The Criminal Process – From Start to Finish

The criminal process can be confusing to those who face prosecution. There are many stages to a criminal case. This is a brief primer of the New Jersey criminal justice system as it relates to a defendant.

1.     Arrest – This begins the criminal process. The individual taken into custody by law enforcement is processed by being fingerprinted and having a mug shot taken. These are entered into a criminal database. The arrestee is given a green sheet (s) which sets forth their actual charge (s). The person arrested is now a defendant.

THIS IS WHEN DEFENDANTS SHOULD HIRE AN ATTORNEY. MOST DO NOT. THIS IS A MISTAKE.

2.     Bail – A monetary figure is set by a judge to ensure a defendant’s appearance in court. This is subject to a range depending on the degree of the crime that is charged. For lesser crimes, a person can be released on their own recognizance (ROR).

3.     Pre-Indictment Conference (PIC) – This is a relatively recent development in New Jersey Criminal Jurisprudence in which the defendant may appear in Superior Court where an offer is made to resolve their case prior to grand jury presentment. An announcement is read by the Superior Court judge in which it is emphasized that a given defendant may receive his best offer at this early stage of their criminal case. This is a misnomer since the defendant is usually not represented by an attorney at this point and has no ability to evaluate the strength of the prosecution’s case against him.  Defendants are encouraged to resolve their cases at this first court appearance. The reality is that the PIC offer is RARELY the best offer for a given defendant. The real truth is that PIC’s are designed to reduce the caseload in New Jersey’s overcrowded criminal part courts. It is most assuredly not designed to provide the best outcome for a defendant.

THIS IS WHEN THERE IS A LULL IN THE CRIMINAL PROCESS. ALSO, IT IS WHEN MANY DEFENDANTS DEVELOP A FALSE SENSE OF SECURITY ABOUT THEIR CASE. WHEN THEY DO NOT GET A COURT NOTICE FOR AN EXTENDED PERIOD OF TIME, MANY DEFENDANTS HAVE THE MISTAKEN BELIEF THAT THEIR CASE HAS BEEN LOST IN THE SYSTEM. NOTHING COULD BE FURTHER FROM THE TRUTH.

4.     Grand Jury – Presentment to a grand jury typically occurs 1-4 months after an arrest. The grand jury is comprised of 23 individuals. A prosecutor presents a witness or witnesses against the defendant in an effort to secure an indictment. There is no judge in a grand jury presentment. Likewise, there is no defense attorney in a grand jury presentment. Most significantly, the defendant does not have an absolute right to testify before a grand jury (upon the request of a defendant or defense attorney, a defendant may be permitted to testify. This is a rare occurrence). It is a completely one-sided proceeding. There are no rules of evidence in the grand jury. For example, hearsay is offered in nearly every grand jury presentment. The prosecution’s burden in a grand jury is a mere preponderance of the evidence standard. Simply put, an indictment will be returned if it is determined that it is more likely than not that a crime has been committed.  Moreover, a mere majority of the grand jurors are all that is required to return an indictment. If 12 of the 23 grand jurors believe that it is more likely than not that a crime has been committed, the defendant is indicted.

5.     Pre-Arraignment Conferences – This is the first court appearance after an indictment has been returned.  It is a brief court appearance in which the defendant is administratively processed by criminal case management. In most counties, the defendant does not appear before a judge.

THIS IS WHEN MOST DEFENDANTS HIRE AN ATTORNEY.  REALITY HAS SET IN THAT A DEFENDANT’S CASE IS GOING TO COURT. IT TURNS OUT THAT THE DEFENDANT’S CASE HAS NOT BEEN LOST IN THE SYSTEM AFTER ALL.

6.     Arraignment – This essentially begins the defendant’s case in Superior Court. The judge advises the defendant of the charges against him, the penalties that he faces, his constitutional right to an attorney, and requests that a plea be entered.  If the defense attorney has been retained, the lawyer will waive the formal reading of the charges and enter a Not Guilty plea on his client’s behalf.

Between the Arraignment and Status Conference, the defense attorney will have obtained discovery. Discovery is comprised of the police reports and supporting documents which delineate the prosecution’s case against the defendant. In most cases, the discovery will include a formal offer extended to the defendant. The experienced defense attorney will have ordered the transcript of the grand jury presentment.

7.     Status Conference – This court appearance is where the prosecutor and defense attorney will engage in plea bargaining concerning a defendant’s case. Some judges have conferences in their chambers in which they oversee the plea bargaining discussions. Others do not.

If a plea bargain is reached, a guilty plea will be entered by the defendant. If a plea bargain is not reached, another status conference will be scheduled. A defendant may have multiple status conferences during this plea bargaining process.

8.     Plea or Plea Cut Off – Eventually, the judge will set a plea or plea cut off date. This is an effort by the court to determine if a defendant’s case will ultimately result in a guilty plea or proceed to trial. If an agreement is reached, a defendant will enter a guilty plea. This necessitates a lengthy court appearance in which standardized plea forms are executed by a defendant, his defense attorney, and the prosecutor. Subsequently, the defendant will enter the guilty plea (s) before the judge. The defendant has been given a sentencing date by the court. Typically, a sentencing date is scheduled 4-8 weeks after a guilty plea is entered.

If a plea agreement is not reached, the defendant, defense attorney, prosecutor, and the judge execute standardized Plea Cut Off forms. This is the point of no return for the defendant. This is when a defendant has elected to proceed to trial.

9. Trial

This explains the New Jersey criminal process.  The system is designed to provide due process for the defendant.  Necessarily, this takes time.  A criminal case from arrest to trial can be a lengthy process.  Often, the passage of time can serve to benefit a defendant.  Each case is subject to its own particular facts and circumstances.  Defense strategies are specific to a given case.  An experienced and skilled criminal defense attorney is essential to providing a positive outcome for those individuals who are charged with crimes.