Who decides whether someone should be charged criminally

After the prosecutor studies the information from investigators and the information they gather from talking with the individuals involved, the prosecutor decides whether to present the case to the grand jury. When a person is indicted, they are given formal notice that it is believed that they committed a crime. The indictment contains the basic information that informs the person of the charges against them.

For potential felony charges, a prosecutor will present the evidence to an impartial group of citizens called a grand jury. Witnesses may be called to testify, evidence is shown to the grand jury, and an outline of the case is presented to the grand jury members. The grand jury listens to the prosecutor and witnesses, and then votes in secret on whether they believe that enough evidence exists to charge the person with a crime. A grand jury may decide not to charge an individual based upon the evidence, no indictment would come from the grand jury. All proceedings and statements made before a grand jury are sealed, meaning that only the people in the room have knowledge about who said what about whom. The grand jury is a constitutional requirement for certain types of crimes (meaning it is written in the United States Constitution) so that a group of citizens who do not know the defendant can make an unbiased decision about the evidence before voting to charge an individual with a crime.

Grand juries are made up of approximately 16-23 members. Their proceedings can only be attended by specific persons. For example, witnesses who are compelled to testify before the grand jury are not allowed to have an attorney present. At least twelve jurors must concur in order to issue an indictment.

The federal courthouse in Minneapolis is one of the venues for the District of Minnesota.

States are not required to charge by use of a grand jury. Many do, but the Supreme Court has interpreted the Constitution to only require the federal government to use grand juries for all felony crimes (federal misdemeanor charges do not have to come from the federal grand jury).

After the defendant is charged, they can either hire an attorney or if they are indigent they may choose to be represented by an attorney provided by the Government — a public defender — at no or minimal charge. The defendant’s attorney is referred to as the defense attorney. The defendant's attorney assists the defendant in understanding the law and the facts of the case, and represents the defendant just as the prosecutor will represent the Government.

Venue

The location where the trial is held is called the venue, and federal cases are tried in a United States District Court. There are 94 district courts in the United States including the District of Columbia and territories. Many states have more than one district court so the venue will depend on where you live in the state. Within each district, there may be several courthouse locations. Click here to see if you can find the one closest to your neighborhood.

At the plea date, the judge will advise the defendant of all of his or her constitutional rights and confirm whether the defendant is willing to accept the plea agreement. If so, the defendant will admit to the offense and to the particulars involved in the offense. After the judge concludes the hearing on the plea agreement, he may decide to accept the plea agreement or take the plea agreement under advisement. It is important to understand that although the judge may accept the defendant's guilty plea, the judge is not obligated to accept the terms of the plea agreement between the prosecution and the defense. In his or her discretion, a judge may, in fact, reject a plea agreement.

Trial

If the prosecuting attorney does not offer a plea agreement or the defendant does not accept the plea agreement, then the case will proceed to trial. The defendant generally decides whether to choose a jury trial or a bench trial (judge only). It is important to understand that although a case may be set for trial on a particular date, it may not actually go to trial on that day, even if the prosecutor and defense attorney intend to go to trial at that time. As a rule, judges will set a number of cases for trial on the same day. This is done with the idea that it is difficult to know in advance which cases will go to trial and which ones will plead. As such, a case may be set for trial, yet be bumped by another case that was previously set for trial on the same day and that does, in fact, go to trial.

If such a conflict arises, a judge will usually set a new trial date immediately, and may set a new record date as well. It is often difficult for victims when a trial date is continued because of conflicts with other trials. It is important that victims brace themselves for this likelihood. It is the rule, rather than the exception, that cases are continued because of scheduling conflicts or continuances requested by either the prosecutor or the defendant.

Voire Dire (Jury Selection)

The length of a trial can range anywhere from a few hours to a few weeks depending on the severity and complexity of the case and the offenses. On the trial date, if the defendant has requested a jury trial, the prosecutor and defense attorney will conduct voir dire, a Latin term that refers to the jury selection process. This process can last anywhere from a couple of hours to the entire first day of the trial. The attorneys ask questions of potential jurors to try to determine which jurors they want to serve in the case. Each side is allowed to strike, or refuse to accept, potential jurors in one of two ways. The first kind of strike is a peremptory strike, in which the attorney (either the prosecutor or the defense) does not have to justify why he or she does not want the juror to serve. Each side has a limited number of peremptory strikes that can be used during the voir dire process.

The second kind of strike is a strike for cause, in which the attorney must explain to the judge why he or she believes that the juror is inappropriate for the case. Each side has an unlimited number of strikes for cause. For misdemeanor and level 6 felony trials, juries consist of six jurors plus alternates; for all other felony trials and murder trials, juries consist of twelve jurors plus alternates. There is no need for victims to be present during the jury selection process; in fact, there is usually so little available space in the courtroom during jury selection that the victims cannot sit in the courtroom and will have to remain outside. Victims who wish to attend a jury trial should plan on waiting to arrive at the courthouse until late on the first day of the trial or early on the second day. You should talk to the prosecutor or victim advocate who is involved with the trial to find out when you should arrive.

First Phase of Trial

After the jury is selected, the trial begins. The burden of proof is on the State, which is represented by the prosecutor. Therefore, the State is allowed to present arguments and its case first, and is also allowed time to rebut arguments or evidence presented by the defense. The defendant has no burden of proof, therefore, the defendant is not required to present evidence or witnesses, nor does he or she even have to testify on his or her own behalf. During the first phase of the trial, each side will give its opening statement. Generally, in opening statements, each attorney will outline his or her case, telling the jury or judge what they can expect to hear during the presentation of the case-in-chief.

Second Phase of Trial

The second phase of the trial is the evidence phase, during which each side presents its case-in-chief. The case-in-chief is all of the evidence and witness testimony presented by each side. During the case-in-chief, each attorney will conduct a direct examination of each of his or her witnesses. After direct examination is complete, cross-examination will begin, in which the witness is questioned by the opposing attorney. At the end of cross-examination, the side that called the witness will be allowed time for "re-direct" examination in order to clarify any testimony from direct or cross-examination.

In the state of Indiana, after "redirect," the judge is permitted to take questions for the witness from the jurors. These questions are written down, given to the bailiff, and presented to the judge. The judge will consult with both attorneys to decide if the question can be asked of the witness. Questions will only be asked if the witness can answer it completely from his or her knowledge of the case. For example, a witness cannot answer any questions about what a person may have been thinking. After each side has presented its case-in-chief and has rested, the evidence phase of the trial is complete.

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