This post explains the steps that occur in every criminal case from beginning to end. Read it and call us if you need a free consultation about your criminal case.
Stop & Arrest
The whole process begins with a stop or an arrest by the police. A stop is not as formal as an arrest. A police officer will stop you to ask questions. They cannot stop you unless they have a reasonable articulable suspicion that criminal activity has occurred. What is a valid “reasonable articulable suspicion”? There are a million cases dealing with that question, and the answer is not always black and white. It is important to discuss the specific facts of your case with a lawyer to make that determination.
However, keep in mind that you always have the right to remain silent, even if you are just stopped and questioned. You do not have to answer any questions from the police at any time. In fact, everyone should know their constitutional rights regarding criminal law.
If you are in a vehicle, the police officer may ask to search it. The police cannot search your vehicle unless they have “probable cause”, or you consent. They often seek your consent because they do not quite have “probable cause.”
You should never give your consent to a search of yourself or your vehicle. They may end up searching anyway later, but by refusing to consent your lawyer can now challenge the probable cause the police officer asserted as the justification to search. If you give your consent, these arguments are generally considered waived and your lawyer will have much less to challenge in court.
“Probable cause” is a more serious standard than “reasonable articulable suspicion”, and successfully challenging that issue could result in evidence being suppressed or a case being dismissed. Let your lawyer handle that question, because it is vital to your defense. Generally, a police officer can arrest you if they have probable cause to believe you committed a crime, or if there is a warrant out for your arrest. If a stop and search leads to an arrest, you should not resist it. Resisting arrest is a crime itself. The best advice if you are arrested is to be calm, be silent, and demand a lawyer before they ask you any questions.
After being arrested, the officer will “book” you. This is the process where they take your fingerprints, get your mug shot, do a background check, and ask you questions. Remember, you have the right to remain silent and the right to demand an attorney.
You do not have to answer questions. Many otherwise defensible cases result in convictions due to incriminating statements made during the arrest and booking phase. No matter what the police say, they are not going to let you out of jail because you answered all of their questions! Just be calm, be silent, and let your lawyer deal with things later. That is the best thing you can do for your case.
The decision to charge often comes from the prosecutor, not the police. The victim does not get to charge you, and contrary to popular belief, they don’t get to drop the charges either. The prosecutor will often take into account the wishes of the victim, but they do not have to. You are in the hands of the state after being arrested. They cannot hold you indefinitely, however. You must be charged with a crime within a certain limited amount of time or they must release you.
This is where the Judge will formally read your charges and inform you of your rights. You should have asserted your right to a lawyer before now. If not, do so at this time. If you are asked how to plea, and you do not have an attorney, you should always say “not guilty”. You can always change your mind later.
The Judge will decide on whether or not you should be released, and if so, how much your bail should be. Bail is the amount of money you, or someone else, must post with the court so they can be sure you will reappear. If you do not, your bail will be forfeit, and the state gets it. If bail is set, someone must post it for you or hire a bail bondsman to do so. If you hire a bail bondsman, and you run off, the bondsman loses the bail money to the court. If that happens, they send someone after you – a bounty hunter. Plus, there will be a warrant out for your arrest. Sometimes you will be released on your own “recognizance”, which just means there is no bail. But you are now in the system and will have to appear for further proceedings.
Discovery is a pre-trial process where the prosecutor must give certain information to your attorney. Your attorney gets to see all the evidence against you before trial. This is not always a straightforward process, and it is important to have an experienced criminal defense attorney to conduct discovery properly.
This is the best reason to remain silent, not give your consent to a search, and demand an attorney if you are arrested. Your attorney can make any number of pre-trial motions, such as asking the court to exclude certain evidence from trial if it was gained in an illegal or impermissible manner. It is far more difficult to suppress evidence if you spoke voluntarily or gave consent to a search.
Frankly, it is hard to suppress evidence without an experienced criminal defense attorney to aggressively litigate the legal issues. There are thousands of statutes, cases, rules and exceptions to the rules that apply to criminal pre-trial issues. State’s Attorneys are experts in this area, and you need one too! This is not a task you want to handle alone.
This is a fancy word for negotiations. Your attorney and the prosecutor will negotiate over what charges will stick, which will be thrown out, and usually the terms of your sentencing. Your attorney will get the best deal for you that he or she can. If you have an attorney during the pre-trial discovery and motions stage, this can often increase your leverage and help you negotiate a better outcome.
If the prosecutor and your attorney cannot reach an agreement on a plea bargain, your case will go to trial. Trial is where the government must put on their evidence that you committed a crime, including producing witnesses live in court to testify. You do not have to testify. You do not have to put on any evidence whatsoever, and are presumed to be innocent. The government must prove its case, and it must prove it to the Judge or Jury beyond a reasonable doubt.
If you are found guilty, or if you enter a plea of guilty based on a plea bargain, you will then be sentenced by the court. If there is not a binding agreement, the Judge will decide on the proper punishment. This can be anything from probation to active jail time. There are guidelines that apply and give judges a general range of punishment options.
Your attorney can do a lot for you at sentencing, including making sure all the procedures are followed, arguing for lesser guidelines and advocating for circumstances which would allow the Judge to sentence you to less than that called for in the guidelines. Also, an attorney can help you before sentencing by telling you what actions you can take to make the Judge more likely to be lenient on you. For instance, if you are charged with drunk driving and take a class or go to rehab, the Judge may take that into consideration when sentencing you. This is where an experienced local attorney is especially helpful. Knowledge of the local judges and county court systems is critical at this stage.
This is an overview of the criminal process, with some tips on how best to handle things at each stage. But the first and most important piece of advice is this – get an attorney anytime a criminal charge is made against you. It is no joke. You could lose your rights, your money, and your freedom.