Understanding the process of a criminal prosecution is vital to defending a criminal charge and asserting your rights as a defendant. The following is a step by step explanation of what happens from the time a crime is alleged all the way to the trial.
There are three primary ways in which a prosecution is initiated; (1) a police officer files a complaint, (2) a private citizen files a complaint, or (3) an arrest is made without a warrant or summons. The most common method is for a police officer to file the complaint. The officer will usually submit a sworn statement called an affidavit with the complaint explaining why the officer believes a crime was committed by the defendant. Generally if an arrest is made before a complaint is filed it is because the officer witnessed the alleged crime taking place, for example with a DUI or drug possession charge.
If there is probable cause to believe a crime has been committed by the defendant then a warrant will be issued. The warrant can either be served on the defendant or the defendant can be arrested.
Once the defendant has been arrested they will be formally charged with a crime. They can be charged with either a felony or a misdemeanor criminal charge.
The initial appearance is the first time the defendant comes before a Judge and will receive information about the nature of the charges, the Judge will read the complaint, provide information about future proceedings, and bail will be set. At this stage a defendant who cannot afford counsel will have a lawyer appointed to them. Defendants who hire private counsel can have their lawyers get involved earlier in the process.
At this hearing the Prosecution has to prove to the Judge that it is more probable than not that the defendant committed the crime charged. There are three possible outcomes to the preliminary hearing: (1) the charges are dropped because the Prosecutor cannot show probable cause, (2) the Judge finds that probable cause does exist and turns the case over to the Grand Jury to seek an indictment, or (3) the defendant agrees to proceed without requiring an indictment from the Grand Jury. It is very important to remember that if the charges are dropped at this point in the process the Prosecutor has the right bring the charges again down the road because Jeopardy has not yet attached.
The amount of time the Court has to schedule a Preliminary Hearing depends upon whether the defendant has been charged in State or Federal Court and whether or not the defendant is in jail while awaiting the hearing. If the defendant is charged in a State Court the Preliminary Hearing must be held within 10 days of the Initial Appearance if the defendant is in jail or 20 days if the defendant is not incarcerated. In Federal Court the Preliminary Hearing must occur within 14 days of the Initial Appearance if the defendant is in jail and 21 days if they are not.
The Grand Jury process is very secretive. The defendant and their counsel do not have the right to attend. The Judge, the Prosecutor, the Grand Jury and witnesses are the only people allowed to be present. If the Prosecutor can present enough evidence to show probable cause then the Grand Jury can issue an indictment. Like the Preliminary Hearing phase, the Prosecutor can try multiple times to get a Grand Jury to issue an indictment.
During the Arraignment the formal charges are read, the defendant makes a formal plea, and bail may also be set here.
At this point the Prosecution and the Defense will go through a formal process of trying to find evidence to establish the facts of the case. Often both sides will make motions to have the Court rule that certain pieces of evidence are not allowed to be used during the trial.
Many cases do not make it this far. Often plea agreements are reached and the necessity of a trial is avoided. Other times the case will be dismissed because the Prosecution lacks the evidence necessary to move forward. Cases that are not dismissed or that fail to reach a plea agreement move to trial.
Understanding the steps in a criminal prosecution is important to insuring the best outcome in a criminal case. During many of these steps it is valuable to have the advice and help of a competent attorney as they can help defendants navigate the steps of the process and avoid common pitfalls. If you have charged with committing a crime and need advice, please call to speak with an attorney at Hurst & Hurst Law at (859) 209-2101.