Initial Stages of Criminal Procedure


Getting a lawyer is important when you have been charged with a felony. However, before getting one, it would also be wise to read about the justice system and learn more about the basic rules of criminal procedure. David Serna, an attorney with more than 40 years of experience in litigation, helps his readers understand the technicalities of court procedure. Today, he will discuss the initial stages of the process.

In criminal procedure, it is not the police officer who files a charge or complaint against an erring individual. Rather, it is the prosecutor, a lawyer who represents the state. The role of the peace officer is limited to making a detailed report of the facts and circumstances leading to the arrest.

The arresting report typically contains the acts constituting a crime, the time and location of the arrest, and the names of witnesses, if there be any. In some instances, a peace officer can recommend that more than one crime be charged.

After the report is submitted, the prosecutor determines if, based on the allegations, the individual charged, indeed, committed acts violating a criminal statute. If there is no statute violated, then, there is no crime to speak of, reminds David Serna, an attorney-at-law. The prosecutor then decides whether to go through a preliminary hearing or have a grand jury issue a criminal indictment.

 A preliminary hearing, also known as probable cause hearing, is one in which the judge determines whether the filing of the felony complaint is appropriate. During this stage, the prosecutor must be able to convince the judge that there is enough evidence showing probable cause. If the judge agrees, the case goes to trial. To be clear, probable cause is the standard required at this stage and not guilt beyond a reasonable doubt.

Alternatively, a grand jury involves a group of individuals, whose role it is to decide whether to indict the suspect, through a true bill, a document written and signed by the grand jury. If the grand jury decides that no crime has taken place, it returns a no bill. However, prosecutors, in some jurisdictions, are given the discretion to ask a second grand jury’s opinion, which can effectively override the first decision.

Learn more from David Serna, an attorney-at-law. Follow his blogs today.

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