). Following a reversal, a prosecutor decides whether to refile or drop the charges. Even if a prosecutor drops the charges, the defendant can still be prosecuted later as long as the statute of limitations for the crime the defendant is accused of committing hasn't run out. Such a statute imposes time limits on the government to try a case.
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Punishment and/or rehabilitation administered by local, state, or federal correctional authorities. Most inmates do not serve the complete term and are released before the expiration of their maximum sentences. Release may be obtained by serving the maximum sentence mandated by a court or through an early release mechanism, such as parole or pardon.
The criminal justice process is like a funnel, wide at the top and narrow at the bottom. Early in the criminal justice process, there are many cases, but the number of cases dwindles as decision makers remove cases from the process. Some cases are dismissed, while others are referred for treatment or counseling. Another way of expressing the funnel effect is to say that there are many more suspects and defendants than inmates. As criminal justice scholar Joel Samaha notes, the U.S. Constitution requires the government to support every deprivation of privacy, life, liberty, or property with facts. The greater the deprivation, the more facts that government agents are required to produce. A stop on the street requires fewer facts than an arrest; an arrest requires fewer facts than an indictment; an indictment requires fewer facts than a criminal conviction.