Getting arrested does not mean that a person has been convicted of a crime. An arrest begins a criminal process in which prosecutors must decide what charges to pursue and ultimately prove the criminal case under the applicable burden of proof.
What happens after an arrest depends on whether the alleged offense is a misdemeanor or felony, whether the case is being prosecuted in state or federal court, whether the defendant remains in jail or is released, and the criminal procedure used in the jurisdiction.
Despite differences among states, most criminal cases follow a recognizable sequence: arrest, booking, initial court appearance, bail or pretrial release, formal criminal charges, arraignment, discovery and pretrial motions, plea negotiations or trial, and—if there is a conviction—sentencing.
Understanding these stages is important because decisions made immediately after an arrest can affect the rest of a criminal case.
Arrest and Probable Cause
Police generally need legal justification to make an arrest. Depending on the circumstances, an arrest may be based on an arrest warrant or probable cause developed by law enforcement.
An arrest warrant is typically issued by a judge after a showing of probable cause.
Police may also make warrantless arrests in circumstances permitted by law, such as when officers have probable cause to believe certain crimes occurred.
Probable cause is not the same as proof beyond a reasonable doubt. It is the legal threshold associated with actions such as arrests and warrants; conviction at a criminal trial requires the prosecution to satisfy the much higher trial standard.
What Happens During Booking?
After an arrest, a person taken into custody will ordinarily go through the booking process.
Booking can include:
- Recording the person’s name and identifying information
- Photographing the person
- Taking fingerprints
- Recording the alleged criminal charges
- Inventorying personal property
- Searching the arrested person
- Checking for outstanding warrants
- Placement in a holding facility or jail
The exact booking procedure depends on the police department, jail, and jurisdiction.
For relatively minor offenses, some defendants may be released relatively quickly through a citation, summons, bond, or another release procedure.
Someone accused of a serious offense may remain in custody until appearing before a judge.
Your Right to Remain Silent After an Arrest
One of the most important constitutional protections in a criminal case is the Fifth Amendment right against compelled self-incrimination.
An arrested person should understand the difference between identifying themselves when legally required and answering investigative questions about an alleged crime.
Statements made to police can potentially become evidence.
A defendant generally does not have to prove innocence. In a criminal trial, the prosecution carries the burden of proving guilt beyond a reasonable doubt.
The Right to a Criminal Defense Attorney
A defendant facing criminal prosecution has important rights involving legal representation.
During an initial federal court appearance, for example, defendants who cannot afford counsel are advised of their right to court-appointed representation.
State systems similarly provide procedures for appointing counsel to qualifying indigent defendants when the constitutional right to appointed counsel applies.
A criminal defense attorney can examine:
- Whether the arrest was lawful
- Police reports
- Witness statements
- Search warrants
- Physical evidence
- Video evidence
- Statements made by the defendant
- Laboratory evidence
- Potential constitutional violations
- Available defenses
- Possible plea agreements
- Potential sentencing consequences
The attorney can also communicate with prosecutors and represent the defendant at court hearings.
What Happens at the First Court Appearance?
A person who remains in custody after an arrest generally appears before a judge relatively early in the criminal process.
Terminology differs among jurisdictions. The hearing may be called an:
- Initial appearance
- First appearance
- Preliminary appearance
- Bail hearing
- Initial hearing
At a federal initial appearance, the judge advises the defendant of the charges, considers pretrial detention or release, addresses probable cause where applicable, and deals with representation by counsel.
State procedures differ, but similar issues are commonly addressed.
Bail, Bond and Pretrial Release
One of the first major questions after an arrest is whether the defendant will remain in jail while the criminal case is pending.
Depending on the jurisdiction and charge, the court may:
- Release the defendant without requiring money
- Require a monetary bond
- Impose conditions of release
- Order supervision
- Require electronic monitoring
- Restrict travel
- Prohibit contact with particular people
- Prohibit possession of weapons
- Require drug or alcohol testing
- Order detention in qualifying cases
The terms bail and bond are often used interchangeably in everyday conversation, although their technical meanings and procedures can differ.
A defendant released before trial must comply with the conditions imposed by the court.
Violating release conditions can lead to additional legal problems and potentially result in the defendant being returned to custody.
How Criminal Charges Are Filed
An arrest and a formal criminal charge are related but are not exactly the same thing.
Prosecutors review available evidence and determine what criminal charges will be pursued.
Depending on the jurisdiction and seriousness of the alleged crime, charges can be initiated through documents such as a:
- Criminal complaint
- Information
- Indictment
In federal court, an indictment is a written accusation returned by a grand jury, while an information is a charging document filed by the United States Attorney.
State charging procedures differ, particularly for felony cases.
Misdemeanor vs. Felony Charges
Criminal offenses are commonly divided into misdemeanors and felonies, although classification systems differ by state.
Misdemeanor Charges
Misdemeanors generally involve less severe potential punishment than felonies.
Examples can include certain:
- Theft offenses
- Simple assaults
- Disorderly conduct offenses
- Trespass offenses
- DUI or DWI offenses
- Drug possession offenses
Whether a particular offense is a misdemeanor depends on the state’s criminal code and circumstances of the alleged offense.
Felony Charges
Felonies are more serious criminal offenses and can expose a defendant to substantially greater penalties.
Examples may include certain:
- Aggravated assaults
- Robberies
- Burglaries
- Serious drug offenses
- Sex offenses
- Homicide offenses
- Fraud offenses
The same general conduct can sometimes be classified differently depending on aggravating circumstances, prior convictions, amount of financial loss, use of a weapon, seriousness of an injury, or other statutory factors.
What Is an Arraignment?
The arraignment is the court proceeding at which the defendant is formally informed of the criminal charges and asked to enter a plea.
Possible pleas can include:
- Not guilty
- Guilty
- No contest, where permitted
A defendant who pleads not guilty does not have to prove innocence by entering that plea. The prosecution still bears the burden of proving the criminal charges.
A not-guilty plea generally allows the case to proceed through the pretrial process toward negotiations, dismissal, or trial.
What Happens After a Not-Guilty Plea?
After a defendant pleads not guilty, the criminal case enters the pretrial stage.
This stage can include:
- Discovery
- Investigation
- Witness interviews
- Expert analysis
- Pretrial conferences
- Motions
- Plea negotiations
- Hearings
- Trial preparation
Federal criminal cases include pretrial discovery, although discovery is more restricted than in ordinary civil litigation. Attorneys may also file motions requesting court rulings before trial.
State discovery rules vary.
Criminal Discovery and Evidence
Discovery is the process through which the defense obtains information and evidence that must be disclosed under applicable criminal procedure and constitutional requirements.
Depending on the case, evidence may include:
- Police reports
- Body-camera footage
- Surveillance video
- Photographs
- Witness statements
- Laboratory reports
- DNA evidence
- Fingerprints
- Phone records
- Electronic communications
- Financial records
- Expert reports
- Defendant statements
The defense can analyze this evidence to determine what the prosecution can prove and whether evidence can be challenged.
Motions to Suppress Evidence
Evidence is not automatically admissible simply because police obtained it.
A criminal defense attorney may file a motion to suppress when there is a legal basis to argue that evidence was obtained in violation of constitutional protections.
Federal courts specifically recognize suppression motions as a type of pretrial motion involving potential constitutional violations.
Issues may involve:
- Searches
- Search warrants
- Vehicle searches
- Home searches
- Seizures
- Statements to police
- Identification procedures
If a judge suppresses important evidence, prosecutors may be unable to use that evidence in the manner originally intended.
That can substantially affect a criminal case.
What Is a Plea Bargain?
Many criminal cases never reach trial.
A plea bargain is an agreement under which a defendant agrees to plead guilty, typically in exchange for some concession from the prosecution.
That concession might involve:
- Dismissal of certain charges
- Reduction of charges
- A sentencing recommendation
- Agreement concerning particular sentencing issues
Federal courts report that more than 90% of federal defendants plead guilty rather than proceed to trial.
That statistic should not be assumed to describe every state or local court system, but it illustrates how important plea negotiations are in modern criminal procedure.
A guilty plea has serious consequences because the defendant gives up important trial rights.
What Happens if the Criminal Case Goes to Trial?
If the case is not dismissed or resolved through a guilty plea, it may proceed to trial.
Depending on the offense and applicable law, the trial may be before a jury or judge.
The prosecution presents evidence attempting to establish every required element of the charged offense.
The defense can:
- Cross-examine prosecution witnesses
- Challenge evidence
- Present admissible defense evidence
- Call witnesses
- Present expert testimony when appropriate
- Argue that the prosecution has failed to meet its burden
The defendant is presumed innocent and does not carry the burden of proving innocence.
In a federal criminal trial, the government must prove guilt beyond a reasonable doubt.
Guilty vs. Not Guilty Verdict
If the defendant is found not guilty, the defendant is acquitted of that charge.
In federal court, the government cannot appeal an acquittal and retry the defendant for the same federal offense because of constitutional double-jeopardy protections.
If the defendant is found guilty, the case proceeds to sentencing.
A defendant can also be convicted of some charges and acquitted of others when multiple counts are involved.
What Happens at Criminal Sentencing?
Sentencing occurs after a guilty plea or guilty verdict.
Possible criminal penalties depend on the offense and applicable law and can include:
- Jail
- Prison
- Probation
- Fines
- Restitution
- Community supervision
- Community service
- Treatment programs
- Electronic monitoring
- Other court-ordered conditions
In federal felony cases, the probation office ordinarily prepares a presentence report before sentencing. The judge considers applicable sentencing law and relevant information before imposing the sentence.
States have their own sentencing statutes and procedures.
Probation Instead of Jail
Some defendants receive probation rather than incarceration, or probation following a period of incarceration.
Probation can impose numerous conditions.
A defendant may be required to:
- Report to a probation officer
- Remain law-abiding
- Complete treatment
- Submit to testing
- Maintain employment
- Avoid particular people or locations
- Pay restitution or fines
- Comply with travel restrictions
Violating probation can result in a probation violation proceeding and potentially additional penalties.
Can Criminal Charges Be Dismissed?
Yes, criminal charges can sometimes be dismissed before trial.
Possible reasons include:
- Insufficient evidence
- Evidentiary problems
- Unavailable witnesses
- Constitutional violations
- Successful pretrial motions
- Prosecutorial decisions
- Completion of certain diversion programs where available
- Other legal deficiencies
A dismissal is not guaranteed simply because the defendant believes the accusation is false.
The legal and factual basis of the prosecution must be examined.
Diversion and Deferred Prosecution Programs
Some jurisdictions offer diversion, deferred prosecution, deferred adjudication, or similar programs for qualifying defendants and offenses.
Depending on the program, a defendant may be required to complete:
- Counseling
- Drug treatment
- Educational programs
- Community service
- Restitution
- Probation-like supervision
- Other conditions
Successful completion can sometimes result in dismissal, reduced consequences, or another favorable disposition.
Eligibility differs significantly by state, county, offense, and criminal history.
Will an Arrest Stay on Your Criminal Record?
An arrest can create records even when the person is never convicted.
Whether an arrest or criminal case can later be sealed, expunged, restricted, or otherwise removed from public access depends heavily on state law and the outcome of the case.
Some jurisdictions allow certain dismissed cases or qualifying convictions to be sealed or expunged.
Others impose waiting periods or exclude particular offenses.
A dismissal therefore does not necessarily mean every record automatically disappears.
State Criminal Charges vs. Federal Criminal Charges
Most criminal prosecutions occur under state law.
Federal criminal cases involve alleged violations of federal law and follow the Federal Rules of Criminal Procedure and other federal statutes and constitutional requirements.
The overall structure can look similar:
Investigation → Arrest or Charges → Initial Appearance → Pretrial Release/Detention → Arraignment → Discovery and Motions → Plea or Trial → Sentencing
But federal and state cases can differ significantly in charging procedures, bail rules, sentencing systems, discovery, deadlines, and available penalties.
Important Differences Between States
State criminal laws are not identical.
Important differences include:
| Issue | What can differ |
|---|---|
| Crime classification | Felony, misdemeanor and offense levels |
| Bail | Eligibility, monetary bail and release rules |
| Arraignment | Timing and procedure |
| Preliminary hearing | When one is required |
| Discovery | Evidence disclosure requirements |
| Plea bargaining | Procedures and restrictions |
| Sentencing | Minimums, maximums and sentencing guidelines |
| Probation | Eligibility and conditions |
| Diversion | Available programs and qualifying offenses |
| Expungement | Eligibility and waiting periods |
| Criminal records | Sealing and public-access rules |
Someone facing criminal charges should therefore look at the law of the specific state where the prosecution is occurring, not assume that a procedure described for another state applies.
Criminal Case Process at a Glance
A typical criminal case may proceed through:
1. Police investigation
2. Arrest or issuance of a summons
3. Booking
4. Initial court appearance
5. Bail, bond or pretrial-release determination
6. Filing of formal criminal charges
7. Arraignment and plea
8. Criminal discovery
9. Pretrial motions
10. Plea negotiations
11. Dismissal, guilty plea or criminal trial
12. Verdict
13. Sentencing after conviction
14. Probation, incarceration or other sentence
15. Appeal or post-conviction proceedings where legally available
Not every criminal case goes through every stage, and the order or terminology can differ by jurisdiction.