When a crime is committed and the police are summoned, if a suspect is identified to the police, the police will attempt to apprehend that suspect and make an arrest. Before the police can arrest anyone, however, and before a judge can issue an arrest warrant, the 4th Amendment to the United States Constitution requires that there be probable cause to arrest. Probable cause for an arrest exists when the facts and circumstances are such that a person of ordinary caution or prudence would believe and conscientiously entertain a strong suspicion of the guilt of the accused, such that the suspect should be taken into custody to stand trial. An oral complaint to a police officer by a victim of, or witness to, a crime can be enough to support probable cause. Even if there is insufficient evidence of probable cause, however, the police may stop and detain a person to conduct brief investigation. Even for this brief detention, however, the police must have at least a reasonable suspicion that a crime has been, is being, or is about to be committed. This reasonable suspicion must be based upon specific and articulable facts.
Normally, the police can arrest for any felony committed in their presence or reported to them, and any misdemeanor or infraction committed in their presence. Generally, by statue, the police cannot arrest for misdemeanors or infractions not committed in their presence (with the exception of violations of domestic violence restraining orders, domestic violence offenses, possession of a dangerous or deadly weapon within an airport, assault and battery upon a firefighter or paramedic, some driving under the influence offenses, and jail escapees).
“Miranda” Rights: Whether you are an adult citizen or non-citizen, you have certain rights if you are arrested. Before the law enforcement officer questions you during a custodial interrogation, he or she must tell you that you have the right to remain silent, anything you say may be used against you, you have a right to have a lawyer present while you are questioned, if you cannot afford a lawyer, one will be appointed for you. These are your “Miranda” rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. And this does not apply if you volunteer information without being questioned by the police, or if you are not in custody at the time you talk. Otherwise, you can only be questioned, without a lawyer present, if you are given these rights and you voluntarily give up your rights and if you understand what you are giving up. NEVER GIVE UP YOUR RIGHTS!
Once arrested, a suspect is transported to the police station, where he or she is searched and booked. Booking is where personal information such as the defendant’s name, date of birth, place of birth, height and weight is recorded, the suspect is fingerprinted and photographed, and a police report concerning the essential facts of the crime is prepared.
At this point, several things can happen. Either the police issue a charging document if the case is such that they are empowered to do so such as in a DUI charged by traffic tickets, or a citation such as for a petty theft. Otherwise, the officer must make an Application for Statement of Charges and present it to a District Court Commissioner. If the Commissioner determines that probable cause is set forth in the Application, then the Commissioner will issue a charging document which will then be served upon the Defendant. At that time the Commissioner decides whether to release the person or personal recognizance or to set bail.
BAIL or P.R. : Your get out of jail card!
Referral for Prosecution
Crimes are classified into three basic categories:
• Felonies (Fines, Restitution, Probation, County Jail, State Prison, Parole)
• Misdemeanors (Fines, Restitution, Probation, County Jail, State Prison)
Once the complaint is prepared and served, it is filed with the clerk of the court, assigned a case number, and a trial date is set. There are times when the case is assigned a preliminary inquiry date which takes place before a trial date is set.
CASE PROCESS ( FELONY)FELONIES
A felony is a criminal offense defined as such by statute.
There are six basic parts to the felony process.
• Preliminary inquiry
• Bail Review
• Preliminary Hearing
• Pretrial Readiness Conference
• Motion Hearings
This is the very first court appearance you will have and it is the process by which a person is brought before a court to hear and answer criminal charges against him or her. Your personal presence is required. If you are out of custody be on time no matter what.
Six things occur at arraignment:
• Defendant is advised of his or her constitutional rights,
• The charges are read to defendant, and a copy of the complaint is provided,
• Bail could be reviewed,
• A date for the defendant’s next court appearance is set. As discussed more in depth below, that next date may be a preliminary hearing if at least one of the charges is a felony, or a pretrial hearing if the charge if charges are misdemeanors only.
Bail Review / O.R. (Release on “Own Recognizance”)
The second step is the bail review. The accused is entitled to a bail review by the Court. Bail is money that an arrested person gives to a court to ensure that he will appear in court when ordered to do so. The Eighth Amendment to the U. S. Constitution requires that bail not be excessive.
Released “on their personal recognizance,” or “P.R.”. If the accused has strong ties to a community, has little or no past criminal record, a job, and is not a danger to the community or a flight risk a judge may be convinced to grant P.R. Simply put, the accused released on P.R. doesn’t have to post bail. If the judge denies P.R. then your lawyer can pursue the next level of relief, a lowering of your bail.
Preliminary Examination – The Preliminary Hearing / Pretrial Hearing
The next step is the preliminary hearing. If the defendant is charged with a felony, he or she is entitled to a preliminary hearing before a judicial officer within 10 court days of being charged. (Persons charged with only misdemeanors are not entitled to a preliminary hearing.) The purpose of the preliminary hearing is to challenge whether probable cause exists for the felony offense.
At the preliminary hearing before a judge without a jury, the prosecutor must show that there is a strong suspicion that a crime has been committed and that the defendant is probably guilty. This evidentiary standard is relatively easy to meet, and is far less that the “beyond a reasonable doubt” evidentiary standard used at trial. This means that a defendant may be held to answer upon evidence that would be insufficient to sustain a conviction at trial. Usually, the case will simply be presented by the arresting officer who can present hearsay.
If the prosecutor makes the required evidentiary showing at the preliminary hearing, then the charges remain in effect along with the bail setting. If charges are dismissed, the defendant is discharged and, if in custody, immediately released. If only some charges are dismissed, the defendant remains charged on the remaining charges.
Pre Trial in the Circuit Court
Once your case gets filed in the Circuit Court, and after an initial appearance therein, the case will be set for Motions and/or Pre-trial.
Pretrial Readiness Conference
This is set up to see if your case can settle. If your case does not settle at this readiness conference, your case will proceed to Motions then to your trial date.
This step allows your lawyer the opportunity to challenge evidence that the prosecutor may try to introduce at trial.
The final step is the jury trial. There must be a unanimous verdict for guilt. There will usually be 12 jurors and 2 alternates. In some cases a jury trial is waived and the defendant is tried before only a judge. This is called a court trial.
Defendants must be brought to trial within a specified time period. For felony cases, it is within 180 days of the initial appearance, unless the defendant agrees or consents to a later date.
A jury trial is comprised of the following parts: jury voir dire (questioning) and selection, opening statements, presentation of evidence (divided into State’s case, defense case, and State’s rebuttal), closing arguments, verdict, then sentencing.
On the date set for trial, jury selection shall begin. Occasionally a jury will be waived in which case the judge will determine whether the defendant is guilty or not. Otherwise, a jury must be selected to make that determination.
Jury selection begins with the judge directing the clerk to call the jury assembly room in the courthouse, and have a panel of prospective jurors sent to the courtroom. In a typical criminal case, a panel is composed of 30 or 35 prospective jurors. To obtain such panels, the Jury Commissioner must summon prospective jurors to court. Names of prospective jurors are obtained from the licensed driver rolls, and registered voter rolls. Persons summoned receive a court order to appear for jury duty, unless disqualified or excused. Everyone is eligible to be a trial juror, except non-citizens, minors (under age 18), non-residents of Maryland, non-residents of the county, convicted felons, persons who do not possess a sufficient knowledge of English, persons already serving as a trial grand juror, and persons who are the subject of a conservatorship.
Once the judge and the attorneys have examined all of the prospective jurors, and both sides are either out of peremptory challenges or accept the 12 prospective jurors, the 12 are sworn in as jurors. The judge and attorneys also select one to four alternate jurors (in very long or complex trials sometimes more than four), who will also be seated and hear the evidence, but who will not participate in deliberations unless one of the 12 regular jurors is excused from the panel.
Normally, jurors are allowed to return home at the end of each court day and are free to go elsewhere during breaks, such as the lunch recess. In a few cases, however, where there is a concern that the jury may be influenced by outside publicity or public pressure, the court may order the jurors sequestered. In that case, the bailiff has full time charge of the jury, and provides food and lodging to the jurors during trial, at public Expense. Jurors who are sequestered have only limited contact with those outside the court system, including family and friends. They are also limited in the material they can read and the television programs they can watch.
Once the jurors and alternate jurors are seated, the trial begins. First, most judges give the jury a brief introduction to the case and the participants in the trial and some preliminary instructions on how to approach their duties. This usually includes reading the criminal complaint or information, introducing the lawyers, and defendant and court staff to the jury, explaining the quantum of proof necessary before the jury can find a defendant guilty (proof beyond a reasonable doubt), and explaining about direct and circumstantial evidence.
Next, the lawyers may make opening statements, with the prosecutor going first. These statements are a brief “road map” for the jury and judge about what each side expects the evidence to prove. The statements are expected to be factual and not argumentative. It is common for the defense to reserve its opening statement until after the close of the prosecutor’s case, but sometimes the defenses will give its opening statement immediately after the prosecutor’s.
Once these preliminary matters are completed, the prosecutors “case-in-chief” begins, with the prosecutor calling percipient witnesses and expert witnesses who have relevant testimony. Percipient witnesses are witnesses who saw or heard or experienced something that is relevant to the defendant’s guilt or innocence. An example of a classic percipient witness would be a crime victim or eyewitness. Expert witnesses testify about subjects that are usually technical or scientific, but can testify on any subject not within the common experience of most persons and who are qualified by education, training or experience.
The witnesses are first examined (questioned) by the prosecutor. The defense can object to any question that the defense thinks is not allowed by the rules of evidence. The prosecutor can then again examine the witness, but the examination is limited to the scope of the cross-examination. This second examination of the witness is called re-direct examination. This back-and-forth process continues until both sides excuse the witness. During its case-in-chief, the prosecutor may also introduce exhibits. Exhibits are things such as a gun, the results of a lab test of blood for the presence of drugs, a lab test on a substance in defendant’s possession showing the substance to be illegal narcotics, or a forged check.
After the prosecution has completed its evidence, the prosecution rests. At this point, the defendant may make a motion for a judgment of acquittal, also called a Penal Code section 118 motion. In bringing this motion, the defendant is claiming that the evidence then before the court is so insufficient as to one or more counts that no rational jury would convict. If granted, the charge is dismissed. If denied, the defense phase of the case begins.
It is important to remember that a defendant never has to prove his or her innocence, and a defendant does not have to say anything, do anything or prove anything. The burden of proving the defendant’s guilt beyond a reasonable doubt always remains with the prosecution. If the defendant chooses to do so, at this point, the defendant may present his or her witnesses and exhibits, with the prosecutor being able to object and cross-examine. The defendant may even decide to waive his or her constitutional right to remain silent, and testify, subject, of course, to cross-examination by the prosecutor. Alternatively, the defense will occasionally rest without presenting any evidence. This is usually occurs when the defense believes that the prosecutor has not proved the case beyond a reasonable doubt.
If the defense puts on evidence, afterwards, the prosecution may offer rebuttal evidence. The prosecutor may not, however, fill in gaps in the case-in-chief under the guise of rebuttal evidence.
Once both sides have rested, the judge will then instruct the jury on the applicable law by reading the jury, jury instructions. These instructions are usually standardized instructions and include such things how to evaluate the evidence, the standard proof required (beyond a reasonable doubt), the elements of each charge that has to be proved and some guidelines on how to conduct deliberations. If there is a dispute as to what law applies to the case, the judge will decide what instructions to give.
Finally, the parties are allowed closing argument, where each side argues what it believes the evidence shows and what inferences the jury must draw from the evidence. The prosecutor, because he or she has the burden of proof, is allowed two arguments: the opening argument and a rebuttal argument to answer the defendant’s argument. The defendant only argues once, but may waive argument, in which case the prosecutor is not allowed rebuttal.
When all argument is completed. The case is submitted to the jury for a verdict. The bailiff takes custody of the jury and to ensure that the jury’s deliberations are not interfered with by outside information or persons. The jury is required to decide the case based only on the evidence presented at trial, reasonable inferences drawn from the evidence and the applicable law. The jury is not allowed to conduct a further investigation, or consult other sources or persons. To insure that there are no outside influences, the jury retires to a private room to conduct its deliberations.
The first thing a jury does is select a foreperson, who then leads the discussion. Any member of the jury may be the foreperson. Then they decide the charges, one by one. Once deliberations are completed, if the jury has reached a unanimous verdict one way or the other on each charge, the foreperson advises the bailiff and is conducted back into court.
Once back in court, the judge has the clerk read the verdict(s). It is customary for the defendant and his or her attorney to stand and face the jury when the verdicts are read. Once read, the clerk asks the jury if those are the jurors’ true verdicts. The jury answers as a group. If a guilty verdict to some or all of the charges, the defense usually asks that the jurors be polled individually. If polled, the clerk asks each juror, by juror number “Juror No.1, is that your verdict?” and the juror answers “yes” or “no.” If the verdict is recorded, the jury is thanked and discharged, and sentence is either pronounced immediately, or a time for sentencing is set. If out of custody, the judge may remand the defendant into custody, pending sentencing. If there is a not guilty verdict as to all charges, the jury is not usually polled. The jury is again discharged and the defendant is also discharged, which means that the court loses jurisdiction over the defendant and he or she is free to leave.
Occasionally, the jury cannot reach a unanimous verdict on some or all of the charges. In such cases, the jury is said to be deadlocked or hung. When the foreperson advises the judge that the jury cannot agree upon a verdict, the judge may inquire of each juror whether any further deliberation would be helpful, or if additional instructions would be helpful. If the foreperson indicates which charge the jurors cannot agree upon, the judge may even allow the attorneys to reopen closing argument and reargue as to that charge. If, after any further deliberation, the jury cannot unanimously agree upon a verdict, the judge will declare a mistrial, and discharge the jury. The judge may reset the case for a new trial or dismiss the charges.
In non-death penalty cases, if the defendant is convicted of at least one of the charges, the next phase is the sentencing. If it is a death penalty case, the next part is the penalty phase. This is where the prosecution presents evidence as to why this defendant is deserving of the death penalty. The defense presents mitigating evidence as to why this particular defendant should not be sentenced to death. The jury then decides if the sentence should be death or life imprisonment without the possibility of parole.
The last phase of a criminal case is the sentencing of a convicted defendant. Most crimes are punishable by a term of incarceration in a jail or prison and a fine. Sentencing for misdemeanors and for felonies is somewhat different, so they are discussed separately.