Understanding the criminal process from arraignment to appeal

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.

Key Constitutional Rights

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 of presumed innocence

Process of a criminal case

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What Is An Arraignment?

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 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:

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.

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 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 clients 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.

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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 f convicted.

Generally, a misdemeanor crime is punishable by up to one year in county jail. Misdemeanor trials are held in the state's lower court, sometimes referred to as Municipal Court. (Names for these courts vary from state-to-state) Examples of misdemeanor crimes include drunk driving, disorderly conduct or shoplifting.

A felony crime is punishable by one year or more in state prison or a penitentiary. Felonies begin in the state's lower court system but may move up to the state Superior Court, or higher court. (Names for these courts vary from state-to-state) Sample felony crimes include murder, rape, or armed robbery.

The misdemeanor and felony arraignment processes are virtually identical to one another with one exception. In the misdemeanor arraignment process, a pre-trial in Municipal Court is the next step following arraignment. In the felony arraignment process, the next step is a pre-preliminary hearing or a preliminary hearing. Once the preliminary hearing is completed, a trial date is established. (Note: Some jurisdictions do not utilize the pre-preliminary hearing step)

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.

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Misdemeanor: The Arraignment To Appeals Process

Arraignment

The defendant may plead guilty, not guilty or no contest. If the defendant pleads guilty or no contest, he may expect to be sentenced. Very few cases are dismissed at arraignment.

At an arraignment, it is possible for the prosecution to waive or eliminate the possibility of jail time for the defendant. If there is no possibility of jail time, the defendant may not be entitled to a court appointed attorney. In addition, the defendant may not be entitled to a trial by jury. In that case, the judge would be the trier of the facts as well as the law. The defendant would be most likely tried by the judge.

Once the arraignment is completed, the defendant prepares for trial in Municipal Court.

Five things the defendant should do after arraignment:

1. Ensure he has qualified legal representation.
2. 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.
3. 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.
4. Assist the attorney in preparing the defense by understanding every option available. Explore all options before making a decision. Researching the situation is extremely valuable.
5. Remember that the defendant is innocent until proven guilty.

Pre-Trial Conference

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.

Sentencing

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:

1. The judge almost always determines punishment.
2. The judge may be required to follow specific sentencing guidelines.
3. The eighth amendment to the U.S. constitution provides that punishment may not be cruel or unusual.
4. Factors such as no criminal history, a good public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence.
5. 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.
6. Judges almost always give repeat offenders stiffer sentences.
7. 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.

Appeals

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

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

Expungement

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.

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Felony: The Arraignment to Appeals Process

Arraignment

The arraignment in a felony trial follows the same process as in a misdemeanor trial. 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.

Five things the defendant should do after arraignment:

1. Ensure he has qualified legal representation.
2. Understand thoroughly the criminal law process from arraignment to appeal. Defendants often compromise their defense because of ignorance of the criminal process and their rights.
3. 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.
4. Assist the attorney in preparing the defense by understanding every option available. Explore all options before making a decision. Researching the situation is invaluable.
5. Remember that the defendant is innocent until proven guilty without a reasonable
   doubt.

Pre-Preliminary Hearing

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.

Preliminary Hearing

At the preliminary hearing the judge determines whether sufficient evidence exists to send the case to the upper court 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 preliminary hearing varies by state. It may last three hours. It may last three questions.

Six things to expect at the preliminary hearing:

1. Preliminary hearings are shorter than trials.
2. The preliminary hearing is not a finding of fact.
3. The goal of a preliminary hearing is to screen the prosecution's case.
4. The prosecution is only required to show "probable cause" at the preliminary hearing.
5. The preliminary hearing will be conducted in front of a judge. No jury will be present.
6. Although the defendant may be held to answer for trial, that does not mean the defendant is guilty.
7. Neither the prosecution or defense will present their whole cases; they want to save their case strategies for the trial.
8. Cross examination of police officers or witnesses may occur.

Superior Court Arraignment

The defendant is arraigned and pleads guilty, not guilty or no contest. At the arraignment, the identity of the defendant is confirmed, bail is established, charges are ascertained and an attorney of record is confirmed.

Pre-Trial Conference

The pre-trial conference is a formal setting where plea bargaining occurs. 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.

Expectations at the pre-trial conference:

1. The defense presents a legal case on behalf of the defendant.
2. Further discovery takes place.
3. Factual and legal evidence is established.
4. Debate over sufficient evidence occurs.
5. Review on whether the facts are sufficient occurs.
6. Strengths and weaknesses of witnesses are examined.
7. Issues with the evidence are submitted.

Sample motions the defense attorney can file at a pre-trial conference:

1. Suppress evidence
2. Dismiss information and complaint
3. Compel discovery
4. Sever counts
5. Speedy trial
6. Modify or reduce bail
7. Bill of particulars
8. Reduce charges
9. Change of venue
10. Strike a prior conviction
11. Preserve evidence
12. Examine police file

Trial

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:

1. Jury selection
2. Opening statements are presented by both the prosecution and the defense
3. The prosecution presents their case
4. The defendant cross examines
5. The defense presents their case
6. The prosecution cross examines
7. Closing arguments are presented by both the prosecution and the defense
8. The prosecution, defense attorney and judge decide on specific instructions to the jury
9. The judge instructs the jury on rules
10. The jury deliberates
11. The jury submits their verdict

Sentencing

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.

7 things to consider regarding sentencing:

1. The judge almost always determines punishment.
2. The judge may be required to follow specific sentencing guidelines.
3. The eighth amendment to the U.S. constitution provides that punishment may not be cruel or unusual.
4. Factors