From The Criminal Lawyer’s Job, Chapter 1
- Gain a primary understanding of what to expect during the entire criminal justice process.
- Learn how to prepare your client for what may come.
There are approximately 18 stages to the criminal justice process, give or take a few depending upon your jurisdiction’s procedural rules.
1. Crime Is Alleged to Have Occurred
The criminal justice process begins when someone makes an allegation that a crime has occurred. The allegation can be made by a law enforcement officer (sometimes they are the only witness to a crime, e.g., a traffic law violation) or a private citizen. At this point, your prospective client is known as the suspect.
2. Police Conduct an Investigation
Once a crime is alleged, law enforcement officers will begin to investigate. The complaining witness or aggrieved victim will make a statement and written reports will be made of these statements. If the only witness involves law enforcement, the officers will make written reports documenting what they observed.
If the investigating officer determines that there are other witnesses to the crime, she may take statements from these people.
Evidence, if any, will be gathered at this time by collecting physical evidence located at the crime scene, taking photographs and video images of the scene and evidence, and retrieving relevant evidence from other locations.
Crime scene analysts may be asked to test various pieces of evidence or conduct examinations that may reveal further evidence (e.g., fingerprint analysis, chemical analysis of various substances).
The suspect (who will later become the defendant and your client) will be questioned at this time by the investigating officer. Note: You will probably not be involved at this stage. Most defendants do not know any lawyers or do not have the money to pay a lawyer for advice before speaking to the police. Law enforcement officers must advise him of his rights if he is questioned in a custodial setting. But the client is usually on his own at this point when choosing to waive his rights and speak with investigators.
A search warrant is necessary if the evidence is not in plain view or officers have no consent from the owner to search the thing that may contain the additional evidence. A search warrant is obtained if an investigating officer believes that there is additional evidence to the alleged crime somewhere else.
3. Arrest Is Made
If sufficient grounds exist, the suspect will be taken into custody to be booked (have his prints and his mug shot taken) and may be charged.
4. Crime Is Charged
If sufficient grounds exist, the suspect may be charged with a crime or violation of the law. All alleged violations of the law are set out in a charging document. This document seeks to notify the accused of the charge and the law he is alleged to have violated. The defense attorney is not involved in drafting or negotiating this document.
As you may remember from your criminal procedure class, a charge can be brought in several ways.
Traffic infractions, petty offenses, and misdemeanor crimes can be charged by the investigating law enforcement officer at the time of the initial contact with the suspect. The officer can prepare the charging document herself. Ordinarily there is a uniform charging document or form used by the officer. A carbon copy is served upon the defendant at the time. A speeding ticket is an example of such a charging document. These charging documents notify the defendant of the time and place to appear in court to answer to the charges. If the officer works for a municipality, the charging document will direct the defendant to appear in municipal court. If the officer works for the sheriff’s department or state patrol, the charging document will likely direct the defendant to appear in district court. If the suspect is not taken into custody, he is free to leave.
Grand Jury Indictment
A crime can also be charged by a grand jury. In this instance, the prosecuting attorney conducts her own investigation into allegations of a crime. A grand jury is convened pursuant to the jurisdiction’s law, and the prosecutor presents testimony and evidence to the grand jury. The court’s permission is not required to convene a grand jury, and the court is not involved unless the prosecutor requests the court to compel a witness to testify.
The prosecutor asks questions of the various witnesses subpoenaed to testify before the grand jury and introduces exhibits through their testimony. Sometimes the members of the jury ask questions.
After all the evidence is presented, the prosecutor asks the grand jury to take a vote and indict on various charges submitted to the grand jury by the prosecutor. If the grand jury indicts, its finding will be formalized into a written indictment that acts as the charging document. This indictment consists of a plain and concise statement of the essential facts constituting the crime charged. It notifies the defendant of the crime with which he is charged and the sections of the law he is alleged to have violated. It is signed by the grand jury foreman.
Often, defendants are not made aware of these proceedings. There is no right to have counsel appear on defendant’s behalf.
Complaint and Information
If the crime alleged is more serious than a traffic offense, petty offense, or certain low-level misdemeanors, it will be presented by the lead investigating office to the jurisdiction’s prosecuting attorney. The prosecutor will review the facts and circumstances surrounding the alleged crime and make a determination as to whether a crime will be charged and at what severity level. If the crime is not a felony, a summons or notice to appear may be issued to the defendant along with a Complaint and Information notifying the defendant of the crime with which he is charged, the sections of the law he is alleged to have violated, and the time and place to appear to answer to the charges.
Some jurisdictions separate the Complaint and Information in felony cases. The Complaint is filed first to commence the prosecution. It includes the crime charged and sections of the law alleged to have been violated. The Information is filed after the preliminary hearing. It includes a plain and concise statement of the essential facts constituting the crime charged.
A sample Complaint and Information/Felony is included as Exhibit A, and a sample Complaint/Misdemeanor is included as Exhibit B on the enclosed CD-ROM.
Affidavit of Probable Cause
If the charge includes a felony, in addition to the complaint and information the prosecutor will prepare an affidavit of probable cause that will be sworn to by the lead investigating officer. It usually consists of a summary of all the investigating officers’ reports. It alleges facts to support probable cause to believe a felony has been committed and probable cause to believe the defendant has committed the felony. It requests the court to order the defendant to be brought to court to answer the charges. Depending upon the severity level of the crime, the affidavit may request an arrest warrant. Thereafter, the warrant will be executed by the court and the defendant will be brought to court to answer the charges. The defendant will be required to post bail or provide a bond in order to get out of custody.
If the charges are less severe (e.g., it is not a crime of violence, or it is a crime that does not carry a significant prison sentence), the affidavit may request that the defendant be summoned to court. That means that he can appear on his own without the need for arrest or to post bail.
5. Advisement of the Charge
The first time the defendant appears in front of the judge in a felony case is often called the Advisement. In a misdemeanor case, this first appearance is often called the Arraignment.
If defendant has posted bail or has been ordered to appear on summons, he will appear in a courtroom at a designated time and place. The court advises the defendant of the charges against him, certain constitutional rights, and, if he is still in custody, the amount of bail. Thereafter, the matter may be continued to another date for an attorney to appear with the defendant.
6. Defendant Contacts Attorney Regarding Representation
Usually at this point, the defendant (or someone on his behalf) contacts you regarding representation.
Most clients will seek your help after they have been charged. Most often, they are not financially able to seek your help before a matter is charged. Usually only affluent clients, those being investigated for white-collar crimes, and those who know they are being investigated by a grand jury will enlist the services of an attorney before the matter is charged. (Precharge representation is not covered in this book.)
7. Client Retains Your Services
If you agree to take the case, you are “retained.” Smart lawyers always get their fees paid in advance. If necessary to assist you in requiring your fee paid in advance, buy or rent a credit card machine. A wise attorney once told me, “Always get your money up front and never expect to make anything more than what you get up front.” Regardless of when you obtain your fee, you should sign a retainer agreement with the client outlining the parameters of your representation.
8. Meeting With the Client Face-To-Face
Meet with the client before filing any motion or entering your appearance (defined below). During this meeting, you will
- Review the charges with the defendant.
- Review the evidence required to establish the charges.
- Review the potential penalties and other consequences.
- Review the discovery you have obtained, if you have any.
- Review the attorney–client privilege.
- Review various expectations you have of the client.
- Determine how the client would like to proceed.
- Describe the process and proceedings yet to come, including the anticipated timeline.
- Obtain the client’s pertinent background information.
9. First Appearance
Courts in most jurisdictions will set a First Appearance or Advisement in order to give the defendant an opportunity to appear with an attorney and schedule future proceedings such as a preliminary hearing or an arraignment. (Depending upon your jurisdiction, you may be required to file a written entry of appearance with the court in addition to appearing in court with the defendant.) The defendant is usually notified of the time a place of the proceeding in the charging document, in the summons to appear, or during the Advisement.
10. Pretrial Process
Every action taken between the time you enter your appearance and the trial is known as the pretrial process. However, there is a distinction, of sorts, between this process before and after the preliminary hearing. The process prior to the preliminary hearing may include filing motions to set a bond or modify a bond, obtaining and compelling discovery from the prosecution, conducting your own investigation, and filing various pretrial motions including, but not limited to, objecting to jurisdiction, asking for change of venue, and asking the court to recuse itself.
11. Preliminary Hearing
In most jurisdictions, the next court proceeding in the felony process is the preliminary hearing. During this proceeding the prosecution presents its evidence to the court and the court determines if there is enough evidence to continue on to trial. The court makes a probable cause determination as to whether a felony has been committed and the defendant has committed the felony. While the defense is allowed to make argument regarding the evidence presented and cross-examine the prosecution’s witnesses, the defense’s ability to present evidence is often limited. Moreover, it is often not wise to present defense evidence at this stage, as presentation of such may reveal the defense strategy.
The arraignment is a proceeding wherein the defendant is formally advised of the charges against him (they are read aloud to him by the court if he desires) and enters a plea on the record, in front of the judge. The choices of pleas to be entered are
- not guilty
- guilty as charged
- nolo contendere or no contest (which has the same effect of a guilty plea, but the plea cannot be used as evidence in a subsequent civil proceeding related to the same issue)
- guilty pursuant to a plea agreement with the prosecution
- to stand silent (thereafter the court enters a not guilty plea on the defendant’s behalf)
If a “not guilty” plea is entered, the defendant should ask for a jury trial on the record. Entering a not guilty plea does not foreclose the option to later dispose of the case pursuant to a plea agreement. It is merely a formality that ensures the protection of the defendant’s constitutional right to a speedy and public trial.
The effect of formerly entering a plea at arraignment is to start the clock running on the client’s right to a speedy trial (speedy trial is a constitutional right; each jurisdiction has codified this right and you can find the rule of law in the statutes or the code). A trial date is usually chosen at this time. Other dates such as pretrial motion dates may be scheduled.
13. Pretrial Conference
The pretrial conference is a calendar-management hearing. It always occurs after arraignment. Either the court will automatically set one or one of the parties will request one. Some courts like them because it gives them insight as to whether the parties are working nicely and fairly with one another and there is a possibility of settlement.
During the conference, the court and the parties get a sense of whether the case is really going to trial.
In some jurisdictions, the court sets all future court dates during this proceeding. This includes a certain trial date and a date or dates to hear remaining pretrial motions. In addition, the court may set deadlines for the completion of discovery and for filing pretrial motions, and may advise the attorneys of various rules and expectations the court has regarding trial.
These conferences can be a useful tool for the defense as a reality check for the client, to rethink a reasonable offer. Once the client sees the court setting an actual trial date and imposing certain deadlines and restrictions on the parties, he may realize that the case is not going away and may reconsider his decision to plead not guilty.
14. Trial Preparation
Everything that occurs in the defense attorney’s office after arraignment is known as trial preparation. It involves additional factual investigation, legal research, drafting and filing various pretrial motions, and preparing arguments, presentations, and evidence for trial.
15. Pretrial Hearings
Pretrial hearings are usually held closer to trial and are conducted in order to resolve all issues remaining before trial. The motions addressed at this point usually include motions to suppress evidence, motions in limine, and motions for sanctions for discovery violations.
These hearings act as the last reality check for the defendant who has a significant chance of being convicted at trial. It is usually during these hearings that he realizes he is about to cross the point of no return. Often, such a reality check may be necessary to convince an unrealistic client that he should accept a plea offer or begin plea negotiations.
The next proceeding is a trial. Trials can be to juries or to the court. The jury trial process includes, in order:
- Voir dire (choosing the jurors)
- Prosecution’s opening statement
- Defendant’s opening statement (if counsel chooses not to waive or reserve until the beginning of the defense case in chief)
- Prosecution’s case-in-chief (which contains direct and cross-examination of each witness)
- Defendant’s motion for judgment of acquittal
- Defendant’s case-in-chief
- Jury instruction hearing
- Instructions to the jury by the court
- Prosecution’s closing argument
- Defendant’s closing argument
- Prosecution’s rebuttal closing argument (if allowed)
- Jury deliberation
- Jury verdict
Should the defendant be convicted, the next phase is sentencing. If he faces an aggravated sentence of incarceration, certain facts that form the basis for such may require an additional trial to the jury or to the court.
Some courts sentence the defendant immediately after the verdict and some postpone sentencing until a later date so that both sides can prepare arguments and evidence in favor of or against a particular sentence. Some sentences exceed the limits authorized by law; when this occurs, the excessive nature of the sentence will form the basis for challenging it.
If convicted after an evidentiary trial, the defendant may have the right to appeal certain court rulings. These include rulings on all pretrial matters, rulings on trial matters, and the sentence imposed.
If the defendant enters a guilty plea pursuant to a plea agreement, he may not have any right to appeal. However, the defendant always retains the right to appeal an egregious or illegal sentence. However, appeals are not addressed in this book.