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Understanding the criminal defense process from arraignment to appeal
The criminal court process is both confusing and complex. Most individuals accused of criminal activity are overwhelmed and often times intimidated by the judicial process. Most defendants do not know what to expect. It is my practice and belief that the client should play an active roll in his own defense. I have found that when the client understands the criminal process and what we are up against, he is better prepared to make critical decisions on his case. At each step of the criminal process, certain rights are addressed and certain goals can be accomplished. The more the client understands, the more at ease he will become and the more invested and involved he will become in his own case. My job as a defense attorney is to provide a vigorous defense. I have found that one of the keys to success is to provide the defendant with a basic understanding of the criminal process so they know what to expect at each stage of their case and how to assist in their own defense.
Five things the defendant should expect from his criminal defense attorney:
1. The defense attorney must ethically and actively defend his client.
2. The defense attorney must present all options to his client with recommendations and professional opinions.
3. The defense attorney must prepare his client completely for each step in the legal process.
4. The defense attorney must review all possible defense scenarios and interview all witnesses and review evidence in support of the client’s case.
5. The defense attorney must develop a theme to the defense. The theme is composed of a powerful defense strategy and a course of action to present reasonable doubt or otherwise minimize exposure or punishments.
Key Constitutional Rights
The law may seem tricky at first glance – that is why the defendant has certain rights, the paramount one being the right to retain an attorney. The defendant is guaranteed the right to legal representation, whether the attorney is appointed for the defendant or the defendant hires a private attorney. Another important right is the right to present his case. The right to a fair and speedy trial and the right to be provided a specific statement of the charges are two other very important rights of a defendant.
1. Right to counsel (attorney)
2. Right to cross examine and confront witnesses
3. Right to testify on one’s own behalf
4. Right to remain silent
5. Right to speedy trial
6. Right to use courts subpoena power to compel witnesses to testify
7. Right to a jury trial (in most cases)
8. Right to be presumed innocence
Process of a criminal case
Misdemeanors and Felonies which have concurrent jurisdiction with the District Court can be tried in the District Court unless the prosecution moves for indictment. All other criminal offenses where there is no final District Court jurisdiction are tried in the Superior Court. The District Court has juries of six whereas the Superior Court has juries of twelve. For purposes of this article, I have created a chart of what happens in each court.
|DISTRICT COURT||SUPERIOR COURT|
|Arraignment||Case originates in the Lower Court (District Court)|
|identity of defendant||Arraignment|
|confirm attorney of record||identity of defendant|
|Pre-Trial Conference (one or more)||confirm attorney of record|
discovery issues identified
identification of issues
|Pre-Trial Conference not available on offenses with no District Court final jurisdiction.|
|identification of witnesses||plea negotiations|
|identification of strengths / weaknesses|
|identification of issues|
|identification of witnesses|
|Trial (judge or jury)||identification of strengths / weaknesses|
|Issues of fact decided|
|Evidentiary motions||Probable Cause Hearing|
|Probable cause that crime was committed and defendant was the one who committed it. Upon finding of probable cause, case is bound over to the grand jury for indictment.|
|judge imposes sentencing after defendant has been convicted||Grand Jury Indictment|
24 members of the community hear evidence presented only by the prosecution with goal to return a True Bill.
|Superior Court (Upper Court)|
|the defense may request a higher court to change the lower court’s decision.||Arraignment|
|Expungement||identity of defendant|
|expungement is a legal term for sealing the criminal record||ascertain charges|
|confirm attorney of record|
|identification of issues|
|identification of witnesses|
|identification of strength/weaknesses|
|issues of fact are decided|
|judge imposes sentencing after defendant has been convicted|
|the defense may request a higher court to change the lower court’s decision.|
What is Arraignment?
An arraignment is the process by which the defendant is read specific charges against him and to which he enters his plea, usually “not guilty”. It is the first step in the criminal process after arrest. It is a brief hearing. All arraignments are conducted after the suspect is arrested and booked by law enforcement or summonsed to court. An arraignment takes place only after the prosecuting attorney decides to file charges.
The arraignment in Superior Court follows the same process as an arraignment in the District Court. Bail and identity are established, charges are ascertained and the attorney of record is confirmed. An arraignment is a virtual formality prior to trial. Very few cases are dismissed at arraignment.
What Will Happen At The Arraignment And What Must The Defendant Do?
At the arraignment the defendant will appear before a judge. The defendant may appear alone, or he may bring legal counsel. An arraignment is the time where the judge will ask if the person appearing is the person identified in the charges. In addition, the judge will ask whether the defendant will plead not guilty. It is highly unusual that a defendant would enter a guilty plea at the arraignment. At an arraignment:
The defendant usually will be provided with a written allegation from the prosecutor.
The defendant will be asked to acknowledge his identity.
The defendant may have private counsel present or the court may appoint one.
The defendant may be told his possible punishment. The possible punishment is not a reflection on the case or the judges view of the case or the defendant.
After arraignment, the Court will enter a plea of not guilty on behalf of the defendant.
Bail is established. The defendant has a right to argue for a bail reduction.
Discovery is usually presented to the defense attorney. Discovery usually consists of a police report and a complaint.
If the defendant pleads guilty at the arraignment, the judge may sentence the defendant at that time.
In Mallory v. United States, 1957, the U.S. Supreme Court ruled that an arraignment should take place as “quickly as possible”. Each state views a speedy arraignment differently. Consult with an attorney to identify how quickly the defendant can expect an arraignment. Generally, the rule-of-thumb is to expect arraignment to occur within two days after being arrested. If the defendant is arrested and released on bail or on his own recognizance, arraignment may take longer than if he is arrested and remains in jail.
Five things the defendant should do after arraignment:
Ensure he has qualified legal representation.
Understand thoroughly the criminal law process from arraignment to appeal. Defendant’s often compromise their defense because of ignorance of the criminal process and their rights.
Ask the attorney questions every step of the way. Seek advice of the attorney. In the criminal process, the defendant is the one who stands to lose the most. Ask questions frequently and be certain they are answered.
Assist the attorney in preparing the defense by understanding every option available. Explore all options before making a decision. Researching the situation is invaluable.
Remember that the defendant is innocent until proven guilty beyond a reasonable doubt.
Differences between Misdemeanors and Felonies
Consequences for misdemeanors and felony convictions are entirely different. A defendant must understand which crime he has been charged with in order to understand what will happen if convicted.
Generally, a misdemeanor crime is punishable by up to two and one half years in the House of Correction. Misdemeanors and some Felonies with concurrent jurisdiction with the District Court are held in the state’s lower court, sometimes referred to as District or Municipal Court. Examples of misdemeanor crimes include assault and battery, violation of a restraining order, drunk driving, disorderly conduct or shoplifting.
A felony crime is punishable by one year or more in state prison. Superior Court felonies begin in the state’s lower court system but are removed to the Superior Court, or higher court. Sample felony crimes include murder, rape, armed robbery, and assault and battery with a dangerous weapon.
The offense of assault and battery with a dangerous weapon (which is a felony) has concurrent jurisdiction which means that either the District or Superior Courts can adjudicate the matter. If the defendant is tried in the Superior Court, then he can potentially be sentenced up to 10 years to State Prison. If this same charge remains in the District Court, then the most the defendant can only be sentenced to is up to 2 ½ years to the House of Corrections after convicted. It always behooves a defendant to try to resolve this type of case in the District Court.
The District Court criminal offense and Superior Court criminal offense arraignment processes are virtually identical to one another with one exception. In the District Court criminal offense arraignment process, a pre-trial in District Court is the next step following arraignment. In the felony Superior Court criminal offense arraignment process which begins in the District Court, the next step is a probable cause hearing. A probable cause hearing establishes probable cause to issue the complaint against a defendant and is a good discovery mechanism for the defense to test the Commonwealth’s case. If a probable cause hearing is not held, then a defendant must be directly indicted by a grand jury which would issue a true bill against a defendant so as to start the case in Superior Court. (Note: Most District Attorneys directly indict a defendant and avoid the probable cause process thus denying the defense of this valuable discovery tool.)
It is recommended that the defendant receive legal representation prior to arraignment. A public defender may have little time to review the case before arraignment, or may not even be assigned the case until arraignment. Preparation is key to a successful defense. A private attorney can meet with the defendant prior to arraignment, review the case, and provide the defendant with step-by-step options prior to the arraignment process.
Bail is a method to get the defendant home during the trial proceedings. It is not a period of time to argue the merits of the case. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so. There are typically two factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts:
Is the defendant a danger to the community?
What is the likelihood the defendant will flee?
In order to get bail reduced the defense attorney should do the following:
Demonstrate the potential crime is not one that the defendant would do again
Demonstrate the defendant is not a danger to the community
Demonstrate the defendant presents no likelihood to flee. The defense attorney can present this in various ways: – Character references – Community support – Stable employment history – Memberships in religious or civic organizations – Surrendering the defendant’s passport – Agree to electronic monitoring
The court can present several bail release options. These may include:
Cash Bail. The defendant is responsible for paying the entire amount of bail to be released. The defendant will receive his bail back at the completion of all court appearances.
Release On Own Recognizance. If the judge is convinced the defendant is not a risk, he may release the defendant on his own recognizance.
Surety Bond. The bail agent guarantees to the court that they are responsible for the bond if the defendant fails to appear.
Property Bond. The court records a lien on the property of the defendant to secure the bail amount.
Probable Cause Hearing
At the probable cause hearing the judge determines whether sufficient evidence exists to send the case to the Superior for trial. The judge reviews 1) Whether there is probable cause to believe a crime was committed. 2) Whether there is probable cause to believe the person in front of the court is the one who committed the crime. Rarely does a judge overturn the prosecution and dismiss the case. In fact, the prosecution or judge can add additional charges to the case at this hearing. The length of a probable cause hearing varies by state. It may last three hours. It may last three questions.
Six things to expect at the probable cause hearing:
Probable cause hearings are shorter than trials.
The probable cause hearing is not a finding of fact.
The goal of a probable cause hearing is to screen the prosecution’s case.
The prosecution is only required to show “probable cause” at this hearing.
The probable cause hearing will be conducted in front of a judge. No jury will be present.
Although the defendant may be held to answer for trial, that does not mean the defendant is guilty.
Neither the prosecution or defense will present their whole cases; they want to save their case strategies for the trial.
Cross examination of police officers or witnesses may occur.
This involves a meeting between prosecution and defense. Topics discussed include plea bargain opportunities, strengths and weaknesses of the prosecution’s case, pretrial motions and intangible factors of the case, such as the defendant’s character and past history. The prosecution may offer alternative sentencing. The charge may be changed to a lesser charge. The number of felony counts may be dropped. A lesser punishment for the same charge may be agreed upon.
In the District Court, a defendant has the right to choose between a trial by judge or jury. The number of members on a jury varies from the District Court and Superior Court.
Expectations at the pre-trial conference:
The defense presents a legal case on behalf of the defendant.
Further discovery takes place.
Factual and legal evidence is established.
Debate over sufficient evidence occurs.
Review on whether the facts are sufficient occurs.
Strengths and weaknesses of witnesses are examined.
Issues with the evidence are submitted.
Sample motions the defense attorney can file at a pre-trial conference:
Dismiss information and complaint
Modify or reduce bail
Bill of particulars
Change of venue
Strike a prior conviction
Examine police file
95% of all cases end in a plea-bargain. Plea-bargaining is an excellent way to avoid a potential stiff conviction in favor of an agreed upon lighter conviction. For instance, in a drug possession case, a judge may be convinced to dismiss the charges in return for the defendant’s successful completion of a rehabilitation program. Some judges and prosecutors are amenable to plea-bargaining, whereas others are not. Plea bargaining enables the judges to move cases through the legal process, and prosecutors to rack up convictions.
Five things to ponder when considering a plea bargain:
A judge-approved guilty or no contest plea bargain may result in a criminal conviction. The conviction will show up as a criminal record.
The defendant may lose rights and privileges as if the defendant were convicted after trial.
A no contest plea says “I don’t choose to contest the charges”.
A guilty plea serves as an admission of guilt.
A plea bargain may result in a lighter sentence and completes the matter quickly.
How to plea-bargain a good deal:
The defense must show responsibility for the crime is minimal.
The defense must show the impact of the crime elicited little damage.
The defense must explain mitigating circumstances that led to the crime.
The defense must establish weaknesses in the prosecutions case, such as lack of evidence or lack of witnesses or factual inconsistencies.
The defense must establish good character on the part of the defendant. The crime was a departure from normal conduct.
The prosecution and defense must mutually desire a reasonable settlement.
The impact on the defendant’s family or dependents would be a hardship.
The prosecutor carries the burden of proof. The defendant is innocent until proven guilty. During the trial, the prosecutor must present a case that convinces the judge or jury beyond a reasonable doubt that the defendant is guilty.
The charges filed against the defendant at arraignment may be different from those originally filed by the arresting police officers. The defendant must be certain to understand the charges filed, and to confirm if they are different from what they were at the time of arrest.
It is critical that the attorney and defendant manage the details. Cases are won and lost in the details.
In many cases it is advisable to hire an investigator to design and implement a sound strategy to put the details on the defendant’s side.
The appeals process works differently state-by-state. However, in most states, an appeal goes from the Criminal Court to the State Court Of Appeals to the State Supreme Court.
The defendant must manage his attorney. The defendant must make sure he understands what the attorney is doing, and why he is doing it, before it is done. The defendant can’t wait until after the attorney presents the defense to inquire as to the course of action.
Misdemeanor cases are usually heard in lower court. Felony cases are usually heard in upper court.
The defendant’s attorney has several motions he can utilize through the criminal process. A motion to dismiss evidence can be filed at the preliminary hearing if the defense attorney believes the evidence is insufficient. The motion to suppress evidence can be filed by the defense attorney when there may be grounds to suppress physical evidence taken from the defendant or statements made by the defendant.
A jury trial is the fact-finding phase of the case. It is the in-court examination and resolution of a criminal case. At the trial a decision will be reached as to the innocence or guilt of the defendant. Unlike a plea-bargained settlement which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will win. The trial begins with the prosecution’s opening statement. The defense attorney may also present an opening statement at this time. The prosecution presents his case to support the charges and then rests. The defense presents his case to refute the charges and then rests. Closing arguments by both the prosecution and defense conclude the presentation part of the trial. The jury then deliberates innocence and guilt.
In a trial, expect the following to occur:
Opening statements are presented by both the prosecution and the defense
The prosecution presents their case
The defendant cross examines
The defense presents their case
The prosecution cross examines
Closing arguments are presented by both the prosecution and the defense
The prosecution, defense attorney and judge decide on specific instructions to the jury
The judge instructs the jury on rules
The jury deliberates
The jury submits their verdict
The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or stiffer sentence. The defendant may make a statement to the court. In addition, in some jurisdictions the court may ask for a report from the probation department prior to sentencing the defendant.
7 things to consider regarding sentencing:
The judge almost always determines punishment.
The judge may be required to follow specific sentencing guidelines.
The eighth amendment to the U.S. constitution provides that punishment may not be cruel or unusual.
Factors such as no criminal history, a good public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence.
A previous criminal record, use of a dangerous weapon, degree of injury or financial loss, and the type of conviction may persuade the judge to provide a harsher sentence.
Judges almost always give repeat offenders stiffer sentences.
If the defendant is not planning on appealing the case, this may be an appropriate time to acknowledge responsibility in order to convince the judge to give a more lenient sentence.
Circumstances That Can Adversely Affect Sentencing:
1) Previous Criminal Record. A defendant’s past record is a large consideration when determining an alternative or lesser sentence within the lower end of the sentencing guidelines. A previous record can also affect the level of security of the facility that the defendant will be sent to as a result of sentencing. Most correctional facilities use a point system unfavorable to repeat offenders costing them time deducted from their sentences. On the contrary, first time offenders are frequently sent to camps or community centers instead of penitentiaries.
2) Enhancements. Most states carry statutes which call for stiffer penalties if a defendant’s crime involves the use of a dangerous or deadly weapon, serious or permanent bodily injury, or crimes against youth or the elderly. Enhancements generally increase the sentencing penalties. In some states, enhancements are not a separate charge and are considered part of the primary offense such as armed robbery.
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to change the lower court’s decision. The appellate process is primarily limited to correcting flaws in procedure and not to change a trial courts finding of fact. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict. The timeline of the appeals process varies from State-to-State. However, time limits do exist. They are very short – often less than 30 days. Don’t lose your right to appeal! At the very least, a notice of appeal must be filed as soon as possible. The sample motions in an appeal process may include:
Motion for Acquittal Motion For A New Trial Motion For New Sentencing Appeal To Appellate Court Appeal To State Supreme Court Appeal To U.S. Supreme Court
In death penalty cases, the appeals process is automatic.
Once the trial has been completed, the facts have been decided. They can’t be changed by an appellate court. The appeals process reviews defects in procedure of the trial. If the defense attorney can identify substantial improper procedural issues, he may be able to win the appeal. These defects in procedure may include any of the following:
- The judges instructions to the jury were improper – The prosecution made improper comments to the jury – Jury tampering – Improper introduction of evidence
The timeline of the appeals process varies from state-to-state. Some post conviction tactics to get relief for the defendant include:
Motion for Acquittal Motion For New Trial Motion For New Sentencing Appeal To Appellate Court Appeal To State Supreme Court Appeal To U.S. Supreme Court
The expungement process differs from state-to-state. Expungement is a legal term for sealing the criminal record. By having a criminal conviction expunged, the conviction will be deemed not to have occurred. However, in some cases, even an expunged record is still open for law enforcement purposes.
If the defendant is involved in a case with co-defendants, the defense attorney for the defendant may chose to make a motion to sever ties from the co-defendants.
The defense attorney can 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.
An appeal occurs after the court has rendered its decision. The goal of an appeal is to have a higher court review and change the decision of the lower court, or send the case back to re-trial. There are two key types of appeals. One attempts to overturn the court’s decision. The second attempts to overturn the courts sentencing decision.
Unlike a plea-bargained settlement which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will win. Plea-bargaining eliminates the risk for both sides.
Plea bargaining consists of two types: sentence bargaining and charge bargaining. In exchange for a plea of guilty or no contest by the defendant, the prosecutor may recommend a lighter sentence or may drop charges to a less serious offense.
The sentencing is completed by the trial judge. The judge will look at the defendants past background, nature of the crime, and other factors in order to weigh a decision. Many courts require a full investigation be prepared by the probation department, so that the judge may consider its determinations when sentencing the defendant.
The defendant may ask the court to appoint a public defender at the time of the arraignment. The defendant should be ready to demonstrate financial need. If the defendant does not qualify financially, the court may still appoint an attorney.
The defendant has a constitutional right not to testify.
The timeline for the appeals process varies by state. The defendant should check with an attorney on these timelines.
The vast majority of convictions result from a guilty plea by the defendant.
Motions available to the defense attorney prior to trial consist of excluding evidence, including evidence, dismissing the case, suppressing evidence.
The federal government does not have to honor expungements. Individuals whose cases have been expunged must still disclose the convictions when qualifying for professional licenses or filing to hold public office.
The defendant should ask his defense attorney to thoroughly review a transcript of the entire trial prior to preparing an appeal. In an appeal, no new witnesses and no new evidence will be available. Each party prepares briefs that the judges review prior to rendering a decision.
In some states the defense decides whether a trial will be by judge or jury. The defendant should confer with his attorney about the benefits of each in order to determine what will be in the defendant’s best interest.
If the defendant receives a guilty verdict from the jury, the defense attorney can immediately begin a series of post-trial motions in the hope the judge will grant a new trial or make a judgment notwithstanding the verdict and acquit the defendant.
The burden of proving guilt rests at all times on the prosecution.
In discovery, the prosecutor must provide the defendant with information about the defendant’s case. The defendant is entitled to receive copies of the arresting officer’s statements and filed reports and the defendant may review evidence the prosecution might submit at trial.
FAQ’s – Answers to important questions
What type of sentence may the defendant expect to receive?
There are a myriad of sentencing options for the judge to consider. Sentencing is based on the nature of the case, the defendant’s past history, and the defendant’s threat to the community. Some sentencing options include jail time, probation, fine, community service, treatment or imprisonment in a penitentiary.
Why should the defendant plead guilty?
Sometimes the best result is a guilty plea. By avoiding a possible court trial, the defendant may plead to a lesser charge and therefore avoid a potential stiffer penalty. Most judges will offer a lighter sentence in exchange for a guilty plea at the arraignment. In addition, a guilty plea speeds the process forward and eliminates a long, drawn out trial process.
Will people know the defendant has a conviction on his record?
A conviction is public record and may be reviewed by the general public. The ability to expunge a conviction varies from state to state depending on the nature of the crime.
How long does a misdemeanor trial take?
A misdemeanor trial may take anywhere from one day to several weeks.
Is a misdemeanor conviction public record?
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 several days to several months to complete.
Is a felony conviction public record?
Do I have to talk to the judge or jury?
No. The defendant has a Constitutional right to remain silent. Whether to put the defendant on the witness stand is a decision the defendant and his attorney must make. Defense attorneys agree that it is sometimes better to keep the defendant off the witness stand, except in special cases. Once the defendant testifies, he opens himself to cross-examination by the prosecution. Because of this Constitutional right, the judge will instruct the jury that the defendant’s failure to testify must not be considered in any way a sign that the defendant is guilty. Of course, if a defendant is entering a plea or accepting a plea bargain, he must answer the judge’s basic questions with regard to his understanding of these actions.
Why do I keep seeing different attorneys and judges?
It is important that the defendant be comfortable with his legal team. A defendant may have one attorney or several, as each may be a specialist in a different area of law pertaining to the case. Prosecuting attorneys may work in teams as well. The defendant may appear before several judges throughout the process.
Is the police officer coming to court?
The police officer is a member of the prosecution’s team. He will come to court only if the prosecutor wants him to. The police officers and the prosecutors work together to present a case against the defendant. In some cases, if the police officer fails to show in court, the case may end in a dismissal.
When do I bring witnesses to court?
Witnesses may be key allies to the defense. The defense attorney is responsible for gauging the proper time to introduce witnesses in court. Witnesses usually first appear during trial.