What are the steps in a criminal Case?
Most criminal prosecutions commence upon the arrest of the accused (or the Defendant). Most often the arresting agency is a city police department, or, in the case of a federal prosecution, one of the federal agencies such as the FBI, the DEA or the IRS. These agents usually have the discretion to detain the defendant until a court can set a bond, or these agents can release the defendant upon the defendant’s own recognizance. However, just because a person has been arrested does not mean the arresting agency will actually charge the person. The decision to charge the person is usually made by the arresting agency consulting with the prosecuting attorney.
After the defendant has been arrested, he must be arraigned. Arraignment is the first official court action against the defendant. The legal purpose of an arraignment is to officially read the charge to the defendant, to permit the defendant to enter a plea (e.g. guilty, not guilty or no contest) to the charge, and to have the court set a bond. If the defendant is in custody, the arraignment must take rather quickly. In Ohio, the judge has the ability to set a number of types of bonds and conditions for pretrial release. The purpose of the bond is to assure the attendance of the defendant at his trial. The judge can set (i) a cash bond, (ii) a cash/surety bond, (iii) a ten percent bond or (iv) a personal bond. A cash bond requires the defendant to post the entire cash amount set by the judge. A cash/surety bond requires the defendant to either post the cash amount or utilize the services of a bondsman. If the defendant has sufficient collateral and does not appear to be a flight risk, a bondsman will post a promissory note with the court (on behalf of the defendant) for the full amount of the bond. In return, the bondsman is paid a one-time fee equaling approximately ten percent of the set bond amount – a fee which the bondsman keeps forever. A ten percent bond requires the defendant (or a family member or friend) to post just ten percent of the bond with the court, with the other 90% to be due to the court if the defendant fails to appear for trial. If the defendant appears for all court proceedings, the defendant will be entitled to the ten percent back from the court. A personal bond does not require the defendant to pay anything to a bondsman or to the court, and assumes that the defendant, basically on his honor, will appear for all portions of the court process.
Most, but not all, judges will set what is called a “pretrial” in the criminal prosecution process. The use of the word “trial’ in the term “pretrial” is technically misleading in that there is really no official court proceeding at all. A pretrial is basically just an informal meeting between the prosecutor and the defendant’s attorney to discuss the facts of the case and a possible plea arrangement. In almost all cases, the defendant must be present on this court date. If the prosecutor and the defense attorney reach a plea arrangement, the judge will go on the bench and officially take the plea and, in most cases, refer the defendant to the appropriate probation department for a presentence investigation. However, if the judge chooses to do so, he may sentence the defendant immediately after the plea.
If the defense attorney and the prosecutor are unable to reach a plea arrangement, the defendant will have to take his chances at trial. The defendant can chose whether he wants a jury trial or a bench trial. A bench trial is where there is no jury and the judge renders the verdict (as well as controls the trial process). In Ohio, a jury trial in a state prosecution consists of twelve jurors. All twelve jurors must reach the exact same decision in order for there to be a “verdict.” The prosecution will present the prosecution’s case first (often referred to as the prosecution’s “case-in-chief”). They will do so primarily through the testimony of witnesses and the admission of exhibits. The defense attorney will be able to cross-examine each of the prosecution’s witnesses and will challenge the admission of certain exhibits into evidence. After the prosecution has presented its case-in-chief, the defendant will present his case (often referred to as the “defendant’s case”). The defendant will also present his case through testimony of witnesses and the admission of exhibits. As with the prosecution’s case-in-chief, the prosecutor will be able to cross-examine the defendant’s witnesses and will challenge the admission of certain defense exhibits. All of the witness testimony and admission of exhibits are strictly controlled by a specific set of rules (which the judge, the prosecutor and the defense attorney will know from experience and study). The length of the trial depends entirely upon the type of case involved. Some cases can take less than a day while others can take months.
If I am stopped for a DUI, what if any test should I take?
» Field Performance Tests
There are a number of field performance tests that various police agencies administer. These include, among others: horizontal gaze; walking a straight line and turning; one leg raise, alphabet; etc. The police are looking for evidence to use against you. The Police have made observations about your condition by your driving, your breath, your eyes, the smell of alcohol and other observations they make. The field tests support their conclusion.
You do not have to take these tests. There is no consequence for your failure to do so, other than you may be considered uncooperative and arrested. You have the option of telling the officer you would like to do the tests, but your attorney advised you not to. Or, tell the officer you want to contact your attorney before performing any tests.
You must realize that, depending on the amount you have had to drink or based on the amount of medication or drugs in your system, likelihood of your passing these tests are slim. Remember, you are likely nervous, tired and possibly under the influence. You have not done these tests before and are being judged by someone who has done and observed these over a thousand times. You are not likely satisfying the officer’s requirements.
» Breath, blood, or urine tests
There may be times where you will have no choice as to whether or not to submit to these tests. If you are unconscious, if you are transported for medical treatment, if the police obtain a search warrant and if you refuse to cooperate, depending on the jurisdiction you are in, you could be facing a felony. However, if you have the option to take or not take the test, there are a number of factors to consider.
First of all, always try to reach your attorney for advice. Make sure your attorney is familiar with these laws and the consequences to you for failure to take the test. Yes, you may lose your right to drive for a refusal, but often you can receive occupational privileges after a short suspension.
If you are unable to reach your attorney, you need to consider how much you had to drink before taking or not taking the test. If you believe you will be over the legal limit, likely you should not take the test. In Ohio, if you reach a certain limit, the penalties are enhanced, for example mandatory 6 days in jail versus 3 days in jail. You need to consider all of these factors before taking the test. If your test result is above the legal limit, it is likely the attorney’s options are limited. Unless the police did not follow the procedures properly, the test results will come in against you in court. That may be all that is needed to convict you of driving under the influence.
Should I allow the police to search my car or house?
The Constitution of the United States of America and of the State provides that you are free from unreasonable search and seizure. There are many exceptions to the requirement that the police obtain a search warrant before they search your home or automobile that can possibly be included here. Suffice it to say, I advise that consenting to the police searching your home, your person, or your vehicle is usually not in your best interest except in certain circumstances where you have no choice (probation, etc.). Either they will do it without your consent or, if they believe it is necessary, they will seek a search warrant.
If you consent to the search, you lose almost all possibility of challenging the search. You could still argue that you did not voluntarily consent to the search; that you were coerced, etc., but your chances of success are slim.
If the police do conduct a search without your consent, at least you have the opportunity to challenge it in court. You may not win, but at least you have an issue that can be raised at the trial and appellate levels. It is important that you do everything you can to help your attorney and yourself. This is one way to do that.