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Saturday, January 26, 2013

10 Steps of a Felony Criminal Case. What to Expect....wizardofbaum

10 Steps of a Felony Criminal Case. What to Expect.

Being charged with a crime is a scary thing. And as a criminal defense lawyer in Boise, Idaho, the one thing I’ve noticed about my clients is nothing scares them more than the unknown. In order to quell some of those fears, I want to let you know how a felony case proceeds through the state criminal justice system in Boise, Idaho. I know that this will not relieve you of all the fear that may result from being accused of a crime, but I hope by giving you a heads up as to how your case will proceed through the system, it will empower you to know how to make the best decisions for your case.

Step 1: The Investigation

The first step in the criminal justice system is the initial investigation. An investigation can be conducted by any number of agencies. It could be conducted by the Ada County Sheriff’s Office, or it could be conducted by the Boise City Police Department, or it could be conducted by a detective with the Idaho State Police Department, or any other state or local law enforcement agency.
Many defendants (or at this stage “suspects”) choose to handle their case on their own during the investigation. They believe that if they can only speak to the police and tell them what the real truth is, that the police will drop the charges and let them go. Often the police will entice the defendant to speak with them by promising that things will be easier if you are cooperative with the investigation.
Attempting to handle criminal accusations on your own at this point is a serious mistake. In nearly every case I have seen where my client hires me after the investigation, my client realizes that they made a big mistake by trying to “handle the situation.” Do NOT make that mistake yourself. If you have been accused of a crime and are still in the investigatory stage call an attorney immediately.
I know you are probably thinking, well you are a lawyer, of course you are going to say that. I cannot stress to you enough the importance of getting an attorney at this stage of the proceedings. An attorney can make the difference between prison and a dismissal. Do not attempt to “handle the situation” on your own. As intelligent as you may be, this is not your playing field. You do not know the rules. You do not know the state’s tricks and pitfalls. Hire someone who does to help you through this.

Step 2: The Arrest

At some point, if the defendant has been accused of a crime, law enforcement is going to have to make the decision whether to send the case to the prosecutor or not. The only thing that law enforcement is concerned about at this point is whether there is “probable cause” that a crime was committed. A named witness who says you committed a crime is usually enough at this point to warrant turning the charges over to the prosecutor.
The prosecutor will then take the case and review it themselves (usually they will review the police officer’s probable cause affidavit, and their review will rarely go further than that). The prosecutor then files a complaint along with the probable cause affidavit with the court, he swears to the contents of the complaint, and the judge makes a probable cause finding. Often the judge will then issue a warrant for the defendant’s arrest. Sometimes they will issue a summons (an order allowing you to come to court under your own volition), but with a felony charge, it is almost always a warrant for arrest. If the defendant can find out about the warrant before the police arrest him, he can often go and turn himself in on the warrant. This will be to your advantage if bond has not been set on the warrant, and you are hoping to convince the judge to grant you a low bond.
The warrant is then given to the police, and the police execute the warrant by arresting you and booking you into the Ada County Jail. Sometimes the judge will set a bond with the warrant, and so if the bond is low enough the defendant will be allowed to post the bond upon being booked into the Ada County Jail, and leave immediately. Other times, the judge will not set a bond at all, which means the defendant will have to stay the night in the jail, and wait for an arraignment the next day before bond will be set.
Keep in mind, if you check in on a Friday afternoon, then you will be sitting in the jail until Monday. So if you are turning yourself in on a warrant, make sure you turn yourself in Sunday-Thursday.

Step 3: The Magistrate Court Arraignment (Initial Appearance)

After the defendant is arrested, or turns himself in on the warrant, the case will be scheduled for an arraignment. The defendant has a right to an arraignment within 24 hours of being arrested, however Saturdays, Sundays, and Holidays are not included. At the arraignment the defendant will be read his rights. He will be informed that he has a right to remain silent, the right to know the charges against him, the right to bail, the right to an attorney, the right to a preliminary hearing, and the right to communicate with his lawyer and immediate family. He will be notified what the allegations are against him, and will have the right to have the complaint read in open court. (this right is almost always waived)
The most pressing concern that gets addressed at this initial appearance is the issue of bond. Many defendant’s are still in custody, and wish to get out. The judge has two major concerns when setting bail: the probability that the defendant will make his future court appearances, and the risk the defendant poses to the community. There are other concerns, but most of them are related to these two concerns. A good attorney will attempt to provide satisfactory evidence, facts, and argument to the judge to convince the judge that the defendant will be at his court hearings, and that he does not pose a significant risk to the community. One thing to keep in mind (and this is the most maddening aspect of these hearings), everything is free game during a bond hearing, all your past record (even juvenile record), other allegations against you, your personal life, etc. Often the prosecutors will make mistakes in presenting your record to the court, but at this point there is very little that can be done to correct those mistakes.

Step 4: The Preliminary Hearing (or Grand Jury Indictment)

At this point in the proceedings the defendant’s case is still in magistrate court, and a magistrate judge still presides over the case. Before the case can be “bound over” to district court, there needs to be a finding by either a magistrate judge or a grand jury, that there is substantial evidence that a crime was committed, and that the defendant is the one who committed the crime. Some defendants look at these hearings as a kind of mini-trial, but they are quite different from a trial. The standard of proof is much lower, the prosecutor will not need to prove their case beyond a reasonable doubt, like they would for a jury trial. A grand jury proceeding does not even have a defendant or his attorney present for the proceedings (these are what attorneys call “ex parte” hearings). Consequently, you will not have an opportunity to cross examine the witnesses that testify before the Grand Jury, nor will you have an opportunity to call your own witnesses. On the other hand, at a preliminary hearing you will have the opportunity to cross examine the witnesses, and to call your own witnesses. If a grand jury or a judge determines that there is substantial evidence to move forward, then the case will “bound over” to district court.
There doesn’t necessarily have to be a hearing to get the case bound over to district court. Often the prosecutor will attempt a resolution of the case at the preliminary hearing stage. If the Defendant wants to take advantage of the offer, then the defendant will be required to “waive” the preliminary hearing. What this means is the Defendant agrees that he wants to take advantage of the State’s offer, and is willing to relieve them of their duty to present their evidence to the magistrate judge. Sometimes it is a good idea to waive your preliminary hearing, and sometimes it is not. This will be a strategic decision. Sometimes it is a good call to get the witnesses statement on the record. Other times it is not. Sometimes there is nothing to lose, sometimes there is everything to lose. This will be a decision that you will have to make with the advice of your attorney.

Step 5: The District Court Arraignment (Entry of Plea)

After the case is bound over to district court the case will be set for an arraignment into district court. The judge that the case is assigned to will typically be the judge for the remaining proceedings. At this hearing the judge will present the defendant with an “information.” An information is like a complaint, only an ‘information’ is what they call the charging document in district court. Again the defendant will have his rights read to him, and advised of the possible consequences of pleading guilty to the charge. He will also have an opportunity to enter his plea. He will have three options, plead guilty, plead not guilty, or ask for a continuance. It is very common at this stage to ask for a continuance to attempt to resolve the case with the state. Even if the defendant already received an offer down stairs, his attorney can continue to negotiate with the prosecutor in district court to get a better deal.
If the defendant pleads guilty then the case will be set for sentencing. If the defendant pleads not guilty, then the case will be set for a pretrial conference and a jury trial. If the Defendant asks for a continuance, then the case will be set for an entry of plea.

Step 6: Time between the Entry of Plea, and the Pretrial Conference.

If the Defendant pleads not guilty, then the time between the not guilty plea and pretrial conference is extremely important. This is the time in which a complete disclosure of the evidence the state has in its possession needs to be completed. The Defendant (and his counsel) should be doing a thorough investigation themselves. A thorough analysis of the discovery needs to be done early on so that any motions that have deadlines attached to them can be made before the deadline. Hearings to orally argue the motions need to be set. By the the preliminary hearing, the defendant and his attorney needs to have a good idea of the theory of the case, and the pretrial motions needs to have been argued, or set for a hearing to be argued.

Step 7: The Pretrial Conference

The pretrial conference is the hearing the judge sets so that he can determine whether the parties are ready to go to trial. At this hearing he will check to make sure all of the Judge’s pretrial orders have been followed. If he set a discovery deadline, he will check to make sure that disclosures have been timely, and whether there are any outstanding issues regarding discovery. Sometimes cases are resolved between the prosecutor and defense attorney at this point.

Step 8: Trial (Jury or Bench Trial)

If the case remains unresolved up to this point, then the case goes to a trial. A trial can take two forms, either a jury trial or a bench trial. A jury trial is a trial where twelve people are chosen, through a process known as “voir dire” or “jury selection”, to sit as “fact-finders” on the case. The facts are presented to the twelve “fact-finders” and they determine what they believe the facts to be, and whether those facts fulfill all the elements of the crime that the defendant has been charged with. The prosecutor has the burden to prove each element of the crime. The degree to which the prosecutor must prove these facts is “beyond a reasonable doubt.”
The only difference between a jury trial, and a bench trial, is that in a bench trial, the judge is the finder of fact. Every defendant has a right to a jury trial, but if the defendant so chooses, he can waive the jury trial and have the judge decide the case.
At the trial the defendant is allowed to subpoena his or her own witnesses. The defendant is allowed to cross examine the state’s witnesses. The defendant, in some cases, will be allowed to call his or her own expert witnesses to the trial, to testify as to some issue the jury may not be able to otherwise understand without the assistance of the expert. The defendant will be allowed to enter any evidence, physical or otherwise, that may have a bearing on his innocence.
During a trial, the attorneys must follow the rules of evidence. There are rules promulgated by the Idaho Supreme Court that designate what evidence can and cannot be used at a trial. To put it crudely, what this means for the defendant is, keeping as much of the state’s evidence out of the trial, and getting as much of the defense evidence in.
Ultimately the jury will be asked to determine whether the defendant is guilty or not guilty. Either determination will need to be a unanimous decision by the jury. If the jury is unable to come to a unanimous decision, then the jury is a “hung jury” and the judge declares a mistrial. The state is then free to retry the case if they so choose.

Step 9: Pre-sentence Investigation

If the defendant pleads guilty to a felony charge, or if the defendant is found guilty of a felony by a trier of fact, then a judge will order a “pre-sentence investigation” (PSI). The primary reason why a judge orders a PSI is because he wants to know whether the defendant is a viable candidate for community supervision. However, there are many facts that are collected during the investigation that assist the judge in sentencing the convicted defendant. Especially after a defendant has merely plead guilty to the charge rather than go to a trial, the judge knows little about what the defendant did, or who the defendant is. The PSI helps inform the judge as to all types of mitigating and aggravating factors to take into consideration when sentencing the defendant. The investigator of course works for probation and parole, and suffice it to say they are a tad biased in the way they do these investigations, so it is important that you seek your attorney’s guidance in submitting to the PSI examination.

Step 10: Sentencing

If you have plead guilty, or been found guilty by a trier of fact, then you will ultimately be sentenced on the felony charge you were convicted of. All felonies have a maximum punishment that you can be punished with. Some felonies have a mandatory minimum penalty you have to serve as a consequence of being found guilty of the charge. In state court in Idaho, the judge is given latitude in fashioning a sentence for a defendant. If there is mandatory minimum the judge can sentence anywhere from the mandatory minimum to the maximum penalty. The judge considers mitigating and aggravating factors in the case. For example, if this is the offenders first conviction, the judge may be inclined to stay on the lighter side of sentencing, considering all other factors of course.
There are a whole host of factors that a judge will consider when sentencing. The judge will consider the criminal history of the defendant, the judge will consider how much involvement this particular defendant had in the crime, whether the defendant was under any type of duress or unusual stress, whether the victim was in fact hurt and how badly, whether the defendant has accepted personal responsibility for his or her actions, whether the defendant has demonstrated remorse and regret for his or her actions, etc. etc. And of course the judge will consider other factors such as whether the defendant is susceptible to rehabilitation, the risk the defendant poses to society, the general deterrent effect the sentence will have on society, and the specific deterrent effect the sentence will have on the defendant’s future conduct.
Possible penalties for felony charges can be prison sentences, monetary fines, treatment programs, community supervision, restitution to the victim, etc. For some felonies, if the defendant has a clean record, the judge will entertain the possibility of a withheld judgment. A withheld judgment means that the judge does not enter a judgment of conviction. He withholds his judgment while the defendant is on probation. If the defendant is successful while on probation, then after the period of probation is over, the defendant may petition the judge to dismiss the case. The judge will then dismiss the case if he finds the defendant to have completed a successful probation. However, if the defendant screws up on probation, the judge can enter judgment on the conviction, and sentence the defendant anywhere up to the maximum possible penalty.

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