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THE CRIMINAL PROCESS

How does the criminal process begin?

That is a difficult question to answer, as the process begins differently depending on the situation. Generally, the process begins with law enforcement officials (the police) investigating a person for suspicion of committing a crime or crimes. However, sometimes the process may begin when the police actually see a person committing a crime.

What is an arrest?

An arrest is a process in which the police detain or seize a person or deprive them of their liberty for committing a criminal offense. Often when police officers arrest people, they take them into custody.

What warnings must the police give you when they arrest you and place you in custody?

The police must give you so-called Miranda warnings, which consist of you telling you several things: (1) that you have the right to remain silent and that anything you say can be used against you in court; (2) that you have the right to an attorney even if you cannot afford an attorney. The police must "Mirandize" you before they interrogate you, meaning that they must inform of the right to remain silent and the right to an attorney.

Oftentimes, if the police fail to give a suspect his or her Miranda warnings, then any subsequent confession cannot be used against the suspect.

Being arrested means you are being detained, not necessarily that you are guilty. Police must read you your Miranda warnings, which explain your rights to legal representation and that anything you say can be used against you in court (iStock).

Being arrested means you are being detained, not necessarily that you are guilty. Police must read you your Miranda warnings, which explain your rights to legal representation and that anything you say can be used against you in court (iStock).

When a person is arrested and taken into custody, what happens next?

After a person is arrested and taken into custody, they are taken through the booking process. This process consists of providing information to a desk clerk (such as name, social security number, and driver's license information), the taking of a photograph called a mug shot, the collection of the suspect's personal property, and fingerprinting. Often times the police will then search a person. This consists of an invasive search, called a body cavity search, to make sure there are no hidden weapons or drugs. Finally, oftentimes jail officials will do a quick health screen of the person.

Is a person entitled to an attorney during the booking process?

No, the booking process is considered an administrative, rather than adjudicative, proceeding. The booking process is a routine process where officials obtain identification information. However, suspects must be careful not to reveal incriminating information to police officers. Statements to police made during the booking process can later be used at trial.

After a person is booked, what happens next?

Shortly after the booking process, the suspect is brought before a magistrate or judge—sometimes in person and sometimes via closed circuit television. At this procedure—called an initial appearance or first appearance—the magistrate determines if the police had probable cause to arrest the suspect (if there was no arrest warrant), sets bail, and assigns legal counsel if the defendant cannot afford counsel and the charge is serious enough to warrant jail time. This appearance usually takes place within 24 hours or 48 hours of the initial arrest. Other states provide different time limits for when this appearance must take place.

Is there a difference between the initial appearance and the arraignment?

There is at the federal level. In a federal criminal case the federal rules of criminal procedure require "a person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge or before a state or local judicial officer." This must take place very soon after the arrest. The arraignment then takes place later.

Federal Requirements at Arraignment: Federal Rule of Criminal Procedure 10(a) states the following:

(a) In General.

An arraignment must be conducted in open court and must consist of:

(1) ensuring that the defendant has a copy of the indictment or information;

(2) reading the indictment or information to the defendant or stating to the defendant the substance of the charge; and then

(3) asking the defendant to plead to the indictment or information.

 
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