Criminal Case Process - FAQs

Posted By Tim Powers || 9-Jul-2012

Tim Powers

Law Office of Tim Powers

940.580.2899

www.timpowers.com

FAQ's – Answers to important questions

What type of sentence may the defendant expect to receive?

There are a myriad of sentencing options for the judge to consider. Sentencing is based on the nature of the case, the defendant's past history, and the defendant's threat to the community. Some sentencing options include jail time, probation, fine, community service, treatment or imprisonment in a penitentiary.

Why should the defendant plead guilty?

Sometimes the best result is a guilty plea. By avoiding a possible court trial, the defendant may plead to a lesser charge and therefore avoid a potential stiffer penalty. Most judges will offer a lighter sentence in exchange for a guilty plea at the arraignment. In addition, a guilty plea speeds the process forward and eliminates a long, drawn out trial process.

Will people know the defendant has a conviction on his record?

A conviction is public record and may be reviewed by the general public. The ability to expunge a conviction varies from state to state depending on the nature of the crime.

How long does a misdemeanor trial take?

A misdemeanor trial may take anywhere from one day to two weeks.

Is a misdemeanor conviction public record?

Yes.

How long does a felony trial take?

The length of a felony trial depends on the nature of the case. Generally, felony cases take between two months and one year to complete.

Is a felony conviction public record?

Yes.

Do I have to talk to the judge or jury?

No. The defendant has a Constitutional right to remain silent. Whether to put the defendant on the witness stand is a decision the defendant and his attorney must make. Defense attorneys agree that it is sometimes better to keep the defendant off the witness stand, except in special cases. Once the defendant testifies, he opens himself to cross-examination by the prosecution. Because of this Constitutional right, the judge will instruct the jury that the defendant's failure to testify must not be considered in any way a sign that the defendant is guilty. Of course, if a defendant is entering a plea or accepting a plea bargain, he must answer the judge's basic questions with regard to his understanding of these actions.

Why do I keep seeing different attorneys and judges?

It is important that the defendant be comfortable with his legal team. A defendant may have one attorney or several, as each may be a specialist in a different area of law pertaining to the case. Prosecuting attorneys may work in teams as well. The defendant may appear before several judges throughout the process.

Is the police officer coming to court?

The police officer is a member of the prosecution's team. He will come to court only if the prosecutor wants him to. The police officers and the prosecutors work together to present a case against the defendant. In some cases, if the police officer fails to show in court, the case may end in a dismissal.

When do I bring witnesses to court?

Witnesses may be key allies to the defense. The defense attorney is responsible for gauging the proper time to introduce witnesses in court. Witnesses usually first appear during trial.

What rights do I have at the time of arrest?

The Miranda rights for each citizen and non-citizen are guaranteed by the United States Constitution. They are not required to be issued by police at the time of arrest. If this happens, your lawyer may ask that any statements made to the police not be used against you in court. These rights include the right to remain silent, the right to a lawyer present while you are questioned, and the right to an appointed lawyer if you cannot afford one.

When do I tell my story?

The defendant's story is a critical piece of information that helps the judge and jury decide a case. The defendant presents his story to his attorney. After that, the attorney will tell the defendant's story. It is critical to remember that what the defendant says may be used against him. What the defense attorney says will not be used against the defendant. Of course the trial is the primary period of time where the defendant has the opportunity to present his story.

Can I be questioned once issued my rights?

Yes. However, you can change your mind at anytime.

What if I don't show up? Can my attorney represent me?

The defendant's attorney may represent his client at different stages of the criminal process. The defendant must check with his attorney for when the defendant must appear. If the defendant cannot appear, the defendant must contact his attorney or the courtroom clerk immediately.

What is the difference between federal and state laws?

Federal laws supersede state laws when the two come into play against one another.

May I appeal a decision?

Every decision can initially be appealed. The defendant's attorney will present the defendant with a complete appeals process. Appeals may be heard from both the state and federal level to the U.S. Supreme Court.

How do I appeal a decision?

Each state has different laws and timelines. Normally the defendant has between seven and ten days from final judgment to file an initial appeal.

How many times may I appeal?

The appeal process begins with the next highest court and ends when the highest court, either the state supreme court or the U.S. Supreme Court, decides not to hear the case.

What is the time frame to appeal?

Each state has a different time frame. Consult with an attorney. The rule of thumb is that appeals should be processed as soon as possible after conviction.

How can I withdraw my plea?

The defendant may withdraw a plea by bringing a motion to withdraw a plea. A written motion has to be filed. In some jurisdictions the attorney prepares a written motion. In others, a court clerk will provide a form. In either case, the written document must be filed and a hearing for the request takes place.

May I represent myself without the benefit of an attorney?

Any defendant can represent himself without the benefit of an attorney.

When can a police officer conduct a search?

As long as you provide consent an officer can make a search. Or, the officer can make a search upon presentation of a search warrant.

When can an officer search you or your possessions without a warrant?

An officer can conduct random searches of the car, body and home upon probable cause. An officer can search your car in an emergency or for probable cause. Home searches are confined to the area the defendant is taken into custody. Body searches can occur at the time of arrest.

How can I get bail reduced?

Bail is set at the time of arraignment. It is determined by the seriousness of the defense. Bail is not mandatory. The judge has the right to refuse to issue bail. The defense attorney may bring a motion to reduce bail during any proceeding in front of the court. The judge will look at factors such as family history, background, professional responsibilities, past criminal history, and circumstances surrounding the case.

What if I don't like my public defender?

A request for a new public defender is rarely granted. The defendant's rights are limited to the appointment of an attorney and not to the attorney of their choice. The defendant must prove to the court that representation is sub-standard, even incompetent. That may be done through claiming personality conflicts, or differences in communication, ethics, strategy, or through a potential bias.

What if I think the judge or prosecutor is biased?

The defense attorney may ask the judge to recuse himself (withdraw from the case) or he may file a motion with the court. In some states it is the automatic right of the defendant to recuse a judge on the basis the defendant believes the judge to be biased.

Legal Terms & Meanings

Not Guilty Plea A plea by the defendant claiming innocence of guilt.

Guilty Plea A plea by the defendant claiming guilt.

Nolo Contendre By issuing a plea of nolo contendere, or "no contest", the defendant accepts the punishment without formally admitting that he was guilty. By doing this, he avoids the consequences of a guilty plea with regard to potential liability to other people for money damages.

Arraignment An arraignment is the process by which the defendant is read his rights and the list of charges against him is explained.

Felony A felony crime is punishable by one year or more in state prison. Felonies begin in the state's lower court system but may move up to the state Superior Court, or higher court. (Names for these courts vary from State to State) Sample felony crimes include murder, rape, or armed robbery.

Misdemeanor A misdemeanor crime is punishable by up to one year in county jail. Misdemeanor trials are held in the state's lower court sometimes referred to as Municipal Court. (Names for these courts vary from State to State) A misdemeanor may include such crimes as drunk driving, disorderly conduct and shoplifting.

Preliminary Hearing This only occurs when the defendant's plea is "not guilty" in a felony charge. A preliminary hearing is shorter than a trial but operates similarly. It is conducted in front of a judge without a jury present. The primary goal of a preliminary hearing is to identify which cases are fit for trial and which are not.

Municipal Court Trial A trial in lower court for a misdemeanor. It is usually a trial by judge, although each state has different laws and some states have a trial by judge or jury.

Sentencing Once the defendant has plead guilty or received a guilty verdict by way of trial, he will be sentenced. Sentencing guidelines differ State-to-State.

Superior Court Arraignment Once a defendant has completed the initial arraignment and preliminary hearing in a felony case, the defendant is arraigned in Superior Court. The defendant presents a plea of guilty, not guilty or no contest.

Appeals After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to change the lower court's decision.

Pre-Trial Conference / Plea Bargaining The pre-trial conference is a formal setting where plea-bargaining occurs. The prosecution may offer alternative sentencing. The charge may be changed to a lesser charge. The number of felony counts may be dropped. A lesser punishment for the same charge may be agreed upon.

Trial The process by which a defendant is tried on charges and considered guilty or not guilty. Defendants charged with serious misdemeanors and felonies may be entitled to jury trials. Minor misdemeanor charges may be entitled to trial by judge. The rules differ state-by-state.

Bail An insurance policy to ensure the defendant appears at his next scheduled court date. It is cash or a cash equivalent. An attorney may bring a motion to reduce bail at any appearance before the court. Cash, check, property, or a bond can receive bail, which is a guaranteed payment of the full amount of bail. Once the defendant appears in court, the bail money is refunded. In addition, bail is sometimes waived if the court feels the defendant is a good risk, and therefore is released on his own recognizance.

Voir Dire The process of selecting a jury through questioning by attorneys. This is the time when the attorneys may set the tone of the trial. Many cases have been won or lost in voir dire.

Determinate Sentencing: Some states provide specific sentences based on specific crimes.

Indeterminate Sentencing: Many states do not provide specific sentences based on specific crimes.

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County criminal case or arrest in Denton County, contact the offices of Tim Powers today. There is no charge or obligation for the initial consultation. 940.580.2899.

*Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific legal question you should directly consult an attorney.

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