Saturday , May 18 2024
A prison corridor with open cell door and open prison gate
Hollywood would have you believe justice takes place when cops heroically swoop in, the bad guys are subdued, the trial is a circus of surprise witnesses and suspend-your-belief evidence and finally a lock up with the slamming of a jail door. That’s not how it works.

Sentencing 101: How the Justice System Works

Hollywood would have you believe justice takes place when cops heroically swoop in, the bad guys are subdued (with a couple of car chases thrown in for good measure), and some exciting arrests are made. The trial is a circus of surprise witnesses and suspend-your-belief evidence, followed by a dramatic lockup with the slamming of a jail door.

That’s not how it works.

Today we present an overview of the judicial process and what comes before sentencing, and we point out key things to know each step of the way.

You Can be Tried Twice

The first thing to know is that each state has its own criminal processing system, but a federal crime may also be processed by United States attorneys. Therefore, it is possible to be charged, processed, and convicted under both the state and federal systems.


When a crime is committed, the investigation phase could be short (caught in the act of theft, caught with drugs or weapons, etc.) or lengthy (search warrants issued, and/or other departments, like Homeland Security, getting involved).

It is important to note that should a search warrant be needed, it must be issued by a judge who has no bearing on your case. This is to prevent bias. A person under investigation may also not be arrested without probable cause, aka reasonable grounds.

Laying Charges

Once the investigation is complete and an arrest made, the alleged offender is charged with a crime. All Americans have a right to fair representation when charged, whether they can afford a lawyer or not. When the alleged offender does not have the funds, the court will appoint a public defender at a reduced rate, or for free (depending on the alleged offender’s circumstances).

It is not right to call the person charged an “offender” at this point, as his or her guilt has not been proven in court. Therefore, we use the term “alleged.” The person may also be referred to as the defendant.

The Arraignment

Also known as the initial hearing, this step takes place shortly after charges are laid. Before a judge, the defendant is given more information about his or her charge(s), an attorney is arranged if he or she has not been able to hire one, and the judge decides if the defendant will remain in prison while awaiting trial or released on bail.

A defendant who cannot pay the bail set by the judge will be detained. This has proven to be very problematic for disenfranchised Americans.

Once the judge finishes informing the alleged offender of the details of the case, the defendant may offer a plea of guilty or not guilty.

If a guilty plea is entered, a trial is not necessary, and plea bargaining or sentencing can commence. If a not guilty plea is entered, the next step is to get ready for trial.

What is a Plea Bargain?

A plea bargain is an arrangement between the defendant and the prosecutor in which a plea of guilty or no contest is entered in exchange for a lesser charge or lighter sentence.

Getting Ready for Trial: Discovery and the Preliminary Hearing

The discovery phase involves the defense attorney and the prosecutor finding evidence to support their cases. Both sides also talk to their witnesses and prepare them for the trial.

A preliminary hearing is like a smaller version of a trial. Witnesses can be called, and evidence can be presented. The point of the preliminary trial is for the prosecutor to show he or she has enough evidence to support the charge. The judge will decide if the evidence is sufficient for a trial to go forward. If insufficient evidence is found, the judge will dismiss the case.

The preliminary hearing is not always necessary and can be waived by the defendant.


Before the trial, the defense or prosecuting attorney may make a motion to the judge. For example, if the defense believes the prosecutor does not have sufficient evidence, he or she can make a motion to have the trial dismissed.

Another common motion is for a change of venue. High-profile cases attract a lot of press, which can influence a jury. Sometimes a change of venue is needed so an impartial jury can be assembled.

Motions to suppress evidence may also be entered. For example, if a step in the judicial process was not followed correctly, like a search without a warrant, a motion may be made to keep evidence resulting from that search out of the trial.

Only a judge can accept or dismiss a motion.

The Trial

It all leads to this point – the trial. This is when the case is presented and a jury decides if the defendant is guilty.

Again, Hollywood would have us believe that trials are incredibly exciting affairs with surprise witnesses, stunning displays of evidence, and passionate lawyers pounding on tables. Really, nothing could be further from the truth. While there can be some surprises and excitement during a trial, it usually consists of witnesses giving testimony and being cross-examined, and the two sides pleading their cases. CSI levels of evidence introduction and surprise witnesses are usually ruled out by the discovery phase. Attorneys go to great lengths to know what witnesses will say, and what evidence will be presented.

More Motions

After the trial the defense and prosecutor can motion for a new trial, an acquittal, etc., if they feel have grounds to do so. Again, only the judge can accept or dismiss a motion.

The Sentence

Sentencing does not take place directly after the trial – it can be months before the offender is sentenced. This gives the judge time to consider all the factors and, if necessary, look up similar cases to support the sentence he or she wishes to give.

Factors that influence the judge’s sentence include victim impact statements, remorse shown by the defendant, the type of crime committed, and if the offender has a criminal past.

It’s a Multi-Step Process, and We Can Help

We all know that there are flaws in the American judicial system, but we must also be thankful for a multi-step process designed to give all Americans their best chance in court, and to correct those flaws at each step. To learn more about the judicial process, visit the United States Department of Justice website.

Christopher Zoukis, author of Federal Prison Handbook, Prison Education Guide, and College for Convicts, is the Marketing Director of Brandon Sample PLC. He can be found online at,, and

About Christopher Zoukis

Christopher Zoukis, MBA, is the author of the Federal Prison Handbook., Prison Education Guide, and College for Convicts. He is currently a law student at the University of California, Davis School of Law, where he is a Criminal Law Association and Students Against Mass Incarceration board member, and a research editor for the Social Justice Law Review. Learn more about him at Federal Prison Consultants.