The Case Process
Trial (Judge or Jury)
An arraignment is the process by which the defendant is read specific charges against him. 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. An arraignment takes place only after the prosecuting attorney decides to file charges.
What Will Happen At The Arraignment?
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:
1. The defendant usually will be provided with a written allegation from the prosecutor.
2. The defendant will be asked to acknowledge his identity.
3. The defendant may have private counsel present or the court may appoint one.
4. 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.
5. If charged with a misdemeanor, the defendant is required to reply to the written charges with a plea of either guilty, not guilty, or nolo contendere. (no contest) If charged with a felony, the defendant may or may not be required to reply with a plea at the initial arraignment. (The policy of presenting a plea at a felony arraignment is different state-by-state)
6. In a misdemeanor case, the judge will set the defendant's tentative appearance schedule. In a felony case, the judge will set the defendant's tentative preliminary hearing. (Not all states have preliminary hearings. Some convene a grand jury to find probable cause.)
7. Bail is established. The defendant has a right to argue for a bail reduction.
8. Discovery is usually presented to the defense attorney. Discovery usually consists of a police report and a complaint. This varies by state. Some states do not provide discovery until after the preliminary hearing or indictment.
9. If the defendant pleads guilty at the arraignment, the judge may sentence the defendant at that time.
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.
Municipal Court Trial
Each state has different rules for Municipal Court trials. Some states provide the right to choose between a trial by judge or jury. Others do not allow the defendant a jury trial in misdemeanor cases. The number of members on a jury varies by state.
TRIAL (JUDGE OR JURY)
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:
- Jury selection
- 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.
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to review specifically identified flaws in procedure with the possibility of changing the lower court's decision. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict.
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
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 New Mexico 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. In addition, applicants campaigning for public office or applying for a federal job are required to make their conviction public even if it were expunged.
Facts about Expungements:
1. Even when a conviction has been expunged it can still be used against the defendant's sentence if the defendant is again convicted of a crime.
2. Not all convictions are eligible for expungement. Laws differ state-by-state.
3. In many states defendants can not expunge felony convictions or sex offenses.
4. Convictions usually cannot be expunged until one year has passed and the defendant has completed serving the sentence.
5. Expungements usually can not occur if the defendant faces new charges.
6. The federal law does not recognize state court expungement orders.
7. At the end of probation, the criminal record is reviewed.