Common Questions and Answers in the Criminal Process

What are my constitutional rights?
What can I expect in a criminal case?
What is an arraignment?
What is the difference between felonies and misdemeanors?
What happens at sentencing?
What appeals rights do I have?
How does bail work?

Your constitutional rights include:

• Right to a Lawyer
• Right to Cross Examine and Confront Witnesses
• Right to Testify on One's Own Behalf
• Right to Remain Silent
• Right to Speedy Trial
• Right to Use Courts Subpoena Power to Compel Witnesses to Testify
• Right to a Jury Trial (in Most Cases)
• Presumption of Innocence

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Process of a Criminal Case

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What is an Arraignment?
An arraignment is where the defendant is read specific charges against him. It is the first step in the criminal process. All arraignments are conducted after the suspect is arrested and booked by law enforcement.

What Happens to the Defendant at the Arraignment?
The arraignment is the time where the judge will ask if the person appearing is the person identified in the charges. In addition, the judge will ask whether the defendant will plead not guilty. It is highly unusual that a defendant would plead guilty at the arraignment.

At an arraignment:

1. The defendant will be provided with written charges.
2. The defendant will be asked to state his identity.
3. The defendant is entitled to counsel.
4. If charged with a felony, the defendant is required to reply to the written charges with a plea of either guilty, not guilty, or nolo contendere (no contest). If charged with a misdemeanor, the defendant may or may not be required to reply with a plea at the initial arraignment.
5. The judge will set the defendant's next appearance schedule.
6. Bail is set. The defendant has a right to argue for a bail reduction.
7. The discovery process begins. Discovery at the arraignment usually consists of a police report and a complaint.
8. If the defendant pleads guilty at the arraignment, the judge may sentence the defendant at that time.

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Differences Between Misdemeanors and Felonies
Generally, 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 Justice Court.

A felony crime is punishable by one year or more in state prison or a penitentiary. Felonies are brought in the District Courts in the State of Utah.

The misdemeanor and felony arraignment processes are virtually identical to one another with one exception. In a felony case you have the right to a preliminary hearing.

It is recommended that the defendant obtain legal representation prior to arraignment. A public defender may have little time to review the case before arraignment, or may not even be assigned the case until arraignment. Preparation is key to a successful defense. A private attorney can meet with the defendant prior to arraignment, review the case, and provide the defendant with step-by-step options prior to the arraignment process.

Misdemeanor: The Arraignment To Appeals Process

Arraignment
The defendant may plead guilty, not guilty or no contest. If the defendant pleads guilty or no contest, he/she can expect to be sentenced. Very few cases are dismissed at arraignment. Once the arraignment is completed, the defendant prepares for trial by scheduling a next appearance of a roll call, pre-trial, preliminary hearing, disposition hearing, etc.

Pre-Trial Conference
This involves a meeting between prosecution and defense. Topics discussed include plea bargain opportunities, pretrial motions and other factors in the case, such as the defendant's character and prior criminal history.

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Sentencing
The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or heavier sentence. The defendant may make a statement to the court. In addition, in some jurisdictions the court may ask for a report from the probation department prior to sentencing the defendant.

Appeals
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to review specifically identified errors in procedure with the possibility of changing the lower court's decision. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict, and been sentenced.
Once the trial has been completed, the facts have been decided. They cannot be changed by an appellate court. The appeals process reviews defects in procedure of the trial. If the defense attorney can identify substantial improper procedural issues, he may be able to win the appeal. Note that the timeline of the appeals process varies from state-to-state.

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Felony: The Arraignment to Appeals Process

Arraignment
The arraignment in a felony is identical to that in a misdemeanor case. Bail and identity are established, charges are ascertained and the attorney of record is confirmed. Very few cases are dismissed at arraignment.

Pre-Preliminary Hearing
This involves a meeting between prosecution and defense. Prosecution must produce sufficient evidence and witnesses to maintain the charges. Topics may be discussed which include plea bargain opportunities, strengths and weaknesses of the prosecutions case, and other factors, such as the defendant's character and past history.

Preliminary Hearing
At the preliminary hearing the judge determines whether sufficient evidence exists to maintain the case. The judge: 1) Decides whether there is probable cause to believe a crime was committed; 2) Decides whether there is probable cause to believe the defendant committed the crime.

Pre-Trial Conference
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
A jury trial is the fact finding phase of the case. It is the in-court examination and resolution of a criminal case. At the trial a decision will be reached as to the innocence or guilt of the defendant. Unlike a plea-bargained settlement which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will win. The trial begins with the prosecution's opening statement. The defense attorney may also present an opening statement at this time. The prosecution presents his case to support the charges and then rests. The defense presents his case to refute the charges and then rests. Closing arguments by both the prosecution and defense conclude the presentation part of the trial. The jury then deliberates innocence and guilt.

In a trial, expect the following to occur:

• Jury selection
• Opening statements presented by the prosecution and the defense
• The prosecution presents their case
• The defense cross examines prosecution witnesses
• The defense presents their case
• The prosecution cross examines the defense witnesses
• Closing arguments are presented by both the prosecution and the defense
• The prosecution, defense attorney and judge decide on specific instructions to the jury
• The judge instructs the jury on rules
• The jury deliberates
• The jury submits their verdict

Sentencing
The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or stiffer sentence. The defendant may make a statement to the court.

At sentencing:

1. The judge almost always determines punishment.
2. The judge may be required to follow specific sentencing guidelines.
3. Factors such as no criminal history, a good public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence.
4. A previous criminal record, use of a dangerous weapon, and the type of conviction may persuade the judge to provide a harsher sentence.
5. Judges almost always give repeat offenders harsher sentences.

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Appeals
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to reverse the lower court's decision. The appellate process is primarily limited to correcting flaws in procedure and not to change a trial courts finding of fact. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict. The timeline of the appeals process varies from state to state. However, time limits do exist.

Plea Bargaining
Most cases end in a plea-bargain. Plea-bargaining is one way to avoid a conviction for the offense charged in favor of an agreed upon lighter conviction and sentence or for a dismissal after a probation period.

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Understanding Bail
Bail is a method to get the defendant released during the trial proceedings. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so. There are typically two factors the judge considers before setting bail.

Any bail argument by the defense attorney must address both parts:

1. Is the defendant a danger to the community?
2. What is the likelihood the defendant will flee?

Bail release options include:

1. Cash Bail. The defendant is responsible for paying the entire amount of bail to be released. The defendant will receive his bail back at the completion of all court appearances.
2. Release On Own Recognizance. If the judge is convinced the defendant is not a risk, he may release the defendant on his own recognizance.
3. Surety Bond. The bail agent guarantees to the court that they are responsible for the bond if the defendant fails to appear.
4. Property Bond. The court records a lien on the property of the defendant to secure the bail amount.

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