Wednesday, November 24, 2010

The Criminal Process: A Briefing

The criminal justice system can be very complex, extremely difficult, and intimidating without a guide to navigate you through it. The following is a brief explanation of the various steps in a criminal case.
Arrest: The criminal process usually begins when the police have begun a criminal investigation and subsequently take you into custody. “Custody” can mean one of two things: either you were physically arrested (handcuffed, taken to jail, fingerprinted, etc.), or you were served with a written Notice to Appear in lieu of physical arrest. Either way, you are considered arrested and this ultimately means that the government will formally charge you with alleged criminal violations.
First Appearance: After the initial police investigation and arrest, the first court date in a criminal case is First Appearance. During First Appearance, a person who has been arrested will stand in court before a Judge or Magistrate for the first time. That judge/magistrate will determine if there was probable cause for the arrest. If the judge finds that there was probable cause, he or she will set a bond. It is often beneficial to have an attorney present at First Appearance because an attorney can negotiate or argue on your behalf for a lower bond amount. Without an attorney present, the judge/magistrate will set the bond at his or her discretion. From there, the case will go to the State Attorney’s Office.
Case Filing: After the first appearance, a criminal case is then sent to the Case Filing Division of the State Attorney’s Office. There, an assistant state attorney is assigned to review the basic facts of the case and determine how charges should be filed. In making this decision, the case filer reviews police reports and witness information. Based on this, he or she ultimately decides whether the arrest charges should remain the same, be increased, decreased, or dismissed (also called no information). Often this is a critical time for a criminal defendant. If a person suspected of a crime retains an attorney quickly, that attorney may be able to speak with the case filer and influence his or her filing decision by discussing important factors in the case, such as mistakes made by law enforcement and important facts that may not be given in the police report. If the case filer decides to go forward and file the charge against you, despite your attorney’s best efforts, the next step is Arraignment.
Arraignment: Arraignment is a court date for the formal reading of the charges that the case filer has set forth in the charging document (called the Information). Arraignment is also where you will plead one of three ways: Not Guilty, Guilty, or Nolo Contendere (Latin for No Contest).  Unless you want to waive your rights, get your case over with immediately, and you don’t care about being convicted, you will plead Not Guilty. Remember, you are innocent until proven guilty. Not Guilty pleas are entered when you are innocent, when there is insufficient evidence to prove guilt, when you are uncertain how to plea, or when you want to demand your right to a trial. If you hire an attorney before your arraignment, he or she will generally enter a notice of appearance, written plea of not guilty, and request for jury trial for you so that you do not have to go to court on that date. After a formal plea of Not Guilty is entered, the next court date will be set.
[Note that just because your attorney requests a jury trial does not mean you have to go to trial; it is merely posturing to put you on the path that will allow you to get the most information on your case. No one wants to go to trial, and anyone who is eager to go to trial is generally a fool. Requesting a jury trial is merely a formality that will allow you to get Discovery, make arguments, and fight your case as far as you can before even getting to trial. You may wind up not going to trial at all, but in any event, the formality of requesting is generally necessary.]
Discovery: After an attorney signs onto a case, he or she will demand Discovery from the State Attorney. Discovery is essentially all of the evidence the State has available to use against you in your criminal case. It is your right to examine discovery if you are going the trial route, and it includes written documents, police reports, pictures, witness statements, video recordings, audio recordings, etc. Generally, Discovery documents take 60 to 90 days to obtain. Once an attorney is able to examine the discovery, he or she will be able to see who all of the witnesses against you are, take depositions and find out what the witnesses have to say, investigate your case, and form a defense strategy. This is also the time during which your attorney will file applicable motions. Perhaps your Constitutional rights have been violated by an unlawful search and seizure. An experienced attorney will know to file a motion to suppress evidence obtained in violation of your rights. Or, maybe the State does not have sufficient evidence against you and will be unable to prove the elements of the charges. A skilled attorney will know to file a Motion to Dismiss and argue that your case should be thrown out all together. If the motions are successful, odds are your case will be over. If the motions are ultimately unsuccessful, then you will have to decide whether you want to negotiate a plea agreement with the State or take your case to trial.
Plea: If you choose not to go to trial, your attorney will negotiate a plea agreement with the State Attorney that will include the sentence to be imposed. You will ultimately go to court for a Plea Conference and change your plea from Not Guilty to either Guilty or No Contest.  Although the Judge is not required to accept the State Attorney's agreement, most Judges will honor negotiated plea agreements. At this point, you will have to comply with whatever sentence has been negotiated or is imposed, and your case will be over. It is important to note that there are various alternatives in sentencing that may include Pretrial Diversion, Pretrial Intervention, Drug Court, and Probation. Each of these programs has limitations and requirements.  It is extremely important that you seek out an attorney who is familiar with these programs as well as which Judges may or may not look favorably upon these options.
Trial: If you choose to go to trial, your attorney will fight your case either before a Judge or before a Jury of your peers. [Note that you have the right to a Speedy Trial. This means that if you demand Speedy Trial and do not waive your right to it, the State will have to bring you to trial within a certain time period (90 days for a Misdemeanor, or 175 days for a Felony). However, most cases are benefited by waiving the right to a speedy trial to allow an attorney more time to defend the case.] If you are acquitted during Trial by a Judgment of Acquittal or you are found Not Guilty by the Judge or Jury, your case is over and you are free to go. You cannot be retried under Double Jeopardy protections. If, however, you are found guilty, there will be a Sentencing Hearing.  This will give you, your attorney, and any other interested persons the opportunity to speak on your behalf; this is the time to present witnesses who will testify as to your character.  For the purposes of sentencing, the Judge may order a Pre-Sentence Investigation into your background and circumstances. At the end of the hearing, after the Judge has considered everything put before the court, the Judge will impose a sentence. Hopefully, though, you will be acquitted during trial and will not ever have to worry about a sentencing hearing.
Appeal: A person convicted of a crime has the right to appeal his or her conviction. During the appeal process the Judge may allow your release on bail pending the outcome; however, the Judge will only do this if he or she believes that the appeal has merit and that you will reappear in court.  An appeal must be filed within 30 days of sentencing, but should be filed as soon as possible.
Although this explanation doesn’t cover everything you will encounter in the criminal justice system, hopefully it gave you a basic understanding of what you can expect. If you have any questions, do not hesitate to call an attorney to guide you through the process.


Copyright (c) 2010, Law Office of Roger P. Foley


The Law Offices of Roger P. Foley,P.A.

3 comments:

lette said...

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Please take the time to read my story.
Paulette Crystal
lettejoy@email.phoenix.edu

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Eddie said...

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