Under the Bill of Rights any areas of the law not expressly reserved or given to the federal government are reserved to the States or the people. The founding fathers of our nation believed that the local government was in the best position to protect and provide for its own citizens.
Nothing is more devastating to a community than out-of-control crime. – Alan Autry
Today the states enact several criminal laws to protect the local communities and their interests. Some of these laws mirror their federal counterparts. But others are tailored to the state’s specific interests. For example, states such as Texas and Florida have criminal laws enacted to protect livestock because of the number of state residents that own farms. But similar laws would not be necessary in places such as Hawaii or Alaska.
How Does the State Start Their Case?
Arrest
All of us are familiar with what an arrest is. We have seen it on TV, if not in person. It is where a law enforcement officer handcuffs an individual and takes them to jail.
Arrest Warrant
If an officer does not have an opportunity to arrest a person, or if they are not sure whether they should arrest a person, then they fill out a report for review by the State Attorney or District Attorney. The attorney reviews the report. If they determine that the individual should be arrested, they send a request to the court to issue a warrant for the person’s arrest. This warrant is usually accompanied by a formal charging document such as an information or indictment.
An arrest warrant can also be issued as the result of a criminal investigation. When detectives do undercover operations, or investigate crimes where the identity of the suspect is learned later, they fill out a sworn affidavit that they feel an individual has committee a crime. They forward this sworn statement to the judge. If the judge agrees with the officer, the judge will sign a warrant for the arrest.
Information
In all 50 states a misdemeanor charge can be brought by an Information, a document that is sworn to by the attorney alleging that a person committed a crime. In almost all of the 50 states, a felony may also be brought by sworn information as opposed to an indictment. The Information must contain certain data:
In all 50 states a misdemeanor charge can be brought by an Information, a document that is sworn to by the attorney alleging that a person committed a crime. In almost all of the 50 states, a felony may also be brought by sworn information as opposed to an indictment. The Information must contain certain data:
- Jurisdiction of the court
- A notarized oath of the attorney bringing the charge
- The defendant’s name
- A description of the Defendant including race, height, sex, date of birth and, if possible, social security number and last known address
- A description of the charges including
- What the act was
- Where it occurred
- What time it occured
- Who else was involved
Indictment
An indictment at the state level is similar to that of a federal indictment. Just like the juries that are used in a trial, the grand jury is empanelled to hear the evidence that the state has against the individual. But instead of determining guilt or innocence, the grand jury determines if there is enough evidence to charge a person with a crime. If they decide that there is enough evidence then an indictment is entered and a warrant is issued for the person’s arrest. If they do not indict then no warrant is issued as no charges are brought.
In the states where indictments are used, a portion of the states only use indictments for capital crimes where the death penalty is sought, murder cases and sexual battery cases that involve children. Other states use indictments for all felony offenses. Whether an indictment is necessary for your charge differs from state to state.
Summons
A summons is a notice from the court that you need to appear and answer to a charge. It avoids the need to put the person in jail in order to start the criminal case. As long as you appear in court on the date indicated by the summons you will not be arrested for the crime. A summons is usually the document issued in misdemeanor cases.
Citation
A citation is the same as a ticket. A citation charges you with a traffic crime or a petit crime. Such as loitering or littering. A citation signed by an officer starts a criminal case the same way an information signed by a state attorney or district attorney does. The citation must have all of your personal information, the crime charged and must give you a date to appear in court to be valid. It must also be sworn to and signed by the officer issuing you the citation.
Any of these actions on behalf of the state government can open a criminal case against you. Once the state files the charges against you, you proceed through the criminal process.
The State Process
The process that a case follows in the State system is very similar to that of a case in the Federal system. This is because most of the process in a criminal case is guaranteed by the safeguards found in the Constitution of the United States. States may grant you more rights than those found at the Federal level, but they may not take any rights away. This means that the stages in a state case almost directly mirror those of its federal counterparts.
The stages of a criminal case that occur after you are arrested or charged with a crime are as follows.
First Appearance
The purpose of first appearance is to determine if there was Probable Cause for your arrest and then to set a reasonable Bond amount if necessary.
Probable Cause means that there is a rational reason to believe that you committed a crime, or a justifiable belief that the facts alleged when viewed in the light of a reasonable and prudent person are true.
A reasonable Bond is a monetary amount set to ensure a person’s appearance in court in light of the charges and the individual’s circumstances.
Many factors are considered when determining bond:
- The nature of the charges
- How long the person has lived in the area
- Family ties
- If the person has a job
- If the person has dependents
- If the person has a passport or is in some other way a flight risk
- If the person has previously failed to appear for court
- If the person has threatened the witnesses or is in some other way a danger to the community if they are released
- The person’s income
Note that there is a presumption that, when warranted, a person shall be released without posting any monetary bond at all.
Determination of Entitlement to Counsel
If the person is facing a jail sentence, and if they can not afford to hire an attorney to represent them, then the court may appoint an attorney to represent the individual to represent them in their case. This determination is usually made at first appearances or arraignment.
Bond or Bail
If the individual is able to post the bond as needed then they are released from the jail. The person can post all of the bond themselves in cash. If you post a cash bond, the bond will be refunded to you so long as you do not fail to appear to court.
If they do not have the money to post a bond then they may post a surety bond with the bail bondsman. If they post a surety bond, the bail bondsman will require a 10% deposit in money or property that is non-refundable to the individual in return for posting the bail.
If the bond is too much for the defendant to post with the money they have or through a bondsman, then the defendant can request a bond hearing.
Adversarial Preliminary Hearing
An adversarial preliminary hearing is similar to a mini trial. The purpose of the hearing is to force the witnesses against you to show up and state under oath reasons you should be charged with a crime. Sometimes as a result of these hearings the charges are dropped. If not, then the attorney has a sworn statement on the record to use in helping to prepare your case.
Bond Hearing
If you cannot afford the bond set for you at your first appearance, your attorney may ask for a bond hearing. A bond hearing is a time set in front of the judge to present additional factors as to why your bond should be set to an amount you can post. The main purpose is to ask the judge to let you out of jail under circumstances that you can afford. Sometimes the judge will agree and let you out. Other times they will not agree and your bond will remain the same.
If you have a bad record or multiple charges the state may set a bond hearing to have your bond increased or even revoked. This is especially true in violent crimes where the State feels that you will be a danger to the victim or to witnesses. So while your bond can go down at a bond hearing it can also go up if you are not careful.
Arraignment
At your arraignment the judge will inform you of the charges the state has filed against you. You will then be given an opportunity to plea “guilty” or “not guilty.”
- If you plea “guilty” your case will proceed to sentencing. It may be the same day or the judge may set it for a special hearing.
- If you plea “not guilty” your case proceeds to trial.
Discovery
After your arraignment, your attorney will request discovery. Discovery is the name given to the process by which the attorney receives copies of all of the evidence that the State intends to use against you. The State may also request discovery from you, such as the names of witnesses or identity of your alibi.
As part of the discovery process, your attorney may take depositions. In a deposition the witness that is going to be called at trial must come in ahead of time and give a sworn statement. The attorney then uses this statement to gather more information in your case. At trial the attorney may use the statement to try to impeach the witness or make them seem less credible.
Pre-Trial or Case Management
This is a status date that occurs after the attorneys receive discovery. At this date pre-trial motions are filed and deadlines are set. This is also where the trial date is determined. Sometimes a defendant will enter a plea at this time. But in all cases this serves as a control date to make sure the case progresses through the system.
Pre-Trial Motions
Motions are set in order to sort through the evidence and set the boundaries of a case. The four most popular pretrial motions are the motion to suppress, motion to dismiss, motion to compel and the motion in limine.
- Motion to Suppress – this motion is filed when it is alleged that the officer obtained some type of evidence illegally. Usually the attorney alleges a violation of your Fourth and Fourteenth Amendment right to be free from search and seizure, or your Fifth Amendment right to self incrimination. If the motion is granted then the State is unable to use that particular piece of evidence against you at trial.
- Motion to Dismiss – In this motion, the attorney asks the judge to throw out the case. The premise is that even if everything the state says that happened is true, it is not enough to charge you with a crime.
- Motion to Compel – This is used when your attorney needs some type of evidence and the State refuses to provide it. The attorney asks the court to command the State to give it to you.
- Motion in Limine – this is a motion that is filed before trial to prevent the state’s witnesses from mentioning some fact at trial. The most common ground for a motion in limine is to exclude any reference to your prior arrest record.
The Trial
If you go to trial you elect to have a jury determine if you are innocent or guilty. The steps are as follows:
- Jury Selection (also known as Voire Dire) – this is the process by which you, your attorney and the attorney for the state select the individuals that will serve on the jury and hear your case. The idea is to get a panel of jurors who will be fair to both sides.
- Opening Statements – Both attorneys explain to the jury what they think the evidence will show during the course of the trial.
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The State’s Case – The state then puts their witnesses on the, presents their evidence and makes their legal arguments. - Cross Examination – Your attorney then questions the State’s witnesses to try to show inconsistencies or questions in their testimony.
- The State Rests – When the State is done presenting their case they rest or say they are done. Then it is your attorney’s turn to present your case.
- The “JOA”or Judgment of Acquittal – Your attorney will move for a JOA. This means once the State rests your attorney will ask the judge to find that the state has not presented enough evidence to the jury for them to determine if you have committed the crime. If it is granted, the case is over and your case is dismissed. If not then your attorney presents your case.
- The Defense’s Case – If you have witnesses or evidence, it is at this time that you get to present it to the jury. The State then has the opportunity to cross examine your witnesses just like your attorney cross examined the witnesses for the state.
- Closing Arguments – This is the last argument that the State and your attorney make to the jury to summarize the evidence and tell the jury why they should vote guilty or not guilty.
- Charge to the Jury – after closings, the judge will read the jury the jury instructions that are specific to your case. These are the guidelines the jury must use to determine their verdict.
- Deliberation and Verdict – The jury then takes the instructions back to the jury room to make a decision. When they come to a decision then they return to the courtroom with the verdict.
If the verdict is 'Not Guilty,' you go free, and if it is 'Guilty', then you proceed to sentencing.
Sentencing
If you enter a plea or are found guilty of a crime, then it is up to the judge to pronounce sentence. A sentence is your punishment. For the more minor crimes sentencing is immediate. For the more serious crimes there is a sentencing hearing.
- Guidelines – All 50 states have “scoresheets” or sentencing guidelines to help the judge make a decision. The scoresheet or guidelines give guidance to the judge as to what sentence would be appropriate in your case.
- Pre-sentence Investigation – At times it is appropriate for a pre-sentence investigation or “PSI.” When a PSI is ordered, a probation officer will do a thorough check of your background. They will look into your family history, medical and psychological issues, get statements from other people involved in the case and any other relevant factors. They will them put their recommendation for sentence into a report and present it to the judge. The judge can either follow the recommendation or not.
The sentence can be a fine, probation, jail or a combination of these depending on the charge.
Appeal
If you feel that something was not done correctly in your case you have the right to appeal to a higher court. The higher court will review the record and determine if there were any errors. If there were and the errors were bad enough, the higher court will direct the lower court to correct it by dismissing your case or starting it over from the beginning.
The laws vary from state to state in every area of the law. Although the overall process is the same in all states, each one has a slightly different time frame and procedure for each stage. It is important if you are arrested to find an attorney who practices in your state so that you can take advantage of every opportunity available.
