*TWENTY-FOUR HOURS A DAY • SEVEN DAYS A WEEK*
Criminal Justice Process
If you have been charged with a crime, DO NOT GO TO COURT WITHOUT AN ATTORNEY!
1. PRE-ARREST: You are under no obligation to make any statement to law enforcement, pursuant to the Fifth Amendment of the United States Constitution.
2. ARREST: About Your Miranda Rights
Law enforcement makes an arrest based on witness statements and/or evidence. If you are arrested and taken into custody you will be read your Miranda rights in which you will be advised:
- You have the right to remain silent and not answer any questions.
- Any statement must be freely and voluntarily given.
- You have the right to the presence of a lawyer of your choice before you make any statement and during any questioning.
- If you cannot afford a lawyer, you are entitled to the the presence of a court appointed lawyer before you make any statements and during questioning.
- If at any time during the interview you do not wish to answer any questions, you are privileged to remain silent.
- Law enforcement cannot make any threats or promises to induce you to make a statement. This must be of your own free will.
- Any statement can and will be used against you in a court of law.
Under no circumstances are you to make any statements to law enforcement.
3. BOND: In most cases, there is a standard bond depending on the case. Before you can be released from jail, you will have to post a bond. A bond is intended to insure that you appear for all court hearings.
4.FIRST APPEARANCE: Sometimes if there is no bond on your arrest, within 24 hours of your arrest you will be brought before a judge. You should have an attorney present at that time. The judge will review the charges contained in what is known as a probable cause affidavit (PC Affidavit) and will decide if a bond should be set and the amount. Sometimes, the judge in addition may add conditions of release such as no possession of firearms or alcohol, or contact with any witnesses or victim(s). In many cases depending on the charge, you could be released on your own recognizance (OR) without having to post any bond.
5. FILING DECISION: In State Court, the intake attorney of the State Attorney's Office will be responsible for filing a charging document called an Information within 21 days of your arrest. Many times, the charges contained in the Information may be different from the charges made by law enforcement officers at the time of your arrest. The filing decision will be based on whether sufficient evidence exists to file criminal charges. In some cases the State will decline to file a charge, known as a No File.
In Federal Court, you can be charged by either an Information or an Indictment from the Federal Grand Jury and filed by the Assistant U.S. Attorney.
6. ARRAIGNMENT: After the arrest and First Appearance, the court will set an arraignment, usually within three to four weeks after the event. The defendant appears before the judge and the charges are read. The defendant can plead guilty or not guilty at that time. If the defendant has retained counsel, the attorney will file a Notice of Appearance on behalf of the defendant and enter a written plea of not guilty. The arraignment is then cancelled and the case is set for a status check or case disposition on the court's docket.
7. DISCOVERY: The time period before a trial or settlement (plea) is called the discovery period. This is when the defense attorney, under the criminal rules of procedure, obtains all of the evidence, including a list of witnesses that the Assistant State Attorney intends to use against a defendant at trial.
Discovery can include: written statements; oral statement of witnesses; photographs; police reports; audio or video tapes; and physical evidence.
Sometimes the defense counsel may take depositions (sworn statements) from any witness that the State intends to call at trial. The defense attorney has the obligation also to list witnesses, and other evidence that the attorney intends to use at trial on behalf of the client.
8. SETTLEMENT NEGOTIATIONS It is the responsibility of the attorney to thoroughly review all discovery, meet with the client and any of the client’s witnesses as well as any other evidence the client provides to determine whether a trial (before the judge or a jury trial) will take place.
In 90% of the cases, the case ends in a negotiated settlement or a plea, which is acceptable to both sides. If the client and the attorney agree that a trial is necessary, the attorney will inform the court and a trial date will be set. Defendants and their counsel have the right to issue subpoenas to witnesses to testify at trial.
If a trial is necessary, a jury is selected by the Asst. State Attorney (ASA) and defense counsel after questioning. Next, the prosecutor (ASA) and the defense attorney will have the opportunity to give opening statements to explain the case.
The State/Government goes first and calls their witnesses as well as presenting any other physical or demonstrative evidence to explain their case. Defense counsel has the opportunity to cross-examine the State’s witnesses. When the State/Government completes its case they rest. It then becomes the responsibility of the defense to present its case with witnesses, and other relevant evidence, which could contradict or discredit the State/Government case. When the defense finishes their case and rests, the prosecutor and defense attorneys proceed to their closing arguments in which they can give their summary of the case to the jury.
The Judge reads the instructions on the law to the jury and importantly, explains the defendant’s presumption of innocence and that the State/Government has the burden of proving the crime to which a defendant is charged, by and to the exclusion of and beyond a reasonable doubt.
Athough every case is different the trial process is the same in every courtroom in the country. In criminal cases the Sate/Government must prove each material allegation either in the Information or Indictment through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. If the jurors have a reasonable doubt they should find the defendant not guilty. If the jurors have no reasonable doubt they should find the defendant guilty.
9. TRIAL: When a case is ready for trial all discovery has been completely reviewed. Depending on the type of case, a trial can take from 1-2 days to 2-3 weeks, or longer. A jury trial involves a process of selecting a jury which can take 2-3 hours or even a week, depending on the issues in the case. When a jury is seated, the trial begins with opening statements from the State Attorney and the defense attorney. Every case is different, but the trial process is the same in every courtroom in the country. Not all cases are jury trials, and you have the option of electing to have a trial before a Judge only. This is called a Bench Trial.
10. SENTENCING: Depending on the severity of the charges, sentencing typically follows the entry of a guilty verdict after a trial. In more serious felony cases the sentencing may be set off for several weeks which allows time for defense counsel to locate witnesses who will testify on behalf of the defendant and provide the Court with testimony regarding the defendant’s character. The Judge is usually bound by the Sentencing Guidelines which are found in Florida Statute 921. Mitigating factors are found in the same statute.
Your attorney will help you weigh the options based upon all of the discovery material, case law, and the investigation completed by his office on your case. At that time, he/she will advise you of the strengths and weaknesses of your case so that you can make an informed decision as to whether to take the case to trial or accept a negotiated settlement or plea.
11. PLEADING GUILTY / WITHHELD ADJUDICATION: There are situations where the plea disposition calls for the defendant to plead guilty, but the Court withholds adjudication. This means there will be no conviction on the person’s criminal history record for the charge contained in the plea disposition.
DISCLAIMER: This is not to be construed as legal advice. Each case is different and has unique circumstances. Contact a lawyer promptly.