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Criminal Procedures

Criminal Case Procedure Prior to Trial

  1. First Appearance: This step applies only to felony cases; skip to number three if you are interested in misdemeanor cases. At the first appearance, the defendant will be formally notified of the charges and may be advised of his/her rights by a magistrate. A date is set for a preliminary hearing, which the defendant may waive. In felony cases, no plea is entered at this stage.
  2. Preliminary Hearing: The purpose of a preliminary hearing is to determine:
    1. whether probable cause exists to show the crime was committed, and
    2. whether probable cause exists to show the defendant was the person who committed the crime.

    At the hearing, the judge listens to witnesses' testimony and evidence. If the judge finds probable cause that the defendant committed the crime, the defendant is then bound over for trial. If the judge concludes there is insufficient evidence, the case is dismissed. Charges may be amended at the preliminary hearing.

  3. Arraignment: The judge reads the information to the defendant, who must enter a plea. If the plea is "guilty," the defendant will be scheduled for sentencing. If the plea is "not guilty," a pretrial conference and trial dates are usually scheduled. A "not guilty" plea preserves all of the defendant's options. There are also two other types of pleas:
    1. No Contest: This has the same procedural effect as a guilty plea, but rather than admitting guilt, the defendant admits that the prosecutor would likely prevail at trial. Some judges will not accept this plea.
    2. Alford plea: This plea may be used when the defendant wants the advantage of a plea bargain, but cannot or will not admit guilt. Instead, the defendant pleads to avoid the potential consequences of going to trial, and pleads without admitting guilt. Some judges will not approve this type of plea.
  4. Pre-Trial Motions: Before a trial begins, the prosecution and defense may file any number of motions with the court. A motion is a formal request to a judge to issue an order. These may include motions to suppress a defendant's prior convictions, motions to suppress evidence, or requests for discovery. If a defendant would like to file a motion, it must be done five days before the trial and must be in writing. All motions should be heard and decided by the judge before a trial can proceed.
  5. Pre-Trial Conference: At its discretion, the trial court may hold a pre-trial conference in which the prosecutor and defense attorney attempt to negotiate settlement of the case. A judge may refuse to approve a proposed settlement. Cases not settled are set for trial.
  6. Plea-Bargaining: In this process, the prosecutor and defense attorney negotiate a mutually satisfactory disposition of the case. The judge does not participate in the plea bargaining process, but must approve the proposed disposition. The defendant also must approve the plea bargain. If all parties accept the plea bargain, and the defendant enters a guilty plea, the next step is the defendant's sentencing.

Trial Procedure

Depending on the type of action, a case may be tried before a judge (bench trial) or before a jury with a judge presiding. Whether the case is civil or criminal, or tried by a judge or jury, the procedure is essentially the same.

  1. Jury Selection: At the trial's beginning, the clerk calls a panel of prospective jurors. The judge or, in some cases, the lawyers, ask the potential jurors questions about their background and general beliefs to determine any biases or prejudices. This process is called "voir dire." If any attorney or judge feels that a juror is not qualified for the case, the juror is excused for cause. There is no limit to a party's challenges for cause. Both sides are also entitled to a certain number of peremptory challenges, which means they may excuse some prospective jurors without stating any reasons (unless the motives appear racially motivated).
  2. Opening Statement: Attorneys for each side make statements to inform the court and jurors of the nature of the case, the evidence they will present, and the facts they expect to prove. The defense may choose to wait to make an opening statement until after the prosecution has rested its case, or may choose not to make one.
  3. Prosecution Evidence/Witnesses: Each side makes its case based on testimony from witnesses and physical evidence. The prosecutor/plaintiffs call their witnesses for direct examination to state what they know about the alleged crime or injury. The defense may ask questions of the same witnesses (cross-examination). Then the prosecutors/plaintiffs may re-examine their witnesses (re-direct). Physical evidence, such as documents, pictures and other exhibits, is also introduced.
  4. Defense Evidence/Witnesses: After the prosecution has rested its case, the defense may call witnesses to give testimony to disprove the prosecutor's/plaintiff's case and to establish the defendant's case. The prosecutor/plaintiff may cross-examine the witnesses. The defense may then re-examine its witnesses.
  5. Rebuttal: When the defense has presented all its witnesses, the prosecutor/plaintiff may again call witnesses to rebut any new information introduced by defense witnesses. The judge may allow surrebuttal (a rebuttal to the rebuttal) by the defense.
  6. Jury Instructions: Before closing arguments, the judge will instruct jurors carefully as to what law they are to follow. In civil cases, the jury must determine that a preponderance of the evidence favors one party. In criminal cases, the defendant must be found guilty beyond a reasonable doubt to be convicted.
  7. Closing Argument: After jury instructions are given, both attorneys summarize the evidence and testimony in an effort to persuade the judge or jury to decide the case in favor of their client. The prosecution makes its closing argument first, then the defense, and then the prosecution responds to the defense's closing argument. Either side may waive closing arguments.
  8. Jury Deliberations: After closing arguments, the court orders the jury to retire to the jury room for deliberations.
  9. Verdict: In criminal cases, a verdict must be unanimous and must be given in open court with the defendant present, unless he chooses not to be.
    1. For criminal cases there are four possible verdicts: guilty, not guilty, not guilty by reason of insanity, or guilty and mentally ill. If the jury cannot agree on a verdict, the judge may declare a "hung" jury, declare a mistrial, and order a new trial.
    2. For civil cases, two types of verdicts are rendered - general and special. The verdict does not have to be unanimous; at least three-fourths of the jurors must agree to the verdict. In general verdicts, the jury has decided the case either in favor of the defendant or the plaintiff. In special verdicts, a general decision is not announced. Rather, the jury has answered certain factual questions, leaving the "total" decision up to the court.
  10. Sentencing/Judgment:
    1. In a criminal case, after a verdict of guilty or a plea of guilty, the defendant has the right to be sentenced in no fewer than two nor any more than 45 days following conviction. If the defendant chooses, he or she may waive that time and may be sentenced on the day of conviction.
    2. In a civil case, after the verdict or after the court has decided the facts in a bench trial, a judgment will be rendered. The court will award money damages or injunctive relief.


Page Last Modified: 9/17/2014
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