9.3 Criminal Procedure Stages
Key Takeaways
- An arrest requires probable cause; the accused then moves through booking and an initial appearance, which must occur promptly — generally within 48 hours of a warrantless arrest
- The preliminary hearing and the grand jury both screen for probable cause, but the grand jury meets ex parte in secret, while the preliminary hearing is an adversarial proceeding before a judge
- At arraignment the defendant hears the formal charges and enters a plea; roughly nine out of ten criminal cases end in a guilty plea through plea bargaining rather than trial
- Under Brady v. Maryland, the prosecution must disclose material exculpatory evidence, and failure to do so violates due process regardless of good or bad faith
- The prosecution bears the burden of proving every element beyond a reasonable doubt — the highest standard in the law — and the defendant never has to prove anything
Criminal procedure is a pipeline, and the NALA CP Knowledge Exam expects you to know the order of the stages, what happens at each, and which constitutional rights attach where. In federal court the pipeline is codified in the Federal Rules of Criminal Procedure, which are the safest basis for exam answers.
Stage 1: Arrest
An arrest is the taking of a person into custody and requires probable cause. Police may arrest in a public place without a warrant, but a non-emergency arrest inside the home requires an arrest warrant (Payton v. New York), and entering a third party's home requires a search warrant (Steagald). An arrest may rest on an officer's own observations, a citizen complaint, or a warrant issued by a magistrate.
Stage 2: Booking
Booking is the administrative process at the station: recording the arrestee's identity and the charge, photographing (the "mug shot"), and fingerprinting. No constitutional rights attach to routine booking questions like name and address — the booking exception to Miranda.
Stage 3: Initial Appearance
The initial appearance (first appearance) must occur promptly — the Supreme Court set a presumptive outer limit of 48 hours after a warrantless arrest (County of Riverside v. McLaughlin). The magistrate informs the defendant of the charges and the right to counsel, appoints counsel if the defendant is indigent, and addresses bail.
Bail
Bail secures the defendant's appearance at later proceedings. Options include release on own recognizance (ROR), unsecured or secured bond, cash bail, and property bonds. The Eighth Amendment forbids excessive bail, but the Bail Reform Act of 1984 allows federal judges to order pretrial detention without bail for defendants who are flight risks or dangers to the community. Paralegals often assemble the bail package: employment records, family and community ties, and lack of criminal history.
Stage 4: Preliminary Hearing vs. Grand Jury
Both mechanisms screen felony charges for probable cause — but they work very differently, and the contrast is a classic exam item.
| Feature | Preliminary Hearing | Grand Jury |
|---|---|---|
| Forum | Open court, judge presides | Secret, prosecutor-led, no judge present |
| Adversarial? | Yes — defendant and counsel attend, may cross-examine | No — ex parte; target usually absent |
| Who decides | Judge | 16–23 jurors (federal); 12 votes needed to indict |
| Output | Bindover / dismissal | Indictment ("true bill") or no bill |
| Hearsay | Limited use | Freely admissible |
The Fifth Amendment requires a grand jury indictment for federal felonies unless the defendant waives it; the states may use either route. When an indictment has already issued, the preliminary hearing is typically unnecessary. Note also that prosecutors may proceed by information (a charging document signed by the prosecutor) for misdemeanors and, in many states, felonies.
Stage 5: Arraignment
At arraignment the defendant is formally advised of the charges and enters a plea: guilty, not guilty, or (where allowed) nolo contendere (no contest — same criminal effect as guilty, but the plea cannot be used as an admission in a later civil suit). A defendant may also stand mute, in which case the court enters a not-guilty plea. An Alford plea (North Carolina v. Alford) lets a defendant plead guilty while maintaining innocence, if the factual basis supports the plea.
Stage 6: Plea Bargaining
The overwhelming majority of criminal cases — routinely cited at over 90% in both federal and state systems — resolve through plea bargaining. Forms include charge bargaining (plead to a lesser offense), sentence bargaining (plead in exchange for a recommended sentence), and count bargaining (dismissal of some counts). Courts accept pleas only if they are knowing and voluntary with a factual basis, after the judge canvasses the defendant on the rights being waived (Rule 11 in federal court). Brady v. United States upheld plea bargaining's constitutionality; Boykin v. Alabama requires the waiver record.
Stage 7: Discovery
Criminal discovery is narrower than civil discovery. The defense generally cannot depose witnesses, but the prosecution has affirmative constitutional duties: under Brady v. Maryland, it must disclose material exculpatory evidence — evidence favorable to the defense as to guilt or punishment — and suppression violates due process regardless of good or bad faith. The Jencks Act (18 U.S.C. § 3500) requires production of a government witness's prior statements after that witness testifies. Federal Rule of Criminal Procedure 16 governs reciprocal disclosure of documents, tangible objects, and reports of examinations and tests.
Stage 8: Trial
The order of a jury trial is itself testable:
- Voir dire — jury selection, with challenges for cause (unlimited, for bias) and peremptory challenges (limited in number; cannot be used to strike jurors based on race or gender under Batson)
- Opening statements — prosecution first
- Prosecution's case-in-chief — direct and cross-examination of witnesses
- Defense case — which the defense may waive entirely; the defendant has no burden
- Rebuttal evidence, then closing arguments — prosecution opens and, in most courts, also closes
- Jury instructions (the charge), deliberation, and verdict — federal criminal verdicts must be unanimous, and the Supreme Court extended that requirement to the states in Ramos v. Louisiana
The Burden of Proof
The prosecution must prove every element of the offense beyond a reasonable doubt (In re Winship) — the highest standard in American law, well above the civil preponderance of the evidence and the intermediate clear and convincing evidence standard. The defendant is presumed innocent, need not testify (and the jury may not be told to draw adverse inference from silence under Griffin v. California), and need present no evidence. If the jury cannot reach a verdict, the result is a hung jury and mistrial, after which the Double Jeopardy Clause permits retrial.
Paralegal scenario: Your office is retained after arraignment in a federal fraud case. You immediately calendar the Speedy Trial Act clock (trial within 70 days of indictment or first appearance), send a Brady demand letter, request Rule 16 discovery, and begin a witness list with prior-statement subpoenas under the Jencks Act in mind. Deadlines at every stage — that is where a criminal-practice paralegal earns trust.
In federal court, a felony prosecution must begin with a grand jury indictment (unless waived). Which statement about the federal grand jury is accurate?
Police recover a videotape showing someone other than the defendant committing the robbery with which he is charged. The prosecutor learns of the tape but never discloses it, and the defendant is convicted. On appeal, the strongest argument is that the conviction violates:
At which stage does the criminal defendant first enter a formal plea of guilty or not guilty to the charges?