Understanding the criminal process from arraignment to appeal
|Process of a criminal case||Plea bargaining|
|What is an arraignment?||Understanding bail|
|Differences between misdemeanors and felonies||FAQ's|
|Misdemeanor: Arraignment to the appeals process||Legal terms & meanings|
|Felony: arraignment to the appeals process|
What is the first step in learning the basics about the criminal justice process.
What should the defendant expect at each stage of their case? How do the laws differ from state to state?
What if the defendant is not happy with his attorney?
How does the appeals process work?
What will happen to the defendant? The answers to these questions, and dozens of questions like these, ensure in a clear and concise format, that the defendant has a solid foundation going forward.
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 a 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
|Identity of defendant||Arraignment|
|Confirm attorney of record||Identity of defendant|
|Pre-Trial Conference (one or more)||Confirm attorney of record|
Identification of issues
|Identification of witnesses||Plea negotiations|
|Identification of strengths / weaknesses||Identification of issues|
|Identification of witnesses|
|Trial (judge or jury)||Identification of strengths / weaknesses|
|Pre-trial motions issues of fact are decided|
|Sentencing||Probable cause that crime was committed and defendant was the one who committed it|
|Judge imposes sentencing after defendant has been convicted|
|The defense may request a higher court to change the lower court's decision.||Arraignment|
|Expungement||Identity of defendant|
|Expungement is a legal term for sealing the criminal record||Ascertain charges|
|Confirm attorney of record|
|Identification of issues|
|Identification of witnesses|
|Identification of strength/weaknesses|
|Issues of fact are decided|
|Judge imposes sentencing after defendant has been convicted|
|The defense may request a higher court to change the lower court's decision.|
|Expungement is a legal term for sealing the criminal record|
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:
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:
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 if 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 District 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.
Misdemeanor: The Arraignment To Appeals Process
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:
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.
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:
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
Felony: The Arraignment to Appeals Process
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:
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.
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:
District 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.
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:
Sample motions the defense attorney can file at a pre-trial conference:
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:
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:
Circumstances That Can Adversely Affect Sentencing:
1) Previous Criminal Record. A defendant's past record is a large consideration when determining an alternative or lesser sentence within the lower end of the sentencing guidelines. A previous record can also affect the level of security of the facility that the defendant will be sent to as a result of sentencing. Most correctional facilities use a point system unfavorable to repeat offenders costing them time deducted from their sentences. On the contrary, first time offenders are frequently sent to camps or community centers instead of penitentiaries.
2) Enhancements. Most states carry statutes, which call for stiffer penalties if a defendant's crime involves the use of a dangerous, or deadly weapon, serious or permanent bodily injury, or crimes against youth or the elderly. Enhancements generally increase the sentencing penalties. In some states, enhancements are not a separate charge and are considered part of the primary offense such as armed robbery.
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to change the lower court's decision. The appellate process is primarily limited to correcting flaws in procedure and not to change a trial courts finding of fact. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict. The timeline of the appeals process varies from State-to-State. However, time limits do exist. They are very short - often less than 30 days. Don't lose your right to appeal! At the very least, a notice of appeal must be filed as soon as possible. The sample motions in an appeal process may include:
Motion for Acquittal Motion For A New Trial Motion For New Sentencing Appeal To Appellate Court Appeal To State Supreme Court Appeal To U.S. Supreme Court
In death penalty cases, the appeals process is automatic.
The expungement process differs from state-to-state. New Mexico is an Expungement state. However, 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 instance, an applicant campaigning for public office and applying for a federal job will have their conviction made a public record.
Facts about Expungement:
95% of all cases end in a plea-bargain. Plea-bargaining is an excellent way to avoid a potential stiff conviction in favor of an agreed upon lighter conviction. For instance, in a drug possession case, a judge may be convinced to dismiss the charges in return for the defendant's successful completion of a rehabilitation program. Some judges and prosecutors are amenable to plea-bargaining, whereas others are not. Plea-bargaining enables the judges to move cases through the legal process, and prosecutors to rack up convictions.
Five things to ponder when considering a plea bargain:
How to plea-bargain a good deal:
The prosecutor carries the burden of proof. The defendant is innocent until proven guilty. During the trial, the prosecutor must present a case that convinces the judge or jury beyond a reasonable doubt that the defendant is guilty.
The charges filed against the defendant at arraignment may be different from those originally filed by the arresting police officers. The defendant must be certain to understand the charges filed, and to confirm if they are different from what they were at the time of arrest.
It is critical that the attorney and defendant manage the details. Cases are won and lost in the details.
In many cases it is advisable to hire an investigator to design and implement a sound strategy to put the details on the defendant's side.
The appeals process works differently state-by-state. However, in most states, an appeal goes from the Criminal Court to the State Court Of Appeals to the State Supreme Court.
Misdemeanor cases are usually heard in lower courts. Lower courts can be Municipal court, Magistrate court, or Metropolitan court.
Felony cases are usually heard in District and or Federal courts.
The defendant's attorney has several motions he can utilize through the criminal process. A motion to dismiss evidence can be filed at the preliminary hearing if the defense attorney believes the evidence is insufficient. The motion to suppress evidence can be filed by the defense attorney when there may be grounds to suppress physical evidence taken from the defendant or statements made by the defendant.
Unfortunately, the bail system has changed in New Mexico. Bail may still be an option but is not being utlilized by every jurisdiction. Bail was normally a method to get the defendant home during the trial proceedings. It is not a period of time to argue the merits of the case. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so.
One of the factors that judges are considering these days is releasing the defendant on their own recognizance or a bond to the court.
There are typically two factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts:
In order to get bail reduced the defense attorney should do the following:
The court can present several bail release options. These may include:
If the defendant is involved in a case with co-defendants, the defense attorney for the defendant may chose to make a motion to sever ties from the co-defendants.
The defense attorney can use the preliminary hearing as a strategy session. The standard of proof is lower during the preliminary hearing than the trial. The preliminary hearing is utilized by the judge to ensure there is sufficient evidence to review the case. The preliminary hearing assesses reasonable doubt and the facts of the case.
The pre-trial conference is used to introduce evidence, submit motions, identify procedural issues, exchange witness lists, and plea bargain. Most cases that do not reach trial are plea-bargained at the pre-trial conference.
An appeal occurs after the court has rendered its decision. The goal of an appeal is to have a higher court review and change the decision of the lower court, or send the case back to re-trial. There are two key types of appeals. One attempts to overturn the court's decision. The second attempts to overturn the courts sentencing decision.
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. Plea-bargaining eliminates the risk for both sides.
Plea-bargaining consists of two types: sentence bargaining and charge bargaining. In exchange for a plea of guilty or no contest by the defendant, the prosecutor may recommend a lighter sentence or may drop charges to a less serious offense.
The sentencing is completed by the trial judge. The judge will look at the defendants past background, nature of the crime, and other factors in order to weigh a decision. Many courts require a full investigation be prepared by the probation department, so that the judge may consider its determinations when sentencing the defendant.
The defendant may ask the court to appoint a public defender at the time of the arraignment. The defendant should be ready to demonstrate financial need. If the defendant does not qualify financially, the court may still appoint an attorney.
The defendant has a constitutional right not to testify.
The timeline for the appeals process varies by state. The defendant should check with an attorney on these timelines.
The vast majority of convictions result from a guilty plea by the defendant.
Motions available to the defense attorney prior to trial consist of excluding evidence, including evidence, dismissing the case, suppressing evidence.
The federal government does not have to honor expungements. Individuals whose cases have been expunged must still disclose the convictions when qualifying for professional licenses or filing to hold public office.
The defendant should ask his defense attorney to thoroughly review a transcript of the entire trial prior to preparing an appeal. In an appeal, no new witnesses and no new evidence will be available. Each party prepares briefs that the judges review prior to rendering a decision.
In some states the defense decides whether a trial will be by judge or jury. The defendant should confer with his attorney about the benefits of each in order to determine what will be in the defendant's best interest.
If the defendant receives a guilty verdict from the jury, the defense attorney can immediately begin a series of post-trial motions in the hope the judge will grant a new trial or make a judgment notwithstanding the verdict and acquit the defendant.
The burden of proving guilt rests at all times on the prosecution.
In discovery, the prosecutor must provide the defendant with information about the defendant's case. The defendant is entitled to receive copies of the arresting officers statements and filed reports and the defendant may review evidence the prosecution might submit at trial.
Back to top FAQ's - Answers to important questions
What type of sentence may the defendant expect to receive?
There are a myriad of sentencing options for the judge to consider. Sentencing is based on the nature of the case, the defendant's past history, and the defendant's threat to the community. Some sentencing options include jail time, probation, fine, community service, treatment or imprisonment in a penitentiary.
Why should the defendant plead guilty?
Sometimes the best result is a guilty plea. By avoiding a possible court trial, the defendant may plead to a lesser charge and therefore avoid a potential stiffer penalty. Most judges will offer a lighter sentence in exchange for a guilty plea at the arraignment. In addition, a guilty plea speeds the process forward and eliminates a long, drawn out trial process.
Will people know the defendant has a conviction on his record?
A conviction is public record and may be reviewed by the general public. The ability to expunge a conviction varies from state to state depending on the nature of the crime.
How long does a misdemeanor trial take?
A misdemeanor trial may take anywhere from one day to two weeks.
Is a misdemeanor conviction public record?
How long does a felony trial take?
The length of a felony trial depends on the nature of the case. Generally, felony cases take between two months and one year to complete.
Is a felony conviction public record?
Do I have to talk to the judge or jury?
No. The defendant has a Constitutional right to remain silent. Whether to put the defendant on the witness stand is a decision the defendant and his attorney must make. Defense attorneys agree that it is sometimes better to keep the defendant off the witness stand, except in special cases. Once the defendant testifies, he opens himself to cross-examination by the prosecution. Because of this Constitutional right, the judge will instruct the jury that the defendant's failure to testify must not be considered in any way a sign that the defendant is guilty. Of course, if a defendant is entering a plea or accepting a plea bargain, he must answer the judge's basic questions with regard to his understanding of these actions.
Why do I keep seeing different attorneys and judges?
It is important that the defendant be comfortable with his legal team. A defendant may have one attorney or several, as each may be a specialist in a different area of law pertaining to the case. Prosecuting attorneys may work in teams as well. The defendant may appear before several judges throughout the process.
Is the police officer coming to court?
The police officer is a member of the prosecution's team. He will come to court only if the prosecutor wants him to. The police officers and the prosecutors work together to present a case against the defendant. In some cases, if the police officer fails to show in court, the case may end in a dismissal.
When do I bring witnesses to court?
Witnesses may be key allies to the defense. The defense attorney is responsible for gauging the proper time to introduce witnesses in court. Witnesses usually first appear during trial.
What rights do I have at the time of arrest?
The Miranda rights for each citizen and non-citizen are guaranteed by the United States Constitution. They are not required to be issued by police at the time of arrest. If this happens, your lawyer may ask that any statements made to the police not be used against you in court. These rights include the right to remain silent, the right to a lawyer present while you are questioned, and the right to an appointed lawyer if you cannot afford one.
When do I tell my story?
The defendant's story is a critical piece of information that helps the judge and jury decide a case. The defendant presents his story to his attorney. After that, the attorney will tell the defendant's story. It is critical to remember that what the defendant says may be used against him. What the defense attorney says will not be used against the defendant. Of course the trial is the primary period of time where the defendant has the opportunity to present his story.
Can I be questioned once issued my rights?
Yes. However, you can change your mind at anytime.
What if I don't show up? Can my attorney represent me?
The defendant's attorney may represent his client at different stages of the criminal process. The defendant must check with his attorney for when the defendant must appear. If the defendant cannot appear, the defendant must contact his attorney or the courtroom clerk immediately.
What is the difference between federal and state laws?
Federal laws supersede state laws when the two come into play against one another.
May I appeal a decision?
Every decision can initially be appealed. The defendant's attorney will present the defendant with a complete appeals process. Appeals may be heard from both the state and federal level to the U.S. Supreme Court.
How do I appeal a decision?
Each state has different laws and timelines. Normally the defendant has between seven and ten days from final judgment to file an initial appeal.
How many times may I appeal?
The appeal process begins with the next highest court and ends when the highest court, either the state supreme court or the U.S. Supreme Court, decides not to hear the case.
What is the time frame to appeal?
Each state has a different time frame. Consult with an attorney. The rule of thumb is that appeals should be processed as soon as possible after conviction.
How can I withdraw my plea?
The defendant may withdraw a plea by bringing a motion to withdraw a plea. A written motion has to be filed. In some jurisdictions the attorney prepares a written motion. In others, a court clerk will provide a form. In either case, the written document must be filed and a hearing for the request takes place.
May I represent myself without the benefit of an attorney?
Any defendant can represent himself without the benefit of an attorney.
When can a police officer conduct a search?
As long as you provide consent an officer can make a search. Or, the officer can make a search upon presentation of a search warrant.
When can an officer search you or your possessions without a warrant?
An officer can conduct random searches of the car, body and home upon probable cause. An officer can search your car in an emergency or for probable cause. Home searches are confined to the area the defendant is taken into custody. Body searches can occur at the time of arrest.
How can I get bail reduced?
Bail is set at the time of arraignment. It is determined by the seriousness of the defense. Bail is not mandatory. The judge has the right to refuse to issue bail. The defense attorney may bring a motion to reduce bail during any proceeding in front of the court. The judge will look at factors such as family history, background, professional responsibilities, past criminal history, and circumstances surrounding the case.
What if I don't like my public defender?
A request for a new public defender is rarely granted. The defendant's rights are limited to the appointment of an attorney and not to the attorney of their choice. The defendant must prove to the court that representation is sub-standard, even incompetent. That may be done through claiming personality conflicts, or differences in communication, ethics, strategy, or through a potential bias.
What if I think the judge or prosecutor is biased?
The defense attorney may ask the judge to recuse himself (withdraw from the case) or he may file a motion with the court. In some states it is the automatic right of the defendant to recuse a judge on the basis the defendant believes the judge to be biased.
Back to top Legal Terms & Meanings
Not Guilty Plea A plea by the defendant claiming innocence of guilt.
Guilty Plea A plea by the defendant claiming guilt.
Nolo Contendre By issuing a plea of nolo contendere, or "no contest", the defendant accepts the punishment without formally admitting that he was guilty. By doing this, he avoids the consequences of a guilty plea with regard to potential liability to other people for money damages.
Arraignment An arraignment is the process by which the defendant is read his rights and the list of charges against him is explained.
Felony A felony crime is punishable by one year or more in state prison. 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.
Misdemeanor 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) A misdemeanor may include such crimes as drunk driving, disorderly conduct and shoplifting.
Preliminary Hearing This only occurs when the defendant's plea is "not guilty" in a felony charge. A preliminary hearing is shorter than a trial but operates similarly. It is conducted in front of a judge without a jury present. The primary goal of a preliminary hearing is to identify which cases are fit for trial and which are not.
Municipal Court Trial A trial in lower court for a misdemeanor. It is usually a trial by judge, although each state has different laws and some states have a trial by judge or jury.
Sentencing Once the defendant has plead guilty or received a guilty verdict by way of trial, he will be sentenced. Sentencing guidelines differ State-to-State.
District Court Arraignment Once a defendant has completed the initial arraignment and preliminary hearing in a felony case, the defendant is arraigned in Superior Court. The defendant presents a plea of guilty, not guilty or no contest.
Appeals After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to change the lower court's decision.
Pre-Trial Conference / Plea Bargaining 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.
Trial The process by which a defendant is tried on charges and considered guilty or not guilty. Defendants charged with serious misdemeanors and felonies may be entitled to jury trials. Minor misdemeanor charges may be entitled to trial by judge. The rules differ state-by-state.
Bail An insurance policy to ensure the defendant appears at his next scheduled court date. It is cash or a cash equivalent. An attorney may bring a motion to reduce bail at any appearance before the court. Bail can be received by cash, check, property, or a bond, which is a guaranteed payment of the full amount of bail. Once the defendant appears in court, the bail money is refunded. In addition, bail is sometimes waived if the court feels the defendant is a good risk, and therefore is released on his own recognizance.
Voir Dire The process of selecting a jury through questioning by attorneys. This is the time when the attorneys may set the tone of the trial. Many cases have been won or lost in voir dire.
Determinate Sentencing Some states provide specific sentences based on specific crimes.
Indeterminate Sentencing Many states do not provide specific sentences based on specific crimes.
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