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The United States Felony Process

Americans are being locked up at ever increasing rates. Knowledge of the process leading to this result is important for all citizens.

In 2008 the Washington Post reported that more than 1 of every 100 Americans was incarcerated. While there was a slight drop in Americans in jail or prison in 2011, the United States still has highest rate of incarceration of any country. Longer prison terms for drug crimes, and more severe penalties for all types of crimes are partly responsible.

States have gotten tougher by changing the classification of many offenses from misdemeanors to felonies. As an example, many jurisdictions have added aggravating factors to change misdemeanor driving under the influence charges to felonies. Often first time DUI offenders are felony eligible for getting a DUI without having car insurance or having a license suspended for any reason.

Felonies and Their Impact

A felony differs from a misdemeanor. It is a crime with possible penalties of at least a year to life in prison.  Capital felonies carry a potential death sentence. A felony conviction can cause the loss of civil rights such as voting, ability to own a weapon or to drive. Convicted felons have a difficult time finding employment.

Given the incarceration rate and the life impact, it is important that the government follow specific procedures in prosecuting felonies. With so many citizens touched by felony cases, either as a defendant or as a victim, an understanding of why someone is punished,  how a felony case proceeds and how it differs from a civil lawsuit  is important for citizens to have.

A Prosecutor Must Authorize a Felony Charge

While police can sign complaints to begin prosecution of misdemeanors, the decision to proceed with felony charges belongs to the prosecutor. An officer with probable cause to believe a felony has been committed or knowledge of a warrant to arrest an individual may conduct an arrest.[1]  Then he contacts the prosecuting authority (district attorney, state’s attorney or county attorney). It is the prosecutor, who, upon reviewing evidence in the case authorizes or denies the filing of felony charges.  With the prosecutor’s authorization, the court aspect of the felony process begins.[2]

First Appearance Before A Judge

After an arrest the accused is brought before a judge. The judge hears the charges and background of the defendant and determines an appropriate bond. [3] The judge also determines if the accused can afford an attorney. If he cannot afford private counsel the judge will appoint a lawyer for the defendant in accord with his constitutional rights.

If the defendant can post bond he is released, if not he remains in custody while the case is pending.

Preliminary Hearing or Grand Jury Indictment

After the bond hearing the case proceeds in one of two ways:

  1. Preliminary hearing
  2. Grand Jury Indictment

A preliminary hearing is held before a judge and the defense may cross examine and present witnesses. A Grand Jury is a secret proceeding and the State presents evidence to jurors without the defense present. In either case, a determination is made as to whether there is probable cause to believe:

  1. There was a crime.
  2. A certain individual committed it.

If the answers are yes, the case proceeds. If the answers are no, the case terminates and the defendant is freed. He may be arrested again in the future if further evidence warrants it.

Arraignment, Discovery and Motions

If probable cause is met, the defendant is brought before a judge and arraigned. He is told of the charges and enters a plea. This is usually “not guilty” and the case continues. The defense then sees the state’s evidence through a process known as discovery.

Once discovery is complete, the defense has decisions to make. Should motions[4] be filed? A motion asks a judge to order a specific action be taken. Some motions, such as to Quash Arrest, Suppress a Statement or Evidence, may result in the charges being dismissed. Motions have an effect on if the case will proceed to trial, how a trial is conducted or whether the defendant agrees to plead guilty.

Plea Agreement or Trial

If the Defendant agrees to plead guilty it is by way of an agreement between the prosecutor, the defense lawyer and the defendant. Sometimes, the judge may participate in the agreement. In all instances, the judge must approve the agreement. The agreement determines the penalties imposed on the defendant in return for the guilty plea.

Without an agreement (unless the case is dismissed by way of a motion), a trial is held, and the defendant maintains his plea of not guilty. The state presents evidence to either a judge (bench trial) or a jury. The state must prove the defendant’s guilt beyond a reasonable doubt. It may be proven with circumstantial evidence. If the state fails, the defendant is found not guilty and freed. If the state succeeds, then the defendant will have a penalty imposed by the judge who presided at the trial.

With enhanced penalties, high rates of incarceration and growing number of felony eligible charges knowledge of the process for our citizens is important.



[1] If the arrest takes place outside the state where the crime took place the arrestee must go through process of extradition. States are required to return fugitives from justice to the State issuing a warrant by Art. IV, sec. 2 of the Constitution.

[2] This may vary among jurisdictions. In some states, the court process may begin while the prosecutor is making a decision whether to file felony charges, in others, the prosecutor makes a decision authorizing felony charges prior to any court hearings.  In either system, for the case to proceed as a felony, the prosecutor is the final decision maker.

[3] The judge may also set conditions of bond including random drug testing or travel restrictions.  In certain capital cases the judge may require that the defendant be held without bond.

[4] A motion is a request by an attorney made to the judge asking that the judge issue an order.

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