United States criminal procedure

In a criminal case, the government generally brings charges in one of two ways: either by accusing a suspect directly in a "bill of information" or other similar document, or by bringing evidence before a grand jury to allow that body to determine whether the case should proceed. If the grand jury determines that there is enough evidence to justify the bringing of charges, then the defendant is indicted. In the federal system, a case must always be brought before a grand jury for indictment if it is punishable by death or more than one year in prison;[1] some states, however, do not require indictment.

Once charges have been brought, the case is then brought before a petit jury, (or what is commonly recognized as the normal courtroom jury of six to twelve members), or is tried by a judge alone, if the defense requests it. Any petit jury is selected from a pool by the prosecution and defense.

After both sides have presented their cases and made closing arguments, the judge gives the jury legal instructions; the jury then adjourns to deliberate in private. The jury generally must unanimously agree on a verdict of guilty or not guilty; however, the Supreme Court has upheld non unanimous jury verdicts, so long as the jury is larger than 6 people. In 1972, the Court upheld convictions in Apodaca v. Oregon [2] and Johnson v. Louisiana [3] where Oregon and Louisiana convicted Petitioners on 10-to-2 and 9-to-3 verdicts respectively. In 1979, the Court ruled in Burch v. Louisiana that where a jury was made of 6 people, the verdict must be unanimous.[4]

The prosecution gives an opening statement that summarizes its general arguments. The defense can then present its opening statement or may opt to wait until the prosecution has finished presenting its complete case. The prosecution presents its case first. This is done by calling witnesses to give testimony and by presenting physical evidence that will prove the defendant is guilty of the crime. Witnesses are people who can give testimony that will help prove the guilt of the defendant. They may have actually seen events related to the crime, may have relevant information about the defendant, or may be able to give expert testimony concerning the evidence or have other important information. After the prosecution finishes, it is the time for the defense to address the court.

The defense may start by asking the judge to dismiss the case for lack of evidence. If the judge agrees the evidence is insufficient to prove the defendant committed the crime without a reasonable doubt, the case will be dismissed and the defendant will be free of the charges. Usually, the judge does not dismiss the case. At this time, the defense will give its opening statement if it has not already done so. The defense then proceeds to present its case by calling witnesses and submitting evidence that will prove the defendant did not commit the crime. All witnesses may be cross-examined by the opposing side while testifying. Under the Fifth Amendment to the United States Constitution, the defendant is not required to be a witness in his own defense. If he does not testify, the jury can not hold this against him. Also under the Fifth Amendment, a witness has the right not to incriminate himself. This means the witness is not required to answer any question if doing so would incriminate himself. After the defense finishes presenting its case, each side gives a closing statement summarizing the evidence that supports its position of either guilt or innocence. The closing statements are given in the same order, with the defense going last. Then the deliberation phase of the trial begins.

If a defendant is found guilty, sentencing follows, often at a separate hearing after the prosecution, defense, and court have developed information based on which the judge will craft a sentence. The United States Sentencing Commission has promulgated guidance on what restitution and prison terms should be assessed for different crimes.[5] In capital cases, a separate "penalty phase" occurs, in which the jury determines whether to recommend that the death penalty should be imposed. As with the determination of guilt phase, the burden is on the prosecution to prove its case, and the defendant is entitled to take the stand in his or her own defense, and may call witnesses and present evidence.

After sentencing, the case enters the post conviction phase. Usually the defendant begins serving the sentence immediately after the sentence is issued. The defendant may appeal the outcome of his trial to a higher court. American appellate courts do not retry the case. These courts only examine the record of the proceedings of the lower court to determine if errors were made that require a new trial, resentencing, or a complete dismissal of the charges. The prosecution may not appeal after an acquittal, although it may appeal under limited circumstances before the verdict is rendered. The prosecution may also appeal the sentence itself. Increasingly, there is also a recognition that collateral consequences of criminal charges may result from the sentence that are not explicitly part of the sentence itself.

• Criminal procedure