Written by attorney Anthony William Vaupel

An outline to the criminal process in Illinois

For over a decade now I have been absolutely fascinated with the criminal process. These cases are often dramatic, emotional, and sometimes very tragic. I have either prosecuted or defended people for almost every misdemeanor and felony crime listed in the statutes. When I see clients about a new case they are typically very frightened and not sure what to do. This fear is common and absolutely reasonable and mostly stems from ignorance about the criminal justice system. The overwhelming numbers of criminal defendants I see have little or no experience with the criminal justice system with most of their knowledge coming from television or advice from friends. Most criminal defendants are normal, law abiding people like you and I.

Over the course of the past several years I've wanted to produce a guide to the criminal process to help answer questions. Until that day comes, these blogs will have to do the trick. In this blog post I will outline the various stages of a criminal proceeding. Over the course of the next several weeks I will specifically detail each step in the process.

Although the criminal just system can be broken down in any number of ways I have chosen seven steps, they are:

  1. Pre-Arrest

  2. Post-Arrest

  3. Pretrial Matters

  4. Trial

  5. Post-Trial

  6. Appeal

  7. Post-Conviction

When we discuss contact or activity on the part of an officer or criminal defendant to have been "pre-arrest" we mean literally any contact prior to an actual arrest. This contact may be innocuous such as a chance meeting on the street or an officer in a classroom because he is part of the DARE program. Other contact may be part of an investigation such as a traffic stop or canvassing a neighborhood seeking information about a crime. Pre-arrest contact can take place on the street, at the scene of a crime, or even at the police station.

As we move forward we will delve into significantly more detail but it is important to remember a person is typically not in custody at this stage and therefore many rights ordinarily associated with the criminal justice system (such as the right to remain silent, right to an attorney, etc) have not yet attached.

The second step in the process is post-arrest. At this time the defendant is under arrest and in custody. The right to Miranda warnings should be given and the right to remain silent is in effect. The defendant is entitled to, among others, an attorney.

The third step is the pretrial stage. At pretrial defendants have the opportunity to file certain motions, request "discovery" which is typically police reports, witness statements, video tapes, etc. The defendant has the opportunity to plead guilty or to schedule the matter for trial.

The fourth step is trial. At trial the defendant chooses to have the case heard by a judge or jury. At trial the prosecution must prove a defendant guilty beyond a reasonable doubt. If the prosecution prevails then the defendant will be found guilty and a sentencing hearing will ensue. If the defendant is found not guilty then the proceedings are at an end and the case is dismissed. The trial phase is the portion of the proceedings glamorized by movies and television but, like a sporting event, rarely shows the countless hours of work and preparation for the event.

The fifth step is post-trial proceedings. Typically, post-trial proceedings are made up of a sentencing hearing but sometimes various motions are heard such as motions for new trial, motions for new sentencing hearing, and the like. In many situations where guilt is clear and a defendant pleads guilty, the sentencing hearing essentially takes the place of the trial in that reports are created, witnesses called, arguments are given.

The sixth step is appeal. From time to time a defendant disagrees with his conviction or an aspect of his conviction or sentence. He has the opportunity and right to appeal his claim to the Illinois Court of Appeals. If the defendant does not receive the relief he desires he can petition the Illinois Supreme Court to hear his case. The Supreme Court has the discretion to decide whether to hear the case or not.

The final step is post-conviction proceedings. If all else fails, these proceedings are available to address claims of constitutional deprivations such as ineffective assistance of counsel. These hearings are extremely restricted both in time and substantive issues.

With this as an overview, the next several weeks will be dedicated fleshing out the specifics of each step.

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