Kinds of courts

  • The US has a dual court system. This means each state has its own court system and there’s also a parallel federal court system.
  • The vast majority of criminal cases take place in state courts.
  • The precise names and organizational structures of courts vary from state to state.
  • In the federal system, criminal trials take place in district courts; each state has at least one. The names for the trial courts vary from state to state. In California, for example, they’re called superior courts. In New York, they’re called county courts.
  • In some states, minor criminal matters such as misdemeanors may be tried in a lower court. In some cases, the early steps of felony cases (such as arraignments) may also take place in these lower courts.
  • If a person is convicted, he may appeal his case, usually to an intermediate appellate court. Almost all states have at least one. Larger states may have several, as do the feds.
  • Cases can be appealed from an intermediate appellate court as well. In state cases, this usually goes to a state high court (usually, but not always, called a supreme court). In the federal jurisdiction, the next (and final) stop is the US Supreme Court.
  • Criminal cases may also be appealed from state high courts to the US Supreme Court, but only if an issue in the case concerns the US Constitution.
  • Also, all states and  the federal government have specialty courts. Examples of these are juvenile court, bankruptcy, traffic, and probate.


  • Subject matter jurisdiction means a court has the power to hear a particular kind of case. Some courts are courts of general jurisdiction, meaning they can hear lots of kinds of cases. Others are courts of limited jurisdiction; they can hear only certain types of cases—for example, juvenile cases.
  • Territorial jurisdiction means a court can hear cases that originated only within a specific geographical area. For example, a Georgia court cannot hear a criminal case if all the alleged acts occurred in Tennessee.
  • In criminal cases, federal courts have jurisdiction only over cases alleging violations of federal criminal laws.
  • An exception to the above point is appellate cases; as noted in the previous section, a state criminal case may be appealed to the US Supreme Court if a constitutional violation is alleged.
  • People convicted in state courts may also end up in federal court via a writ of habeas corpus.

People in courts

  • The judge acts somewhat like a referee, ruling on various motions and making sure proper rules and procedures are followed. In the US, the judge cannot decide which evidence will be introduced at trial, only whether particular evidence is admissible. The judge also does not decide guilt (unless both sides waive the right to a jury; this is called a bench trial). The judge provides instructions to juries and, unless it’s a capital case, determines the defendant’s sentence.
  • Judges go by various names, depending on the court and jurisdiction. They may be elected or appointed (federal judges are appointed). There are generally no stated qualifications for becoming a judge.
  • Criminal cases are brought by the prosecutor. The majority of criminal cases are brought by someone in the county District Attorney’s office. DAs are elected. But cases may also be brought by the state Attorney General’s office (state attorneys general are usually elected) or by the federal Attorney General’s office (the US Attorney General is appointed).
  • Prosecutors must turn over to the defense any exculpatory evidence (evidence that tends to show that the defendant isn’t guilty), even if the defense is unaware the evidence exists. However, Defense attorneys do not need to turn over inculpatory evidence (evidence tending to show guilt) unless the prosecutor asks for it.
  • About 80% of criminal defendants have a defense attorney provided for them; the remaining 20% pay for their own defense. Methods of providing defense attorneys vary by jurisdiction. Larger places usually have a public defenders’ office. Smaller ones may contract with local lawyers on a case-by-case basis.
  • Although 12-person juries are common (that number dates back to the 14th century), some states allow smaller juries. The US Supreme Court has set 6 as the minimum jury size.
  • The jury’s job is to determine the facts of the case and, ultimately, guilt.
  • In some jurisdictions, jury decisions need not be unanimous. Some states allow convictions on 11-1, 10-2, or even 9-3 votes.
  • The jury is composed of citizens over age 18 who reside in the court’s jurisdiction. Prior felony convictions may disqualify someone from jury service.
  • Juries are very rarely sequestered (i.e., kept separate from outside contacts during the trial). However, during the trial, jurors are forbidden from speaking to non-jurors about the case or doing any outside research or reading about the case. Jury deliberations are always private, with nobody present except the jury.
  • Witnesses are people who testify about evidence related to the case. Eyewitnesses (also called lay witnesses) personally saw or heard something relevant to the case. Expert witnesses are hired by one side or the other and have a specialized body of knowledge that may help the jury determine the facts. For example, someone who’s an expert in psychology might testify about whether the defendant’s confession was false.
  • Other people play a more minor role in courts: bailiffs, clerks, court reporters, etc.

Trial procedure

Procedure varies by case and jurisdiction. What follows is what’s most typical.

  • Suspect is arrested, taken into custody, and booked at the station or the jail. Booking includes photos, fingerprinting, and checking for warrants.
  • Suspect may remain in custody, may pay bail (a sort of monetary deposit that operates as a promise to show up for trial), or may be released on their own recognizance (without paying bail, but with a promise to show up in court)
  • Arraignment: If the defendant is in custody, arraignment must usually occur within 2 business days. Initial charges are read, defendant is assigned an attorney if he doesn’t already have one, defendant enters an initial plea—guilty, not guilty, or no contest.
  • Plea bargaining begins: Most cases are plead out. A plea bargain may be made at any point until the jury issues a verdict.
  • Probable cause hearing: In all federal cases and some state cases, this will be a grand jury hearing (in front of a group of citizens). In most state cases, it will be a preliminary hearing. In either case, the prosecution presents evidence and a determination is made as to whether probable cause exists to try this defendant on these charges. If not, the case is dismissed. If so, an indictment (if a grand jury) or information (if a preliminary hearing—often called a prelim).
  • Trial
    • Potential jurors are questioned (a process called voir dire), selected, and sworn in
    • Prosecutor makes opening statements
    • Defense can make opening statement now or wait until after prosecutor’s case-in-chief
    • Prosecution presents case-in-chief: the body of evidence against the defendant
    • Defense cross-examines witnesses
    • Prosecution may redirect and defense may recross
    • Prosecution rests
    • Defense makes motion to dismiss the case
    • Defense presents case-in-chief
    • Prosecution cross-examines defense witnesses
    • Defense may redirect and prosecution may recross
    • Defense rests
    • Prosecution may rebut defense
    • Prosecution makes closing statement
    • Defense makes closing statement
    • Prosecution may rebut defense’s closing statements
    • Jury is given instructions by judge
    • Jury deliberates
    • Verdict is announced
    • If the defendant is found guilty, defense files a motion to override the verdict
    • Sentencing (this may take place some time later, and may involve a separate hearing)


  • If a defendant is found not guilty, the prosecution cannot appeal. That case is over forever, even if new evidence appears. Even if the defendant subsequently admits her guilt.
  • If a defendant is convicted, she can appeal. Instead of juries, appellate cases have a panel of judges (the number varies according to the court). Appellate courts don’t decide guilt or innocence, but rather whether legal errors were made at trial. They can uphold a lower court’s decision (i.e., agree with it). Or they can reverse the decision, which remands (sends back) the case to the lower court, perhaps for a new trial.
  • Either party can appeal an appellate court decision. However, with some rare exceptions, neither state high courts nor the US Supreme Court is required to hear a case. The justices will vote on whether to grant a writ of certiorari—essentially, whether to hear the case. The US Supreme Court hears only about 100 cases per year.

Double jeopardy

  • The Constitution prohibits trying the same person more than once for the same crime.
  • This means that once a person is acquitted (found not guilty) she can never be tried again for that particular offense.
  • It also means that if a person is convicted and sentenced, additional time cannot later be added to his sentence for that same offense.
  • There are many situations, however, in which double jeopardy doesn’t apply
    • It doesn’t prohibit a new trial on different charges (there are some intricacies here; do your research if you plan to pursue this)
    • It doesn’t prohibit trying the defendant again if he commits the same offense another time
    • It doesn’t apply if the case never got to court to begin with (jeopardy “attaches” when the jury is sworn in)
    • It doesn’t apply if there’s a hung jury or, in most cases, if there’s a mistrial
    • It doesn’t prohibit charges being brought by a different jurisdiction. If the defendant kidnaps someone in Nevada and drags the victim to Idaho, he may be tried by both states as well as by the federal government
    • It doesn’t prohibit a civil lawsuit from being brought against the defendant (famously, this happened to both OJ Simpson and Robert Blake)