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Criminal Trial Procedure

Municipalities, states and the federal government all have their own set of procedures for criminal trials. The federal government sets the minimum standard for protection offered to criminal defendants; states and municipalities may offer more protection to those accused of criminal offenses, but may not offer less protection than that provided in the U.S. Constitution. Be sure to check with a qualified criminal defense attorney in your state to learn about criminal proceedings in your state or municipality. Below are the typical steps of a criminal proceeding in the United States (but may not be accurate for every single circumstance).



Criminal proceedings begin with an arrest (see What Happens when You are Arrested?). While you will be told why you are being held in police custody, you will not hear your formal charges until you are arraigned. When you are arrested, you will be required to stay in jail until the date of your trial or until you post bail (see How to Post Bail).


At an arraignment, the defendant is formally charged with a crime. The judge will:

  • read the defendant his or her criminal charges,
  • inform the defendant of his or her right to an attorney,
  • ask the defendant to plead guilty, not guilty or no contest to the charges,
  • have the opportunity to amend the bail amount, and
  • set the dates of future legal proceedings.

Preliminary Hearing
The purpose of the preliminary hearing is for the prosecution to meet its burden of persuasion. In order to do this, the prosecution must provide sufficient evidence against the defendant and prove that there is a legitimate case to pursue. During the preliminary hearing, the defense may cross-examine witnesses. A judge will then determine if the prosecution has met its burden of persuasion. In some circumstances a grand jury may be used to decide if the prosecution has met its burden of persuasion.

Pre-Trial Hearing

At the pre-trial hearing, both the prosecution and defense may file motions before a judge. Motions are a way for each side to have the judge make decisions about contested matters, like evidence that should be suppressed, whether a witness should testify, and even a charge that should be dropped for lack of evidence.


At trial, opening statements may be made from each side. The prosecution will provide a general overview of the case and why the defendant is guilty and the defense will provide a general statement of why the defendant is not guilty. After opening statements, the prosecution is first to present evidence and witnesses against the defendant. The defense may cross-examine all witnesses and question the interpretation of evidence. The defense will then present its own evidence and witnesses which the prosecution may question and cross-examine. Once all evidence and witnesses have been brought forth, the defense will offer its closing arguments followed by a final closing argument by the prosecution. The judge or jury (if one has been requested) will then deliberate and return a verdict.


If a person has been found guilty of a petty crime or other misdemeanor his or her sentence will usually be determined right away. Sentencing may include things like, incarceration, fines, restitution, community service and rehab. If a person is convicted of a more serious crime, the judge will determine a sentence or a separate sentencing trial may be held to determine the appropriate sentence for a crime. Those facing the death penalty have the right to a jury sentencing trial. At sentencing, both the prosecution and defense will argue for the appropriate sentence for the defendant. During this time, the defendant may address the judge without counsel to seek leniency by providing insight into their motivation for committing the crime, showing remorse or explaining unknown facts.