Most of our knowledge about the criminal justice system comes from endless hours of television programs. My goal is to explain the process in more detail and expose the myths shown on TV.
For most people the criminal process begins with an arrest. Whether the accused is arrested in the criminal act or after an arrest warrant is issued, he/she is eventually brought to the police station. At the station, the accused is photographed and fingerprinted. He/she might even need to provide a DNA/Blood/Breath sample. He will then be booked into jail or released on own recognizance (ROR). ROR simply means that the accused promises to return to court. This situation is similar to signing a speeding ticket, whereas you promise to return to court on a specified date. If the person is accused of a more serious crime, a bail amount will be set. The accused can make bail and leave jail until the next court date.
Although a police report states what crime the accused is charged with, the prosecuting attorney really determines what charges to file against the accused. The prosecution determines the charges based whether he/she will actually be able to prove the crimes beyond a reasonable doubt.
The prosecution then presents her case to a judge at a preliminary hearing or the grand jury. A preliminary hearing is the most common threshold between jail and release. It will be decided whether the prosecutor will be allowed to charge the suspect with a crime. The judge decides whether the prosecution should go forward with the case. This hearing comes about 2 weeks after the arrest.
Then the accused is going to have an arraignment. Here, the accused has an opportunity to state whether he is guilty or innocent. At this time, the trial date is set. We have all heard of a Constitutional right to a speedy trial. Unfortunately, you can already tell that this process is not so speedy in the common sense of the word. The trial must occur within 60 days from the day of arraignment in felony cases and 30 days in misdemeanor cases. During this time, even an innocent person will be sitting in jail if he/she cannot make bail. If it is a serious case, the defense attorney might request more time for investigations. Although some cases proceed quicker than others; it is common to wait 2 years in a murder case. You might be questioning what happens during all of these months.
There are will be many court appearances and settlement conferences until trial. The defense attorney must provide the prosecution with the list of all witnesses he/she plans on calling at trial. The reproduction of witness statement and police reports takes place. Although TV drama often shows an attorney submit the DNA sample to the lab and mere 10 minutes later the technician already has results. In reality, it takes time to run these test (sometimes months). Meantime, defense and prosecution might be trying to settle the case with a plea bargain. Only about 3-5% of cases go to trial. The government simply does not have enough resources to handle more cases. And even if it did, there are a finite number of jail cells.
Don’t be surprised next time you are called on jury duty for an incident that happened years ago. Sometimes, you might even spend all day in a jury waiting room for a case that settles in the meantime. The defendant might decide last minute to accept a plea bargain. A prosecution might realize that it does not have all the ducks in a row, for example when the main witnesses all of the sudden changes the story. Or a judge might talk to a defense or prosecutor pointing out the flaws in the case.
After the arraignment and several motion and settlement hearings, the preliminary hearing is set. The prosecution presents her case to a judge at a preliminary hearing. The judge decides whether the prosecution should go forward with the case by looking at the evidence represented. If the is insufficient evidence, the case may be dismissed.
After the preliminary hearing, there might be another set of settlement conferences and motion hearings. Motion hearings are requests by the prosecution or defense attorney for the court to consider. The judge at a motion hearing either grants or denies a request. The most common requests are to suppress evidence, reveal records, limit evidence, etc.
There might seem to be an incentive for a defendant to wait until the last minute for a better plea deal. In practice, the last minute plea deals are often less favorable because the prosecutor had to use up more resources by calling on a jury, preparing for trial, etc. Nonetheless, there might be a last minute settlement. Otherwise, I took you through the criminal process and we are at the trial.
If the prosecutor convinces the jury, the judge will have to impose a sentence. You are likely to have another court appearance called the “sentencing”.
Delicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP. Anton Vialtsin Google+