About Criminal Law
Criminal Law is a very broad area including all matters from simple speeding tickets to first degree murder. When a criminal charge threatens your freedom, record, or reputation, the selection of a criminal attorney becomes one of the most important decisions you will ever make. My criminal defense experience deals with areas including murder, drug offenses, burglaries, theft, arson, robbery, assault/battery, juvenile cases, DUI, traffic violations, drivers license suspension hearings, and more. I utilize the latest technology to research and prepare your case.
The following information is intended to be a roadmap of the criminal justice process; it is not a procedural practice guide or a “how-to” manual. The purpose of this article is to inform the lay person about the justice system and to provide a broad overview of the process from arrest to trial.
An arrest is the seizure of the person, by law enforcement after the commission of a crime. Arrest is the most common procedure for acquiring a criminal charge. The receipt of a notice to appear is the functional equivalent of an arrest for purposes of being prosecuted. A notice to appear is a ticket or a summons by which you can be brought to court.
An arrest can take place by means of physical force, handcuffing and restraint of movement, or by the submission to police authority.
The legality of an arrest can be contested in court. To legally fight an arrest you must attack the grounds upon which the arrest was founded. The grounds for an arrest are known as “probable cause.” An arrest should be made only after there is probable cause to believe that an individual has committed, is committing or is about to commit a crime. A determination of whether probable cause exists is based upon a totality of the circumstances surrounding the arrest.
If there is no probable cause for the arrest, there may be a basis for the defendant file a motion to dismiss or a motion to suppress. This may be true even if the arrest was pursuant to a lawfully issued warrant. If there are deficiencies within the warrant which affect the determination of probable cause for the arrest, then a motion to dismiss or suppress based upon those deficiencies may be well founded.
First Appearance Arraignment
Following the arrest is the first appearance. The arraignment is the first appearance in criminal court. Typically, the arraignment will take place before a Judge, known as a magistrate, who makes a probable cause determination. This means that the magistrate looks at the facts and circumstances surrounding the arrest, and after considering the totality of the circumstances determines whether or not there was probable cause for the arrest to have taken place.
If the magistrate determines that there is probable cause for the arrest then bond (also known as bail) is set at an appropriate amount. Bond amounts are usually set at a standard amount depending on the crime charged. If there is no probable cause found, then bond may still be set; but the magistrate will direct the prosecutor to perfect the probable cause. Simply put, this means that the prosecutors will have to add facts, within a reasonable amount of time, to the police reports so that the magistrate can find probable cause. If the newly added facts do not establish probable cause for the arrest, then the defendant shall be released.
The first appearance arraignment is usually conducted within twenty-four hours of the arrest. The first appearance also serves to formally advise the arrested person, now known as the defendant, of the charges. In theory, the defendant is to be provided with a copy of the charging document, so that the defendant can object to the probable cause determination. The objection can be made by either the defendant or by the defendantâs attorney. The right to have an attorney present at the first appearance is absolute and is fundamental to our system of justice. This is because if the defendant were to contest the probable cause determination by speaking on his own behalf, the defendantâs own words could be used against him in the future. Therefore, the first appearance also serves to inform the defendant of his right to counsel and right to remain silent.
If bond is set at an amount that the defendant cannot afford, a bond hearing can be requested after the first appearance. A bond hearing is an opportunity for the defendant to obtain a lower bond, usually, the defendant must establish that he will not flee the jurisdiction if released on lower bond. In some cases at the first appearance, bond is reduced from the standard bond amount. Bond can also be raised or set at no bond depending on the facts and circumstances of each case.
Following this preliminary first appearance is the formal arraignment. The formal arraignment serves essentially the same function as the first appearance arraignment but takes place after formal charges have been filed by the prosecutor. Formal charges are known as the “indictment” or “information.” The indictment or information is the formal charging document. The indictment or information is drafted by the Office of the State Attorney or District Attorney, whereas the charging document at the first appearance is usually drafted by the police.
Once a person has been arrested, the charges are sent over to the prosecutor’s office for review. After reviewing the facts and circumstances of each case, the prosecutor will usually formally file charges.
The most common means of prosecution is an information. The information should be a clear and concise statement of the crime charged. The information should contain the essential facts necessary for the State to prove the crime charged. The essential facts constituting an offense are venue, jurisdiction, identity of the accused, the time and date of the offense and the elements of the offense. Venue is the place where the crime happened. Jurisdiction is the authority of the court over the individual.
An information can contain more then one charge. Additionally, an information can charge more than one person with the commission of the offense.
Once the information or indictment has been read aloud in court, the defendant must enter a plea. This means that the defendant must either acknowledge guilt or enter a plea of not guilty. In the alternative, a defendant can plead no contest. A no contest plea essentially admits the facts alleged in the information; and is a plea of convenience in that it terminates the prosecution. A no contest plea waives all jurisdictional defects that could have been raised by pleading not guilty. Legally, a no contest plea has the same effect as a guilty plea. However, by pleading no contest, a defendant could contest the legality surrounding the arrest. To do so, the defendant would have to appeal the judgment and sentence of the court.
If the defendant is not guilty, or if the defendant desires to contest the charges, a not guilty plea is entered. Following a plea of not guilty, the court advises the defendant of the right to counsel. If a defendant is indigent and cannot afford counsel, the court will appoint a lawyer, known as a “Public Defender” to represent the defendant.
Once the formal arraignment is over and a not guilty plea has been entered, the discovery process begins. Discovery is the process by which the defense attorney investigates the allegations contained within the information. Discovery also serves as the trial preparation. Once a “not guilty” plea has been entered, the defendant should file a notice of intent to participate in discovery with the office of the prosecutor. This requires that the prosecutor turn over any and all materials which are relevant to either guilt or innocence.
The prosecutor or State has an affirmative duty to continue to provide the defendant with the names and addresses of all relevant witnesses, including criminal records of those witnesses. Additionally, the prosecutor must provide the defendant with any written or recorded statements of the defendant or a co-defendant. Essentially, the State must provide any witnesses or material that is relevant to the crime that the accused is facing prosecution for. The Defendant also has a discovery obligation, however this obligation is only triggered if the defendant informs the State of his intent to participate in discovery.
As part of the discovery process, the defendant shall be permitted to question the State’s witnesses through the deposition process. Not all jurisdictions have depositions. In those jurisdictions a defendant must investigate the case through other means. A deposition is a formal inquiry of the witness, who is placed under oath. A deposition is usually pursuant to a lawfully issued subpoena and is usually transcribed by a court reporter. If the defendant is charged with a misdemeanor, a crime punishable by less then one year in jail, then the defendant must receive permission from the court prior to taking any depositions. If the defendant is charged with a serious offense or felony, the defendant may depose any essential witnesses without permission of the court.
As part of the discovery process, the defendant may file pre-trial motions. Pre-trial practice is the period proceeding the trial when the defendant may file motions to contest the charges. The most common motions are the “motion to dismiss” and the “motion to suppress.” The purpose of filing such motions is to prevent the state from going forward in their prosecution or to limit the evidence against the defendant.
A vigorous pre-trial motion practice may help the defendant obtain a more favorable result in the long run. For instance, the more motions that are filed and granted, the less evidence there will be for the prosecution. This will bolster the defense case and provide for a stronger position in plea-bargaining.
A motion to dismiss attacks the fundamentals of the prosecution. Such motions should be filed as soon as possible. Motions to dismiss usually attack the jurisdiction of the court to proceed against the defendant for violations of due process such as double jeopardy or violations of the statute of limitations. Due process is a legal concept for determining what is fair and what violates constitutional rights. A motion to dismiss based on double jeopardy would attack the ability of the court to allow the prosecution based on the fact that the defendant had already been prosecuted or the prosecution was not brought in a timely fashion. A defendant can also file a sworn motion to dismiss. A sworn motion to dismiss states the facts of the prosecution and claims that these facts are not disputed. In addition, a sworn motion to dismiss states that the undisputed facts do not prove that a crime was committed. Questions of law are not determined by a sworn motion to dismiss, nor are questions of disputed facts.
A motion to suppress is another tool by which a defendant can attack the prosecution’s case without going to trial. Typically a motion to suppress claims a violation of due process. Due process in this setting means that the evidence that was gathered against the defendant was gathered illegally in violation of ones constitutional rights. In cases where there was a search and seizure, a defendant will try to establish by a motion to suppress that the procedures for the search and seizure were illegal or that the warrant allowing for the search and seizure was invalid.
The most common grounds for challenging a search are that: the search was made without a warrant, and a warrant was necessary; the search was made with a warrant, but the warrant was insufficient; the search was pursuant to a warrant but exceeded the scope of the warrant; there was a lack of probable cause for the search or a lack of probable cause for the issuance of the warrant; or that the warrant was illegally issued. If the court finds that there was a violation of due process, that the search was illegal, then the evidence that was obtained from that search is suppressed. If the evidence is suppressed, then it cannot be used to prosecute the defendant, unless the police would have come upon the evidence naturally during the course of their investigation.
Another common motion to suppress is a motion to suppress a confession. The basis for this motion is usually that the defendants Miranda warnings were not read, or that the defendant did not knowingly, intelligently and voluntarily waive these rights. The purpose of Miranda warnings is to act as a protection against a defendant incriminating himself. A common misconception is that the police must read Miranda warnings whenever an arrest takes place. This is not true. The police must only read Miranda warnings when they intend to question a defendant or engage in conduct that is the functional equivalent of questioning. If a confession is suppressed, the prosecution can still use the evidence that was obtained from the confession, they will only be barred from introducing the confession into evidence.
For strategic reasons, these motions may be better suited to be raised at the time of trial. Motions that are raised at the time of trial are usually called “motions in limine.” A motion in limine is a motion to limit the scope of the evidence against the defendant. They are sometimes better off being brought at the time of trial so that the prosecution does not have time to cure the defects that the motion in limine seeks to protect the defendant from.
Once the discovery process has been completed, the trial process begins. In all cases, the defendant has a constitutional right to a speedy and public trial. This means that the State must bring the defendant to trial within a certain time period. If the defendant is not brought to trial within the time period specified by the rules of criminal procedure, the a defendant can file a motion for discharge, which is in effect a motion to dismiss for failure to prosecute.
A defendant can waive the State’s obligation to bring him to trial within the time period specified. This waiver is done by the defendant requesting that the court allow the defendant additional time to engage in the discovery process. In most criminal prosecutions, the defendant waives his right to a speedy trial by asking for additional time to prepare his case for trial. This is done so that the defendant has the opportunity to engage in meaningful discovery. It is very rare that the speedy trial rule works favor of the defendant.
However, once a defendant has completed discovery, even if the defendant has waived the speedy trial rule, the defendant may have a right to demand a speedy trial. By demanding a speedy trial, the defendant tells the court that the defendant is now ready for trial and is done with the discovery process. The Prosecution must then commence within a certain specified period of time. Once again, if the state fails to provide a speedy trial, the defendant may file a motion for discharge and have the court dismiss the charges for failure to prosecute.
If the State is ready for trial, unless the case is resolved by a plea, the trial will begin with jury selection. Jury selection is commonly called voir dire. Voir dire means to speak the truth and is the time period when the attorneys and the court speak to the potential jurors to determine if they will be fair and impartial and follow the law.
Following voir dire is the presentation of evidence by the State and the Defendant. It is the State’s burden to prove guilt beyond and to the exclusion of every reasonable doubt. The defendant is presumed innocent and therefore has no burden. The presumption of innocence stays with the defendant throughout the trial unless the State meets its burden. It is up to the jury to decide whether or not the State has met this burden, and the jury’s decision must be unanimous. If the jury cannot reach a verdict, a mistrial will be declared because the jury will be deemed to be a “hung jury,” and the State will have an opportunity retry the case.
If the jury finds the defendant guilty, the defendant has the right to appeal the judgment of guilt and the sentence of the court. The sentence or punishment is imposed by the court and is not up the jury, except in limited cases such as murder prosecutions. If the jury finds the defendant not guilty, the prosecutor (representing the people of its jurisdiction) does not have the right to appeal. The defendant is forever discharged from being prosecuted for this crime, and the defendant is no longer under the jurisdiction of the court.