Overview of Criminal Process

If you are reading this you may already know how easy it is to get into the criminal justice system. The purpose of this page is to provide you with an overview of how criminal cases are resolved so you will have some idea of where you are at any given point in the process.

The Beginning

The majority of criminal cases start with a complaint in the District Court for the area where the crime supposedly occurred. That complaint is a simple document listing the crimes the accused is facing. It is issued by a clerk magistrate, usually after reviewing a sworn application by a police officer. That application is often created after an arrest, but it can precede the arrest too. A complaint can also issue on an application by a private citizen, but only after a hearing is conducted about it and the accused is invited to attend and present evidence. That "clerk's hearing" process, incidentally, was recently the subject of sensationalist coverage by the Boston Globe, which called them "secret courts." "Secret" because the Boston Globe failed to notice them happening for decades in every single district court in Massachusetts almost every single day. The state legislature was also, apparently, unaware the system it created was still in operation and is now rushing to make them less "secret." In any case, whether based on an application by the police or a private citizen, most criminal cases start with a complaint in District Court.

Some cases that start in District Court are eventually moved to Superior Court and some start there in the first place. That is because District Courts generally can only handle misdemeanor cases while the Superior Court handles felonies.  The difference between a felony and a misdemeanor is the maximum possible sentence a person can receive for committing the offense. The laws that define the various crimes also set the penalties. And if the statute that defines a given crime sets a maximum sentence of some number of years in state prison it is a felony. If the maximum sentence is up to two and a half years in county jail, or less, then it is a misdemeanor. Some offenses have options for either state prison or county jail (a "House alternative" we lawyers say, referring to county "houses" of correction). Those are also felonies, but the prosecution has the option of leaving them in District Court and thereby treating them as misdemeanors. A District Court does not have the ability to sentence someone to state prison.

The main way a case moves to Superior Court -- or sometimes starts there -- is an indictment. That is a process whereby a prosecutor asks a grand jury to vote on whether to issue a particular set of charges against an accused. Grand juries are like trial juries in that they are people chosen from the pool of people summoned for jury duty. The differences are that grand juries are larger in number than trial juries and they are presided over by the prosecutor alone with no judge present. Their proceedings are also closed to the public. They hear testimony and review evidence the prosecution presents to them and then vote on whether to issue whatever charges the prosecution is seeking. If they vote in favor of issuing the charges (and they almost always do) then the accused is said to have been indicted for those offenses.  He or she must then be arraigned in Superior Court. If they are already facing charges for the same conduct in District Court that case will be dismissed. Otherwise, a warrant will issue to arrest the defendant or, in rare cases, a summons will be sent asking them to come to court and be arraigned.

Those two means of getting to Superior Court account for just about all the ways a defendant can end up there. There is, however, a third way that is almost never used. That is a probable cause finding by a District Court judge after what we call a "bind over" or "probable cause" hearing. That process is an alternative to a grand jury indictment, but in general, only the defense ever wants it. It involves a District Court judge acting in the grand jury role and conducting a hearing about the evidence in which the defense gets to participate and cross-examine witnesses. The prosecution almost always wants to avoid that and does so by either asking for more time to indict or dismissing the case. The District Court sometimes dismisses felony charges itself if a judge determines the prosecutor is taking too long to get a grand jury to vote on it. Typically "too long" is something like 4-5 months. And that dismissal can feel very gratifying to the accused, though it is usually a short-lived victory. There is nothing stopping a grand jury from indicting someone even after a District Court complaint is dismissed that concerned the very same charges. That prompts many to say, "what about double jeopardy?!" Meaning your constitutional right not to be prosecuted twice for the same offense. That right is only triggered when a jury is sworn to hear your case at trial. So a dismissal in District Court prior to trial does nothing to prevent the charges being filed again.

So depending on the nature of the charges, the conclusion of the first step of the process is to be arraigned in either District or Superior court where the accused is told the charges and enters a not guilty plea. And, yes, it is always a not-guilty plea no matter how strong the evidence is and no matter how willing the accused is to admit responsibility. Unless the prosecution and defense have been talking in advance and already have an agreement, the case cannot begin until there is a not-guilty plea. One will be entered for a defendant who refuses to participate or tries to force the judge to sentence them on the spot.

The Middle

Following arraignment, the case enters the lengthy period during which it winds its way towards trial. The next event is usually a "pretrial conference" where the prosecution turns over any evidence it did not give at arraignment. That date can be split into several if it is taking time to get certain things, like lab results. On or soon after that date the defense will file any motions. Those can be motions to dismiss the charges (because insufficient evidence was presented to a grand jury for example) or to suppress things like statements or evidence seized with or without a warrant. Motions are often also filed seeking some specific information such as confidential records of an accuser. The filing of those motions and scheduling hearings on them can take many months. In Superior Court a series of dates and deadlines, including the presumptive trial date, are selected at arraignment or the first court date after that. In District Court there will eventually be an "election" date on which a trial date is selected.

Another thing that goes on in the "middle" of cases at the same time as the legal proceedings is plea negotiations. That is to say that the defense and prosecution discuss what sentence will be recommended to a judge if the accused changes his or her plea to guilty. In District Court there is also an option to present what is called a "defendant-capped plea." That is the accused states in writing to a judge what sentence he or she is willing to accept in exchange for a plea of guilty or a plea to "sufficient facts" (meaning they agree in court that there is enough evidence to convict). The judge then has the option of agreeing and doing what the accused asks or making his or her own offer which the accused then accepts or rejects. Many cases are resolved that way. Defense attorneys also put a good deal of thought and energy into getting in front of the "right" judge to present a defendant-capped plea. In Superior Court, that process is not used, but the parties can request a "lobby conference" with a judge. The judge is told about the case and the accused and tells the parties what he or she is likely to do if there is a guilty plea. Again, the inclinations of judges vary and defense attorneys spend a lot of time trying to get to lobby with the "right" one.

If the parties cannot agree on a plea and all motions have been filed and heard, the case then moves to the finale: Trial.

The Ending

Trials in both District and Superior Court can be by jury or by judge alone. In District Court, the jury is six people and in Superior Court it is the more traditional twelve. Usually, more than those numbers are chosen to sit so that there are alternates or "spare" jurors sitting around who have heard the case and can join the deliberating jury if one of them gets sick or has to leave for any reason. Most criminal trials are not to a judge alone. Defense attorneys trust juries more than judges -- who tend to be more cynical about the question of guilt than people who are coming in with no preconceptions. Although there are cases and times when a particular judge might be better for the case and the accused than a jury would. It is up to the defense and the accused him or herself to decide whether to waive the jury. Otherwise, it will be a jury trial.

Hopefully for an accused the trial ends in an acquittal or "not guilty" verdict and he or she can then walk out the front door. If the accused is not so fortunate, however, the next step is sentencing. In District Court that usually happens immediately and it can in Superior Court also. But it is more common in Superior Court to put it off for some time when both sides can prepare arguments about what the sentence should be. After a sentence is imposed the accused's attorney should file a notice of appeal. That must happen within thirty days of sentencing or the right is lost. Either way, that concludes the criminal process at the trial level.

The "Afterparty"

If a case is appealed, that is a whole new process that often takes two to three years to play out. Typically an accused will be sitting in jail or prison while it happens. But that is not the only after-effect of a criminal case. If there is a conviction there can be a wide variety of consequences. If the accused is not a citizen it can, and increasingly often does, mean deportation back to his or her county of origin. That is deportation after any jail or prison sentence is served. People convicted of sex offenses typically also face mandatory registration with the sex offender registry board and, while on probation, monitoring by an ankle bracelet. People convicted of motor vehicle offense like drunk driving charges face mandatory losses of their licenses. And many professionals can see their professional licenses suspended or canceled as a result of a conviction. The point here is that the price of a conviction can be very high, even if there is no jail time imposed. If you are facing criminal charges you should familiarize yourself now with all the possible long-term consequences if you are convicted. It is also worth knowing that consequences can be added later. Many people who are now registered sex offenders pled guilty to charges decades before anyone ever thought to create a registration system. They might have gone to trial had they known that law was coming. No matter: they are stuck with those consequences now. The lesson is that conviction for a crime is to be avoided if at all possible.