Criminal Procedure for Mystery Writers

If your story includes a criminal prosecution, here is information you might find useful.

Investigation

Long before a case goes to trial, the police and prosecutors have been working on it. An FBI agent once told me that he spent more time putting a white-collar case together then the defendant was sentenced, which didn’t strike him as fair.

Most criminal cases start with a tip or a report to the police of nefarious activity. The police talk to witnesses and gather evidence. They may apply for a search warrant, which means someone types up a fill-in-the blank form articulating probable cause for believing that evidence of a crime would be found in a certain place. The search warrant application is transmitted to a magistrate who examines it, may ask the applying officer questions, and then grants or denies it. In olden days, that meant the officer would drive over to the courthouse, wake up the magistrate (there is always a magistrate on duty), and explain why he wanted the warrant. Later, things were done by fax and telephone.

Arrest

An accused can be arrested without a warrant, even if not caught red-handed, if he is suspected of committing a felony. (A felony is any crime punishable by more than one year.) Otherwise, the police need to obtain an arrest warrant.

Indictment

Most often, felony cases are formally charged by a grand jury. A grand jury is a body of eighteen people. There is no judge or defense attorney in the indictment proceeding. The prosecutor meets with the grand jury and presents a case to them. The grand jurors decide whether there is sufficient evidence to charge the defendant. It is said that a prosecutor can indict a ham sandwich but that’s not entirely true. I’ve seen cases where the grand jury refused to issue a true bill.

Sometimes instead of obtaining an indictment, the prosecutor will file charges in court and then the court will set on a probable cause hearing at which the prosecutor will present as much evidence, testimony and documents, (a mini-trial) he believes he needs to show that there is probable cause to believe the defendant committed the crime. The defendant has the right to attend the probable cause hearing and have his attorney cross examine the witnesses.

Arraignment

The arraignment is when the defendant is hauled into court, if in custody, or appears voluntarily to be advised of the crimes against him and the potential punishment, to discern whether he has the means to hire an attorney, and bail is set.

 Bail

Bail may or may not be set. There is no right to bail in federal court. In state courts, there may be a right to bail except if the defendant is accused of a serious crime like murder. Bail is set in an amount that is designed to guarantee the defendant will show up for further appearances and many conditions will be attached to bail, such as refraining from contacting a victim, or witness or leaving the jurisdiction.

Jury Selection

The prospective jurors (also known as “veniremen”) are commanded to show up to court on a certain date and time and all shoved into an uncomfortable room with bad coffee and old magazines. If they’re lucky, it won’t be in a windowless, overheated basement. They sit around and wait while the attorneys argue last-minute motions such as motions in limine (to preclude the admission of certain evidence) or motions for protective orders.

During the jury selection process, each side tries to eek out information from about why each person would make a bad juror and have that person removed for cause. Each side has unlimited amount of for-cause challenges. After the cause challenges are determined (the judge doesn’t grant them all), then each side has a limited number of preemptory challenges. That is where the attorneys use their gut feelings to have someone who they think cannot be fair excused. Anyone who is really excited about being on the jury will probably get “bumped”. A great example of jury selection process is in Grisham’s “Runaway Jury”.

Opening Statements

The trial begins with opening statement, not opening “arguments.” Opening statement is when each attorney, prosecutor first, tells the story, facts only. The story can be told in a compelling way, as long as it isn’t argumentative. The defense may reserve its opening statement until after the conclusion of the prosecution’s case which was standard operating procedure until the last couple of decades.  A defense attorney would reserve opening if s/he believes the prosecution’s case is weak and there is no reason to add any information to it. Or if s/he hasn’t figured out a defense yet (this happens a lot).

Trial

The sequence of witnesses and evidence is something the attorneys ponder mightily. The first rule of advocacy is “primacy, recency” which means people remember most clearly the things they heard first and last while the stuff in the middle is remembered vaguely. So, both sides will start and end their cases with their strongest evidence.

Primacy and Recency

The “primacy, recency” effect also will influence which witnesses go on last at the end of the week. The attorney will want a strong finish that will sink into the juror’s minds during that two and one-half days until trial resumes on Monday. It will also influence which witness goes on last for the day.

Another important consideration is which witnesses should be on the stand overnight.  For instance, the prosecution will not want to finish the direct of their star witness late in the day only to allow the defense to begin cross-examination, spend all night preparing for more cross, and then cross more the next day. Witnesses find being on the stand overnight is grueling and a sensitive witness may become quite anxious the second day (i.e. “fall apart”). Additionally, cases have been won or lost because the defense had time to stay up all night working, and they will. It’s not like they are sleeping, anyway. So, on occasion, you may see the prosecution slip a “short witness”, a witness whose testimony will be brief, into the line-up before the star witness, and you may see the prosecution dragging its feet during the star witness’ examination so as to delay cross until the next day and then the judge yells at the prosecutor. Getting yelled at by judges is in the trial lawyer’s job description.

Hail Mary

At the conclusion of the prosecution’s case, the jury will be sent out of the room while the defense attorney argues the prosecution didn’t make its burden of proof beyond a reasonable doubt and ask to have the case dismissed. Sometimes it’s granted.

If the motion isn’t granted, then the defense attorney will make his or her opening statement to the jury, if it hasn’t been made yet, and then will present defense witnesses. There is no requirement for the defense to present witnesses and sometimes they don’t. The defendant has the right to decide for himself whether or not he will testify. That’s a tricky decision. An innocent accused can make an effective witness especially if the prosecution’s case is weak.

Closing Argument

At the conclusion of evidence, each side will make closing arguments. At this point, they weave the law into the facts and explain to the jury why it should or should not convict the defendant. This could go on for days, but I was advised by an old trial attorney to keep it to forty-five minutes because after that, the jury is thinking about their bladders and not what I’m saying.

Jury deliberation: The physical evidence is given to the jurors to take back to the jury room. While the jurors are deliberating, a bailiff is sitting in the hallway outside the room to make sure no one enters or leaves and there is no contact with the jurors. If the jurors need anything, they had a note to the bailiff.

Sometimes, the jury will have a question for the judge which is written out, handed to the bailiff, the bailiff takes to the judge and the judge decides what to do.  Most of the time, the judge will haul the attorneys back to court to discuss the question before sending a response which is why it can take hours from the time the jury sends out the question to get an answer.

Deliberations can last weeks. The shortest deliberation I’ve noticed was two and one-half hours, just enough time to order lunch, pick a foreman, eat the lunch, and deliver a verdict.

Sentencing

Sentencing: If the defendant is convicted, each jurisdiction has an elaborate set of rules for preparing for the sentencing. If it’s a mandatory sentence, like life, the judge will sentence the defendant as soon as the jury goes home. If it’s a death sentence, the same jury will be convened to determine punishment. Modernly, only a jury can pass a death sentence. This is a relatively recent change in the law. Otherwise, there will be some time for each side to prepare their cases for a sentencing hearing and the judge will then pass sentence.

Appeals

If an appeal is filed by the defendant, he waives his right to double jeopardy, so he can be retried. Sometimes he will get some kind of bail pending the appeal, usually on stricter terms than he was given prior to trial. Appeals can go on for years. It is common for a case to be overturned on appeal, retried, and appealed again.

Keenan Powell

Author

Keenan Powell is the Agatha, Lefty, and Silver Falchion nominated author of the Maeve Malloy Mystery series, Deadly Solution, Hemlock Needle, Hell and High Water.

While still in high school, she was one of the illustrators of the original Dungeons and Dragons. Art seemed an impractical pursuit – not an heiress, wouldn’t marry well, hated teaching – so she went to law school instead. When not writing or practicing law, Keenan can be found oil painting, studying the Irish language, or hanging out with her friends at mystery conventions.

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