Overview of the Criminal Court Process

In contrast to civil cases which are usually brought to vindicate individual interests, criminal cases are brought in the name of the state to punish persons whose actions are alleged to have violated public law. Unlike civil cases whose legal theories stem from many sources, criminal cases center on statutes that define and categorize certain behaviors as criminal and set out the bounds of punishment. And where anyone can bring a civil action, only prosecutors -- elected officials -- or their staffs can institute criminal proceedings.

Moreover, unlike civil cases where the court becomes involved after the legal theories and parties to the action have been established and the theories set out in written documents, the court often interacts with investigators and potential defendants in criminal cases before the case actually gets under way. For example, during the investigation phase, long before an arrest, judges frequently rule on requests by police and prosecutors for search warrants. Or prosecutors can ask judges to impanel a grand jury to hear witnesses and examine evidence to see if criminal charges are appropriate. A judge may review charges and allegations to determine if "probable cause" exists to issue an arrest warrant. And before or after an arrest, judges are called upon to determine whether persons will be released on bail or other conditions before charging documents are filed.

While most search warrants and all arrest warrants are public documents, they are obtained informally and rarely of interest until a case is underway. Conversely, almost everything surrounding a grand jury investigation is confidential and until a "true bill" or indictment is returned, persons involved in the proceeding can be criminally prosecuted for divulging information about the grand jury.

Charging Documents

The key documents in any criminal case are an arrest warrant, issued after the prosecutor obtains a finding of probable cause from the court; a grand jury indictment, a determination by a panel of citizens who review evidence presented to see if there is sufficient evidence to file a charge; or an information, the document issued by the prosecutor. In each instance, the prosecutor sets out the allegations of wrongdoing citing which criminal statutes the person is accused of having violated.

The majority of criminal statutes appear in Title 35 and Title 9 of the Indiana Code. The statutes set out the elements of each criminal offense, the level of misdemeanor or felony for each offense, and the sentencing ranges for each class of offense.

Charging documents are generally public records once they are filed with the court.

Learn About Grand Jury Proceedings

Learn About Public Access to Audiotapes of Court Proceedings

Pre-Trial Proceedings

The initial hearing is the first stage of courtroom proceedings that involves the accused person and is held soon after an arrest or formal charges. At the initial hearing, the judge:

  • Reads the criminal charge(s) against the person (now called the "defendant");
  • Warns the Defendant of his or her rights and explains the charges;
  • Determines if the person is indigent and needs counsel appointed;
  • Determines bail
  • Enters a preliminary plea of not guilty
  • Sets an "omnibus date" which becomes the controlling date for the filing of motions and other pleadings

If the Defendant is deemed indigent (unable to pay for counsel), then a public defender is appointed to represent the defendant. At some point before the omnibus date, the prosecutor generally provides the defendant and his or her attorney copies of police reports and any other documents relevant to the case. Criminal proceedings move relatively quickly as delays attributable to the prosecutor or court can violate the Defendant's right to a speedy trial and cause the charges to be dismissed.

After the initial hearing, the Defendant may seek a "plea agreement," a type of settlement where the Defendant agrees to plead guilty in exchange for a lesser charge or a lesser sentence. The vast majority of criminal cases are resolved by plea agreement. In those cases, the judge reviews the plea and questions the Defendant in open court to determine if the plea is voluntary.

If there has been no plea agreement by the omnibus hearing, the defense often files one or more pretrial motions, including:

  • To change the judge;
  • To dismiss the case because the offense was not stated sufficiently, the facts do not constitute an offense, the Defendant has immunity, a double jeopardy bar exists, the charge is untimely, etc.
  • To suppress or exclude certain evidence as improperly obtained.

On rare occasions, a Defendant may request a change of venue from the county or that jurors be selected from another county. Such requests are granted if a judge determines that the pretrial publicity has been so great as to interfere with the selection of an impartial jury. Also by the omnibus hearing, the Defendant must notify the prosecutor and court if she or he intends to use certain defenses such as mental competency, insanity, or alibi. Although mental health information is closely guarded in civil proceedings, it may become public in criminal cases where competency to stand trial or insanity becomes an issue.

Discovery is generally not as elaborate in criminal cases as in civil proceedings because the Defendant cannot be deposed without violating his right against self- incrimination. However, discovery in criminal cases has played a bigger role over the past several years. The prosecutor must divulge his list of witnesses and allow the Defendant and his or her attorney to inspect witness statements in his possession absent a showing of extraordinary circumstances. Either party can take depositions.

Unless the charges are dismissed or a plea bargain entered and accepted by the court, the case then proceeds to trial. In misdemeanor cases, as in civil cases, one of the parties must request that the trial be heard by a jury. Felony criminal cases are tried to juries unless both parties waive the right to a jury trial. Misdemeanor cases are tried to six jurors and most felony cases are tried to twelve jurors.


In a criminal trial, a jury examines the evidence to decide whether, "beyond a reasonable doubt," the Defendant committed the crime in question. The trial is the government's opportunity to argue its case, in the hope of obtaining a "guilty" verdict and a conviction. A trial also represents the defense's chance to refute the government's evidence and to offer its own. The Defendant is not required to take the witness stand or present evidence and, at no time during the trial, may the prosecutor or judge comment about the Defendant's decision not to testify or present evidence. After the State has presented evidence and the defendant has had an opportunity to present evidence, both sides present argument and the jury considers as a group whether to find the defendant guilty or not guilty of the crime(s) charged. Jury verdicts in Indiana must be unanimous.

Except for the difference in the standard of proof, the trial itself is much like the one described in the Civil Case section. It commonly consists of:

  • Jury Selection
  • Preliminary Instructions
  • Opening Statements
  • Presentation of Evidence
  • Closing Arguments
  • Jury Instructions
  • Jury Deliberation and Verdict

Because the government has the "burden of proof" as to the Defendant's guilt, the prosecutor is allowed to present the first opening statement and the last closing argument to the jury. Criminal trials are open to the public except in the exceedingly rare instances where the Defendant waives the right to a public trial and the court finds an overriding interest requiring closure.


After a conviction -- whether through a guilty plea, plea agreement or jury verdict -- the appropriate legal punishment is determined at the sentencing phase. Indiana has adopted a system of determinate sentencing in which the judge selects a sentence between statutory maximums and minimums for each class of crime. Because of constitutional requirements, juries determine the special sentencing facts in capital cases and enhanced punishment cases.

Sentencing usually takes place almost immediately after convictions for infractions and minor misdemeanors or after a guilty plea. In more complex criminal cases, such as those involving felonies, the sentencing judge usually receives input from the prosecutor, the defense, and the probation department (which prepares recommendations in a "presentence report"). The presentence report is shared with the Defendant, and the defense has a chance to respond to it before sentencing. The sentencing hearing is public, but the presentence report is confidential.


An individual who has been convicted of a crime may "appeal" his or her case, asking a higher court to review certain aspects of the case for legal error, as to either the conviction itself or the sentence imposed. Like civil cases, the appellate court makes its decision based on the evidence and record compiled in the trial court and the attorneys file briefs discussing legal rulings. If a conviction is reversed because the court committed a legal error, such as an erroneous jury instruction, the Defendant can be re-tried. If a conviction is reversed because of insufficiency of the evidence, however, retrial is barred by the prohibition against double jeopardy. If an appellate court determines that an error has been made in sentencing, it can remand or simply modify the sentence.

After a direct appeal, a Defendant may file a petition for post-conviction relief if she or he can show that his trial attorney was incompetent or the existence of newly discovered evidence that would have changed the verdict but was unavailable prior to conviction . Although petitions for post-conviction relief are styled as civil proceedings (tried to a judge as opposed to a jury), they are to be filed in the sentencing court.

When conviction is based on a guilty plea rather than a trial, the defendant can sometimes directly appeal the sentence. In this circumstance, the defendant typically must use the post-conviction relief remedies to challenge the conviction.


Expungement is a process through which the legal records of an arrest can be destroyed or returned to individuals under narrow circumstances. However, Indiana's expungement statutes do not allow records of convictions to be sealed after the passage of time. Indiana also has a procedure under which the distribution of criminal histories can be limited but that is not considered an expungement under Indiana law. Both processes include filing a petition with the sentencing court. The judge can decide the case based on the pleadings or schedule a hearing which would be in open court. These processes cannot be used to limit disclosure of convictions if the person has been classified as a sex offender whose identity has been posted to the sex offender registry website.

Indiana's juvenile statutes also contain expungement provisions. A person may petition a juvenile court to expunge records pertaining to the person's involvement in juvenile court proceedings (delinquency allegations or CHINS allegations). This petition may be filed at any time with the juvenile court.

Short Look at Juvenile Proceedings

Juvenile proceedings are almost always closed to the public (and press) and, even on appeal, juveniles are referred to only by their initials. Similarly, pleadings in juvenile cases are generally sealed. However, the juvenile records and proceedings are open to the public when the alleged crime delinquent act is murder or a felony.

Juvenile proceedings fall into two categories: allegations that a child is delinquent and allegations that the child is a child in need of services (CHINS). In the former, cases are brought by prosecutors against children who are alleged to have committed a delinquent act (an offense that would be a crime if committed by an adult) or a status offense (offenses such as runaway or truancy that can be committed only by children). In the latter, child welfare officials file petitions on behalf of the child needing services, and the court appoints a "guardian ad litem" to represent the best interests of the child. CHINS cases generally involve allegations of abuse or neglect. Juries are not permitted in either type of case and information about specific cases is generally deemed confidential.