What to Expect

Unless a crime occurred in the presence of a police officer, an investigation is necessary. If you have been contacted by law enforcement with regards to a criminal investigation, they may already be convinced you are guilty and are only seeking an admission of wrong-doing to use against you in court. For that reason, its advisable to avoid speaking with law enforcement until you’ve first consulted an attorney. Whether or not you have been charged with a crime, your Constitutional Rights, and your Liberty, may be in jeopardy.

It may also be necessary to begin a defense investigation on your behalf before any charges are filed. Oftentimes key defense witnesses are lost due to relocation, fading memory, etc. Criminal cases can be won or lost before a criminal complaint is filed. The Commonwealth may already be preparing evidence to be used against you. Shouldn’t someone be working for you to find evidence proving your innocence?

An arrest is the act of taking an individual into custody, subjecting him/her to the actual control and will of the person making the arrest. It does not necessarily require the use of force or a formal statement of arrest (“You are under arrest”) and is circumstance driven. What this means is that it is sometimes difficult to tell whether you are under arrest or simply subject to a “mere encounter” or an “investigative detention”, which do not require probable cause. If you don’t know if you are under arrest, politely ask – “Am I under arrest, or am I free to go?” Remain calm and respectful. An attorney cannot stop or prevent law enforcement from arresting or detaining you. If, however, a member of law enforcement wishes to interview or question you subsequent to an arrest you have the right to – and should – have an attorney present. Remember, while it might be tempting to give your side of the story, your arresting officer will make special note of any statements you make, especially those suggesting guilt. You have a Constitutional Right to Silence – invoke it – clearly, politely, firmly.

If you are accused of a non-violent and/or misdemeanor offense, you will likely instead receive notice of your charges by mail from a Magisterial District Court. You’ll receive a notice of preliminary hearing, a summons to appear at same, a fingerprint order and a copy of the Commonwealth’s criminal complaint.

It’s also possible that you may learn that you have an outstanding arrest warrant. If so, the immediate assistance of a criminal defense lawyer is strongly recommended.

If physically arrested, an officer is required to first bring you before a Magisterial District Judge who will advise you of the officer’s accusations and set bond. You do not have a right to counsel at this stage, but having an attorney with you is advisable if possible. In the past I have had success in making arguments for non-monetary bond, saving my clients and preserving their liberty while we work together to formulate a defense.

The purpose of a preliminary hearing is to protect your right against unlawful arrest and continued detention by requiring the Commonwealth to make out a prima facie case (Latin for “at first appearance”) that a crime was committed and that you are likely the one who committed it. Proof beyond a reasonable doubt is not required at this stage.

A preliminary hearing is a vital stage of your defense. This is your first opportunity to discover and evaluate the case against you. The Commonwealth may call an alleged victim, an identification witness, material fact witnesses, etc. Once called and examined by the Commonwealth, we cross-examine these witnesses, fashioning vital impeachment tools and preserving favorable testimony for use during pre-trial proceedings and trial. Your “prelim” often sets the tone for your defense.

Following your preliminary hearing, the Magisterial Court will schedule a Formal Arraignment to take place in the Court of Common Pleas, the purpose of which is to put you on formal notice of the Commonwealth’s accusations against you. This proceeding may, but typically doesn’t occur in a courtroom or in the presence of a prosecutor or judge. It typically involves picking up paperwork. The Formal Arraignment does however begin the time period during which the defense must file certain important motions necessary to your defense.

Following arraignment, Discovery Practice ensues. Discovery refers to the legal procedure for obtaining evidence in the possession of the Commonwealth. Some evidence, such as documents, photographs or fingerprints, are discoverable by law. Other evidence, such as the identity of a confidential informant, is only discoverable by obtaining the Court’s permission. Of course, a defense investigation on your behalf may be ongoing as well.

During Omnibus Pretrial Motion practice, you may challenge the admissibility of evidence the Commonwealth intends to offer against you at trial. Evidence obtained through an unreasonable and unconstitutional search and seizure, confessions and admissions obtained in violation of your right to silence and your right to counsel, identification evidence obtained illegally or suggestively are all ripe for legal challenge at this point.

Throughout these pretrial procedures, plea negotiations often take place. A plea bargain, is an agreement between a defendant and the Commonwealth whereby you may agree to plead guilty to a particular charge or charges in exchange for some concession from the Commonwealth. It may mean pleading to a less serious charge, or to one of several charges in return for dismissal of other charges. It may mean pleading guilty to the original charge in exchange for a more lenient sentence (probation vs. incarceration, fine(s) vs. probation, etc). It is important to note however that defendants have no absolute right to a plea offer. Oftentimes, the best plea bargains are the result of tireless out-of-court negotiations between your lawyer and the prosecutor. The decision whether to accept a plea offer or proceed to trial is ultimately your decision to make. Plea agreements are subject to court-approval.

As the accused, you have a Constitutional Right to a trial by a jury. A jury trial is a fundamental right and is essential in preventing the miscarriage of justice. Before your trial begins, a jury must be selected from the community through the process of jury selection/voir dire. Potential jurors, chosen from all walks of life and from throughout your county and community, are interviewed, questioned and considered for their capacity to be fair and unbiased against you. The process requires an intense understanding of human nature, a strict attention to detail, and the ability to identify and draw-out potential biases in individuals who may otherwise be inclined to hide them.

Once a jury is selected, sworn and instructed by the Court as to their duties, opening statements are made by the attorneys. After opening statements are made, the Commonwealth presents its case-in-chief to the jury, often through the testimony of police officers, alleged victims and/or witnesses. Just as during your preliminary hearing, we cross-examine witnesses revealing bias, memory lapse, selective memory, dishonesty, etc. After the Commonwealth concludes their case-in-chief, we have the right, but no duty, to present evidence in our case-in-chief. We might call additional eye-witnesses, present physical evidence and/or even call expert witnesses on your behalf. Many times a thorough defense investigation will reveal witnesses and evidence that will tend to show your innocence or at least raise a reasonable doubt within a juror’s mind. After the defendant closes his case-in-chief, the Commonwealth has a right to offer additional evidence in rebuttal; you then have the right to offer additional evidence in surrebuttal. During closing arguments attorneys will summarize evidence and argue for judgment in their favor. The Court will instruct the jury as to matters of law. Jury deliberations are followed by a verdict.