UNDERSTANDING
THE CRIMINAL PROCESS
What should the defendant expect at each stage of their case? What if the defendant is not happy with his
attorney? How does the appeals process work? What will happen to the defendant?
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 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
What is First Appearance?
First Appearance is the first court appearance by a defendant after his arrest. The only matter to be decided is
whether or not the defendant will be release on bond and how much such will be.
What Is An Arraignment?
An arraignment is the process by which the defendant is read specific charges against him. It is a brief hearing.
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. The defendant is required to reply to the written charges with a plea of either guilty, not guilty, or nolo
contendere. (no contest).
6. The defendant has a right to argue for a bail reduction.
7. Discovery is usually presented to the defense attorney. Discovery usually consists of a police report and
a complaint.
8. If the defendant pleads guilty at the arraignment, the judge, in some cases, may sentence the defendant
at that time.
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.
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
County Court. Examples of misdemeanor crimes include D.U.I., disorderly conduct or shoplifting.
A felony crime is punishable by one year or more in state prison (Florida Department of Corrections). Felony
trials are held in Circuit Court. Sample felony crimes include murder, rape, or armed robbery.
It is recommended that the defendant receive legal representation as soon as possible. Sometimes a public
defender 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
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 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 pre-trial hearings and/or trial in the County
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. Defendant's 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.
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 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
If 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 only begins 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
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
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.
3. Defendants cannot expunge certain felony convictions or sex offenses.
4. Expungements usually can not occur if the defendant faces new charges.
5. The federal law does not recognize state court expungement orders.
6. At the end of probation, the criminal record is reviewed.
Felony: The Arraignment to Appeals Process
Arraignment
The arraignment in a felony trial follows the same process as in a misdemeanor trial. Identity is 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-Trial Conference
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. 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.
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, that 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.
Motion Hearings
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 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.
2) Enhancements. Florida statutes 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.
Appeals
If 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 is very short - 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
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.
3. In some cases defendants can not expunge certain felony convictions or sex offenses.
4. Expungements can not occur if the defendant faces new charges.
Plea Bargaining
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 defendants 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 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.
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 appear in court?
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.
Review
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. 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 defendant 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.
At Bollinger & Anderson we understand the criminal process and are dedicated to working to protect your
interests. Please contact us for a FREE consultation.