This material is from our recently released second edition of our nonfiction book A LAWYER’S PRIMER FOR WRITERS: FROM CRIMES TO COURTROOMS. This new edition includes images, additional resource links and other material. All Rights Reserved by Colleen Collins and Shaun Kaufman.
Book Excerpt: Arrests and Charges in a Criminal Case
Let’s look at the events surrounding a person being arrested and charged, depending on whether it’s a federal offense or a lower jurisdiction crime.
Arrests for Federal Crimes
If a person is arrested and charged with a federal crime by law enforcement, the accused goes to either a federal detention center or a local jail. Otherwise, a US attorney for a federal district seeks an indictment from a grand jury who, after reviewing evidence and testimony, decides whether or not there is sufficient evidence to proceed with prosecution. If there is not sufficient evidence, the case is dismissed. If an indictment is issued, the US attorney requests an arrest warrant from a judge, and the defendant can either surrender or be arrested by the US Marshals Service.
Let’s take a moment and discuss probable cause.
This is the requirement, found in the Fourth Amendment to the Constitution, that must usually be met before police can:
- Make an arrest
- Conduct a search
- Obtain a warrant.
Courts typically find probable cause when there is a reasonable basis for believing that a crime might have been committed (and therefore the arrest was necessary), and that evidence of the crime is present in the place to be searched.
It’s important to note that just because someone is indicted does not mean he or she is guilty of any crime. The grand jury process is simply a means of charging someone with a crime, and the grand jury’s decisions are based merely on probable cause.
Tip for Writers: The FBI is willing to help writers accurately portray how their agents conduct arrests, among other procedures. Their guidelines and contact information is on this page: Working with the FBI: A Guide for Writers, Authors, and Producers
Arrests for Non-Federal Crimes
After a person is arrested, he or she is booked at a police station where they are photographed and fingerprinted, and their personal property is taken and stored. Each person is allowed to make one phone call before being put into a jail cell. Just as you’ve probably seen in the movies or read in stories, that one call is often to a lawyer.
Taken Into Custody Without a Warrant
When a law enforcement officer has probable cause to believe that one or more misdemeanors or felonies were committed, or if a crime was committed in the officer’s presence, the officer can immediately arrest a suspect without an arrest warrant.
The officer then takes the accused person into custody, which means the person is now being guarded by that law enforcement agency. The officer will next submit a warrant request, sometimes called a charging request, to a prosecuting attorney that suggests the potential charges to be authorized.
When a person is in custody, and before he/ she is questioned by law enforcement, the suspect must be informed of their Miranda rights, which stem from the US Supreme Court 1966 ruling in Miranda v. Arizona. These rights require the arrestee to be informed of his/ her constitutional rights to counsel and to remain silent. If the arrestee is not informed of these rights, any evidence gained from the questioning is not admissible as evidence in a court of law. The wording itself is called the Miranda Warning, and its issuance by an officer to a suspect in custody is often informally referred to as the suspect being Mirandized. Here is the wording in the Miranda Warning:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?
Some police departments— such as in Indiana, New Jersey, Nevada, Oklahoma and Alaska— add the following sentence to the Miranda Warning:
We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.
The person in custody must issue a clear, affirmative answer to the Miranda Warning. In other words, silence is not a response, nor is silence an indication that the person is waiving his/ her rights, because the arrestee may not understand or may not speak English as his or her first language. Throughout the US, many law enforcement officers have translations of the Miranda Warning on forms or cards that they present to those in custody.
Let’s say a suspect in custody clearly and affirmatively waives his Miranda rights. If he changes his mind at any time prior to or even during a police interrogation and expresses a wish to remain silent, the interrogation must cease. Or, if the arrestee states that he wants an attorney, the interrogation must cease until an attorney is present.
US military branches provide for the right against self-incrimination through a form that informs suspects of their charges and their rights, which they are required to sign. This ends our introduction to arrests and charges. Below are further resources to learn more about these topics.
Arrest Procedures (American Bar Association)
Fourth Amendment: An Overview (Cornell University Law School)
How Does a Grand Jury Operate? (Ohio State Bar Association)
All rights reserved by Colleen Collins and Shaun Kaufman. Any use of the content (including images owned by Colleen Collins and/or Shaun Kaufman) requires specific, written authority.