Arizona Attorney General

Mark Brnovich



Victims of the Baptist Foundation of Arizona - Criminal Process

The Criminal Justice Process: An Overview (1)

A case progresses through the criminal justice system in many steps, or stages (view a flow chart). The overview that follows might suggest that the administration of justice is an orderly flow that begins with the investigation of a criminal offense and ends with a prison sentence. However, due to the specific circumstances of each case, some proceed more quickly than others.


Criminal justice in the United States exists to control and prevent crime. Criminal cases are those that involve the commission of acts that are prohibited by law and punishable by a jail or prison sentence. Law enforcement agencies are charged with the prevention of crime and the apprehension of criminal offenders. Courts have the duty to assure justice and due process through determining innocence or guilt of the accused and sentencing those who are convicted. The role of correctional agencies in this process involves the control, custody and supervision of persons convicted of crime.


Although the first phase of the criminal justice process would seem logically to be arrest, this is usually the case only when a crime is directly observed by a law enforcement officer. More often, the process begins with a report or complaint made to a law enforcement agency that a crime has occurred, followed by the agency responding with some level of investigation.

When a suspect is identified and sufficient evidence is believed to exist, the case is presented to a prosecutor for review. Prosecutors are the chief law enforcement officers within their jurisdictions. (The Attorney General is the chief law enforcement and legal officer for the state.) As lawyers for the government, prosecutors represent the interest of the community, county, state or federal system.


The prosecutor reviews the law enforcement or investigating agency's report and assesses whether there is sufficient evidence to support a conviction. The standard for conviction in criminal matters is that a judge or jury be convinced beyond a reasonable doubt that the alleged offender is guilty of the crime(s) committed. If the prosecutor finds that the report and evidence are sufficient and there is a reasonable likelihood of conviction, he or she will file a criminal complaint or seek an indictment from a grand jury. The criminal complaint is a charging document presented to a court magistrate (judge), who will issue either a warrant authorizing the arrest of the suspect or a summons requiring that the suspect appear in court on a specific day for a preliminary hearing (in felony matters only).

Turn Down: A prosecutor's decision to decline case prosecution (not to file charges) is commonly referred to as a "turn down." Rules of ethics governing the legal profession prohibit prosecutors from filing charges in cases they do not believe meet the high standard for conviction in criminal matters. In cases where the suspect's alleged conduct could be charged as an offense under more than one law, the prosecutor has discretion to decide what charges to file, if any. Many factors are involved in deciding whether, or how, to prosecute.


An arrest is simply the action of taking a person into custody for the purpose of charging him or her with a crime. A law enforcement officer makes an arrest when he has directly observed the crime committed or at some later time when an investigation suggests that the suspect probably is the offender (called probable cause). When a person is arrested, he is taken to jail and "booked." Booking is the administrative recording of an arrest, conducted at a jail, and can include fingerprinting and photographing the suspect.

When an accused person is arrested, he must be brought before a judge within 24 hours for an initial appearance, or be released. At an initial appearance, the judge gives formal notice of the charge(s) to the accused, who may now be referred to as the defendant, informs him of his legal rights, appoints legal counsel on his behalf if necessary, and sets the conditions for his release from jail (if not previously released at the booking phase). A defendant may be released on his own recognizance or by posting bail. A defendant released on his own recognizance is not required to post any money and is released on the basis of a promise to appear at future court proceedings. Bail is set by the judge according to the seriousness of the offense, prior criminal record, and the likelihood that based on community ties, the defendant will appear in court as required. Bail is forfeited and a warrant issued for the re-arrest of any defendant released on bail, or his own recognizance, who fails to appear at a required proceeding. Defendants released after the initial appearance are ordered to adhere to certain restrictions set by the Judge.

Determining Probable Cause ... Grand Jury/Preliminary Hearing

A prosecutor may prefer, under some circumstances, to bring charges through the state or county grand jury rather than by criminal complaint. The grand jury is a panel of citizens charged with reviewing the evidence of criminal behavior and deciding if probable cause exists to believe that the suspect committed the crime. Probable cause is a set of facts, information, circumstances or conditions which would lead a reasonable person to believe that what is presented or alleged is true. If the grand jury determines there is probable cause that a crime was committed and that the suspected perpetrator committed the crime, a criminal "indictment" (charging document) is signed and an arrest warrant or summons to appear for arraignment is issued by the court.

In felony matters that begin with the prosecutor filing a complaint, a preliminary hearing is held before a Justice of the Peace to determine if there is probable cause to hold the defendant for trial. (A probable cause determination is not necessary if the offense charged is a misdemeanor). At a preliminary hearing the judge, rather than a grand jury, hears all of the evidence and testimony from the witnesses called by the prosecuting attorney and, if permitted by the Court, witnesses can be called by the attorney for the defendant.

Charges may be dismissed at the grand jury or preliminary hearing stage if the grand jury or Justice of the Peace determines that the evidence is insufficient to justify a trial. If probable cause is present, however, the defendant is "bound over" for trial in the Superior Court, and an arraignment date is set. This step is recorded by a charging document -- either the indictment issued as a result of the grand jury hearing or an "information" that is filed following the preliminary hearing. The court then issues a summons for the defendant to appear at arraignment in Superior Court.

Answering the Charges ... The Arraignment

The first appearance of the defendant in Superior Court is called an arraignment. At an arraignment proceeding, the defendant is officially informed of the formal charges against him (indictment or information). The defendant may plead "guilty" or "no contest" (a plea of neither guilt nor innocence), in which case the judge will set a date to sentence the defendant. If the defendant pleads "not guilty," a decision is made whether to appoint an attorney for him, and the matter is set for a pre-trial hearing or trial.

Note: Many limited jurisdiction courts (Municipal and Justice of the Peace Courts) combine the initial appearance and arraignment, resulting in one court appearance instead of two.


After the arraignment, many activities occur while both the prosecuting and defense attorneys build their case for trial. Each side examines the evidence, reviews police reports and other documents, and interviews witnesses. Victims do not have to consent to interviews with the defense attorney; other witnesses must. There may also be several court hearings scheduled, called Status Conferences or Pre-Trial Conferences or Hearings. These hearings usually focus on legal matters regarding the admissibility and suppression of evidence, modifications to the defendant's pre-trial release, plea negotiations, and other matters of concern to the attorneys or court, including the scheduling and rescheduling of the trial itself.

Plea Agreement

The vast majority of criminal cases making their way through the criminal justice process never go to trial. What occurs more often is a process whereby the defense attorney and the prosecutor work out a mutually satisfactory disposition of the case, subject to court approval. If the attorneys reach an agreement, there is usually some modification to the original charges; the defendant may plead guilty to a lesser charge; some charges may be dismissed; an agreement to not file additional charges may be made, and/or a particular sentence may be agreed upon (called stipulating). If both sides agree to a negotiated settlement, the defendant enters a guilty plea and signs a statement that his plea is voluntary and that he agrees to waive certain rights. There may be a change of plea hearing scheduled for this purpose, or the defendant can enter his guilty plea at any proceeding. At a change of plea hearing, If the agreement is acceptable to the court, the judge schedules a date for sentencing.


If a plea agreement is not reached, a case may go to trial. The trial will be held before a Superior Court Judge and a panel of jurors unless the defendant waives his right to a jury trial, in which case the trial would be held before the judge alone (called a bench trial). All parties to the case, including witnesses for the prosecution and defense, are subpoenaed in advance to testify (sent a summons to appear); and, if it is to be a jury trial, juror selection (called voir dire) must take place before testimony begins. The State, represented by the prosecutor, has the burden of proving beyond a reasonable doubt that the defendant committed the crime(s) as charged.

When the court is ready for trial to begin, the prosecuting attorney gives an opening statement, an overview of the facts to be presented. The opposing (defense) attorney may present opening remarks or may reserve an opening statement until later in the trial when the defendant's side of the case is presented. The prosecutor begins the State's case by calling witnesses and asking them questions under oath (called examining). The prosecutor's evidence is aimed at proving the defendant committed the crime.

Witnesses take an oath that what they will say in court is the truth. All evidence presented in court, including testimony and physical evidence such as documents, items or articles of clothing, must comply with Arizona Rules of Evidence. The judge decides what evidence and testimony is admissible according to the Rules. When the prosecution has finished questioning each witness, the defense is allowed to cross-examine the witness on any relevant matter. After cross-examination, the attorney who originally called the witness to the stand may wish to ask additional questions of the witness to clarify something touched upon in the cross-examination. This is called re-direct examination, and is followed by an opportunity for the opposing attorney to re-cross-examine. When the prosecution has called all the witnesses for its side of the case and presented all its evidence, the prosecution rests its case.

The defense may choose not to present any evidence, because it is not required to do so. A criminal defendant is not required to prove his innocence; the prosecution is required to prove the defendant's guilt beyond a reasonable doubt. If the defense does present a case and call witnesses, the same rules and procedures which governed presentation of evidence by the prosecution apply to evidence presented by the defense. The only difference is that the defense calls the witnesses and questions them first. At the conclusion of the defendant's case, the prosecutor may present additional information to rebut, or contradict, evidence offered by the defense. Following this, the defense is given another opportunity to present additional evidence.

When both sides have presented all of their evidence, each is permitted to make closing arguments. Closing arguments are similar to opening statements. They provide an opportunity for the attorneys to address the jury (or the judge in a bench trial) one final time. Following closing arguments, the judge gives instructions to the jurors concerning laws that apply in the case. Jury members are required to follow these instructions in reaching a verdict. The jury goes to a private jury room and considers all the evidence and reaches a verdict of guilt or innocence. When the jury has reached a decision, the court is called back into session. The verdict is reported to the judge, and either the judge or court clerk reads the jury's verdict. The court then enters a judgment according to the verdict, and the jury is released from duty. If found not guilty, the defendant is released. If the defendant is found guilty, a date is set for sentencing. If the jurors cannot reach a verdict the case ends in a "hung jury" and the prosecutor can decide to retry the defendant with different jurors.


A defendant is sentenced after he is convicted. Conviction includes a judge's finding of guilt after a bench trial, a verdict of guilt after a jury trial, or a defendant's change of plea to guilty as part of a plea agreement.

Several weeks before the sentencing hearing, the judge will order a presentence investigation by the county probation department, an arm of the Superior Court. The product of this investigation is a Presentence Report. The judge receives this report prior to the hearing date and considers all the information contained in it to arrive at a sentencing decision. The report typically includes a brief summary of the crime and information about the defendant's criminal, economic, social, educational and employment history. It also includes any information the victim(s) provide about the emotional, physical and financial effects of the crime and opinions about sentencing

In some cases, the court may schedule one or more presentence hearings to consider issues related to restitution, aggravating and mitigating circumstances or other issues of concern to the attorneys or the court. At a restitution hearing, the court considers matters relevant to compensating victims for their actual financial losses as a direct result of the crime. At an aggravation/mitigation hearing, the court considers the circumstances of the crime and of the defendant's history that could justify a lesser or greater sentence. Testimony and other evidence can be presented at any presentence hearing.

At a sentencing hearing, the judge hears arguments, and sometimes, additional evidence from both the prosecution and defense, regarding the punishment the defendant should receive. The judge also hears statements from victims. The defendant, too, may make a statement to the court. In Arizona, the Legislature has established a range of sentences for various crimes and the judge must impose a sentence within that range. The judge may order the defendant to probation, to jail, to prison, or to a combination of punishments, including fines, and must order payment of any restitution that is owed to the victim(s).


What happens to a defendant after sentencing depends upon the sentence imposed by the judge. Aside from whether charges were resolved through plea agreement or trial, an offender's sentence encompasses all of the orders made by the judge at the sentencing hearing. A variety of government agencies and institutions exist to carry out sentencing orders.


Offenders who are sentenced to incarceration are ordered to serve time in either a county jail or prison. Care, custody and control of the offender (inmate) lies with a county sheriff (jail), or the Arizona Department of Corrections (prison), commonly referred to as DOC.

Suspended Sentence/Probation

In some cases, a judge may decide to conditionally suspend a sentence of incarceration, contingent upon the offender's successful completion of a period of probation. Probation is a form of community supervision in which the offender is required to report on a regular basis to a county probation officer and abide by specified rules of conduct. If the probation, which can be "standard" or "intensive," is completed successfully, the sentence of incarceration is not imposed. If the probation is violated, it can be revoked and the sentence carried out.

Other common sentencing orders include: community service which requires that an offender complete a designated number of hours of work in the community; payment of restitution which is an order for the offender to re-pay his victim(s) for any financial losses directly resulting from the crime; payment of court fines or penalties; and attendance and participation in individual or group counseling. Enforcement of court sentencing orders is typically incorporated as terms of probation and/or parole/community supervision.


Defendants convicted of a criminal offense have a statutory right to appeal. Generally speaking, a direct appeal is an action taken by a defendant that asks a higher court to review the decision of a lower court. The defendant, or the defendant's attorney, is seeking to have the conviction and/or sentence overturned. Appeals from decisions of the Superior Court, where all state felony convictions occur, are made to the state Court of Appeals. Defendants who plead guilty may not file a direct appeal, but may file a Post Conviction Relief Petition to the Superior Court, asking that the case be re-considered.

1. Please note: Use of the pronoun "he" is used throughout this overview for purpose of reader ease and simplicity. Use of this pronoun is in no way intended to convey gender-specific assumptions.