Criminal Charges: How Cases Get Started

How police officers and prosecutors initiate criminal cases.

A criminal case usually gets started with a police arrest report. The prosecutor then decides what criminal charges to file, if any. Some cases go to a preliminary hearing, where a judge decides if there is enough evidence to proceed. Cases can also start when a grand jury issues a criminal indictment.

Arrest Reports and Criminal Charges

After an arrest, the police report goes to a prosecutor whose job it is to initiate cases. An arrest report summarizes the events leading up to the arrest and provides numerous details, such as dates, times, locations, and witness names.

The prosecutor will typically:

  • determine that the case should be charged and file a “complaint” (the charging document may go by a different name)
  • decide that the case should go to a grand jury, which will decide what charges, if any, to file, or
  • decide not to pursue the case.

After an arrest, the police officer specifies the crime or crimes that made the basis for the arrest. Officers may recommend that the prosecution file additional charges, too. But prosecutors get to make the ultimate decision on what the charges will be.

A defendant typically learns what the formal charges will be at the first court appearance. But prosecutors' initial charges are subject to change. For example, a prosecutor might not make a final decision on what charges to file until after a preliminary hearing, which may take place more than a month after arrest.

How a Preliminary Hearing Works

Typically, if the prosecutor decides to file a felony complaint rather than present the case to a grand jury, the defendant is entitled to a preliminary hearing. At that hearing, the prosecutor must show that the state has enough evidence of the defendant's guilt to warrant a trial.

But normally, if the case proceeds by grand jury indictment, no preliminary hearing need be held.

For much more on this stage of a case, see our section on Preliminary Hearings.

How Grand Juries Work

If a felony is involved, prosecutors sometimes leave it to grand juries to decide whether charges should be filed. Grand juries are similar to regular trial juries (called "petit juries") in that they are made up of randomly selected individuals. The grand jurors listen to evidence and decide whether charges should be brought against an individual—that is, they decide whether to indict someone.

Regular Juries Compared

Unlike petit juries, which sit on only one case, grand juries may address many cases in the course of their service. In fact, serving on a grand jury can mean a time commitment of six months or longer.

Here are other ways grand juries are different:

  • Petit jurors decide whether defendants are guilty. Grand juries decide whether there is enough evidence to warrant a trial.
  • Grand juries meet in secret proceedings. Petit juries serve during public trials.
  • Grand juries tend to be bigger than petit juries. In federal court, for example, they consist of 16 to 23 people. By contrast, a petit jury usually comprises six to 12 people.
  • Petit juries generally have to be unanimous to convict a defendant. Grand juries need not be unanimous to indict. In the federal system, for example, an indictment may be returned if 12 or more jurors agree to indict.

Limited Proceedings

When a prosecutor brings a case to a grand jury, she presents the jurors with a "bill" (the charges) and introduces evidence—usually the minimum necessary, in the prosecutor's opinion—to secure an indictment. The proceedings are typically secret; it is standard practice to call witnesses to testify against the suspect without the suspect or the suspect's lawyer present. But, depending on state law, indicted suspects might later be able to get transcripts or recordings of grand jury proceedings. (The availability of a transcript is a big reason why prosecutors like to keep the evidence to the minimum.)

Although prosecutors can also call suspects as witnesses, they typically don’t. When suspects are called, they often refuse to testify by invoking their privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.

Final Outcome?

If the grand jury decides to indict, it returns what is called a "true bill." Otherwise, it returns a "no bill." But even if the grand jury returns a no bill, the case isn’t necessarily closed. Again depending on the law in the jurisdiction, the prosecutor might be free to return to the same grand jury with more evidence, present the same evidence to a second grand jury, or bypass the grand jury altogether and file a criminal complaint (or other charging document.)

Getting a Lawyer

Charging procedure can differ significantly between federal and state court, from one state to another, and even between locales within the same state. If you’ve been arrested, consult an experienced criminal defense attorney. Such a lawyer should be able to explain the applicable law and guide you through the process.

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