A Citizen s Guide to the Criminal Justice System: From Arraignment to Appeal

Transcription

1 A Citizen s Guide to the Criminal Justice System: From Arraignment to Appeal Presented by the Office of the Richmond County District Attorney Acting District Attorney Daniel L. Master, Jr. 130 Stuyvesant Place, Staten Island, NY (718)

2 Arraignment The Preliminary Hearing The Grand Jury The Indictment Plea Agreements Pretrial Procedures Pre-Trial Hearings The Trial The Appeals Process Arraignment Following an arrest, you will most probably appear at an arraignment. This is simply a formal hearing before a criminal court judge at which you will be informed of the charges against you and advised of your rights. Your attorney may request that you be released on your own recognizance or that the court set bail. You have a right to the assistance of counsel at this proceeding. If you can't afford an attorney, the court will assign one to represent you. On occasion, when an accused is represented, their attorney may waive a formal arraignment so that the charges filed against you are not read aloud in open court and made public. Bail can be posted by a bail-bond, cash or property. If you are unable to "make bail," you remain in jail until your preliminary hearing, or in some cases, your trial. If you are out on bail and flee the jurisdiction, called bail jumping, the person who "posted" your bail forfeits their cash or property. Bail jumping is a separate crime in itself. If you do not appear for trial, in addition to having a bench warrant issued and forfeiting your bail, your case may be tried without you. Judges may warn defendants of that possibility by what are termed Parker warnings. If you have been warned, and don't appear, you can be tried, convicted and sentenced in your absence. You will be sent to prison immediately to serve your sentence. It is not uncommon at all at the arraignment for your attorney and the prosecutor to discuss your case with the judge. There may be some discussion about a plea agreement and in some cases, charges are actually disposed of or felony charges are reduced to misdemeanors. If the charges are serious felonies, the prosecutor may give notice that he intends to present your case to a Grand Jury. Your lawyer may give reciprocal notice that you wish to testify in the Grand Jury on your own behalf. The Preliminary Hearing If you are charged with a felony, a preliminary hearing will be held. At a preliminary hearing, the prosecutor presents evidence to show the court why the matter should be set for trial and the defense attorney has the ability to cross-examine witnesses. 2

3 The Grand Jury A Grand Jury consists of 23 citizens of your county who hear evidence presented by the prosecutor and decide if there is sufficient evidence to establish the you committed a crime. There is no judge to rule on the admissibility of evidence or defense lawyer to cross-examine the witnesses. Grand Jury proceedings are secret and defense lawyers can only be present if and when their own client testifies. If you have been arrested, your attorney will be notified if the prosecutor intends to present your case to a Grand Jury. If your attorney decides that it is in your best interest for you to testify and/or present witnesses, he must notify the prosecutor before the Grand Jury presentation is completed. You have a right to testify before the Grand Jury, but your lawyer must get permission to present other witnesses. If you do testify, your lawyer can attend, but he cannot ask questions or make objections and he cannot be present when any witnesses you may have testify. Unlike a trial jury, the Grand Jury does not need to reach a unanimous decision; a simple majority will result in a true bill or indictment. The Indictment An indictment is a formal accusation that identifies the specific felony charges against you as voted by the Grand Jury. Occasionally cases are presented to a Grand Jury before anyone is arrested. In these cases, you won't be notified that your case is being presented to a Grand Jury and you may not have the chance to testify or present defense witnesses. If you are indicted this manner, an arrest warrant is usually issued and you are jailed until your arraignment. Plea Agreements Plea agreements ( plea bargains ) are nothing more than negotiating the disposition of a case. There are provisions in the law for a person to plead guilty without admitting guilt. This is known as an Alford plea. 3

4 Pretrial Procedures There are only a number of scenarios that can happen to a criminal case before going to trial. It can be dismissed by the prosecutor or a judge, you can plead guilty, or the case can go to trial. Under special circumstances your attorney may get your case dismissed in the interest of justice. If you are convicted following a trial or if you plead guilty, in addition to facing possible incarceration, you may be subject to fines, forfeitures and civil suits. If you're not a citizen, you may also be subject to deportation. If you're convicted of a felony, you may also lose some of your civil rights. Criminal cases can take a considerable period of time to conclude. The duration depends on the seriousness of the charges and whether you're going to accept a plea or go to trial. There are "speedy trial rules" governing the amount of time the prosecutor has to be ready for trial, but it is not uncommon for these cases to take 6 to 12 months, or longer, to go to trial. Delays can result from any number of reasons. Each case requires different preparation. There are certain procedures that must be followed by the prosecutor, defense and the presiding judge. If your case is set for trial, there will usually be a pretrial conference scheduled between the prosecutor, the judge and your attorney to discuss your case to see if it can be disposed of without a trial. Often there will often be a plea offer by the prosecutor. If the plea is refused, the case proceeds towards trial. Pre-Trial Hearings There are several types of pre-trial hearings that may occur before a trial jury is selected. Not every case has pretrial hearings. It depends on the evidence. These hearings are named after landmark cases. After the hearing, the judge decides whether or not to let the prosecutor use certain evidence against at trial. If the evidence in question is the only evidence against you, your case may be dismissed if you win the hearing. A Huntley hearing is to suppress statements allegedly made by you to a law enforcement officer, prosecutor or their agents, on the grounds that a violation of your constitutional rights taints your statement. A Dunaway hearing is used to suppress statements on the grounds that the police did not have probable cause to arrest you. A Wade hearing is to suppress identification on the grounds that the identification procedure was unduly suggestive. A Mapp hearing is to suppress physical evidence seized from you on the grounds that the police had no legal right to stop or search you, your car or your home, or that the evidence they found was obtained by violating your constitutional rights. Even if such a violation has been found, however, your trial may go forward since such a 4 th Amendment violation does not immunize you from prosecution; it just entitles you to suppression. 4

5 A Sandoval hearing is to limit the use a prosecutor may make of your criminal record to impeach your credibility on cross-examination, if you testify at trial. When a witness testifies at trial, opposing counsel has the right to use the witness' criminal record on cross-examination to impeach their testimony. If the witness is the defendant, the court must balance their constitutional right to testify against the prosecutor's right to use this cross-examination technique. The Trial After pretrial hearings are completed, your trial begins at which time a judge or jury listens to evidence and decides if you are guilty or not. You are entitled to a jury trial in all felony cases, and in many misdemeanor cases. Even if you are entitled to a jury trial, you may waive that right and be tried by a judge. If you are having a jury trial, the first part would be to select the jury. This is called voir dire. Prospective jurors are brought to the courtroom from the central jury room. The judge explains some general principles of law to them. From that panel several potential jurors are called to the jury box to be questioned by the judge, the prosecutor and the defense attorney. The purpose of the voir dire is to give each side a chance to determine whether or not prospective jurors can be suitable. After each round, the attorneys "challenge" the jurors they do not want. If either side can show that a potential juror cannot be fair, that juror can be challenged for cause. Challenges for cause are unlimited. Each side has a specific number of peremptory challenges depending on the criminal charges. These are challenges that do not require the attorney to give a reason for asking that a potential jury member be dismissed. The final jury selected usually consists of 12 jurors and two alternates. If, for any reason, a juror cannot continue to serve, an alternate substitutes. After the jury is selected, the judge will explain the duties of its members and will warn them not to discuss the case with anyone until it's over. When the jury is seated, the prosecutor makes their opening statement in which they tell the jury what they intend to prove during the trial. When the prosecutor is finished, the defense attorney usually makes their opening statement. (No opening statement from the defense is required, but one is usually presented) Following opening statements, the prosecutor presents evidence, consisting of testimony from witnesses and exhibits. When the prosecutor questions his witness, it is referred to as "direct examination." When the defense attorney questions that same witness, it is referred to as "cross-examination." You can also have "re-direct" and "re-cross." When the prosecutor finishes presenting their case, the defense attorney can present a defense but, again, it is not required. In some cases, a defense attorney will not present a defense because they believe the prosecutor s case has been successfully "discredited." 5

6 When the defense concludes its presentation, the prosecutor may present evidence to rebut something the defense has raised in its case. If this happens, the defense may present evidence to rebut that. When both sides finish presenting their evidence, they rest. Following all testimony, the prosecutor and defense attorney give closing arguments, also referred to as summations. When all closing arguments are complete, the judge explains the law to the jury and sends them out to deliberate until they reach a verdict The jury cannot discuss the case with anyone who is not on the jury and any verdict must be unanimous. If, by some chance, the jury cannot reach a unanimous verdict no matter how long they deliberate, the judge may declare a mistrial. If that happens, you can be tried again. If you're acquitted, you cannot be charged or tried again for the same crime. Following a guilty verdict, the defense attorney may entertain filing motions to set the verdict aside or ask the court for a new trial. Also, following a guilty verdict, normally there is a pre-sentencing investigation conducted and following that, the accused is sentenced. The Appeals Process If you're convicted after trial, your attorney must file a "Notice of Appeal" for you within 30 days of the sentence date to insure your right to appeal. If you cannot afford an attorney, you may apply for state funded counsel. Instructions how to do so will be given to you. Appeals often take a long time to be heard. On some occasions, bail is allowed pending your appeal, but most defendants wait in jail until their appeals are heard. If the higher court denies the appeal, there are other areas of "post-conviction" relief the accused may consider, such a Petition for Writ of Habeas Corpus. In practice, this is an application made to federal court claiming a violation of federal constitutional rights. Notes 6