The following information is presented as a courtesy, and I need to throw in a disclaimer that nothing in this article constitutes legal advice unless there is a written and signed agreement for representation between me and you.
The First Appearance
- Following an arrest, you will most probably appear at a First Appearance hearing. This is simply a formal hearing at which you will be informed of the specific charges against you, advised of your rights and where the court will set a bail. Among the factors that a judge uses when setting bail is the severity of the crime, your contacts in the local area, your prior record, and are you likely to threaten any witnesses. The Judge may also ask you at this point if you want to hire your own attorney of if you want the court to assign you a court appointed attorney.
- The judge will set your bond and in most cases bond can be posted by a bail-bondsman, cash or property. If you elect to use the services of bail-bondsman, they will usually require a "fee" amounting to 15% of the total bond amount, plus surcharges. If bond is set by the court at $25,000.00, the bonding company would charge approximately $3,750.00 as their "fee," plus they may require some type collateral for the balance to assure they would not suffer any loss in the event the accused failed to appear. None of the money paid to a bonding company is ever recoverable. If, however, property or cash is put up as bail, the property is returned at the conclusion of the case, assuming that the accused did not "flee" the jurisdiction of the court. and nothing is lost. If you are unable to "make bail," you remain in jail until your case is disposed of, via trial or plea. It is theoretically possible to get an "O/R bond", which means on your own recognizance, but you better be a well known local minister charged with a minor crime, because the truth of the matter is, Judges in my area of practice don't do it. Also remember, whether you post bond, or someone you loves posts your bond, if you decide to run from the authorities while on bond, the person who "posted" your bond forfeits their cash or property.
- In addition, bail (bond) jumping is a separate crime in itself. It is almost impossible to defend that charge and it may give the prosecutor extra leverage in dealing with your current case. If you do not appear for trial, in addition to having a bench warrant issued and forfeiting your bail, the likelihood that you will ever get a bond again is pretty small. Sooner or later, chances are that you will be found and arrested. The fact that you fled the jurisdiction can be used against you in court.
- It is not uncommon at all at the arraignment for your attorney and the prosecutor to discuss your case with the judge. Often times, valuable information is obtained from the prosecutor at this "bench conference." There may be some discussion about a plea-bargain and in some cases, charges are actually disposed of or felony charges are reduced to misdemeanors. Your attorney will discuss any offer from the prosecutor with you.
- If the charges are serious felonies, most probably they will not be disposed of at the arraignment. The prosecutor may give notice that they intend to present your case to a Grand Jury. At the Grand Jury, the District Attorney (or the Assistant District Attorney) will present he case against you, and you have no right to be present. In some cases if you are a law enforcement officer charged with a crime, you may be able to attend.
The Preliminary Hearing
- Let's say you don't get out of jail on bond. What next for you? A preliminary hearing is in your future. A preliminary hearing can benefit your case because your lawyer learns what evidence the state has against you. Of course, it can benefit the State if you get up and testify. Most prosecutors can create confusion in the average client, therefore I recommend my clients maintain their silence at this stage of the proceedings. The state puts on evidence to establish probable cause to show the court why the matter should be set for trial and the defense attorney has the ability to cross-examine witnesses. Some prosecutors would rather avoid a preliminary hearing because they do not want to expose their witnesses at that early stage and elect to go to the Grand Jury instead.
The Grand Jury
- A Grand Jury consists of a number of local citizens, usually 16 to 23, who hear evidence presented by the prosecutor and decide if that evidence is strong enough to support an indictment. Never forget that the Grand Jury is an "arm" of the prosecutor's office. A prosecutor normally has no problem in getting an indictment because the Grand Jury usually only hears one side; the side of the prosecution. There is no judge to rule on the admissibility of evidence or defense lawyer to cross-examine the witnesses, and they usually hear nothing from the defense. Grand Jury proceedings are secret and defense lawyers can only be present in certain situations as noted above. In most cases, the Grand Jury is a rubber stamp for the District Attorney, and most of the time they just use the case detective or investigator as a witness.
- You, personally, have no right to testify before the Grand Jury. Sometimes, if you hire a lawyer soon enough in your case, your lawyer can meet with the District Attorney's Investigator before the case has been presented to the Grand Jury. Sometimes your lawyer can give the State information about you or about the incident that can minimize the impact of a Grand Jury Indictment, and sometimes even keep an Indictment from being handed down naming you as the Defendant. That is a great reason to get a lawyer working on your case as soon as possible.
The Indictment
- The indictment is a formal accusation that identifies the specific charges against you. The difference between an indictment and an informal accusation complaint is that an indictment is based on sworn testimony and a "accusation" is an "affidavit" signed against you by the prosecutor. Indictments are usually required for serious crimes.
- Occasionally cases are presented to a Grand Jury before anyone is arrested. If the Grand Jury indicts, you won't be notified that your case is being presented to a Grand Jury. If you are indicted this manner, a bench warrant is usually issued for your arrest and you are jailed until you can post bond.
Plea-Bargaining
- Plea-bargaining is nothing more than negotiating the disposition of a case and sometimes, it is appropriate. Whether you take a plea or go to trial is an important decision that you should make and not your attorney. It is your life. Once your attorney knows enough about the evidence against you, they can evaluate the chances of your winning at your trial. They will balance your odds of winning, against the amount of time you could get if you lose trial, and the sentence being offered in the plea-bargain. Once you do agree to plead guilty, you cannot change your mind later and "get back your plea," so make sure that it is honestly in your best interest.
- The decision is difficult, especially if you're innocent and the evidence against you looks strong. There are provisions in the law for a person to plead guilty without admitting guilt. One is referred to as an ALFORD plea.
- Sometimes it's hard to admit guilt if you're innocent, but some defendants do it because their chances of winning are so slim they'd rather take the sure thing, usually amounting to probation or low jail time, than risk a long jail sentence. If you do go to trial and lose, you will normally get more time than what was offered in the plea-bargain. No matter how experienced or skillful your attorney is, there are absolutely no guarantees of winning a trial, so some defendants take pleas to avoid the uncertainty of trial. Defendants who are in jail awaiting trial usually are more likely to take pleas than defendants who are out of jail, because they just want to get out of jail.
Tomorrow Part 2 on Courtroom Procedure
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