FAQ: Steps in the Criminal Process

Most people don’t know much about the steps in the criminal court process.  Because most have never been through it before.  The trial is one of the last steps in the criminal justice process, not the first.

What is due process?  It is our right.  We own it.  It is our entitlement.  The Constitutional recognizes our fundamental right to fair legal procedures, when our life, liberty or property are at stake.

Your liberty is at stake in every criminal case, even when you are not the defendant.  A fair process before a fair and  neutral decision-maker is your right.

So, what are the most significant steps in a criminal case?

Pre-charge stage

In the beginning of the criminal process, the target becomes aware of a police investigation.  Sometimes it’s been going awhile.  But, what countermeasures can the target take?

Steps in the criminal process: police investigation
Steps in the criminal process: police investigation

First, check your emotional state.  If you’re human, you’re upset.  That’s ok.  In fact, it’s good to notice.  Strong emotions lead to poor choices.  By acknowledging your emotions, you’ll be better able to set them aside for problem-solving.

Next, bring in a professional like Attorney Thomas C. Gallagher for pre-charge counsel.  We can work together to:

  • identify known relevant facts,
  • spotlight legal issues,
  • formulate the best defense strategies, and then,
  • implement them.

The goal is, first, to reduce the chances of a criminal charge.  And second, if the government does make a criminal charge, we want to do everything possible to avoid helping them.  This means:

  • avoid answering questions or talking to police without your lawyer present, and
  • never consent to a search in any way.

So if you’re being investigated, shut up and lawyer up.

Prosecutor files charges

What is a criminal charge?  It’s nothing more than a prosecutor’s unproven claim

The charging document alleges facts, which if true, amount to “probable cause” that the crime did happen.  When the prosecutor files it with the court, this begins the court part of the criminal process.

If a prosecutor claims a criminal act, you need help from an experienced criminal defense lawyer like Thomas Gallagher.  He can help you:

  • understand the possible consequences,
  • the defense goal for outcome, and
  • strategies to avoid those consequences, and to achieve that outcome.

Attorney Thomas Gallagher will review the penalties with you.  These include the presumptive sentence under the Minnesota Sentencing Guidelines, and any mandatory minimum sentencing laws.  He will check the statutes in the Complaint against the claimed facts, for mistakes.  Where appropriate, he’ll file a motion to dismiss charges.

Fact-gathering, investigation, and discovery

Steps in the criminal process: the search for the truth
Steps in the criminal process: the search for the truth

We must gather facts, investigate, and pursue legal discovery procedures to get as many facts as possible.

In our “search for the truth,” we look for conclusive evidence of innocence.  But if we can’t prove a negative, we look for evidence that the prosecutor’s allegations are false.

Unfortunately, police take short-cuts and fail to fully investigate the claims of people who allege a crime or identity.  That results in false charges against innocent people.

But the defense can also investigate for evidence.  Facts and evidence should drive the criminal process.

Defense legal research

His decades of criminal defense legal experience and knowledge give him a head start.  But Attorney Thomas  Gallagher builds on that foundation.  He conducts thorough legal research in each case.  The law is a powerful tool for us, as we defend liberty and chase justice.

And Liberty and Justice do not happen magically. We need persistence and hard work to find them. Legal research – statutes, constitutional law, equity, common law – play an essential role in advocating for the accused person.

Pre-trial motions

Attorney Thomas Gallagher often asks the judge for help.  We ask the judge to enforce the laws against the police or the prosecuting attorney. We call this kind of request a “motion.”

There are many kinds of motions for legal relief in criminal cases.  A few of the more common types are motions to:

  • compel discovery (to force the government to disclose secret evidence),
  • suppress evidence obtained from illegal police conduct, and
  • relating to the trial.

Sometimes Gallagher gets  dismissal of criminal charges, or key evidence thrown out, at this Contested Omnibus Hearing stage in the criminal process, before the trial.

Trial process

Though the defendant can waive a jury, most criminal trials are before a jury.  And the defendant has the right to a real jury trial.

Jury voir dire

Jury selection marks the beginning of a trial. This is Gallagher’s first chance to listen to the jury about the case.

Opening Statements

After jury selection, Gallagher and the prosecutor make Opening Statements.  The lawyers give the theory of their case to the jury.  Because evidence is presented out of sequence, the Opening Statements help the jury understand the prosecution and defense perspectives.

Prosecution and Defense Evidence 
Degrees of proof: burden of proof
Degrees of proof: burden of proof

Prosecution case-in-chief:  The prosecutor then presents the police officers and other evidence, subject to cross-examination by Gallagher.

If the prosecution case-in-chief doesn’t offer any evidence to support its claims, the judge can dismiss the case then.  The prosecutor has the burden of presenting a prima facie case in its case-in-chief.

Defense evidence is optional:  After the prosecution rests, the Defense can present evidence.  But the defense need not do so.  Sometimes the prosecution case is so weak that Gallagher and the defense decide not to present any further evidence.

If the Defense does present witnesses, they may “impeach” the prosecution witnesses, or tell what really happened, or both.

Sometimes one or both lawyers present rebuttal evidence.

Final arguments

Closing arguments:  After the close of evidence, the lawyers make a Closing Argument to the jury.  This is the most interesting part of a jury trial.  The lawyers each advance their theory of the case, that accounts for the evidence.

Jury instructions

The Judge then reads jury instructions of law to the jury.

Jury deliberation
The conscience of the community: the jury has the power to bring a not-guilty verdict
The conscience of the community: the jury has the power to bring a not-guilty verdict

The judge swear in the jurors.  Then the jury deliberates.

If the jury reaches a verdict, the court reconvenes to hear it.

If there is a unanimous verdict, the trial is over.  But either side may appeal to a higher court for errors in the case.

If there is no verdict, we have a “hung jury.”  The prosecutor may then decide to begin the criminal process again.


If the judge convicts after a jury verdict or guilty plea, the Court will hold a sentencing hearing. Although there have been long, complex sentencing trials or hearings, they are usually relatively brief.

In felony cases, the Federal or Minnesota Sentencing Guidelines will offer guidance to the Judge about the sentence.  Some cases involve potential lengthy prison terms.

Other cases may not carry a likely jail sentence.  But they still have the potential to ruin a person’s good name and reputation.  By giving them a “criminal record,” a conviction can trigger many “Collateral Consequences.

Appeal process

In the event of a conviction, a defendant may appeal legal errors and rights violations to an appellate court.  Appeals are the last step in the criminal process.

In a Minnesota State Court prosecution , an appeal could be to the Minnesota Court of Appeals.

And, an  appeal of a Minnesota Court of Appeals decision could go the Minnesota Supreme Court.

In a Federal District Court prosecution in Minnesota, the appeal goes to the United States 8th Circuit Court of Appeals.  Then further appeal could go to the United States Supreme Court.

Gallagher Criminal Defense Liberty-Lawyer.com logo wideHave a question about the steps in the criminal court process?  Get answers.  Call Minneapolis Criminal Attorney Thomas Gallagher at 612 333-1500