Criminal Law Process
If there is probable cause the accused will be arrested. If you are arrested the police should inform you of your constitutional rights. At this point your rights will include the right to remain silent and contact an attorney. If you have been arrested you may not be held indefinitely before being charged with a crime. If you are held too long with out being formally charged your attorney can request your release. After the arrest you will be fingerprinted, booked and will have to relinquish you personal belongings. The defendant will be taken before a judge and bail will be set. After the arrest the prosecutor will review the case to determine if there is reason to take the case to trial. The prosecutor is a government employee with the power and discretion to determine whether or not to try a case.
After you are arrested you may be released until your hearing or you may have to post bail. In some cases you will remain in police custody until the court hearing. At the first court appearance the verdict will be read and the defendant has an opportunity to plead "guilty", "not guilty" or "no contest" to the charges brought against him. At any stage of this process a defendant can plead guilty to the charges or may be able to argue and negotiate lesser charges. If this is done they will receive the sentencing agreed upon by the attorneys or the judge's final sentencing.
If the defendant does not plead guilty then the case will proceed to pre-trial hearings. These hearings are generally done in front of a grand jury. The grand jury has been gathered to hear prosecutorial evidence regarding the crime that has been committed. The grand jury will hear all of the evidence and decide whether or not to indict the defendant for the crime which they are accused.
The Six Amendment guarantees an individual the right to a trial by a jury of their peers. In most cases this means 12 people will sit on the jury and the verdict must be unanimous. The jury is selected with the defense and prosecution having the right to include and exclude certain members of the jury. After the jury is selected each side makes their opening statements. Opening statements are followed by the presentation of evidence by the prosecution. The defense will then present all of their evidence. The defendant has a right to either testify or not to testify. If the defendant chooses to testify they will be cross-examined by the prosecuting attorney.
Conviction or Acquittal
After the trial has been completed the jury must decide if the defendant is guilty beyond a reasonable doubt. In most areas the verdict must be unanimous. If the jury is unable to come to a unanimous verdict then a mistrial may be declared and the government may have the option to retry the case.
If the defendant is found guilty the next step is sentencing.
In recent years guidelines have been imposed in criminal sentencing proceeding. In most cases the guidelines will take into account:
- Prior criminal history of the defendant
- The type and seriousness of the crime committed
- The accused attitude and if they are remorseful
- If the accused has been helpful in other related crimes
Sentencing guidelines have been criticized but they do help bring some uniformity in sentences imposed for certain types of crimes.
All defendants have the right to appeal their verdict. The state must be supportive in this endeavor by providing an attorney if necessary. After appeals have been exhausted a defendant may be able to file a habeas corpus petition. This petition can be filed in a federal court and may be used to show that the state court did not properly prosecute the case.
Federal Court System
Criminal prosecution in the federal court system is similar to the state court system. The charges are brought against the accused by a federal authority such as the Federal Bureau of Investigation or the Secret Service. The case is argued by the United States District Attorney and will proceed through the United States District Courts. If the defendant is convicted and files an appeal it will travel through the Circuit Court of Appeals for the appropriate federal district.
Criminal Law Term of the Day
Battery is generally grouped with assault and is labeled assault and battery, although assault can involve the threat of physical force while battery requires actual physical contact.
Category: Criminal Law
Question of the Day
My 10 year old son has been charged with discharging a gun. What do I do?
If your minor son has been charged with a felony contact a lawyer immediately.
Category: Criminal Law
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