The preliminary hearing is held to see if there is enough evidence that a felony was committed and the person charged committed it. It is a screening process. Its purpose is to weed out groundless charges and to provide the court to hear enough evidence to reduce some charges to misdemeanors rather than felonies before they go to the trial process. The rules of evidence are relaxed at the preliminary hearing. Police officers are allowed to testify to hearsay. That means, all a police officer has to do is speak with someone, be it a witness, another cop, an expert, and with few limitations, the police can then come to court and testify as to what the other person said. This can limit the Judge’s ability to evaluate the credibility of witnesses when considering reducing or eliminating charges. In order to survive the preliminary hearing stage, the D.A. only has to show that a reasonable person would have a strong suspicion that the crime was committed. This standard of proof is the most minimal that any judge in a criminal case has to decide. A defendant has a right to have his hearing within ten court days of his arraignment. If this rule is violated, the court is required to release the defendant. The court must then have the hearing within sixty calendar days from the date of the arraignment.
4. Arraignment on the information.
After a preliminary hearing is conducted, the D.A. is obligated to file an additional charging document called an “information.” This is the document that lists the charges you will be facing at trial. The D.A. is obligated to file this document within fifteen days of your preliminary hearing. You have a right to a jury trial within sixty days after the arraignment on this information.
5. Motions hearings.
You can expect several motions will be made through the course of your case. They can be made before, during and after the preliminary hearing. For additional details see Best strategies to fight your case / Motions practice.
6. Jury trial.
There is no part of the criminal justice system that is more exciting than a trial. It may also be the last place where a defendant has a chance to be treated fairly. It is important that you be prepared for the undertaking and this takes significant effort, time and skill by your lawyer. He should include you in the process and make sure you know what is happening, why, and when.
A. In limine motions.
These are motions made at the beginning of the trial, and outside the presence of the jury. Sometimes they are done in a trial court’s chambers, but a defendant has a right for them to be public, to be present, and to meaningfully participate. They usually concern what evidence will be allowed, or not allowed into the trial. In many cases the prosecutor will be seeking to introduce evidence of crimes not associated, or connected to the current case. This should be vigorously opposed by your attorney. Your attorney should be seeking to limit the evidence as much as possible and create an environment of fairness. If in custody, there should be no indication within the courtroom that you are housed at the jail. There should be no appearance by the bailiffs that you are somehow a danger that they need to protect against. All of this happens before a jury panel is brought into the courtroom to begin selection.
B. Jury selection.
The judge usually orders a panel of forty to sixty jurors. Jurors are called by a random process. Judges will allow a written questionnaire to be given to the jurors in complex or serious cases so that the court and the lawyers will have more information about the jurors. The judge will explain to the panel what the case is about, how long it is expected to last, and introduce the people who will be involved.
A judge usually begins by discussing hardships, such as illness, disability, serious loss of income, etc. People can be excused for these reasons. Twelve to eighteen jurors are now called to sit in the jury box.
“Voir dire” comes from French and means “to speak the truth.” This refers to the process of jury selection during which jurors are sworn to tell the truth about their qualifications to serve on a jury and then asked questions about themselves that are designed to give both sides information about the prospective jurors. The process is designed to bring out any prejudices that they may have that would affect your case.
After the jurors seated in the box have been asked questions, the attorneys are given an opportunity to challenge “for cause.” A “for cause” challenge means that the attorney thinks the juror cannot be fair and impartial in the case and should be removed. The reasons for the challenge will come from the statements made during voir dire. There is no limit to the challenges for cause.
After challenges for cause, the attorneys are given “peremptory challenges.” These are challenges left up to the discretion of the attorneys. Each side is given ten challenges in a felony case, and twenty if the case carries a possible life term in prison.
The jury selection process is always challenging. The person who is on trial should certainly be an important part of this process. You should be watching, looking and listening to the jurors to see what you can pick up in the jury’s body language, answers to questions, attitudes and values. You need to find out if you like the prospective juror and if the prospective juror likes you and could be fair.
After a jury of twelve members plus alternates are selected, the trial moves to opening statements.
C. Opening statements.
The opening statement is the attorneys’ opportunity to tell the jury what the witnesses will say and what evidence will be introduced. This is the time when the theme of the defense of the case should be stated in the strongest and plainest terms. Your lawyer needs to get up there and tell your story with conviction and passion from the beginning.
D. The prosecutor’s case and confrontation.
After the opening statements the prosecution presents its case. They go first because they have the burden of proof, and you are presumed innocent. The most important and skillful role of the defense attorney during the presentation of the prosecutor’s case is to be alert and make needed objections to questions and evidence. Appellate courts have strict rules that if some objections are not made, they are deemed waived. Your attorney must be vigilant.
After witnesses testify for the prosecutor, your attorney will cross examine them. Cross examination reveals truth. It is a subtle art. Cross examination depends very much on the circumstances and facts of each case, and each individual witness. Is your attorney saying that the witness is a well-meaning but mistaken citizen? Then the cross will be gentle but thorough. Is the witness a lying snitch tool for the prosecutor? Then the cross examination will show scorn and contempt. Sometimes the best approach to witnesses is to ask no questions at all. Cross examination should never be a retelling of the direct testimony unless what was said was very favorable to you and your attorney wants to play it up for the jury.
Cross examination is the time when thorough preparation and investigation pay off. It is the time to bring out previous statements that differ from trial testimony. It is the time to bring out biases, prejudices, and prior occasions of untruthfulness. Your lawyer should spend all the time necessary before trial to prepare careful cross examination of each witness who appears against you. This is called “confrontation” and it is your right.
E. The defense case.
After the prosecution rests the defense has an opportunity to present witnesses and evidence. It is not required. You have the right to say nothing and argue that the prosecution has not met its burden. The most important decision at this time is to determine whether you should testify.
After the defense case has been presented the prosecution has an opportunity to call rebuttal witnesses. They often try to have a particularly nasty and damaging witness for rebuttal.
G. Final argument.
After both sides have presented their cases, the attorneys will give final arguments. Since the prosecution has the burden of proof, they get to argue twice. The prosecutor opens, then your lawyer argues, then the prosecutor responds to your lawyer’s argument. Your lawyer needs to have the basic outline of the final argument done before ever entering the courtroom. He needs to collect ideas for final argument from the time the case begins. Every case has surprises and these need to be incorporated into the final argument.
H. Instructing the jury.
The judge instructs the jury either before or after final argument. Instructions are statements of the law that the jury must follow when deciding the case. Judges will sometimes refuse to give instructions presented by the defense. These become issues on appeal. They should be researched and presented even if there doesn’t appear to be much immediate chance of success in getting the judge to read them to the jury.
After the instructions of law have been read, the jury is taken to a deliberations room to decide the case. Jury deliberations can take from less than one hour to many days. If the jury can decide the case unanimously they arrive at a verdict. If they cannot they will tell the judge they are deadlocked and cannot come to a verdict. The judge then has to decide whether to declare a mistrial or to ask them to deliberate longer.
If the judge declares a mistrial, then the case is set for another trial date. Several things can happen at this point. If the hung jury is considered by the prosecution to be some correctible error, they may decide to try the case again. There are no limits to how many times the case can be re-tried, but usually after three or four times the prosecution gives up. After a mistrial, there may be other resolutions. The District Attorney may decide to offer a more favorable plea bargain, or may decide to dismiss the case entirely.
7. What to do if you are convicted.
The question about whether to take a case to trial lies solely with you. Your lawyer must back off when it comes to pressuring you to try to make decisions for you. No lawyer wants to lose a trial, but it happens and you pay the price. After a guilty verdict you should be prepared for the prosecutor to ask for you to be remanded to jail. You lawyer should anticipate this and deal with it accordingly. You and your lawyer must have arguments ready. You should not come to court with any knives, dope, or contraband of any sort… ever!
A. Referral to probation.
If you are found guilty of some or all of the charges at trial, your case will be referred to the probation department for the preparation of a presentence report. If you are in jail a probation officer will come see you. If you are out of jail, you will be told to go there to arrange for an interview. It is very important to discuss the interview carefully with your attorney before you see the probation officer. It may be desirable to write out your version of events and present this at the interview. It may be important to not discuss the case because some issue will be appealed. You do want to appear to be as cooperative as possible, and to have the probation officer like you. You will want to present documents such as graduation diplomas, honorable military discharges, receipts for child support payments, etc. with you. If you don’t have these types of documents, the probation officer will say in the report that “you claim to have done these things” instead of saying that “you did these things.” Letters from your friends and family will be included in the report. It is important to present yourself well to the probation department. Seeing department officers is fraught with risk and you should carefully think about how you will present yourself and prepare for this interview.
B. Motion for a new trial.
Let’s assume your case has gone to trial and you have been found guilty. The two most important things for you and your lawyer to do are prepare a motion for a new trial, and prepare for sentencing. It is common for lawyers to file motions for a new trial based upon one or more errors the judge has made. This usually doesn’t result in a new trial. The judge is likely to rule that he or she considered the questions and made the right decision at the time. These motions help the appellate attorneys see issues that the trial attorney thought important, and sometimes makes a better record. Motions involving new evidence and juror misconduct have a greater chance of success. Preparation and investigation do not end once the trial has completed.
Understanding Court Proceedings
Understanding court proceedings puts you in an advantage because it reduces anxiety. It gives you a timetable and a map on how to maneuver through the process. There are time limits that you and your attorney can enforce, and there may be good reasons why you would want those time limits to be extended. Consultation with your attorney is vitally important when deciding whether or not to relinquish your speedy trial rights. The following are the basic court procedures set up in every county, although each jurisdiction have small differences in when and how they conduct the process for felony charges:
Arraignment is the first time you will go to court on your case. At the arraignment. The Judge will tell you what charges have been filed against you by the District Attorney. The Judge will ask you if you can afford a lawyer.
If you have a private attorney who is hired before your arraignment, you are in somewhat more of an advantageous position. Your attorney can interview you before you go to court and find out whether it is advisable for you to make a bail motion. In some cases, the alleged victim or witnesses can be brought to court to talk to the Judge or District Attorney. A private attorney on the job immediately can begin to interview witnesses and to start to work on your case while events and memories are fresh.
Another thing that a private attorney can do for you at arraignment is to do his best to avoid publicity for your case. Rather than have you judged in the media, it is better to have you out of sight, out of mind. I do my best to avoid media coverage or mitigate the damage.
2. The discovery process.
Preparation of your case consists of two aspects. One aspect is to know everything possible about the prosecution’s case. The other is to gather every possible witness and every possible piece of evidence that will support the defense. This should be the goal from the very first day. The process of getting information from the D.A. is called “discovery.” This process begins immediately when I am retained on a case.
The discovery process initially is an informal procedure where I ask for all the information on the case, including police reports, statements, supplemental reports, dispatch recordings, recordings of conversations, video that may be available, prior convictions of witnesses, information on confidential informants, exculpatory information, and any other information that may be relevant to the case. There is an ongoing obligation of the District Attorney’s office to provide this information. If there is reason to believe they are withholding information, then a Motion to Compel discovery is warranted and the judge will make a decision on what information has to be turned over.