Criminal Court Process

February 10, 2010 by Maricopa County Court  
Filed under Criminal Court

By Jon Dykstra -

If you’ve been charged with a crime in British Columbia, chances are during the arrest and aftermath nobody told you what to expect. Probably all you learned was the date you’re to show up to court. And that’s if you were released from the police.

Upon arrest, there’s 2 immediate outcomes:

i. You’re released with a court date; or

ii. You’re detained for a bail hearing. Your bail hearing will result in either being released on bail or kept in jail until the outcome of your trial.

Regardless whether you’re released or not, the criminal process is similar.

What’s Next?

1. 1st Appearance

The next step is either you or your lawyer goes to court on the date you were given upon release (or if in jail, the date set by the court). The 1st appearance serves 2 purposes:

i. You receive the particulars of your case from the prosecutor; and

ii. a date is set for your arraignment hearing.

Note that sometimes the prosecutor won’t have the particulars ready for your first appearance. In that case, you or your lawyer will need to attend again before your arraignment hearing.

2. The Particulars

The particulars is the paperwork setting out the prosecutor’s case against you. You or your lawyer can’t build your defence until you review the particulars. The particulars include the charges against you, the police notes, the report to crown counsel (the prosecutor), any technical data (such as breathalyzer results) and any other evidence the prosecutor will rely on.

3. The Arraignment Hearing

The arraignment hearing is held in the court where your case proceeds. This hearing is where you, the accused, enter a plea (not guilty if defending). Then your trial and perhaps preliminary hearing (see below) are scheduled.

4. Preliminary Inquiry

If the prosecutor is listing your charge(s) as indictable (more serious offences), then you are entitled to a preliminary inquiry. If your case is going by summary charge, then you aren’t entitled to a preliminary hearing.

A preliminary inquiry is an opportunity for you or your lawyer to ask questions of the prosecutor’s witnesses – usually the investigating police officers. This is an opportunity to learn more about the case against you. This hearing is held in a court and the testimony of all the witnesses is under oath.

5. Pre-Trial Conference

Before your trial, you or your lawyer must attend a pre-trial conference (PTC). This is usually held 1 to 1.5 months before your trial and is also held in the court. At the PTC, any outstanding issues are resolved. Otherwise, you (or your lawyer) and the prosecutor confirm with the court that both sides are ready for trial.

6. The Trial

Finally, you the accused, get your day in court. Sometimes a judge will decide the matter that day. Other times, the judge will hold off making a decision. If the judge holds off making a decision, you’ll get a date to return to court at which time the judge will issue her or his decision.

If a jury heard your case, then the jury will be instructed to decide your matter right away. You’ll learn the outcome upon the jury making its decision.

If you’re found not guilty, you’re free to go. If you’re found guilty, then you’ll be scheduled a sentencing date (sometimes sentencing may occur right away after the decision). If the sentencing hearing is scheduled in the future, either you’re held in jail until then or released until then. This primarily depends on the seriousness of the conviction and whether jail will be likely sentence. For example, if you’re found guilty of a first DUI, then you won’t be held in jail. If you’re found guilty of 1st degree murder, you’ll most likely be held in jail.

7. The Sentencing Hearing

You hope your matter doesn’t come to a sentencing hearing. However, sometimes it does. The process at a sentencing hearing is that both sides will make submissions for a particular type of sentence (i.e. jail length, probation terms, licence restrictions, etc. – depending on the nature of the conviction). The judge then decides and orders your sentence.

In a nutshell, that’s the criminal process in British Columbia.

To learn more about hiring a criminal defence lawyer in British Columbia, check out Dykstra & Company who are BC criminal defence lawyers. Dykstra & Company represents people charged with DUI and traffic offences, assault charges, and drug charges with law offices in Abbotsford and Surrey, BC.

Jon Dykstra

Article Source:  Criminal Court Process

Criminal Defendants on Trial – The Parties, Charges, Arraignment and Pleas

October 6, 2009 by Maricopa County Court  
Filed under Criminal Court

By Ira Still –

The Parties

The defendant is the accused person against whom the criminal charges have been brought. The Defense team is headed by the attorney and may include an investigator, paralegal and other support personnel who work at the lawyer’s direction to develop the particular case strategy.

The plaintiff is the other party to the court case. This is the party who has lodged the charges against the defendant and commenced the criminal court case. This party  appears on the pleadings as the State of … This party is represented by the prosecuting authority which may be referred to by many names such as the State, State Attorney, District Attorney or D.A. [in some states], Prosecutor, Prosecution or Prosecuting Attorney.  The State Legislature defines and writes the criminal laws that apply to that state. When these laws are broken, it is the State that has been injured. Therefore, it is the State that is the plaintiff in the case. It is the State that prosecutes the defendant for breaking its law.

The Charges

Most state cases are commenced by drafting and filing an Information, which is a written allegation that begins the case in court.   The information is a sworn complaint by the State Attorney who is charging the commission of a criminal offense against the laws of the State that has jurisdiction.  The Informationdeclares that the State Attorney brings the charge.

An offense that may be punished by death [i.e. capital murder] must be prosecuted by Indictment. The state attorney is required to present sufficient evidence to the grand jury that (1) a crime was committed; and (2) the defendant is the one who committed that crime. If the grand jury believes there is sufficient evidence it will return an indictment, which is a plain and concise statement of the charge. It is the grand jury that brings the charge with an indictment. Where there is an Indictment there will not be an Information.

In federal court, the plaintiff is called the “government” and this refers to the United States Government which is prosecuting the case.  It is the United States Legislature that enacts the federal criminal laws. It is the United States Attorney General that is the prosecution. In federal court, cases go to the grand jury and are begun with an Indictment.

Arraignment

Under most circumstances, the defendant’s first time in court will be for the Arraignment. An arraignment must be conducted in open court unless the Defense lawyer files a Written Plea of Not Guilty. The advantage of filing a written plea is that this court appearance can be avoided saving the defendant time and money. This pleading waives the formal reading of the Indictment or Information in open court. If the Arraignment does take place formally in open court, then the judge or the clerk or the prosecutor will read the formal charges out loud. The defendant will be required to enter his/her plea to these charges at that time. A plea of guilty means the defendant does not want to proceed to trial. A plea of not guilty means the defendant wants to proceed to trial.   When the defendant pleads not guilty the court will give the Defense a reasonable time to prepare for the jury trial.

If the defendant is not yet represented by counsel when the Arraignment is held, the court will advise the defendant of his/her constitutional right to counsel under the 6th Amendment to the Constitution of the United States. The court will give the defendant an opportunity to obtain counsel or apply for court-appointed counsel if they qualify as indigent.

The 6th Amendment to the Constitution of the United States contains the trial rights such as a speedy and public trial; an impartial jury; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against them; to be able to subpoena their own witnesses and to have the effective assistance of counsel at all crucial stages of the prosecution. When the defendant pleads not guilty, all of the trial rights immediately attach and remain until the trial jury reaches its verdict.

Entering the Plea

A defendant may plead not guilty, guilty, or where the court permits nolo contendere. The third option arises out of common law in situations where a plea to a criminal charge might have consequences in a civil suit based upon the same wrongful act. E.g. if the state charges the defendant with discharging a firearm in public and a civil plaintiff wants to sue for the projectile killing his dog, the plea of nolo contendere would take care of the criminal case but not summarily act as an admission of negligence in the civil case at the same time. Some courts may also permit a plea in my best interest. This means “I just want to get the case over with but I am not admitting guilt.” Every alternative plea that completes the case without a trial is taken by the law to mean guilty.

Where a defendant refuses to speak (or stands mute) the court will enter a not guilty plea on the record. A plea of not guilty is a denial of every material allegation in the indictment or information. At this stage the court will set a trial date.

A defendant may initially enter a plea of not guilty.  Only the defendant knows his/her true culpability in the matter.  He/She often wants the opportunity to “make a deal” [a plea bargain] to dispose of the case early on. However, this stage is rarely a strong bargaining position for the defendant. The State will most likely offer a maximum penalty, if anything at all. As the case progresses and the evidence is better understood, the defendant could move into a stronger bargaining position.

After discovering what the State’s evidence [e.g. the testimony of its witnesses; and the real or physical evidence of the case] will show at trial and evaluating the probable trial results, the attorney may recommend that the defendant consider a change of plea. The plea bargaining process is a highly specialized area of expertise requiring a seasoned and skilled trial attorney to achieve the best results.

The trial court has discretion to permit a change of plea and wrap the case up without a trial. This could be based upon an agreement with the prosecutor called a negotiated plea bargain or it could be an open plea to the court.  When considering a possible change of plea, the defendant must fully understand all of the terms and ramifications. There must be a factual basis for the plea.  The defendant must understand the significance of the change of plea.  The change of plea must be 100% voluntary on the part of the defendant before the court will accept the change of plea.

Defer to the advice of the Defense Attorney who has years of experience in these matters and will professionally guide his client as he/she endeavors to understand court procedureof the parties, charges, arraignment and pleas.

For more helpful information on success strategies for a person charged with a crime, contact:

Ira Still, Esquire

Web: http://www.istilldefendliberty.com

Info Blog: http://istilldefendliberty.blogspot.com

Ira Still has been a criminal defense trial lawyer in Florida for over 30 years. He successfully represents his clients on all crimes and in all courts. Ira has had many, many jury trials and is well known in Miami and Ft. Lauderdale as a very successful trial and appellate lawyer. He has argued death penalty collateral appeals in the Florida Supreme Court and in various District Courts of Appeal. Ira has tried high profile cases such as police shooting a person and persons charged with shooting police; capital murder and capital sexual battery; violent crimes; drug trafficking; and virtually every other criminal charge.

Ira Still is also an author, speaker, teacher, mentor and coach.

Article Source: http://EzineArticles.com/?expert=Ira_Still

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