Criminal Defense

The Criminal Justice Process

The criminal justice process varies from state to state, and the federal criminal justice system has its own rules, procedures, and terms to describe the stages of the proceedings.

Generally speaking, however, the criminal justice process involves the following stages.


A law enforcement investigation of a crime may begin in many different ways such as:

  • An officer may observe a speeder on the highway or an erratic driver who may be intoxicated and pull them over.
  • A “911” call of shots fired in a neighborhood may cause police to be dispatched to determine the cause.
  • A person who has been defrauded by a con artist may call law enforcement officers to report the crime and an investigation is launched based on the victim’s complaint.

Search Warrant

If investigating officers believe there’s evidence of a crime at a particular location, they may try to get a search warrant allowing them to search the premises. A judge reviews the information submitted by the police and decides whether there is “probable cause” to support it. Probable cause means that an officer has presented enough facts to support a belief that there is evidence of a crime at the location described in the warrant.

A warrant may not be required where there are “exigent circumstances” (when evidence may be destroyed or a crime is in the process of being committed).


Law enforcement officers can interrogate witnesses, and even question potential suspects, as long as their constitutional rights are protected.


Police can make an arrest under the following conditions:

  • If law enforcement officers have probable cause to believe that a crime has been committed and that a specific person has committed the crime, they may arrest the person under suspicion, taking them into custody. Officers may need to obtain a warrant before taking a suspect into custody.
  • If a person commits a felony or misdemeanor crime in the presence of a law enforcement officer, the officer may arrest the person without a warrant.
  • If an officer has probable cause to believe that a person has committed a felony crime, even if the crime was not committed in the officer’s presence, the officer may arrest the person.

An arrest may be made in a public place, with or without a warrant. But if law enforcement officers wish to arrest a person in a private place, they must first obtain an arrest warrant, unless there are “exigent circumstances,” such as the possibility that the suspect will flee. Law enforcement officials have a relatively short period of time following an arrest (24 or 48 hours, depending on the state) during which they must either charge the person with a crime or release them.

Complaint, Information or Indictment

Law enforcement officers may decide to file criminal charges, either before or after arresting a suspect.

  • Filing written charges, or a “complaint,” starts the criminal justice process in motion.
  • A prosecutor may also put the criminal justice process in motion by filing written charges called an “information.”

In the case of a complaint or an information, filing charges allows law enforcement officers to keep the accused person in custody pending additional proceedings, such as arraignment and the setting of bail.

  • In the federal criminal justice system and in about half of the states, defendants have the right to indictment by a grand jury. This means that a jury composed of citizens must hear the evidence presented by a prosecutor and decide if there is probable cause to believe that a crime has been committed, and that the person accused committed the crime.
  • Other states use a procedure called a “preliminary hearing,” where a judge considers evidence the prosecutor presents to decide whether there is probable cause to support the charges against the accused person.

Often, the criminal justice process will start by the filing of a complaint or information, later followed by a grand jury proceeding resulting in an indictment, or a preliminary hearing in states using the preliminary hearing process.

In all of these cases — complaint, information or indictment — the resulting document is merely an accusation against a person. It is not proof that the person committed the crime or crimes charged.


An arraignment is the formal presentation of charges in open court. This proceeding may be called a preliminary hearing or something else depending on the state. During an arraignment, the charges are read to the accused person (defendant) by a judge, and the defendant is asked to plead guilty or not guilty to the charges.

The defendant’s lawyer may be present, or an attorney appointed by the court may represent the defendant.


Bail is money or property that an accused person puts forth as security, to make sure they’ll show up for further criminal proceedings, including the trial and sentencing. Bail can be paid:

  • In cash
  • In the form of a bail bond
  • A pledge of property if the court permits this form of security.

bail bond is an agreement with a bail bondsman under which the bondsman puts up bail money in return for a fee.

There is no guaranteed right to a release on bail. If a judge believes that a defendant may flee from the court’s jurisdiction or otherwise fail to appear, or if the crime charged is extremely serious, then bail may be denied or set at such a high figure that a defendant may not realistically be able to post bail.

In much less serious offenses, an individual who is well established in the community with a job, a home, and family to support may be released on relatively low bail. Or, a defendant may be released without bail. This is sometimes referred to as being released in one’s own recognizance, or “R.O.R.

Plea Negotiations

At any time after charges have been filed, the defendant’s lawyer can begin negotiating with prosecutors to determine whether a plea bargain may be possible. A plea bargain may involve the defendant pleading guilty to lesser charges than those in the complaint, indictment or information, or a guilty plea to only one of numerous charges.

The plea bargain may also include the prosecutor’s agreement to recommend a particular sentence for the charges to which the defendant agrees to plead guilty.

A lawyer considers many factors in deciding whether to recommend a plea bargain for a client. These include:

  • The strength of the evidence the prosecutor may present at trial.
  • The potential penalties that the defendant could be subjected to if the case went to trial and they lost.

With the “discovery process,” the prosecutor is required to reveal a wide variety of information to the defendant’s lawyer prior to trial.

The information that must be revealed and the timeframe in which the information must be provided varies from court to court.

Information that must always be revealed is called “exculpatory information.” This information that tends to show that the defendant isn’t guilty of the crime charged.

If the defendant decides to plead guilty, the plea will be taken in open court, by a judge who advises the defendant of the rights that are being given up by pleading guilty.

A court may also require the defendant to recite a “factual basis for the plea.” This means that the court, in order to be assured that the defendant actually committed the crime to which he’s pleading, requires the defendant to testify to certain facts concerning the crime.


If a plea agreement is not reached, the proceedings move toward the trial stage.

A trial must be held in a relatively speedy fashion, unless the defendant waives the “speedy trial right” by asking for additional time for the preparation of a defense.

In Texas, if a defendant is charged with a crime (even fine only traffic offenses), he has the right to a public trial by jury. The defendant may choose to waive that right, either by pleading guilty or by agreeing to be tried by a judge. A defendant may choose a “bench trial,” a proceeding in which the judge performs the fact-finding function of the jury.

Circumstances under which a defendant might choose a bench trial rather than a jury trial include:

  • Cases involving technical legal issues that a jury might not easily understand.
  • Cases in which the defendant fears that a jury may be inflamed by the nature of the charges and be unable to judge the evidence in the case objectively.

If a jury trial is chosen the jury selection process is part of the trial. Both the defendant and the prosecution have the right to challenge potential jurors “for cause,” meaning that they’re unable to be objective in hearing testimony and deciding the case.

Factors considered when challenging potential jurors include:

  • Preexisting knowledge about the case.
  • Whether they have any relationship with the prosecutor or the defendant.
  • Whether they are capable of hearing and understanding the testimony.

Both the defendant and the prosecutor also have the right to a certain number of “peremptory challenges,” depending upon the nature of the charges and the court in which the case is being tried. A peremptory challenge means that the defendant or the prosecutor can remove a juror without giving a reason.

Traditionally, peremptory challenges could be used for any reason, but in recent years the federal courts have held that peremptory challenges cannot be used to affect the racial composition of a jury.

At the trial, the prosecutor presents evidence in the form of witness testimony, documentary evidence and “demonstrative evidence.”

  • Documentary evidence includes documents, such as books, deeds, wills, letters and the like.
  • Demonstrative evidence includes all kinds of exhibits, such as photographs of the victim in the case of a homicide, or the gun used in committing a robbery.

The defendant has the right to present witnesses and other evidence in defense of criminal charges. The defendant also has the right to “confront” or cross-examine the witnesses brought forward by the prosecution. Once the prosecutor finishes submitting the evidence, the judge “charges” the jury by giving the jurors instruction on the law. Both the prosecutor and the defense attorney then sum up their arguments to the jury, based on the facts presented and the applicable law. The order in which these presentations happen varies from court to court.

In rare cases, the court will dismiss the charges at the conclusion of the prosecutor’s presentation of evidence. If the court finds that the prosecutor failed to present any evidence to support any of the elements of the offense, or didn’t present enough evidence to support a verdict of guilty, the court can enter a verdict of not guilty without submitting the case to the jury for deliberation.

The Verdict

The jurors in a criminal case retire to deliberate in secrecy, for a minute, an hour, days or weeks. When the jury reaches a verdict, their finding is read to the defendant in open court.

A jury may find a person guilty of all, some, or none of the crimes charged. In some cases, depending on the evidence presented and the nature of the instructions given by the court to the jury, a jury may convict a defendant of a lesser crime than that charged in the indictment.

  • If the verdict is guilty, the defendant may have a right to appeal if error has been committed in the process of obtaining a conviction.
  • If the verdict is not guilty, the court or the prosecutors cannot overturn the jury’s verdict.


A defendant who is found guilty of some or all charges is entitled to an appeal to at least one level of appellate court.

Most states have a multi-level appellate system, with a middle level appeals court hearing appeals directly from the trial courts. The highest level appellate courts (often, but not always, called the “Supreme Court”) hears appeals from the middle level appeals court. Often appeals from the middle level appeals courts to the highest level court are optional, and the defendant is required to petition for the right to appeal.

There are many potential grounds for appeal from a verdict of guilty in a criminal case including legal error committed at any stage of the criminal justice process. Legal error may include:

  • Allowing inadmissible evidence, including evidence obtained in violation of the defendant’s constitutional rights.
  • Lack of sufficient evidence to support a verdict of guilty.
  • Mistakes in the judge’s charge to the jury.

A verdict may also be appealed due to misconduct on behalf of the jurors.

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