We are constantly being asked about the criminal process. So, this blog will briefly review what happens when a person is accused of a felony – starting from the arrest.
1. Arrest and Booking
After the police have gathered their evidence (which is not always thoroughly done), often the accused person is arrested, taken to jail, booked, then released. One good thing about being arrested is that it sends a message that the accused must take the matter very seriously. At times, a cop will “just issue a citation,” which falsely leads the accused into thinking the crime must not be that serious. So, they just go to court and plead guilty, thinking by doing that, they “will be done with it.” That sort of thinking is very misguided! When you plead guilty, you are not done with it, you are now married to it!
It’s important you understand when the cops come to arrest you that being cooperative with them by spilling your guts will NOT prevent them from arresting you. So, zip it! However, don’t flee, and do not resist the arrest in any way. Hey, you’ll get out of jail soon enough. Also, if you are not accused of a really serious crime, you may be released because the jail only has so much room, or because the judge does not see you as a flight risk.
The government has 72 hours to charge you, or let you go (once you’re at jail). Remember: whatever you say while in the police car, or at the jail, can and will be used against you, so, again, zip it! The cops have no authority to cut a deal with you – that’s what the prosecutor does. Further, the jail has the right to listen in on your phone conversations, and even to record them under certain conditions. Sometimes the prosecutor will “fail to file,” and the accused gets released. Don’t get too excited if that happens because they normally do so later on, and you could be re-arrested if and when that happens.
2. Initial Appearance/Roll Call
Unless you are experienced with the criminal justice system, you may be thinking that when you attend your first court date, you may automatically go to jail that same day, but such is typically not the case. However, as a precaution, it’s not a bad idea to check with a bail bondsman. We typically use Sportsman’s Bail Bonds and their number is 801-262-6060. Just call them, and they can look up your case, so that you’ll know if you need to have them post a bond for you – in Utah, they charge 10% and may require collateral.
At the initial appearance the court may just ask you if you have an attorney, or if you want one appointed to you. If you tell the Judge you would like to hire your own attorney, he or she may likely just give you a new court date. If there is a warrant, you could be taken into custody.
At this point, the judge may address bail, and whether it should be lowered (or raised), but that is typically done at a separate “bail hearing.” If you have an attorney, remember that he or she does not have a magic wand, and cannot simply get the bail waived because you “just cannot go to jail.” It cannot be stressed enough that you should call a bondsman before going to court, so if you are arrested, you have them on standby.
When you hire a lawyer, bring him a list of all the good stuff you’ve done in your life, so that prosecutor can be swayed to show some mercy. Otherwise, you may be viewed as “just another criminal.” Sometimes getting a felony down to a misdemeanor comes down to whether the prosecutor thinks you pass the sniff test. So, provide your lawyer with lots of “deodorant!” By that we mean a copy of a good school report card, a positive letter from an employer, a list of your community service, etc.
The court may also let you go on your “own recognizance.” But they may also require you to go to the local jail, and get “booked and released.” That means you’ll go to the jail, and get fingerprinted and photographed. Also, at that time, your lawyer may be given “discovery,” which is the police reports and other documents that may pertain to your case. Many times, it those documents are incomplete, and you’ll have to wait to get the video of your arrest, blood results, etc.
3. Preliminary Hearing
The next main hearing is the “preliminary hearing.” Most cases never get to the prelim stage. Why? Because most people come to defense lawyers with plenty of evidence against them, so they take a deal when a good one is finally offered. In other words, there are cases that require you to FIGHT LIKE HELL. However, most cases require you to REPENT LIKE HEAVENS. After all, prosecutors get cases that cops have already done the leg work on, and the cop would not have submitted it to them unless they felt there was enough evidence to convict.
If you need more time before deciding on whether to have “a prelim,” ask the judge for a “status hearing,” and that could buy you another 45 days or so. There is no need to rush things. If there is overwhelming evidence against you, it may be a good idea to waive the prelim, so that the prosecutor does not interview more witnesses and dig up more dirt against you, which could result in more serious charges – and then, you’ve shot yourself in the foot! In fact, if you are given a really good offer, and they’ve got you dead to rights, snatch up the offer right then and there! Then at sentencing have your lawyer brag about how quickly you repented, and how you’ve learned your lesson. Don’t fight just for the sake of fighting.
On the contrary, if you know you WILL go to trial, waiving a preliminary hearing is normally pretty stupid because it is your only crack at the witnesses.
It is critical that you make a list of EVERY witness you think your lawyer should call to the stand, and provide a list of questions, too. Nobody cares about your case more than you do, and nobody knows the facts better than you do! Those questions and answers will be pure gold to you if the case goes to trial.
Also, unless extremely weird facts exist, you do NOT want to testify at that hearing. You want to subpoena anybody that may testify against you, so that your attorney can know what they are going to say ahead of time.
Once the preliminary is forced by the Defendant, the prosecutor’s “more-than-fair offer” may be “taken off the table.” So, pushing the case to a preliminary hearing escalates the case on both sides. This is a “mini-trial,” and you can usually expect to lose. But, don’t have heartburn over this, after all, it’s only purpose is to essentially show the judge that somebody is accusing you with enough facts – that if a jury were to believe – you would be found guilty. It makes little difference at that point if you think you can prove the witnesses are a pack of liars. At this hearing, the prosecutor has the burden of proving, by a simple probable cause standard, each of the elements of the charges brought against the defendant, and to show he has some sort of testimony or evidence behind them.
At this stage, the rules of evidence are very relaxed, and you may even see the prosecutor simply submit affidavits or other documents to get the judge to move the case onto the next level. He may even show the judge a video clip, which cannot be cross-examined at that point. Unless the prosecutor cannot provide any evidence, the case will be “bound over.” That just means that it is moved into felony court. Make sure to request a copy of that hearing the same day!
4. After the Preliminary Hearing
Then, you will have a couple court meetings which give the attorneys a chance to settle the matter. Of course, if it does not settle, it goes to trial – which is something both sides typically want to avoid.