What to Expect During Each Stage of a Criminal Case
I get asked this all the time: What happens next? What should I expect? Both are great questions.
Let's move through a typical criminal case, step-by-step, and how I can help:
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, its likely they are already convinced you are guilty and only want you to make an admission of wrong-doing that will be used against you later in court. For that reason, my advice is always to avoid speaking with law enforcement without first consulting me. 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.
A preliminary arraignment is a procedure designed to protect your right to know the nature and cause of the accusations against you. A preliminary arraignment follows your arrest, is presided over by a magisterial district justice, and will often take place at either a) the office of a magisterial district justice, or b) by video from police barracks. You do not have a right to counsel at this stage, but having an attorney with you is advisable if at all possible. This is the stage where your bond is initially set. Though every case is different, in the past I have had success in making arguments for unsecured or ROR (released on own recognizance) bond, saving my clients money 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 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 the one who likely committed it. Proof beyond a reasonable doubt is not required at this stage.
That said, a preliminary hearing is anything but just an initial procedural step in the process. Your preliminary hearing is your first opportunity to discover and evaluate the evidence the Commonwealth may present against you at trial. The Commonwealth may call an alleged victim, an identification witness, material fact witnesses, etc. Once called and examined by the Commonwealth, it's your turn (or better yet my turn on your behalf) to cross-examine these witnesses, fashioning vital impeachment tools and preserving favorable testimony for use during pre-trial proceedings or during your trial. This is perhaps your best opportunity to evaluate the case against you and often sets the tone for your defense.
After a preliminary hearing, any charges held over for trial are transferred to your county's Court of Common Pleas. Once I enter my appearance on your behalf, putting both the Court and the Commonwealth on notice that I am serving as your attorney, I will engage in Discovery practice. 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.
The next step, called Omnibus Pretrial Motion practice, is also our first opportunity to 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 and pretrial conferences between myself and the prosecuting attorney, plea negotiations often take place. A plea offer, or plea bargain, is an agreement between a defendant and a prosecutor whereby the defendant agrees 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 myself and the prosecuting attorney. The decision whether to accept a plea offer or proceed to trial is ultimately your decision to make.
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, the Commonwealth's attorney, the presiding Judge and myself, acting as your attorney, meet during a process known as jury selection or 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 and sworn to hear the cause, 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, after direct-examination comes my opportunity to cross-examine witnesses called to testify against you, revealing, among other things: bias, memory lapse, selective memory and of course, dishonesty. After the Commonwealth concludes its case-in-chief, the defendant has the right, but no duty, to present evidence in his/her case-in-chief. We might call additional eye witnesses, present physical evidence and/or even call expert witnesses on your behalf. Many times a thourough 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. Jury deliberations are followed either by a unanimous verdict or a hung jury.