The Concept of Criminal Justice Process


The criminal justice process is a complex but direct series of steps which occurs from the moment of arrest and ends when a ruling is made on the case. The system has been developed to ensure that each stage or element of the process has appropriate contingencies to assure that proper justice is delivered in the process. However, despite certain constitutional protections in place, the effectivity of the system can be poor based on the realities of modern society and the capabilities of courts and the law enforcement. The criminal justice process provides an opportunity for those charged with a crime to defend their case through a multi-step process which offers constitutional protections, but the system has been considered in need of reform.

Steps and Contingencies

The criminal justice process begins with an arrest. An arrest can occur if a law enforcement officer observes a crime, has probable cause that a crime has been committed, or a warrant authorizes to make the arrest. An initial appearance occurs before a judge almost immediately after arrest. The charges are presented officially, and the suspect has the right to an attorney. Charges are presented through a bill of information or a grand jury indictment (for federal cases). Preliminary hearings are meant to hear arguments from both defendants and prosecutors. The judge determines if there was probable cause for an arrest (since one is innocent until proven guilty), and makes a decision whether to continue with the case. Usually, at the initial appearance, the judge sets bail which the defendant can pay to be released. Bail is contingent on the suspect’s charges, evidence, criminal history, economic status, and a flight risk. If the suspect posts bail, a legal written notice must be provided to appear at later court dates.

The next step in the process is an arraignment, which is often used interchangeably with the initial hearing. Arraignment is the process of formal charging, where defendant is present a list and asked to make a plea. However, it is strictly a formality, and arraignment has little practical meaning. Afterward, the discovery stage occurs, when information is exchanged amongst sides with evidence and police reports that may be relevant to the trial. Both sides commonly manipulate how much and what information is passed on. While both sides want to make a stronger case, prosecutors may reveal condemning evidence in hopes that the defendant will enter a plea agreement.

Another step that may occur is filing of pretrial motions. One of the most common pretrial motions is the review of evidence collection procedures by the police, as defense attorneys attempt to suppress it in order for it to be avoided during the trial. The final step before the trial is commonly plea negotiations. The prosecutor and defense attorney discuss a deal in return for the suspect’s plea of guilty to the crime. In return, a sentence may be reduced significantly. Almost 90% of felony convictions are a result of plea negotiations pre-trial (Cole, Smith, & DeJong, 2018). Plea negotiations are highly complex and are based on the inner workings of each courthouse’s politics.

If a plea agreement is reached, the process goes straight to sentencing. However, if not, the case goes to trial by jury for violation of criminal law. Both sides have the opportunity to make statements, present evidence, and call witnesses. However, it is the prosecutor who has the burden of proving guilt beyond a reasonable doubt; thus, why so many prosecutors attempt to reach a plea agreement. At the end of the trial, the jury retires and deliberate whether to find the defendant guilty or not. The decision should be voted on by the majority (procedures may vary based on jurisdiction).

All trials or plea bargains end with the sentencing where the criminal process ends, finding the defendant guilty or innocent. A significant majority of criminal cases end with convictions. Once guilt is established, the judge and other courtroom staff such as probation officers determine the legal sentence. A judge must determine whether a prison sentence should be imposed, or the defendant can be put on probation. Until recently, the attitude of imprisonment has been popular which has led to the overcrowding of jails and the overcrowding of the prison system. Now, other alternative sanctions may be considered for less severe cases. Finally, after sentencing, the defendant has the right to file an appeal with a higher court. A judge at a higher court determines if the case should be worth a retrial due to a number of factors such as new evidence or prejudice against the defendant (Neubauer & Fradella, 2017). However, appeal hearings are rarely successful with defendants being reconvicted and possibly given a harsher sentence.

Constitutional Protections

The United States Constitution with its amendments provides various protections for criminal defendants throughout the criminal justice process. The Fourteenth Amendment protects the defendant by ensuring that the due process rights are eligible in state and local courts as well as federal ones since a majority of criminal trials occur at these levels (Cole et al., 2018). The most fundamental aspect of constitutional protection in the United States is the concept of due process of law, outlined in the Fifth and Fourteenth Amendments. In legal terms, this indicates that each individual is appropriately charged, given a chance to present their legal side of the argument, and cannot be charged without a lawful procedure in a government court. The justification for providing constitutional safeguards for defendants to ensure that an innocent person is not harassed or wrongly convicted (Neubauer & Fradella, 2017).

At the investigation and arrest stage, the Fourth Amendment provides protection of unreasonable search and seizure by law enforcement. It defends the right for security at home and protection of one’s possessions and effects. If law enforcement wishes to collect evidence and make an arrest, a warrant from a judge is required. Warrants cannot be issued without probable cause supported by evidence or testimony under oath. The warrant must be direct and accurately specify the location of the search as well as persons or things that will be seized (Cole et al., 2018). During the prosecution and indictment stage, the Sixth Amendment becomes important. It provides a guarantee of speedy and public trial with an impartial jury (if appropriate for the crime). The arrested person must be notified by the persecution of charges brought against them as well as any relevant pieces of evidence. A criminal defendant has the right to the assistance of a counsel (attorney), with one provided by the state if a defendant cannot obtain a lawyer. It should be noted that the Sixth Amendment also covers aspects of the trial, giving the right to be present during witness testimony and provide witnesses of your own (Neubauer & Fradella, 2017).

At the pretrial stage and bail setting, the defendant is protected by the Eighth Amendment. It states that bail should be reasonable and consistent with the nature of the crime. Excessive bail and fines, along with any other punishments, are prohibited. Many of the amendments mentioned apply during the trial as well, including equal protection under the law. However, significant protection is offered by the Fifth Amendment, which gives the right against self-incrimination or being forced to testify against oneself. It also guarantees a grand jury in federal felony cases and ensures fair proceedings if the defendant was under threat by the loss of life, liberty or property by the government. The amendment has strong implication in the post-trial and appeals stage as well. These include protection against repeated trial for the same crime (also known as double jeopardy). Also, the defendant is protected from ex-post facto legislation that can retroactively criminalize a specific action (Neubauer & Fradella, 2017).

System Effectivity

There are strong beliefs and heated debates on whether the current criminal justice system, prosecution process, and due process of law are effective at dealing with criminal prosecutions. Recently there has been a trend in social and legal opinions that the criminal justice system is inherently broken. There are sufficient criticism and evidence from opposing sides, highlighting concerns ranging from racial prejudice and overwhelming power of prosecutors or law enforcement to improper funding and tremendous scheduling issues. High profile cases have led to justifications of evidently illegal action, wrongful convictions, and sentencing, and an overall culture that has protected those with influence, power or wealth (Lantigua-Williams, 2016). This section will examine instances where the actual criminal justice process is inherently flawed.

Prosecutors are an inherent part of the justice system with thousands of district attorney (DA) offices around the country. These lawyers maintain significant influence over each stage of the criminal justice process. In most cases, the prosecutor alone has the power to file charges, decide on the nature of the charges, push for a specific sentence, offer a plea bargain, and decide what evidence is presented during the trial. This is an immense amount of responsibility and power which has led to a culture of conviction at all costs. The professional obligation to protect public safety by convicting the guilty must be balanced with the ethical duty and conduct. However, holding prosecutors accountable is difficult, and rarely results in any sense of justice (Feuer, 2017).

The arising culture in DA offices has led to significant issues such as discretion, punitive ideology, and accountability of their actions and power at each of the above-described stages of the criminal justice process. In recent decades, the practice of plea bargaining has become central during the charging stage as part of prosecutorial discretion. In fact, most criminal cases are resolved through a plea bargain rather than a trial. However, this has led to the abuse of the process. Without a trial, the defendant does not have the due process of law and a fair trial by jury guaranteed by the Constitution. The prosecutor maintains a significant upper hand in the power dynamic during negotiations, often using that leverage to obtain a guilty plea and conviction without ever going to trial (Sklansky, 2018). The defendant, particularly with a public attorney, may be pressured through various means to accept a plea deal even if presumably innocent. Inherently, this status quo of the modern system violates fundamental values and rights that the criminal justice system is meant to uphold.


Many experts believe the justice system reform is inherently tied to the role of prosecutors. First, their power must be placed in check. This can be done through special committees to review questionable cases and reports of inappropriate conduct. Furthermore, if a prosecutor is found guilty of improper behavior, they should receive a fair punishment rather than the symbolic sentence that is commonly handed out in rare high-profile cases which make it to trial. The prosecutor selection should be modified as well. Currently, all states but New Jersey elect district attorneys. Most often, they run unopposed over a prolonged number of terms. This leads to unchecked power and difficulty to implement meaningful change. However, based on the New Jersey experience, implementing a selection process as well as establishing guidelines, has led to improved outcomes. For example, prosecutors now use discretion in pursuing harsh minimal sentences for harmless crimes such as recreational drug use (Lantigua-Williams, 2016). Nevertheless, the Department of Justice has no power of enforcement of any guidelines as it is an independent state matter. Therefore, a dialogue should be had in order to implement changes nationwide.


The criminal justice process is a complex multi-step system which relies on the due process of law to oversee criminal prosecutions with various contingencies. The defendant is provided with specific constitutional rights, which ensure that justice is delivered and there is no abuse of power. However, the system remains imperfect, failing to fulfill the purposes it is meant to serve. Socio-political trends and legal loopholes have circumvented the process in a disadvantageous manner towards some population groups, resulting in disparities of criminal prosecution. It is critical to re-examine the process to limit powers of prosecutors and provide adequate legal counsel to every defendant.


Cole, G. F., Smith, C. E., & DeJong, C. (2018). The American system of criminal justice (16th ed.). Boston, MA: Cengage Learning.

Feuer, A. (2017). Holding prosecutors accountable is hard. It could get harder. The New York Times. Web.

Lantigua-Williams, J. (2016). Are prosecutors the key to justice reform? The Atlantic. Web.

Neubauer, D. W., & Fradella, H. F. (2017). America’s courts and the criminal justice system (13th ed.). Boston, MA: Cengage Learning.

Sklansky, D. A. (2018). The problems with prosecutors. Annual Review of Criminology, 1, 451-469. Web.

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