The Criminal Process

The American criminal justice system is an adversarial process growing out of the English tradition of common law and jury trials.  The term "adversarial" merely means that the parties - the state or federal government on the one side, and the individual citizen, accused or defendant on the other - resolve the case by trial if a negotiated resolution cannot be achieved.

The word "adversarial" does not mean that the process need be hostile.  In fact, the vast majority of cases in the United States are resolved through an agreement by the parties.  These agreements may involve a dismissal of the charges (sometimes with the understanding that the defendant will complete treatment or community service or provide restitution), or a settlement called a "plea agreement" whereby the accused relinquishes his right to a jury trial in exchange for an agreed-upon sentence or sentence recommendation.


Even the simplest criminal cases begin with an investigatory phase.  That phase may be brief - the few minutes it takes to arrest someone for a Driving While Impaired offense - or lengthy - the years it takes to uncover a fraud, drug, or organized crime enterprise.

Individuals being approached by law enforcement always have the right to refuse to participate in an interview.  Police officers are not required to inform interviewees of their rights unless the person is being in custody.  Custodial interrogations must be preceded by informing the subject of the interview of his or her Miranda rights.

An investigation may include preliminary phases such as a Grand Jury investigation.  Grand Jury investigations are common in federal cases.  These investigations are generally secret, although the fact of a Grand Jury investigation may leak out as people are subpoenaed to testify.

In the state system, an individual may retain counsel but has no statutory or constitutional right to a court-appointed lawyer during a criminal investigation.  In the federal system, the Criminal Justice Act statute provides that an individual subject to prosecution must be provided with the opportunity to seek court-appointed counsel and must be appointed counsel if he or she cannot afford to hire a lawyer.  Individuals are notified of this right through a "target letter" sent by the United States Attorney or his assistants.


The defendant in our system maintains his or her right to a trial until such time as the charges are dismissed, or a plea agreement is entered.  This right to trial is absolute.  In the absence of a plea agreement or a dismissal of charges, a citizen in our system must be tried, either in front of a judge (in minor cases) or before a jury.  Juries in North Carolina and the federal system are comprised of 12 people chosen at random from the jurisdiction who meet certain qualifications.

Bench trials - or trials before judges - can sometimes be as short as a few hours, and the judge will often render a decision immediately following the trial.  Jury trials usually last at least a day, and, in complicated cases, can take several weeks to resolve.  A jury trial sometimes ends in a "hung jury," meaning that the 12 members of the jury have been unable to arrive at a unanimous verdict following deliberations.  In such cases, the prosecutor may decided to try the case again, or offer a new plea agreement that may be accepted by the accused.

A trial begins with an arraignment at which the defendant declares that he is not guilty.  Lawyers next help choose members of the jury that will hear the case.  Attorneys deliver opening statements to the jurors.  Witnesses are called first by the state or government; the prosecutor questions the witnesses, and the defense attorney usually cross-examines each relevant witness.  After the prosecutor completes the presentation of the government's case, the defense may choose to offer evidence, and the defendant may decide to testify.  Lawyers argue in closing to the jury. The jury is instructed on the law by the judge.  The jury retires to deliberate and render a verdict, if it can, about the application of the law to the facts of the case.

Suppression Motions and Motions in Limine

In some cases, particularly those involving investigative searches of a citizen's home or car, suppression motions may dispose of cases.  A lawyer will file motions with the court requesting that the court rule on legal or constitutional issues outside the presence of a jury and usually before the case has been called for trial.  A judge will hear evidence, listen to arguments by the lawyers, and render a decision about the legality or constitutionality of the government's actions.

The suppression of evidence before the trial can either render the government's case moot by excluding any evidence of guilt or can improve the defendant's case through the exclusion of damaging evidence.

Plea Agreements

While most Americans are generally familiar with the concept of a trial, roughly 95 percent of all criminal cases in the United States are resolved by a plea agreement. Plea agreements are particularly common in cases involving serious charges because the criminal penalties that result from a conviction can be lengthy.

A plea agreement in North Carolina can include very specific stipulations by both the state and the accused as to the resolution of the case, including restitution amounts and punishment ranges.  A judge may accept or reject the plea agreement.  If the judge accepts the agreement, the judge is bound by its terms.

Federal plea agreements usually do not have specific sentencing provisions.  These agreements may include a promise by the government to dismiss certain criminal counts and can involve stipulations regarding sentencing enhancements that may apply in the case.  Federal plea agreements often include waivers of the defendant's right to appeal the sentence.

A person accused by the federal government who has knowledge of other criminal activity, or who wishes to testify against co-defendants in the same conspiracy may seek a cooperation agreement.  These cooperation agreements permit the defendant to provide information to agents or investigators regarding the charged conduct, or other criminal activity.  Cooperation agreements are common in federal cases because these agreements can help the accused secure a reduced punishment at sentencing.

Dismissal or Non-Prosecution

Sometimes a person can either avoid criminal charges or win a dismissal of those charges by either demonstrating actual innocence or by showing to the prosecution their efforts to right the wrong or correct the damage done.  Dismissal may also be secured in conspiracies where a potential defendant may choose to cooperate as a witness rather than be charged as a co-defendant.

Once charges are filed, the fact of the criminal charge will be public.  The state system provides for the possibility of expungement.  The federal system has no expungement provision.