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CRIMINAL CASE PROCESS

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 appeals process Legal terms & meanings
Felony: arraignment to appeals process Use of Expert Witnesses

This article was written with the defendant's thoughts, questions and next steps in mind. It 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

MISDEMEANOR

FELONY
   
Arraignment Lower Court
Bail  
Identity of defendant Arraignment
Ascertain charges Bail
Confirm attorney of record Identity of defendant
  Ascertain charges
Pre-Trial Conference (one or more) Confirm attorney of record
Plea negotiations  

Identification of issues

Pre-Preliminary Hearing
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  
  Preliminary Hearing
Sentencing Probable cause that crime was committed and defendant was the one who committed it
Judge imposes sentencing after defendant has been convicted  
  Upper Court
Appeal  
The defense may request a higher court to change the lower court's decision. Arraignment
Bail
Expungement Identity of defendant
Expungement is a legal term for sealing the criminal record Ascertain charges
  Confirm attorney of record
   
  Pre-Trial Conference
  Plea negotiations
  Identification of issues
  Identification of witnesses
  Identification of strength/weaknesses
   
  Trial
  Pre-trial motions
  Issues of fact are decided
   
  Sentencing
  Judge imposes sentencing after defendant has been convicted
   
  Appeal
  The defense may request a higher court to change the lower court's decision.
   
  Expungement
  Expungement is a legal term for sealing the criminal record

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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:

  1. The defendant usually will be provided with a written allegation from the prosecutor.
  2. The defendant will be asked to acknowledge his identity.
  3. The defendant may have private counsel present or the court may appoint one.
  4. The defendant may be told his possible punishment. The possible punishment is not a reflection on the case or the judges' view of the case or the defendant.
  5. If charged with a misdemeanor, the defendant is required to reply to the written charges with a plea of either guilty, not guilty, or nolo contendere. (no contest) If charged with a felony, the defendant may or may not be required to reply with a plea at the initial arraignment. (The policy of presenting a plea at a felony arraignment is different state-by-state)
  6. In a misdemeanor case, the judge will set the defendant's tentative appearance schedule. In a felony case, the judge will set the defendant's tentative preliminary hearing. (Not all states have preliminary hearings. Some convene a grand jury to find probable cause.)
  7. Bail is established. The defendant has a right to argue for a bail reduction.
  8. Discovery is usually presented to the defense attorney. Discovery usually consists of a police report and a complaint. This varies by state. Some states do not provide discovery until after the preliminary hearing or indictment.
  9. If the defendant pleads guilty at the arraignment, the judge may sentence the defendant at that time.

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:

  1. The defense attorney must ethically and actively defend his client.
  2. The defense attorney must present all options to his client with recommendations and professional opinions.
  3. The defense attorney must prepare his client completely for each step in the legal process.
  4. The defense attorney must review all possible defense scenarios and interview all witnesses and review evidence in support of the clients case.
  5. The defense attorney must develop a theme to the defense. The theme is composed of a powerful defense strategy and a course of action to present reasonable doubt or otherwise minimize exposure or punishments.

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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 Superior 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.

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Misdemeanor: The Arraignment To Appeals Process

Arraignment

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:

  1. Ensure he has qualified legal representation.
  2. Understand thoroughly the criminal law process from arraignment to appeal. Defendants often compromise their defense because of ignorance of the criminal process and their rights.
  3. Ask the attorney questions every step of the way. Seek advice of the attorney. In the criminal process, the defendant is the one who stands to lose the most. Ask questions frequently and be certain they are answered.
  4. Assist the attorney in preparing the defense by understanding every option available. Explore all options before making a decision. Researching the situation is extremely valuable.
  5. Remember that the defendant is innocent until proven guilty.

Pre-Trial Conference

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.

Sentencing

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:

  1. The judge almost always determines punishment.
  2. The judge may be required to follow specific sentencing guidelines.
  3. The eighth amendment to the U.S. constitution provides that punishment may not be cruel or unusual.
  4. Factors such as no criminal history, a good public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence.
  5. A previous criminal record, use of a dangerous weapon, degree of injury or financial loss, and the type of conviction may persuade the judge to provide a harsher sentence.
  6. Judges almost always give repeat offenders stiffer sentences.
  7. If the defendant is not planning on appealing the case, this may be an appropriate time to acknowledge responsibility in order to convince the judge to give a more lenient sentence.

Appeals

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

Expungement

The expungement process differs from state-to-state. 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 law enforcement purposes. In addition, applicants campaigning for public office or applying for a federal job are required to make their conviction public even if it were expunged.

Facts about Expungements:

  1. Even when a conviction has been expunged it can still be used against the defendant's sentence if the defendant is again convicted of a crime.
  2. Not all convictions are eligible for expungement. Laws differ state-by-state.
  3. In many states defendants cannot expunge felony convictions or sex offenses.
  4. Convictions usually cannot be expunged until one year has passed and the defendant has completed serving the sentence.
  5. Expungements usually cannot occur if the defendant faces new charges.
  6. The federal law does not recognize state court expungement orders.
  7. At the end of probation, the criminal record is reviewed.

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Felony: The Arraignment to Appeals Process

Arraignment

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:

  1. Ensure he has qualified legal representation.
  2. Understand thoroughly the criminal law process from arraignment to appeal. Defendants often compromise their defense because of ignorance of the criminal process and their rights.
  3. Ask the attorney questions every step of the way. Seek advice of the attorney. In the criminal process, the defendant is the one who stands to lose the most. Ask questions frequently and be certain they are answered.
  4. Assist the attorney in preparing the defense by understanding every option available. Explore all options before making a decision. Researching the situation is invaluable.
  5. Remember that the defendant is innocent until proven guilty without a reasonable doubt.

Pre-Preliminary Hearing

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.

Preliminary Hearing

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:

  1. Preliminary hearings are shorter than trials.
  2. The preliminary hearing is not a finding of fact.
  3. The goal of a preliminary hearing is to screen the prosecution's case.
  4. The prosecution is only required to show "probable cause" at the preliminary hearing.
  5. The preliminary hearing will be conducted in front of a judge. No jury will be present.
  6. Although the defendant may be held to answer for trial, which does not mean the defendant is guilty.
  7. Neither the prosecution or defense will present their whole cases; they want to save their case strategies for the trial.
  8. Cross-examination of police officers or witnesses may occur.

Superior 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.

Pre-Trial Conference

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:

  1. The defense presents a legal case on behalf of the defendant.
  2. Further discovery takes place.
  3. Factual and legal evidence is established.
  4. Debate over sufficient evidence occurs.
  5. Review on whether the facts are sufficient occurs.
  6. Strengths and weaknesses of witnesses are examined.
  7. Issues with the evidence are submitted.

Sample motions the defense attorney can file at a pre-trial conference:

  1. Suppress evidence
  2. Dismiss information and complaint
  3. Compel discovery
  4. Sever counts
  5. Speedy trial
  6. Modify or reduce bail
  7. Bill of particulars
  8. Reduce charges
  9. Change of venue
  10. Strike a prior conviction
  11. Preserve evidence
  12. Examine police file

Trial

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:

  1. Jury selection
  2. Opening statements are presented by both the prosecution and the defense
  3. The prosecution presents their case
  4. The defendant cross examines
  5. The defense presents their case
  6. The prosecution cross examines
  7. Closing arguments are presented by both the prosecution and the defense
  8. The prosecution, defense attorney and judge decide on specific instructions to the jury
  9. The judge instructs the jury on rules
  10. The jury deliberates
  11. The jury submits their verdict

Sentencing

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:

  1. The judge almost always determines punishment.
  2. The judge may be required to follow specific sentencing guidelines.
  3. The eighth amendment to the U.S. constitution provides that punishment may not be cruel or unusual.
  4. Factors such as no criminal history, a good public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence.
  5. A previous criminal record, use of a dangerous weapon, and the type of conviction may persuade the judge to provide a harsher sentence.
  6. Judges almost always give repeat offenders stiffer sentences.
  7. If the defendant is not planning on appealing the case, this may be an appropriate time to acknowledge responsibility in order to convince the judge to give a more lenient sentence.

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.

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. 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.

Expungement

The expungement process differs from state-to-state. 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:

  1. Even when a conviction has been expunged it can still be used against the defendant's sentence if the defendant is again convicted of a crime.
  2. Not all convictions are eligible for expungement. Laws differ state-by-state.
  3. In many states defendants cannot expunge felony convictions or sex offenses.
  4. Convictions usually cannot be expunged until one year has passed and the defendant has completed serving the sentence.
  5. Expungements cannot occur if the defendant faces new charges.

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Plea Bargaining

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:

  1. A judge-approved guilty or no contest plea bargain may result in a criminal conviction. The conviction will show up as a criminal record.
  2. The defendant may lose rights and privileges as if the defendant were convicted after trial.
  3. A no contest plea says, "I don't choose to contest the charges".
  4. A guilty plea serves as an admission of guilt.
  5. A plea bargain may result in a lighter sentence and completes the matter quickly.

How to plea-bargain a good deal:

  1. The defense must show responsibility for the crime is minimal.
  2. The defense must show the impact of the crime elicited little damage.
  3. The defense must explain mitigating circumstances that led to the crime.
  4. The defense must establish weaknesses in the prosecutions case, such as lack of evidence or lack of witnesses or factual inconsistencies.
  5. The defense must establish good character on the part of the defendant. The crime was a departure from normal conduct.
  6. The prosecution and defense must mutually desire a reasonable settlement.
  7. The impact on the defendant's family or dependents would be a hardship.

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.

The defendant must manage his attorney. The defendant must make sure he understands what the attorney is doing, and why he is doing it, before it is done. The defendant can't wait until after the attorney presents the defense to inquire as to the course of action.

Misdemeanor cases are usually heard in lower court. Felony cases are usually heard in upper court.

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.

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Understanding Bail

Bail is 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. There are typically two factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts:

  1. Is the defendant a danger to the community?
  2. What is the likelihood the defendant will flee?

In order to get bail reduced the defense attorney should do the following:

  1. Demonstrate the potential crime is not one that the defendant would do again
  2. Demonstrate the defendant is not a danger to the community
  3. Demonstrate the defendant presents no likelihood to flee. The defense attorney can present this in various ways: - Character references - Community support - Stable employment history - Memberships in religious or civic organizations - Surrendering the defendant's passport - Agree to electronic monitoring

The court can present several bail release options. These may include:

  1. Cash Bail. The defendant is responsible for paying the entire amount of bail to be released. The defendant will receive his bail back at the completion of all court appearances.
  2. Release On Own Recognizance. If the judge is convinced the defendant is not a risk, he may release the defendant on his own recognizance.
  3. Surety Bond. The bail agent guarantees to the court that they are responsible for the bond if the defendant fails to appear.
  4. Property Bond. The court records a lien on the property of the defendant to secure the bail amount.

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?

Yes.

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?

Yes.

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.

Superior 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.

Back to top
What is an Expert Witness?

An expert witness is someone who has special knowledge, education, training or expertise in a particular subject. Expert testimony is considered an opinion about a subject matter that a lay person would not have the training or the expertise in to draw an accurate conclusion. Expert witnesses are legal help experts that are hired by both the defense and the prosecution to help support their trial plans. The testimony given by an expert can help each side by discrediting witnesses for the other side and establishing alternative explanations when there is lack of other evidence. Strong and compelling expert witness testimony can make or break a case.

Types of Expert Witnesses

Expert testimony can come from professionals who have a state license or who have board certification such as a doctor, nurse, medical examiner, psychologist, psychiatrist, clinical social worker, expert on victim behavior, forensic scientist or pathologist, toxicologist, law enforcement officer, victim advocate or a handwriting expert.

For example, a forensic toxicologist might be called by the defense in a DUI trial to explain to the jury the importance of the defendant’s blood alcohol content (BAC) at the time the defendant was driving as opposed to when defendant was tested. The expert might also explain how alcohol is absorbed into the body. Or the expert witness testimony may be used to explain how a breathalyzer machine is maintained and calibrated in order to question the accuracy of the test results.

An experienced and skilled criminal defense attorney is able to determine the right expert to use for each particular case and to make sure expert witness testimony is delivered in the most effective manner to establish the expert’s credibility—and win the case.

How Expert Testimony is View

Since jurors and the court do not have technical backgrounds, they rely on expert testimony to provide scientific explanations—or explanations beyond their common understanding. Research shows that juries tend to view expert witness testimony as more credible in contrast to testimony given by victim advocate experts, who they often see as simply providing favorable testimony to party that hired them. Expert witnesses, who are able to communicate well, in their subject matter and engage the jury, are those who can have the most impact on the outcome of the case.

Preparing Expert Witnesses

Criminal defense attorneys, like Imhoff & Associates, understand the importance of preparing their expert witnesses prior to trial. They do this in many ways, including conducting mock practice direction and cross examination sessions so that expert witnesses are able to review their responses and receive immediate feedback. Some other common strategies used by defense attorneys to guide and prepare experts include:

  • Making sure expert witnesses understand the trial process, has a clear strategy for answering questions and is familiar with the direct and cross-examination processes
  • Familiarizing expert witnesses with the courtroom setup and any mannerisms or idiosyncrasies of the opposing counsel
  • Discussing strategies to eliminate the possibilities of the prosecution discrediting the expert witness testimony
  • Providing information about other expert witnesses and the relationship of key parties to the case, so the expert understands the dynamics of the case—and the importance of their expert testimony to winning the case
  • Suggesting improvements and changes to witnesses dress, body language and material
  • Directing witness on how to answer truthfully, clearly and in a precise manner to avoid confrontations with the opposing attorney

Legal Professional Help

If you are facing criminal charges, obtaining legal professional help from an experienced and skilled criminal defense attorney is highly recommended. At Imhoff & Associates-Criminal Attorneys, we provide our clients with affordable legal help. Our knowledgeable team of attorneys use their insight based upon years of past experience and successful outcomes to strategically choose expert witnesses who can promote your criminal defense strategy. Contact us for more.


To find out more information about these topics, please contact an attorney, visit Imhoff & Associates, P.C., Criminal Defense Attorneys at www.criminalattorney.com

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