Pre-Trial Procedures in Criminal Cases

Bringing the Charge. Criminal charges are brought against a person in one of three ways:

Through an indictment voted by a grand jury.

Through the filing of an information by the prosecuting attorney (also called the county, district, or state's attorney) alleging that a crime was committed. Sometimes charges are pressed through the filing of a crim­inal complaint by another individual, which is essentially a petition to the district attorney asking him/her to initiate charges.

Through a citation by a police officer for minor traffic offenses and the like. This procedure is usually used for certain misdemeanors and other minor criminal matters. The charge must tell the time, date and place that the criminal act allegedly took place, the alleged involvement of the accused, and the details of the crime itself.

The Grand Jury. Grand juries exist in the federal system but are used in only about half the states. Where the grand jury is used in the states, its function is often limited to investigating public corruption or such tasks as monitoring conditions in the jail.

The grand jury is a body of citizens, varying in size from state to state, summoned by the court. In the federal system and in the states in which it still serves its traditional function in criminal cases, its role is to determine whether and against whom criminal charges should be filed. If a grand jury finds sufficient evidence that a person has committed a crime, it then issues an indictment against that person. In states without grand juries, or states whose grand juries primarily investigate public corruption, charges are brought by the prosecutor's filing an information against the defendant.

Grand jury proceedings are secret. The public, the news media, and the person being investigated have no right to be present. In most jurisdictions, people called to testify before a grand jury are not allowed to be represented by counsel when appearing before a grand jury. The secrecy of the proceedings is intended to encourage witnesses to speak freely without fear of retaliation, and to protect the persons being investigated in the event that the evidence is deemed insufficient and an indictment is not issued.

The purpose of the grand jury is not to decide the guilt or innocence of a person. It is, instead, to determine whether there is sufficient evidence to bring a person to trial. If people are indicted, they have the opportunity to defend themselves at the ensuing trial. The judge or jury at trial will deter­mine whether a person is "guilty" of the charges.

The grand jury has broad investigative powers. It may compel witness­es to appear and answer questions or submit records.

In addition to investigating possible criminal behavior, when public cor­ruption is alleged a grand jury may conduct an investigation. Besides issu­ing indictments alleging that a person has committed a crime, a grand jury also may issue a presentment detailing the results of its investigation.

In many states it is a crime to reveal information about a grand jury's proceedings. However, witnesses before a federal grand jury are free to describe their testimony after leaving the grand jury room.

Arrest Procedure. When a grand jury returns an indictment or a prose­cutor files an information, the court clerk issues a warrant for the arrest of the persons charged, if they have not already been arrested, and they are taken into custody. (Sometimes, for less serious offenses that don't entail arraignments, defendants are issued citations rather than being arrested.)

When people are arrested, they must be informed that they have the right to remain silent and the right to consult with a lawyer, and that if they cannot afford a lawyer one will be appointed to represent them. They are also warned that anything they say may be held against them. These are often referred to as the Miranda rights because the U.S. Supreme Court ruled in 1965 in Miranda v. Arizona that when law enforcement officers question people taken into custody, the evidence garnered from their inter­view cannot be used against them unless they have been informed of their constitutional rights to counsel and to remain silent.

If they have probable cause to believe a person committed a crime, law enforcement officials may hold a suspect for up to 48 hours without filing a formal charge. Within that time charges must be filed or the person must be released.

Initial Appearance. Unless the accused persons waive their right to an initial appearance before a judge, one will be scheduled soon after their arrest. (In many jurisdictions this hearing is called a first or initial appear­ance. In other jurisdictions it is called a preliminary hearing or arraign­ment, though these terms are more usually reserved for a later stage of the criminal justice process.)

This procedure is used for defendants who were not indicted by a grand jury, and serves some of the functions of the grand jury, in that the judge determines whether there was sufficient evidence to charge them with committing a crime. Another purpose of the initial appearance is to ensure that defendants are informed of the charges against them and know their legal rights.

At this hearing the state must demonstrate to a judge that there is sufficient evidence, or probable cause, to believe the accused persons com­mitted the crime with which they are charged. The accused persons must be present at this hearing, although they generally do not present evidence in their defense.

A judge might conclude that the state does not have sufficient evidence to support the charges and order the charges dismissed. If this happens, the accused persons are released.

If the judge believes the evidence is sufficient, in most cases he or she will set the amount of the defendant's bail. This is the amount of money accused persons must post in order to be released from custody until their trial. The purpose of bail is to ensure that the accused will appear for trial. Bail is not supposed to be used as punishment. The bail is returned to defendants when their trial is over, in some states minus a processing fee.

The type of crime alleged, the "dangerousness" of the accused, and the safety of the community are also legitimate issues in the setting of bail. Sometimes bail is conditioned on certain behavior of the accused—for example, that he or she has no contact with the alleged victim.

If defendants are unable to come up with the entire amount of the bail, they may make arrangements for their release through a bail bondsman. In return for the defendant's putting up a percentage of the total bond, usually 10 percent, the bondsman will guarantee the remaining amount to the court should the defendant not be present for trial. In many jurisdictions bondsman are becoming obsolete because courts themselves are releasing defendants upon their payment of 10 percent of the bail to the court.

The judge may release defendants on their own recognizance, on the promise that they will appear for all hearings and for trial. This is usually done if defendants have a steady job, roots in the community, or other personal circumstances indicating that they will not flee.

At the initial appearance, the judge will also determine if the accused persons have legal representation. If they cannot afford to hire a lawyer, the court will appoint a public defender, or in some cases a lawyer in private practice, to represent them at public expense.

Arraignment. Most criminal cases are then set for arraignment. When defendants appear for arraignment, the indictment or information is read to them, their rights are explained and they enter their plea. (In some jurisdictions, this procedure may be called a preliminary hearing. In these jurisdictions, the defendant's earlier appearance - at which a judge has determined whether there is sufficient evidence to hold him or her - is called a first or initial appearance.)

If they plead not guilty, a trial date will be set. If they plead guilty, a date will be set for sentencing, although probation, fines or other sentences will be determined immediately for some minor crimes.

Date: 2015-12-24; view: 938