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Basic Criminal Procedures from Arrest through Trial

Table of Contents

The Arraignment

  • Following an arrest, you will most probably appear at an arraignment. This is simply a formal hearing at which you will be informed of the specific charges against you, advised of your rights and where a request is made in your behalf that you be released on your own recognizance or that the court set your bail as low as possible. If you can’t afford an attorney, the court will assign one to you. On occasion, when an accused is represented, their attorney may waive a formal arraignment so that the charges filed against you are not read aloud in open court and made public.
  • The judge at the arraignment determines your bail. You may be released on your own recognizance, have bail set, or be remanded to jail without bail. Remand is possible if you’re charged with a serious felony and possibly have another pending felony. It may help to have friends and family at the arraignment. Bail may be lower if your lawyer can show the judge you have strong community ties, as evidenced by the people who come to court for you.
  • Bail can be posted by a bail-bond, cash or property. If you elect to use the services of bail-bondsman, they will usually require a “fee” amounting to 15% of the total bond amount. If bond is set by the court at $25,000.00, the bonding company would charge approximately $3,750.00 as their “fee,” plus they would require some type collateral for the balance to assure they would not suffer any loss in the event the accused failed to appear. None of the money paid to a bonding company is ever recoverable. If, however, property is put up as bail, assuming the accused does not “flee,” the property is returned and nothing is lost. If you are unable to “make bail,” you remain in jail until your preliminary hearing, or in some cases, your trial. If you are out on bail and decide to run, the person who “posted” you bail forfeits their cash or property.
  • In addition, bail jumping is a separate crime in itself. It is almost impossible to defend that charge and it may give the prosecutor extra leverage in dealing with your current case. If you do not appear for trial, in addition to having a bench warrant issued and forfeiting your bail, your case may be tried without you. Most judges warn defendants of that possibility by what is termed a “Parker warning.” If you have been warned, and don’t appear, you can be tried, convicted and sentenced in your absence. The likelihood of conviction increases if you’re not present at your trial. Sooner or later, chances are that you will be found and arrested. You will be sent to prison immediately to serve your sentence and also, by your actions, may have waived any right you would have had to an appeal.
  • It is not uncommon at all at the arraignment for your attorney and the prosecutor to discuss your case with the judge. Often times, valuable information is obtained from the prosecutor at this “bench conference.” There may be some discussion about a plea-bargain and in some cases, charges are actually disposed of or felony charges are reduced to misdemeanors. Your attorney will discuss any offer from the prosecutor with you.
  • If the charges are serious felonies, most probably they will not be disposed of at the arraignment. The prosecutor may give notice that they intend to present your case to a Grand Jury. Your lawyer may give reciprocal notice that you wish to testify in the Grand Jury on your own behalf. Normally, there will be no witnesses testifying against you at the arraignment.

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The Preliminary Hearing

  • A preliminary hearing can benefit the defense greatly. The state puts on evidence to show the court why the matter should be set for trial and the defense attorney has the ability to cross-examine witnesses. Some prosecutors would rather avoid a preliminary hearing because they do not want to expose their witnesses at that early stage and elect to go to the Grand Jury instead. Grand Jury proceedings are secret and defense lawyers can only be present if and when their own client testifies. In a false allegation case, where a child is the accuser, the prosecutor may put on a detective as his witness and he may put on the child. If he does have the child testify, this is a rare opportunity for the defense attorney to question the child, pushing for specific details as to the allegations, without being in front of a jury who may take his actions as “child bashing.”

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The Grand Jury

  • A Grand Jury consists of a number of local citizens, usually 16 to 23, who hear evidence presented by the prosecutor and decide if that evidence is strong enough to support an indictment. Never forget that the Grand Jury is an “arm” of the prosecutor’s office. A prosecutor normally has no problem in getting an indictment because the Grand Jury usually only hears one side; the side of the prosecution. There is no judge to rule on the admissibility of evidence or defense lawyer to cross-examine the witnesses, and they usually hear nothing from the defense.
  • If you have been arrested, your attorney will be notified if the prosecutor intends to present your case to a Grand Jury. If your attorney does decide that it is in your best interest for you to testify and/or present witnesses, they must notify the prosecutor before the Grand Jury presentation is completed.
  • You, personally, have a right to testify before the Grand Jury, but your lawyer must get permission to present other witnesses. If you do testify, your lawyer can be there with you, but they cannot ask questions or make objections and they cannot be present when any witnesses you may have testify. If things go well for you, the Grand Jury will not return an indictment and your case will be over, saving you a lot of hassle and money. This is another reason to get a lawyer working on your case as soon as possible.

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The Indictment

  • An indictment is a formal accusation that identifies the specific charges against you. The difference between an indictment and a complaint is that an indictment is based on sworn testimony and a “complaint” is an “affidavit” signed against you by your accuser. If vindicated, you cannot “sue” the Grand Jury because they indicted, however, you could file a malicious prosecution action against someone who did sign an affidavit against you.
  • Occasionally cases are presented to a Grand Jury before anyone is arrested. If the Grand Jury indicts, this is called a “silent indictment.” In “silent indictment” cases, you won’t be notified that your case is being presented to a Grand Jury and you may not have the chance to testify or present defense witnesses. If you are indicted this manner, an arrest warrant is usually issued and you are jailed until your arraignment.

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  • Plea-bargaining is nothing more than negotiating the disposition of a case and sometimes, it is appropriate. Whether you take a plea or go to trial is an important decision that you should make and not your attorney. It is your life. Once your attorney knows enough about the evidence against you, they can evaluate the chances of your winning at your trial. They will balance your odds of winning, against the amount of time you could get if you lose trial, and the sentence being offered in the plea-bargain. Once you do agree to plead guilty, you cannot change your mind later and “get back your plea,” so make sure that it is honestly in your best interest.
  • The decision is difficult, especially if you’re innocent and the evidence against you looks strong. There are provisions in the law for a person to plead guilty without admitting guilt. One is referred to as an ALFORD plea.
  • It’s hard to admit guilt if you’re innocent, but some defendants do it because their chances of winning are so slim they’d rather take the sure thing, usually amounting to probation or low jail time, than risk a long jail sentence. If you do go to trial and lose, you will normally get more time than what was offered in the plea-bargain. No matter how experienced or skillful your attorney is, there are absolutely no guarantees of winning a trial, so some defendants take pleas to avoid the uncertainty of trial. Defendants who are in jail awaiting trial are more likely to take pleas than defendants who are out of jail.

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Pretrial Procedures

  • There are only a number of things that can happen to a criminal case. It can be dismissed by the prosecutor or a judge, you can plead guilty, or the case can go to trial. Under special circumstances your attorney may get your case dismissed in the interest of justice pursuant to a Clayton Motion.
  • If you’re convicted following a trial or if you plead guilty, in addition to facing possible jail time, you may be subject to fines, forfeitures and civil suits. If you’re not a citizen, you may also be subject to deportation. If you’re convicted of a felony, you may also lose some of your civil rights. In those cases, it is possible that your attorney may be able to get a Certificate of Relief from Civil Disabilities that may relieve the effect of a felony conviction.
  • Criminal cases can take a long time to conclude. They depend on the seriousness of the charges and whether you’re going to accept a plea or go to trial. There are “speedy trial rules” governing the amount of time the prosecutor has to be ready for trial, but it is not uncommon for these cases to take 6 to 12 months, or longer, to go to trial.
  • Delays can result from any number of reasons; crowded court calendars; busy prosecutors and defense lawyers or delays in getting documents from the prosecutor or police, that your attorney needs in order to prepare for trial. Each case requires different preparation. There are certain procedures that must be followed. Your lawyer can explain this more fully as it relates to your case. The wait is frustrating, but there’s little that can be done to speed things up.
  • One of the biggest delays in the system is due to trial preparation. It’s far better to have the delay than go to trial without adequate preparation, even if you’re in jail. Your attorney will most probably prepare a Motion for Discovery, requiring that the state turn over to the defense all information and documents that the defense would be entitled to regarding your case. The attorney may also consider filing a Motion to Suppress certain evidence on the grounds that it was obtained in violation of your rights. In addition, there are also certain “dismissal” motions that may be considered, where appropriate. There will usually be hearings on the suppression motions.
  • If your case is set for trial, there will usually be a pretrial conference scheduled between the prosecutor, the judge and your attorney to discuss your case to see if it can be disposed of without a trial. There will probably be a plea offer by the prosecutor. If the plea is refused, the case proceeds.
  • Trial is usually an uphill battle for the defense. The prosecutor normally has better resources, like the police to investigate and get witnesses to cooperate and experts “geared to” strengthening the prosecutor’s case. Even if your lawyer has spoken to your witnesses, sometimes it’s difficult to get them to cooperate, especially since most people just do not want to get involved.
  • The prosecutor also has public opinion on their side. Even though the law says that you’re presumed to be innocent, and that the burden of proving your guilt is on the state, jurors do not always understand or follow the law. Unfortunately, nowadays, many prospective jurors have been exposed to crime, either personally or through the media, and tend to presume you’re guilty and expect the defense to prove your innocence, especially if you’re minority or poor. This is especially true in an allegation of child sexual abuse.
  • There are several types of hearings, called pretrial hearings, or suppression hearings, that may occur before a trial jury is selected. Not every case has pretrial hearings. It depends on the evidence against you. These hearings are named after landmark cases. After the hearing, the judge decides whether or not to let the prosecutor use certain evidence against you at trial. If the evidence in question is the only evidence against you, your case may be dismissed if you win the hearing.
  • A HUNTLEY hearing is to suppress statements allegedly made by you to a law enforcement officer, prosecutor or their agents, on the grounds that you were not advised of your constitutional right to remain silent or were forced to make the statement, either by threats or coercion. It is highly unlikely that the police will admit that they failed to read you your rights, or that they threatened you at a HUNTLEY hearing. They will probably testify that they read you your “Miranda” rights, and deny that they used any force or coercion. The judge usually believes the police when their version of what happened differs from the defendant’s.
  • A DUNAWAY hearing is used to suppress statements on the grounds that the police did not have probable cause to arrest you.
  • A WADE hearing is to suppress identification on the grounds that the pretrial identification procedure was suggestive and the witnesses would not have been able to identify you under ordinary circumstances.
  • A MAPP hearing is to suppress physical evidence seized from you on the grounds that the police had no legal right to stop or search you, your car or your home, or that the evidence they found was obtained by violating your constitutional rights.
  • A SANDOVAL hearing is to prevent the prosecutor from using your criminal record to impeach your credibility on cross-examination, if you testify at trial. When a witness testifies at trial, opposing counsel has the right to use the witness’ criminal record on cross-examination to impeach their testimony. If the witness is the defendant, the court must balance their constitutional right to testify against the prosecutor’s right to use this cross-examination technique. The problem here is that some jurors may believe that if you’ve committed crimes in the past, you probably committed this one too, and that is certainly not one of the factors a jury is supposed to consider as evidence.
  • After pretrial hearings are completed, your trial begins at which time a judge or jury listens to evidence and decides if you are guilty or not.
  • You are entitled to a jury trial in all felony cases, and in many misdemeanor cases. Even if you’re entitled to a jury trial, you may waive that right and be tried by a judge. This decision depends on the specifics of your case and which judge is in the trial part.

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The Trial

  • If you are having a jury trial, the first part would be to select the jury. This is called voir dire. Prospective jurors are brought to the courtroom from the central jury panel. The judge explains some general principles of law to them. From that panel, 12 or more at a time, are called into the jury box to be questioned by the judge, the prosecutor and the defense attorney.
  • The purpose of the voir dire is to give each side a chance to determine whether or not prospective jurors can be fair. The defense attorney can also use this process as a means of educating prospective jurors about your case.
  • After each round, the attorneys “challenge” the jurors they do not want. It’s more of a process of elimination than one of selection. Each side has a specific number of peremptory challenges depending on the criminal charges. These are challenges that do not require the attorney to give a reason for asking that a potential jury member be dismissed. If either side can show that a potential juror cannot be fair, that juror can be challenged for cause. Challenges for cause are unlimited.
  • The final jury selected usually consists of 12 jurors and two alternates. If, for any reason, a juror cannot continue to serve, an alternate substitutes.
  • After the jury is selected, the judge usually explains their duties and warns them not to discuss the case with anyone until it’s over.
  • When the jury is seated, the prosecutor makes their opening statement in which they tell the jury what they intend to prove during the trial. When the prosecutor is finished, the defense attorney, usually, makes their opening statement. I say usually, because no opening statement from the defense is required. The defense is not obligated to prove anything during the trial. Whether or not your attorney does make an opening statement is a matter of strategy.
  • Following opening statements, the prosecutor presents evidence, consisting of testimony from witnesses and exhibits. When the prosecutor questions their witness, it is referred to as “direct examination.” When the defense attorney questions that same witness, it is referred to as “cross-examination.” You can also have “re-direct” and “re-cross.”
  • When the prosecutor finishes presenting their case, your attorney can present a defense but, again, it is not required. In some cases, a defense attorney puts on no defense because they successfully “discredited” the state’s case.
  • In cases where a defense is presented, a major decision is whether you will testify at trial. Even though the jury is told not to hold it against you if you don’t testify, they often do hold it against you. The decision is especially harder if the prosecutor will be allowed to cross-examine you based on a prior criminal record. In any false allegation case, a great deal of the matter will come down to your word against the word of the accuser. In most cases, a jury “demands” that you testify so they have the ability to make up their minds of whether you are or are not a child molester. To acquit, a jury usually must hear the accused testify that they are innocent and the jury must believe them.
  • When the defense concludes it’s presentation, the prosecutor may present evidence to rebut something the defense has raised in it’s case. If this happens, the defense may present evidence to rebut that. When both sides finish presenting their evidence, they rest.
  • Following all testimony, the prosecutor and defense attorney give closing arguments, also referred to as summations. Normally, the prosecutor gives their summation, the defense attorney gives their’s and then the prosecutor gives a final and brief summation.
  • When all closing arguments are complete, the judge explains the law to the jury and sends them out to deliberate until they reach a verdict.
  • The jury cannot discuss the case with anyone who is not on the jury and any verdict must be unanimous. If, by some chance, the jury cannot reach a unanimous verdict no matter how long they deliberate, the judge may declare a mistrial based on a “hung jury.” If that happens, you can be tried again. If you’re acquitted, you cannot be charged or tried again for the same case.
  • Following a guilty verdict, your attorney may entertain filing motions to set the verdict aside or ask the court for a new trial.
  • Also, following a guilty verdict, normally there is a pre-sentencing investigation conducted and following that, the accused is sentenced.
  • If you’re convicted after trial, your lawyer must file a “Notice of Appeal” for you within 30 days of the sentence date to insure your right to appeal. If you’re indigent, (without funds), a lawyer will be assigned to do your appeal. Appeals take a long time to be heard. Part of the delay, especially if you’re indigent, is the length of time it takes the appeals lawyer to get the trial transcript. Assigned lawyers usually handle a lot of cases, so it usually takes longer for them to get to your case. It sometimes takes years for an appeal to be heard. If you can afford to pay an attorney and can afford to pay for the trial transcript, you can speed up the process. On some occasions, bail is allowed pending your appeal, but most defendants wait in jail until their appeals are heard.
  • If the higher court denies the appeal, there are other areas of “post-conviction” relief the accused may consider, such a Petition for Writ of Habeas Corpus.
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