Criminal Procedure
The criminal process usually begins with
a citation or an arrest. Sometimes, it begins with a search warrant.
However it begins, one thing is universal: the Police are confronting
you and starting to take control of your life. You have many Constitutional
Rights. However, most of them do not exist “on the street”
during the police confrontation. These Rights must be asserted
later, in Court, by an aggressive and experienced lawyer. Catherine
Lombardo protects the Constitutional Rights which often are violated
by the Police.
The Stop:
You may be stopped for questioning by police. A stop occurs when
a police officer detains you to ask you questions, but has not
yet arrested you or issued you a citation. A police officer should
not stop you unless he has a reasonable belief that you have violated
the law.
Even though you are not under arrest at this
point, you do not have to answer any questions that the police
officer asks you. The police may also ask to search you or your
vehicle. A police officer can not search you or your car unless
he or she has either probable cause or your consent. Do not give
consent. The police officer may perform a search anyway. If you
do not give consent, then your attorney can challenge the actions
of the officer in court.
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The Arrest:
Each jurisdiction has different rules regarding when an individual
can be placed under arrest. In general, an officer can arrest
you if he has probable cause to believe that you committed a crime
or if there is a warrant for your arrest. When you are arrested
you will be taken into police custody, or, in some minor offenses,
issued a citation and released.
Police must inform you of your right to remain
silent if you are in custody being questioned about the crime.
This includes your right to remain silent and your right to obtain
the advice of an attorney. When you are arrested you should be
given an opportunity to contact a lawyer or anyone else to let
them know what has happened to you. You are not limited to a single
call. Once you are arrested there is a limited amount of time
before you must either be charged with a crime or released. If
you have been held for an unreasonable amount of time without
being charged, your attorney can ask a judge to order you release.
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The Booking:
After you are arrested and charge with a crime you will be booked;
you will be finger printed; your name and the crime that you have
been charged with will be entered into the official police record;
your personal belongings will be taken from you for safe keeping
while you are in custody; they will be inventoried and you will
be asked to sign the inventory. Depending on the charge and the
circumstances of your case, you may be released and ordered to
appear for your hearings in court. You may be released on your
own recognizance or you may have to bail out. In some cases, you
will not be given the opportunity to bail out until you have seen
a judge. It is crucial to have an attorney present at the hearing.
The police do not file the charges. They
write the reports and deliver them to the prosecutor who decides
whether to file charges. The District Attorney reviews the police
reports and files the charge will they feel it can be proven beyond
a reasonable doubt.
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Filing the Complaint:
The prosecuting attorney files the document with court, which
alleges the charges against you. Sometime (in misdemeanor cases)
a letter will be sent to you advising you of the charges and when
to appear in court. In most cases, however, an arrest warrant
will be issued for you. It is extremely important to hire a lawyer
right away.
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Arraignment/First Appearance:
At the arraignment, you are formally advised of the charges and
your constitutional rights. Bail is often set during the arraignment.
Bail is used by the court almost like an “insurance policy”
that you will appear on future court dates.
The amount of bail is determined by the judge.
The judge will look to two factors in deciding bail: your risk
of flight and whether you pose a danger to the community. Bail
amounts can range from being released on your own recognizance,
all the way up to millions of dollars. In some cases no bail is
allowed. Sometimes, there can be “holds” placed on
you (immigration, parole, probation) which prevent you from bailing
out.
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Preliminary Hearing:
Preliminary Hearings are held in all felony offenses to review
probable cause. There is no jury at this hearing. Only the judge
hears the evidence to determine whether there is sufficient evidence
to support the charges against you. Once a judge determines that
there is probable cause, she sends the case to the Superior Court
for trial. During the Preliminary Hearing, the district attorney
or the judge can add additional charges and/or adjust the bail.
Your attorney will briefly question the witness who testify and
should request a dismissal through an Argument. An affirmative
defense is rarely ever presented at the Preliminary Hearing. The
District Attorney does not have to present evidence “beyond
a reasonable doubt.” Only a strong suspicion that you committed
a crime must be shown.
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Arraignment in the Superior Court:
If the judge has determined that there is probable cause to support
the charges, the prosecutor will file a charging document called
an Information in the Superior Court. The Information alleges
the charges which you are facing at trial. At this time, you are
formally advised of the charges and your constitutional rights.
Again, you enter a plea of not guilty. The judge will give you
a series of Court dates for you to return.
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Pre-Trial Conference:
At the pre-trial conference, the defense attorney discusses the
case with the prosecuting attorney and often includes the judge
in this process. This is a good opportunity to speak with the
prosecution in order to obtain the best possible deal, or plea-bargain.
It also allows the defense attorney to provide information which
may prove your innocence. Usually, these discussions occur in
the judge’s chambers (“chamber conference”.)
It is the first opportunity to plead your
case, your defense, or any mitigating circumstances. In most cases
there are several Pre-Trial conferences prior to preparing for
a Trial. Also, Pre-Trial motions are prepared, filed and argued
by your attorney. These include motion to dismiss, suppress evidence,
reveal confidential information, or reduce the charges against
you.
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Trial:
The Jury Trial is the most important part of your case. A trial
requires labor intensive preparation. There must be investigation,
research, witness preparation and organization. Often, the lawyer
will perform this preparation without your knowledge or presence.
During the jury trial you are entitled to
have a jury of twelve impartial jurors. Selecting a good jury
can take hours or days. Both the defense attorneys and the prosecuting
attorney have an opportunity to make opening statements, introduce
witnesses and evidence in favor of their case, cross-examine witnesses
and offer closing arguments. During the deliberation phase of
the case, the jury decides whether the prosecution has met the
burden of proving guilt beyond a reasonable doubt. If the jury
finds you not guilty, you are free to go and not subject to further
prosecution based on the same offenses.
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Sentencing:
If you are found guilty, the sentencing hearing is where the judge
determines and imposes the appropriate punishment. Sentencing
is a very important part of your case, and requires preparation.
A good lawyer will make a presentation to the Judge, pleading
for leniency and other consideration. Different crimes carry different
possible penalties.
Collateral Consequences:
In addition to any sentence imposed by the court, conviction can
have a number of additional consequences. In felony cases, these
consequences can include, but are not limited to: loss of the
right to vote, loss of the right to possess a firearm, loss of
the right to associate with other known criminals, registration
as a sexual offender, registration as a narcotics offender, or
increased penalties for future convictions. Also, convictions
can cause you to possibly lose your job.
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Appeals:
If convicted, you may file an appeal to an appellate level court
with the argument that the trial court made legal errors. If the
defense can prove that the trial court made legal errors, or you
were denied due process of law or a fair trial, it may result
in the reversal of your conviction.
An appeal is a request to a higher (appellate)
court for that court to review and change the decision of a lower
court. Post-trial motions requesting a trial court judge to change
his or her own decision or order new jury trials are so seldom
successful. Therefore, the defendant who hopes to overturn a guilty
verdict must usually appeal. The defendant may challenge the conviction
itself or may appeal the trial court’s sentencing decision
without actually challenging the underlying conviction.
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After Conviction:
After a jury convicts you, there are several motions which can
be made, some of which may only be used in certain cases.
- Motion for Acquittal:
A request that the judge decide that
there is not enough evidence to convict the defendant. Depending
on whether the trial is before a judge or jury and depending
on court rules, this motion may be made either after the
prosecution presents its evidence or after all the evidence
is presented, but before it is “sent to the jury.”
- Motion for a New Trial:
Request that the trial judge declare
a mistrial and grant a new trial. Grounds for a mistrial
are limited in scope, and investigation must often be conducted
prior to the motion.
- Appeal to State Appellate Court:
Contends that trial judge made some
legal error, or some other reason to grant an appeal.
- Petition for Rehearing to State
Appeals Court:
Requests that appeals court judges
change their own decision.
- State Supreme Court Appeal:
Requests that highest court in the
state review and overturn the decision of the mid-level
appeals court.
- U.S. Supreme Court Appeal:
Requests that highest court in the
nation intervene to correct an error on the part of the
state or Federal District Courts that violated the U.S.
Constitution.
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