Process of a criminal case
What is an arraignment?
Differences between misdemeanors and felonies
Misdemeanor: arraignment to appeals process
Legal terms & meanings
Felony: arraignment to appeals process
This article is directed at you, the defendant, telling you the basics about the criminal justice process. What should you expect at each stage of you case? How do the laws differ from one state to another? What if you are not happy with your attorney? How does the appeals process work? What will happen to you? The answers to these questions, and many more, presented here in a clear and concise format, that you will have a solid foundation going forward.
The law may seem intricate at first, but you have certain rights. First and foremost, you have the right to retain an attorney. You are guaranteed the right to legal representation, whether the attorney is appointed for you or a private attorney is hired by you. You have the right to present your case. You also have the right to a fair and speedy trial and the right to be provided a specific statement of the charges.
Key Constitutional Rights
Identification of defendant
Confirming attorney of record
Pre-Trial Conference (one or more)
Negotiating a plea
Identification of issues
Identifying strengths / weaknesses
Trial (judge or jury)
Making pre-trial motions
Deciding issues of fact
Imposition of sentence by judge after defendant has been convicted
A higher court may change the lower court's decision.
Identification of defendant
Confirming attorney of record
Negotiating a plea
probable cause that crime was committed and defendant was the one who committed it
Identification of defendant
Confirming attorney of record
Negotiating a plea
Deciding issues of fact
Sentence imposed by judge after the defendant has been convicted
A higher court may change the lower court's decision
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An arraignment is when you will be read specific charges against you. It is a brief hearing, the first step in the criminal process after arrest and booking. It takes place only after the prosecuting attorney decides to file charges.
What Will Happen At The Arraignment And What Must I Do?
At the arraignment you will appear before a judge. You may appear alone or bring legal counsel. An arraignment is the time where the judge will ask if you are the person identified in the charges. In addition, the judge will ask whether you will plead not guilty. It is highly unusual that you would enter a guilty plea at the arraignment. At an arraignment:
The U.S. Supreme Court decided in Mallory v. United States, 1957, that an arraignment should take place as "quickly as possible". Each state has a different perspective on what constitutes a speedy arraignment. Consult with an attorney to identify how quickly you can expect an arraignment. Generally, expect arraignment to occur within two days after being arrested. If you are arrested and released on bail or on your own recognizance, arraignment may take longer than if you are arrested and remain in jail.
Five things you should expect from your criminal defense attorney:
Misdemeanors and felony convictions have entirely different consequences. You must understand which crime you have been charged with in order to understand what will happen if you are convicted.
A misdemeanor crime is generally punishable by up to one year in county jail. Misdemeanor trials are held in Municipal Court, the state's lower court, although names for these courts vary from state-to-state. Some examples of misdemeanor crimes are drunk driving, disorderly conduct, or shoplifting.
A felony crime may be punishable by one year or more in state prison or a penitentiary. Felonies generally begin in the state's lower court system and may move up to the state Superior Court, or higher court. (Again, names for these courts vary from state-to-state). Some examples of felony crimes are murder, rape, or armed robbery.
The arraignment process for misdemeanors and felonies are virtually identical to one another with one exception. For misdemeanors, a pre-trial in Municipal Court is the next step following arraignment. In the felony process, the next step is either a preliminary hearing or a pre-preliminary hearing. Once the preliminary hearing is completed, a trial date is established.
It is recommended that you receive legal representation prior to arraignment. A public defender may have little time to review your case before arraignment, or may not even be assigned your case until arraignment. Preparation is key to a successful defense. A private attorney can meet with you prior to arraignment, review your case, and provide you with step-by-step options prior to the arraignment process.
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You may plead guilty, not guilty or no contest. If you plead guilty or no contest, you should expect to be sentenced. A very small number of cases are dismissed at arraignment.
At an arraignment, the prosecution may waive or eliminate the possibility of jail time for you. If there is no possibility of jail time, you may not be entitled to a court-appointed attorney. In addition, you may not be entitled to a trial by jury. In that case, the judge would be not only the trier of the law but also of the facts. You would be most likely tried by the judge.
Once the arraignment is completed, you prepare for trial in Municipal Court.
Five things you should do after arraignment:
This is a meeting between the prosecution and the defense. Topics discussed generally include strengths and weaknesses of the prosecution's case, pretrial motions, intangible factors of the case-such as the defendant's character and past history-all of which relate to plea bargain opportunities.
Municipal Court Trial
Each state has different rules for Municipal Court trials. Some states provide you the right to choose between a trial by judge or jury. Others do not allow a jury trial in misdemeanor cases. The number of members on a jury varies by state.
The judge will determine the length and type of punishment at a sentencing hearing. Witnesses are usually allowed to speak, to make requests for either a lighter or stiffer sentence. You may make a statement to the court. In some jurisdictions, the court may also ask for a report from the probation department prior to sentencing the defendant.
7 things to consider regarding sentencing:
After you have been found guilty by way of trial, your attorney may request a higher court to review specifically identified flaws in procedure with the possibility of changing the lower court's decision. The appeals process may only begin after you have received the final verdict.
Once the trial has been completed, the facts of the case have been decided. They cannot be changed by an appellate court. The appeals process reviews defects in procedure of the trial. If your attorney can identify substantial improper procedural issues, he may be able to win the appeal. These defects in procedure may include:
The appeals process varies from state-to-state. Your attorney may get relief for you using these post-conviction tactics:
The arraignment in a felony trial is similar to that in a misdemeanor trial. Bail is set and your identity established. Charges are ascertained, and your attorney of record is confirmed. An arraignment is essentially a formality prior to trial. Almost no cases are dismissed at arraignment.
Five things you should do after your arraignment:
This involves a meeting between prosecution and defense. Topics discussed in most states include plea bargain opportunities, strengths and weaknesses of the prosecutions case, and intangible factors of the case, such as the defendant's character and past history.
At the preliminary hearing, the judge will determine whether sufficient evidence exists to send your case to the upper court for trial. The judge reviews
A judge may overturn the prosecution and dismiss the case, although this is rare. At this hearing, the prosecution or judge can add additional charges to your case. The length of a preliminary hearing varies by state. It may last three hours. It may last ten minutes.
Six things to expect at your preliminary hearing:
Superior Court Arraignment
You are arraigned and plead guilty, not guilty, or no contest. At the arraignment, your identity is confirmed, bail is set, charges are read and your attorney of record is confirmed.
The pre-trial conference is the formal setting where plea-bargaining occurs. The prosecution may offer you alternative sentencing, a lesser charge, a reduction of the number of felony counts, in exchange for a plea and other considerations.
Expectations for your pre-trial conference:
Sample motions your defense attorney can file at a pre-trial conference:
A jury trial is phase in which the facts of the case are established. At the trial a decision will be reached as to your innocence or guilt. Unlike the certainty of a plea-bargained settlement, which completes the case prior to trial, a trial is risky for both the prosecution and defense. Either side may win or lose. The trial begins with the prosecution's opening statement. Your attorney may also present an opening statement at this time. The prosecution presents its case to support the charges and then rests. The defense presents its case to refute the charges and then rests. The presentation part of the trial ends with closing arguments by both the prosecution and the defense. The jury then deliberates on a verdict.
In your trial, you should expect the following to occur:
The judge decides the length and type of punishment at a sentencing hearing. Witnesses are usually allowed to speak, to request either a lighter or stiffer sentence. You may make a statement to the court.
After you have been found guilty by way of trial, your attorney may request a higher court to change the lower court's decision. The appellate process is mostly limited to correcting flaws in procedure and not to change a trial court's finding of fact. The appeals process may only begin after you have received the final verdict. The appeals process varies between states. However, time limits generally exist, and they are usually very short - often less than 30 days. Don't lose your right to appeal! A notice of appeal should be filed as soon as possible.
The appeals process is automatic in death penalty cases.
Almost all cases end in a plea bargain. Plea-bargaining is a way to avoid a potential conviction by agreeing upon a lighter conviction. It is an attempt by both the prosecution and the defense to avoid the risk of a trial. There are two types of plea-bargaining: sentence bargaining and charge bargaining. In sentence bargaining, the prosecutor may recommend a lighter sentence in exchange for a guilty plea or other considerations. Or, in charge bargaining, the prosecutor may drop charges to a less serious offense.
For instance, in a drug possession case, the judge may dismiss charges against you in return for your successful completion of a rehabilitation program. Most judges and prosecutors are amenable to plea-bargaining, although some are not. Plea-bargaining enables judges to move cases through the legal process, and prosecutors to accumulate convictions.
Five things to consider about a plea bargain:
To plea-bargain a good deal:
Bail allows you to go home during the trial proceedings. It is an amount of money used by the court to ensure the defendant comes back to court when required to do so. Typically a judge considers two factors before setting bail, both of which must be addressed by your attorney:
In order to get bail reduced your attorney should do the following:
The court can present several bail release options. These may include:
If you are involved in a case with co-defendants, your attorney may chose to make a motion to sever ties with the co-defendants at this time.
The defense attorney can also use the preliminary hearing as a strategy session. The standard of proof is lower during the preliminary hearing than the trial. The preliminary hearing is utilized by the judge to ensure there is sufficient evidence to review the case. The preliminary hearing assesses reasonable doubt and the facts of the case.
The pre-trial conference is used to introduce evidence, submit motions, identify procedural issues, exchange witness lists, and plea bargain. Most cases that do not reach trial are plea-bargained at the pre-trial conference.
Motions available to the defense attorney prior to trial consist of excluding evidence, including evidence, dismissing the case, suppressing evidence.
What type of sentence may I expect to receive?
Sentencing is based on the nature of the case, your past history, and your threat to the community. Sentencing options include jail time, probation, fines, community service, psychiatric treatment, or imprisonment in a penitentiary.
Why should I plead guilty?
Sometimes the best you can hope for is a guilty plea. You may plead to a lesser charge and therefore avoid a stiffer penalty at the end of a long, arduous trial. Since trials also cost the state money, most judges will offer a lighter sentence in exchange for a guilty plea at the arraignment.
Will people know I have a conviction on my record?
A conviction is public record and may be reviewed by anyone. However, depending on the nature of your crime and the laws of your state, your conviction may be sealed by the process of expungement.
How long does a misdemeanor trial take?
A misdemeanor trial may take anywhere from one day to two weeks.
How long does a felony trial take?
The length of a felony trial depends on the nature of the case. Generally, felony cases take between two months and one year to complete.
Do I have to talk to the judge or jury?
Yes and no. When you are entering a plea or if you are accepting a plea bargain, you must answer the judge's basic questions with regard to your understanding of these actions.
However, you have a Constitutional right to remain silent with respect to the facts of the case. Only you and your attorney have the power to put you on the witness stand. It is one of the most important decisions in any criminal trial. Defense attorneys agree that it is often better to keep the defendant off the witness stand. Once you testify, you may be cross-examined by the prosecution. Because of your Constitutional right, in the event that you decide not to testify, the judge will instruct the jury that your failure to testify must not be considered in any way a sign of guilt.
Why do I keep seeing different attorneys and judges?
It is important that you be comfortable with your legal team. Depending on the complexity of your case, you may have one attorney or several, as each may be a specialist in a different area of law. Sometimes prosecuting attorneys may work in teams as well.
There are several reasons why you might appear before several judges. Because of the complex nature of judicial scheduling, you may appear before several judges throughout the process, with a different one for the various hearings. Also a judge may be forced to remove or recuse himself from the case if it is shown he has an interest in it that would prevent him from acting impartially.
Will the arresting officer or officers come to court?
The police officer is a member of the prosecution's team and will come to court only at the request of the prosecutor. Police officers and prosecutors work together to present a case against you. Sometimes, if the police officer fails to show in court, your case may be dismissed.
When will witnesses appear in court?
Witnesses may be brought either by the prosecution or in your defense. Your attorney is responsible for gauging the proper time to introduce your witnesses in court. Witnesses usually first appear during your trial, and they may also appear at the sentencing.
What rights do I have at the time of arrest?
The Miranda rights for each citizen and non-citizen are guaranteed by the United States Constitution, although recent anti-terror legislation and executive practices have challenged them. They are not required to be read by police at the time of arrest. If they are not read, your lawyer may ask that any statements made to the police not be used against you in court. These rights include your right to remain silent, your right to have a lawyer present while you are questioned, and your right to an appointed lawyer if you cannot afford one.
When should I tell my story?
Your story is a critical piece of information that helps the judge and jury decide your case. You present your story to your attorney, under the privilege of confidentiality. After that, your attorney will tell your story. It is critical to remember that what you say may be used against you, but during your trial, your attorney will tell your story in a manner consistent with the theme of your defense.
Can I be questioned once issued my rights, even without an attorney present?
Yes, if you agree to be questioned. However, you can change your mind at any time and remain silent without having your silence held against you.
What if I don't show up? Can my attorney represent me?
Your attorney may represent you at different stages of the criminal process. You must check with your attorney for when you must appear. If you cannot appear, you must contact your attorney or the courtroom clerk immediately.
What happens if federal laws and state laws disagree?
In general, federal laws supersede state laws when the two come into play against one another, although recent court decisions have limited the ability of federal laws to preempt existing state laws. Your lawyer will help you determine which laws apply in your case.
May I appeal a decision?
Every decision can be appealed. Your attorney will explain the complete appeals process. Appeals may be heard from both the state and federal level to the U.S. Supreme Court.
What is the time frame for appealing a decision?
The laws governing appeals vary from state to state. Normally, you have between seven and ten days from the date of final judgment to file an initial appeal.
How many times may I appeal?
The appeal process will begin with the next highest court and end when the highest court, either the state supreme court or the U.S. Supreme Court, decides whether or not to hear the case.
Can I withdraw my plea?
Yes. A written motion to withdraw your plea must be filed. In some jurisdictions your attorney prepares the motion. In others, a court clerk will provide you with a form. In either case, the written document must be filed and a hearing for the request takes place.
May I represent myself instead of using an attorney?
You can represent yourself without the benefit of an attorney. There's an old saying on this topic.
When can a police officer conduct a search?
When you provide consent or when the officer presents a search warrant.
When can an officer search me or my possessions without a warrant?
An officer can conduct random searches of your car, body, and home upon "probable cause." An officer can also search your car in an emergency. Home searches are confined to the area where you were taken into custody. Body searches can occur at the time of arrest.
How can I get my bail reduced?
Bail is set at your arraignment. It is determined by the seriousness of the charges against you. The judge has the right to refuse to allow your release on bail. Your attorney may bring a motion to reduce bail during any proceeding in front of the court. In determining your bail, the judge will look at factors such as family history, background, professional responsibilities, past criminal history, and circumstances surrounding your case.
What if I don't like my public defender?
You may make a request for a new public defender, but they are rarely granted. Your rights are limited to the appointment of an attorney and not to the attorney of your choice. You must prove to the court that your defender is sub-standard, even incompetent. You may prove it through claiming personality conflicts, or differences in communication, ethics, strategy, or through a potential bias.
What if I think the judge or prosecutor is biased?
Your attorney may ask the judge to recuse himself (withdraw from the case) or he may file a motion with the court. In some states it is your right to recuse a judge if you believe the judge to be biased.
After a defendant has been found guilty in a trial, his or her attorney may request a higher court to change a lower court's decision, primarily on the basis of faulty procedure.
An arraignment is a hearing in which the defendant is read his or her rights and the list of charges filed against him or her is explained.
Cash or a cash equivalent held to induce a defendant to appear at trial after being released from custody at the arraignment. Bail can be made by cash, check, property, or a bond that is a guaranteed payment of the full amount of bail. Once the defendant appears in court, the bail money is refunded. If the court feels the defendant is a good risk, he or she may be released on his own recognizance without bail.
Some states do not give judges discretion to decide sentences, but provide specific sentences based on specific crimes.
A felony is considered a serious crime and is generally punishable by one year or more in state prison. Examples of felony crimes include murder, rape, or armed robbery.
A plea by the defendant admitting guilt.
Sentencing policy in which a judge is given discretion to decide a sentence following conviction.
A misdemeanor is considered a less serious crime and is often punishable by up to one year in county jail. A misdemeanor may include such crimes as disorderly conduct and shoplifting.
Municipal Court Trial
A trial in lower court for a misdemeanor. In some jurisdictions, defendants are not allowed a trial by jury in Municipal court.
By issuing a plea of nolo contendre, or, "no contest", the defendant accepts the punishment for the crime without formally admitting guilt. It may be beneficial to do so in cases where admitting guilt exposes a defendant to potential liability to other people for money damages.
Not Guilty Plea
A plea entered by the defendant claiming innocence of the charges.
In plea-bargaining, the prosecution may offer alternative sentencing in exchange for an admission of guilt or other considerations.
A preliminary hearing is like a trial, but shorter. Conducted in front of a judge without a jury present, the primary goal of a preliminary hearing is to identify which cases are fit for trial and which are not.
Pre-Trial Conference / Plea Bargaining
The pre-trial conference is the formal setting where the prosecution and the defense meet to discuss the case and plea-bargaining occurs.
Following a plea of guilt or a finding of guilt, a defendant will receive a sentence from the judge. Sentencing guidelines differ State-to-State.
Superior Court Arraignment
After completing the initial arraignment and preliminary hearing in a felony case, the defendant is arraigned in Superior Court, where he or she presents a plea of guilty, not guilty, or no contest.
The process by which the facts of a case are established to determine a defendant's status as guilty or not guilty. Trials may be held before a judge or jury depending on the venue.
More than just the place where a trial is held, the venue also tells the laws that govern a particular trial.
The process by which attorneys select a jury through questioning. Attorneys seek to set the tone for the trial at this point. A trial may be won or lost in voir dire.
To find out more information about these topics, please contact an attorney, visit the Cochran Firm Criminal Defense Section at www.cochranfirm.com, or call us direct at 800-THE-FIRM.
The statement above is not legal advice! This statement is not intended to be a correct statement of law in your jurisdiction. This statement is intended to give you a very general understanding of what is involved in this type of crime. Please consult an attorney to find out what law applies in your jurisdiction.
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