The Criminal Defense Process

Criminal defense processes are difficult, confusing, and complicated.  Knowing one’s legal rights is a huge factor in garnering a favorable outcome.  A criminal defense attorney is really the only individual versed in these laws and rights, and contacting one as soon as possible is always in your best interest.  Discussing the details of a case is highly unadvised before speaking directly with a criminal defense attorney willing to represent your case, as any information to any other person can be used in a summons to testify against you in the court of law.

The Criminal Defense Timeline

District Courts:   The District Court process of criminal cases can be simplified into Stop, Search, Arrest, Booking, Arraignment, Pre-Trial, Trial, and Appeal.

Superior Courts:  The Superior Courts process for criminal cases is similar, except for there are indictments by grand juries and probably cause hearings in District Courts.

Elements of Criminal Cases Explained

Stop:  Law enforcement can legally stop any individual for questioning under probable cause laws.  Though a stop is not an arrest, an officer may pose questions, which an individual can refuse.  Additionally, a person can be frisked during a stop, if the officer believes the individual possesses contraband or is dangerous and armed.  In a pat down search only, the officers are not allowed to reach into pockets, unless they identify objects by plain feel, which may be contraband.

Search:  Search warrants are court orders allowing police to search for specific items, in a specific place only.  There must be probable cause present to issue a search warrant.  Probable cause means specific items sought in a search are related to criminal activity and that the certain items will be found in the place searched specifically.  In some instances, searches may be performed legally without a search warrant per se, including:

  • Consent searches, which an individual allows themselves, their vehicle, or their residence to be searched with their consent.  Consent is never required to be given by individuals to law enforcement for searches.
  • Automobile searches, which involve arrest of an individual inside a vehicle and the ensuing search inside the vehicle.  To perform search of the entire vehicle, including locked glove compartments or trunk, probable cause is needed.
  • Searches incident to arrest, which is when law enforcement officers search a person’s body and clothing for hazardous or illegal items when making valid arrests.
  • Plain view, which is when something is within the plain view of an officer, who has the right to be in the position to view this illegal object.
  • Exigent circumstances, which are searches that may be done if "exigent circumstances" present themselves, which demand immediate action, such as avoiding the destruction of evidence.

Arrest

For law enforcement to arrest an individual, probable cause must exist.  In essence, police officers must have a reason to believe that a crime was, or is in the process of, being committed and the person being arrested perpetrated the crime. In some cases, an arrest warrant is not necessary, unless in the event that an arrest is going to occur within a person’s home.

Following arrest, the Constitution offers a number of rights to protect the arrested individual.  Two integral rights include the right to remain silent and the right to have an attorney.  Following an arrest, an individual does not have to say anything to police or detectives, until an attorney is present.  Also, an opportunity to contact an attorney must be provided to the arrested individual.

Miranda Laws

Following a landmark Supreme Court case, the Miranda rights of persons being placed under arrest were established.  Under Miranda Laws, individuals placed in police custody receive certain Constitutional rights, which must be clearly outlined by arresting law enforcement officers, including:

  • Right to remain silent
  • Right to an attorney during questioning
  • Right to a court appointed attorney if an individual cannot afford one

Contrary to some misnomers, Miranda rights do not have to be explained until an individual is actually taken under police custody.  In the event law enforcement questions individuals prior to taking them into custody, this information may also be used in a court of law as well.

Booking

Following an arrest, law enforcement will transport an individual to a station for the booking process. During the booking process, fingerprinting, questioning, searches, and photographs will be requested of the arrested individual.  Additionally, all property on an individual will be confiscated, recorded, and stored at the station.

Appointment of an Attorney

In the event one cannot afford an attorney, a court appointed attorney will be provided to defend this individual.  This person is generally a public defender.  Following the appointment of an attorney, an individual may request a substitute attorney under certain conditions.  Certain conditions for replacement of public defender include:

  • Reason to believe that the attorney is not providing effective assistance
  • Conflict of interest between the person and the attorney
  • Attorney becomes ill and cannot continue to the representation

Charges

When a clerk of the court files a complaint, a person is formally charged with given offenses.  In some instances, even a law enforcement officer or private citizen can file complaints.  Routinely, the courts will accept officer complaints made under oath.  For private citizens making a complaint, a clerk’s hearing must occur to show cause.  In this hearing, the accused individual can hear complaints, as well as oppose the issuance of a complaint.  Certain instances are exempt from the hearing requirement, such as threat of imminent bodily injury or risk of flight from the state.

Next: Arraignment, Bail, Trail and Appeals >>>

 

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